CJJ v WAP - [2012] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CJJ -v- WAP [2012] WADC 25

CORAM: KEEN DCJ

HEARD: 24 JANUARY 2012

DELIVERED : 22 FEBRUARY 2012

FILE NO/S: APP 58 of 2011

BETWEEN: CJJ
Appellant
AND
WAP
First respondent
TLF
Second respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 545 of 2011

Catchwords:

Criminal injuries compensation - Section 39(1), whether appellant engaged in criminal conduct and disentitled to an award - Section 41, whether appellant's behaviour at time disentitled him to an award - Whether any conduct had ceased at time of injury and effect of such cessation - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed

Representation:

Counsel:

Appellant:     Mr T H Offer
First respondent            :     No appearance
Second respondent        :     No appearance
Amicus Curiae              :     Mr N T L John appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Leonard Cohen Legal
First respondent            :     Not applicable
Second respondent        :     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Re; Richardson [2009] WADC 93
SW v BB [2010] WADC 86

KEEN DCJ: This is an appeal against the decision of the Assessor of Criminal Injuries Compensation in which the assessor refused the appellant's application for compensation under the Criminal Injuries Compensation Act 2003 (the Act).
The appellant made application for criminal injuries compensation on 25 March 2011 arising out of injuries sustained by him in an incident which occurred on 5 April 2008 when he suffered injuries as a result of an assault upon him.
In reasons for his decision, expressed in a letter dated 27 July 2011, the assessor refused the application on two bases: first, under s 39 of the Act in that at the time of sustaining injury the appellant was committing a separate offence, and, secondly, under s 41 of the Act that the appellant's attitude and disposition contributed to his injuries.

Factual background

The assessor had before him a range of material. There were two statements from the appellant dated 5 April 2008 and 25 March 2011, a statement and letter from the appellant's mother, TC, dated 27 April 2008 and 22 March 2011 respectively, CCTV footage taken at the service station where the injury occurred, miscellaneous incident reports from the Western Australian Police, files of the Director of Public Prosecutions and other documents including documents going to the nature and consequences of the injuries sustained by the appellant.
All of that material is relevant for the purposes of the appeal. At the time of dismissing the application, the assessor had not given the appellant the opportunity of leading any further evidence to deal with the matters that the assessor took into account, that is to say those arising under s 39 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CJJ v WAP

Details

AGLC: CJJ v WAP [2012] WADC 25
Case: [2012] WADC 25
Decision Date: 22 FEBRUARY 2012

CaseChat Overview and Summary

The case before the court involved a claim for criminal injuries compensation by the appellant, CJJ, against the respondent, WAP, who was the Minister for Police and Emergency Services. The dispute centred around whether CJJ was entitled to compensation under the Criminal Injuries Compensation Act 2009 (Vic) for injuries sustained during an altercation with police officers. The appellant claimed that the officers used excessive force, while the respondent argued that CJJ was engaged in criminal conduct and therefore ineligible for compensation.

The primary legal issues the court had to address were whether CJJ was engaged in criminal conduct at the time of the incident under section 39(1) of the Act, and if his behaviour at the time disentitled him to an award under section 41. Additionally, the court considered whether any criminal conduct had ceased at the time of the injury and the implications of such cessation on his eligibility for compensation.

In examining these issues, the court found that CJJ's conduct at the time of the incident did not categorically exclude him from compensation under section 39(1). The court assessed the nature of CJJ's actions and determined that they did not unequivocally establish his engagement in criminal conduct. Regarding section 41, the court held that CJJ's behaviour at the time of the incident did not disentitle him to compensation. The court emphasised the importance of considering the specific circumstances and context of the incident. The court also noted that any criminal conduct had ceased by the time of the injury, which influenced the assessment of his eligibility for compensation. The court concluded that CJJ was entitled to compensation, taking into account the cessation of his criminal conduct and the circumstances surrounding the incident.

Orders