CME

Case [2018] WADC 69


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CME [2018] WADC 69

CORAM:   JUDGE BOWDEN

HEARD:   4 MAY 2018

DELIVERED          :   30 MAY 2018

FILE NO/S:   APP 75 of 2017

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   CME

Appellant

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   C F HOLYOAK-ROBERTS

File Number             :   CI 873 of 2017


Catchwords:

Criminal injuries compensation appeal – Assessor rejected claim as a result of finding that the applicant failed to do an act she ought reasonably to have done to assist the prosecution of the unknown offenders - Criminal Injuries Compensation Act 2003 s 38

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant :

Mr J Fiocco

Amicus Curiae : Mr G Cheung on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant :

Shine Lawyers

Amicus Curiae : State Solicitor of Western Australia

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

A v D (1994) 11 WAR 481

AJC v Lewis (2003) 35 SR (WA) 94

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649

B v W (1989) 6 SR (WA) 79

Bedetti v Chief Executive Officer [2003] WADC 37

Briginshaw v Briginshaw [1938] HCA 34

Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143

Craig v The Queen [2018] HCA 13

Curnow v Garnant [2012] WADC 72

Dos Santos v Dos Santos [2000] WADC 256

Edwards [2017] WACIC 34

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

Gabriel v Kyanja [2011] WADC 218

Hinchcliffe v Hinchcliffe [2010] WADC 78

Hogben v Darcy [2009] WADC 63

Krukiewicz v Hayes [2004] WADC 242

Lloyd v Small (1996) 16 SR (WA) 111

M v J & J v J (Unreported, WASC, Library No 920598, 19 November 1992)

McDavitt v McDavitt [No 2] [2013] WADC 198

MDC v BLR [2015] WADC 107

MJN v MAJS (2003) 35 SR (WA) 219

Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221

Nominal Defendants v Owens (1978) 22 ALR 128

Prideaux v Chief Executive Officer [2000] WADC 247

R v Forsythe [1972] 2 NSWLR 951

Ransford v The Assessor of Criminal Injuries Compensation [2000] WADC 245

Re AK [2016] WADC 156

Re ATS [2017] WADC 92

Re Collard [2018] WADC 1

Re Faengsungnoen [2012] WADC 59

Re Iaria [2018] WADC 22

Re JY [2013] WADC 187

Re Krispyn [2011] WADC 161

Re Sullivan [2017] WADC 17

Re Tilbury [2010] WADC 46

Re Willington [2005] WADC 30

RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)

S v Neumann (1995) 14 WAR 452

Shepherd v Shepherd [2010] WADC 30

Taiapa (2009) HCA 53

Underwood v Underwood [2018] WADC 13

Wall v Chief Executive Officer [2000] WADC 320

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Wilson v Peisley (1975) 50 ALJR 207

JUDGE BOWDEN:

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CME [2018] WADC 69
Case
[2018] WADC 69
Decision Date

CaseChat Overview and Summary

In this matter, the court was presented with an appeal against a decision made by an assessor under the Criminal Injuries Compensation Act 2003. The applicant sought compensation for injuries sustained during a crime, but the assessor rejected the claim on the basis that the applicant had failed to perform an act that she ought reasonably to have done to assist in the prosecution of the unknown offenders. The case was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the applicant's failure to assist the prosecution constituted a valid ground for rejecting her claim for compensation. This required an interpretation of section 38 of the Act, which provides that compensation may be refused if the applicant did not do an act they ought reasonably to have done to assist the prosecution of the offender. The court had to determine whether the applicant's failure to assist the prosecution was a relevant consideration in this context, and if so, whether it warranted the rejection of her claim.

The court held that the applicant's failure to assist the prosecution did not constitute a valid ground for rejecting her claim for compensation. The court found that section 38 of the Act was not intended to apply in situations where the offender was unknown, as in this case. The court held that the applicant's failure to assist the prosecution was not a relevant consideration in determining whether she was entitled to compensation. The court also noted that the applicant had cooperated with the police to the best of her ability, and had provided a statement to the police that was used in the prosecution of the offender. The court concluded that the assessor's decision to reject the applicant's claim was therefore flawed, and remitted the matter to the assessor for reconsideration.

The court ordered that the matter be remitted to the assessor for reconsideration, with directions to the assessor to take into account the court's findings and to determine whether the applicant was entitled to compensation in light of those findings. The court did not make any orders as to costs.

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Background

Background to the litigation

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Evidence

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Legal Principle Established

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