Couper v Alexander - [2020] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   COUPER -v- ALEXANDER [2020] WADC 56
CORAM:   BRADDOCK DCJ
HEARD:   4 NOVEMBER 2019
DELIVERED          :   5 MAY 2020
FILE NO/S:   APP 34 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   JOHN CHARLES COUPER
Appellant
AND
YVONNE MARY ALEXANDER
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLLYOAK-ROBERTS
File Number            :   CIC 1953 of 2016, CIC 2318 of 2017

Catchwords:

Criminal injuries compensation - Appeal - Extension of time - Standing to appeal - Interested person - Two offences - Alleged behaviour of victim - Criminal Injuries Compensation Act 2003 - s 41 - Provocation - Quantum of award of damages - Mental and nervous shock - Post-traumatic stress disorder - Psychiatric injury - Pre-existing condition

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 3, s 12, s 17, s 41, s 49
and s 55

Result:

Appeal dismissed
Order of assessor confirmed

Representation:

Counsel:

Appellant	:	Ms M J Aranda
Respondent	:	No appearance
Amicus Curiae	:	Mr T Ledger on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant	:	Maryse Aranda Lawyers
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

AH v RW [2016] WADC 114
Alexander [2019] WACIC 10
Bennett v The State of Western Australia [2012] WASCA 70
Clayton v Aust (1993) 9 WAR 364
Edmonds v Juniper [2016] WADC 7
Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Guy v Hampson [2019] WADC 19
Hogben v Darcy [2009] WADC 63
Malec v JC Hutton Pty Ltd [No 2] (1990) 169 CLR 638
McDavitt v McDavitt [No 2] [2013] WADC 198
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
RT [2006] WADC 185; (2006) 47 SR (WA) 197
S v Neumann (1995) 14 WAR 452
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13

BRADDOCK DCJ:

Introduction

This is an appeal from the decision of an assessor of criminal injuries compensation, Alexander [2019] WACIC 10 (the CIC decision).
On 12 March 2019, the assessor awarded Ms Alexander the sum of $25,627.55 for injuries and losses suffered in relation to two offences. On 17 May 2019, the assessor delivered reasons for judgment in writing.
Ms Alexander made an application for criminal injuries compensation pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). Her application was dated 3 October 2016. Her application referred to injuries she suffered as a consequence of an offence committed on 14 January 2013 (the first offence).
The assessor, in the course of her investigations, became aware of a further incident in relation to which Ms Alexander might have wished to claim. The assessor corresponded with the solicitors for Ms Alexander, as a result of which a further application, dated 25 July 2017, was filed which claimed compensation for injuries that Ms Alexander suffered as a consequence of an offence committed on 14 February 2012 (the second offence).
The application in relation to the first offence was brought pursuant to s 12 of the Act, which authorises an assessor to award compensation if satisfied that the injury occurred as a consequence of a proved offence. Section 3 of the Act defines a proved offence as one of which a person has been convicted.
The second application was brought pursuant to s 17 of the Act. Section 17 authorises an assessor to award compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of an alleged offence, which s 3 defines as one where no person has been convicted.
At the time of filing, both applications were out of time. The solicitors for Ms Alexander sought an extension of time pursuant to s 9 of the Act.
A notice of appeal from the assessor's award was filed by Mr Couper on 2 April 2019 listing the following grounds:
1.The assessor has awarded damages to the applicant for an unspecified alleged incident which supposedly occurred on 14 February 2012 of which I am unaware.
2.The assessor has not taken into consideration the evidence which I have provided on 24 April 2018 in determining the award of damages.
Mr Couper was charged with aggravated assault contrary to s 313(1)(a) of the Criminal Code in relation to the first offence. On 10 September 2013, Mr Couper pleaded guilty in the Joondalup Magistrates' Court to that offence before Magistrate J Hawkins. He was represented at that time by counsel, Ms J Reynolds.
In the sentencing proceedings the prosecutor gave the material facts to the court as follows:[1]
The accused and the victim had been married for approximately two years and have known each other for about five years. They have no children together. At about 6.10 pm on 14 January 2013, the accused arrived home from work to his residential address in Greenwood. The victim began a conversation with the accused, questioning him about his whereabouts and why he was home late.
The conversation continued for approximately 30 minutes before the accused decided to leave the address and go for a walk. At about 8.00 pm on 14 January the accused returned home. Only a short time later, the same conversation commenced for a second time, and the accused again decided to leave the address for approximately 30 minutes and go for a drive. At about 8.45 pm the accused returned home. The accused got into bed and was joined by the victim.
The victim began asking the accused the same questions as earlier. This resulted in the accused leaving the bedroom to try and sleep in the spare room. The victim has followed the accused into the spare bedroom. The accused then turned around and using his left palm has hit the victim to the right side of her face. As a result the victim started to walk backwards through a sliding door and fell to the floor. The accused has then approached the victim and using his left foot has kicked the victim in the buttocks three times with his left foot, leaving noticeable bruising. The accused then turned around and left the victim, who was getting up off the ground. The accused began packing his bags immediately afterwards and approximately 20 minutes later has left the address.
[1] ts page 2 (10 September 2013); Assessor's Matter Book, page 125.
The second offence was alleged to have occurred on 14 February 2012, when Mr Couper and Ms Alexander were at their home in Greenwood. They returned home from a walk at around 7.30 pm. They became involved in an argument. During the argument, Ms Alexander went to a shed located at the rear of the yard, followed by Mr Couper a short time later. The heated argument continued, with Ms Alexander standing outside the shed, and Mr Couper in the shed both arguing through the closed door. At some stage, Mr Couper opened the shed door and struck Ms Alexander to the face with his hand. The blow knocked her off balance and she fell onto a stack of house bricks. She reported the incident to the police approximately eight days later. The assessor obtained the police incident report in relation to this matter, from which this summary is taken.[2]
[2] Assessor's Matter Book, page 342.

The assessor's decision

The assessor had available to her statements of Ms Alexander:
(a)statement in relation to the first offence;[3]
(b)a victim impact statement in relation to the second offence;[4] and
(c)another statement concerning an application for a violence restraining order sought by Mr Couper.[5]
[3] Assessor's Matter Book, page 49.
[4] Assessor's Matter Book, page 329.
[5] Assessor's Matter Book, page 335.
Also available to the assessor were letters:
(a)from Claire Sly to Ms Alexander's solicitors. Ms Sly was the head of Learning Enrichment where Ms Alexander was employed from October 2013 to February 2015;[6] and
(b)a letter from Mr Bruce Titlestad dated 27 November 2015.[7] Mr Titlestad was the head of the secondary school where Ms Alexander was employed in 2014 and 2015.
[6] Assessor's Matter Book, page 122.
[7] Assessor's Matter Book, page 58.
The assessor had obtained, from the Western Australian police, their records in relation to the first offence and the second offence.[8] The Western Australian police documentation included a photo of Ms Alexander in relation to the first offence, a note of the verbal account given to the police by Mr Couper in relation to that offence, and Ms Alexander's background statement made for the police.
[8] Assessor's Matter Book, pages 183 and 341.
Medical evidence before the assessor included:
1.Reports and records of her general practitioner, Dr Robert Cullingford of Stirling Lakes Medical Centre.[9]
2.Reports of Ms Georgina Timms,[10] a clinical psychologist to whom Dr Cullingford referred Ms Alexander in 2016.
3.Report from Mr Kevin Hanovan of Applecross Counselling including a report[11] of 14 October 2012 when Ms Alexander had been referred again by Dr Cullingford. The date of that report may be in error. Mr Hanovan saw Ms Alexander on six occasions between 31 January 2013 and 27 June 2013. The subsequent referral occurred in 2014 which coincided with matrimonial proceedings.
[9] Assessor's Matter Book, page 153.
[10] Assessor's Matter Book, page 132.
[11] Assessor's Matter Book, page 135.
The assessor also had reports from:
(a)Mr Denis Kraats, a naturopath;[12]
(b)Mr Ian Percy, a mental health social worker at Dr Cullingford's practice;[13]
(c)copies of the GP Mental Health Plans;[14]
(d)a report from Dr Kaard of Stirling Radiology dated 19 September 2013;[15]
(e)a report from Mr Paul Dillon, chiropractor, dated 15 October 2015;[16]
(f)a report from Mr Steven Holmes, a physiotherapist, Next Generation Physiotherapy giving dates of attendances between March 2013 and May 2015;[17] and
(g)a report from Mr Kraats also of Next Generation Physiotherapy dated 21 March 2013 detailing a review of Ms Alexander due to a work accident on 5 March 2013.[18]
[12] Assessor's Matter Book, page 140.
[13] Assessor's Matter Book, page 141.
[14] Assessor's Matter Book, page 142.
[15] Assessor's Matter Book, page 146.
[16] Assessor's Matter Book, page 147.
[17] Assessor's Matter Book, page 156.
[18] Assessor's Matter Book, page 157.
The assessor had invoices and receipts submitted by Ms Alexander, as well as payslips from her employment.
The assessor became aware that Ms Alexander had suffered a motor vehicle accident in April 2015. She obtained a copy of the file of the Insurance Commission of Western Australia with respect to that accident of 9 April 2015. These included a report from Mr Bryant Stokes, a neurosurgeon, dated 21 April 2017 which attributed the cause of her ongoing cervical symptoms to the motor vehicle accident. Also included in the Insurance Commission of Western Australia documents was a report from Dr Cullingford dated 23 December 2016 which noted that Ms Alexander was asymptomatic with regard to her neck from 2010 to 2015.
The assessor sought further information from the chiropractor practice and from the psychologist, Ms Timms.
The assessor received a letter from Mr Couper dated 24 April 2018. She had supplied him with the application and supporting documents. In this document Mr Couper disputed Ms Alexander's account of the events of 14 January 2013.
Ms Alexander's solicitors referred her for a review by Dr Andrew Fairhurst, a medico-legal consultant at Sonic HealthPlus. He provided a report on 24 November 2015.[19]
[19] Assessor's Matter Book, page 158.
Further materials submitted by Ms Alexander to the assessor included a letter from Relationships Australia dated 9 September 2016 and a reference from Mr PF Booth, the director of Ephraim Ministries Ltd who was her counsellor and had known both Mr Couper and Ms Alexander during the course of their marriage.
With the second application, in relation to the second offence of 14 February 2012, Ms Alexander provided a further victim impact statement describing the events of that date.[20] She also submitted a copy of a letter signed 'concerned citizen' to the headmaster of the school at which she taught, dated 3 October 2014.[21] The letter alleged that there was a violence restraining order against Ms Alexander and made other allegations against her.
[20] Assessor's Matter Book, page 329.
[21] Assessor's Matter Book, page 332.
The assessor, in her written reasons, set out in detail the contents of the documents referred to above. She concluded that she found that both offences had been proved and that both offences had caused physical and psychological injuries to Ms Alexander. In the first offence, she found that there had been bruising to Ms Alexander's buttocks, a mild exacerbation of her neck and back injuries, plus depression, anxiety and post-traumatic stress disorder. In relation to the second offence, she found that there had been facial bruising, psychological distress and pre-existing issues had been exacerbated.
The assessor also found that Ms Alexander had been psychologically affected by matters for which she could not compensate her, including: emotional and financial abuse, stress and trauma associated with court processes, stress and trauma associated with the relationship with her daughter, issues at work, the letter from the 'concerned citizen' to her work, the motor vehicle accident in April 2015 and alleged assaults by Mr Couper, outside the jurisdiction.
Taking all of those matters into consideration, she determined that the sum of $20,000 was appropriate compensation for Ms Alexander's injuries in relation to the first and second offences.[22]
[22] Assessor's Matter Book, page 4.
In addition, she awarded $2,546.50 for reports from Sonic HealthPlus ($1,485), Stirling Lakes Medical Centre ($495) and Applecross Counselling ($566.50). She allowed a total of $1,865.75 for treatment expenses.[23] She was not satisfied that all attendances for chiropractic treatment related to the offences with which she was concerned.
[23] Assessor's Matter Book, page 45.
She allowed 10 sessions for future psychological counselling, based on the medical reports available, the opinion of Dr Cullingford and taking into account the Medicare rebate resulting in a sum of $1,215.
No award was made for loss of income or income earning capacity. Initially, there was no claim in the application for such losses. The submission was made to the assessor however that economic loss was claimed on the basis that her career advancement had been delayed due to her inability to increase her hours of work. The assessor was not satisfied that either the first or second offences were causative of any loss of income.

Further evidence on appeal

At the hearing of the appeal, I received further materials listed in a document titled 'index the papers for the judge', filed by the solicitors for Mr Couper. These comprised Mr Couper's statement of 16 December 2019, a 'reply' to the reasons for the assessor's decision, documents relating to reconciliation with Ms Alexander, documents relating to the violence restraining order, documents relating to property settlement, Family Court consent orders and character references.
Pursuant to s 56 of the Act, the court must decide the application fresh on appeal, on the evidence and information that was in possession of the assessor, but may receive further evidence and information.
The court is not fettered by the assessor's decision, thus the appeal is determined as a hearing de novo. That means that the court determines the matter from the beginning. It is open to the court to confirm, vary or reverse the assessor's decision, either in whole or in part.[24]
[24] Section 56(2)(b) of the Act.
The appellant does not have to demonstrate error on the part of the assessor to succeed. It has been said that it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation.[25] However, current practice is not in any way constrained by the assessor's decision. A hearing de novo requires that the appeal court consider the matter afresh without regard to any previous decision.[26]
[25] Hogben v Darcy [2009] WADC 63.
[26] Guy v Hampson [2019] WADC 19.
It is open to the court to increase or decrease the compensation awarded by the assessor.[27]
[27] Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221.
The assessor's file contained materials which she had requested from Ms Georgina Timms, the psychologist. These are very lengthy consultation notes and file notes. Counsel for the amicus curiae had caused them to be transcribed, in part. They are working notes and add nothing to the opinions expressed by Ms Timms.
Also obtained by subpoena from the Commissioner of Police was the statement of material facts in relation to an incident on 28 September 2014 involving Ms Alexander and Mr Couper.
Subsequent to the hearing on 4 November 2019, a letter was received by the court from Ms Alexander, dated 5 March 2020. In that letter she referred to the fact that she had suffered a concussion recently and asserted that a major factor exacerbating her recovery were previous head injuries sustained whilst married to Mr Couper. She detailed these, which appear to include the first and second offences. The letter does not include any additional medical or independent evidence.
The court may receive additional material on appeal where appropriate. I determined to receive the documents filed by Mr Couper insofar as they were relevant to the issues before the court. They run to 133 pages. They are almost entirely irrelevant. Mr Couper's statement of 16 September 2019, traverses the entire history of his marriage to Ms Alexander. His 'reply' to the assessor's reasons is not evidential. Personal matrimonial correspondence and Family Court documents are only relevant in that they show all the hallmarks of a protracted acrimonious property settlement.
Solicitors for Mr Couper should not have filed these documents, certainly not all of them, in this uncurated form. They are mentioned only tangentially in the written submissions, with five references footnoted, in general terms.
The papers also include a 'character reference' which is both irrelevant and inappropriate. There is a statement from a son‑in‑law of Ms Alexander, also irrelevant to the issues in this appeal. From Mr Couper's point of view, it would appear these materials were submitted to undermine the character of Ms Alexander.
I do not propose to admit the letter recently received from Ms Alexander into evidence or rely upon it because:
1.The appeal hearing has been concluded and judgment reserved.
2.Mr Couper's solicitors have not had the opportunity to consider or make submissions on the document.
3.It adds no independent or expert evidence. It mostly comprises the subjective views of Ms Alexander. It would be inappropriate to admit the material and further inappropriate to seek to re-open the appeal proceedings to overcome the obstacles mentioned above.
The first ground of appeal Mr Couper raised was the second offence which he said he knew nothing of. This raises the question of whether Mr Couper has standing to appeal in relation to both offences.
The assessor apportioned $12,500 to the proved offence and $13,127.25 to the alleged offence.[28]
[28] Assessor's Matter Book, page 5.
Standing to appeal to the District Court from determinations by the assessor of criminal injuries is set out for in s 55 of the Act:
55.Appeal lies to District Court
(1)An interested person may appeal to the District Court against an assessor’s decision -
(a)to make or to refuse to make a compensation award;
(b)as to the amount of a compensation award.

Interested person is defined in s 3 of the Act to include:
(a)the applicant [to a compensation application]; or
(b)a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or
(c)the CEO.
Under Pt 6 of the Act, s 49 provides that:
If -
(a)a compensation award is made in respect of any injury or loss suffered as a consequence of an offence; and
(b)a person is convicted of the offence,
then, subject to any order made under section 45(1), the CEO may give the offender a written notice that requests the offender to pay to the State as a lump sum -
(c)the whole, or such part as is specified in the notice, of the amount paid or payable under the award.
Accordingly, in order for a person to be an 'interested person' under s 55 of the Act, the person must be one who may become liable to make a payment to the State. Pursuant to s 3, an interested person must be a person convicted of an offence.
Mr Couper is only a person 'convicted of an offence' in relation to the first offence. In this appeal, as before the assessor, there were two compensation applications. There could be no recovery from Mr Couper in relation to that part of the award arising from the second offence. His rights are not affected by that portion of the award.
Therefore, in relation to the second offence, Mr Couper has no standing to appeal. His application in that respect was rightly not pursued by counsel on the appeal.
Accordingly, this appeal is concerned only with that portion of the award which relates to the proved offence under s 12 of the Act, the subject of CIC 1953 of 2016.

Extension of time

On an appeal, this court has all the powers of the assessor, including the power to deal with any matters requiring an extension of time.
The notice of appeal was filed within the 21 days allowed by s 55(3) of the Act.
Pursuant to s 9 of the Act, an application for compensation is required to be made within three years after the date the offence occurred, or in the case of more than one, the date of the last offence. However, the assessor and thus the court has a discretion to extend time if 'it is just to do so'.[29]
[29] Gallo v Dawson (1990) 93 ALR 479.
The application of Ms Alexander included a statement of reasons for the late application which referred to the fact that she had been suffering from anxiety, depression and post-traumatic stress disorder and had had extensive treatment. She had consulted her solicitors in August 2015. She was then advised of the three year limitation period and also advised that the application needed to be supported with evidence. Time was spent gathering the evidence.
Ms Alexander's application was not received by the Office of the Assessor of Criminal Injuries until 3 October 2016. The three year period expired on 13 January 2016. It is unfortunate that the applicant's solicitors did not write to the assessor's office to ask that time be preserved, as noted by the assessor in her reasons.
On an application for an extension of time, it is upon the person applying to explain to the satisfaction of the court the reasons for the delay in making the application.[30] It is often said that:[31]
The time limit is a substantive provision laid down by the Act itself and is not a mere procedural time limit imposed by the rules of court which will be treated with the indulgence appropriate to procedural rules. The burden on the applicant is thus no triviality and she must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
[30] Re Jackamarra [2014] WADC 9 [2].
[31] Re McHenry [2014] WADC 92 [17] citing Clayton v Aust (1993) 9 WAR 364 and RT [2006] WADC 185; (2006) 47 SR (WA) 197.
The length of the delay, the reasons for the delay, the consequences of a refusal to extend time, the prospects of success and whether an injustice will be suffered are relevant factors when considering an extension of a time period in this context. In my view, Ms Alexander took steps to exercise her rights within the time period, by taking legal advice. Unfortunately, that did not result in an application being brought in time. Ms Alexander had had mental health problems and other issues to deal with during the previous years. It is clear that the evidence required for the application would have taken some time to obtain and collate.
I am satisfied that it is just to extend time for the application that she made. Little prejudice could be suffered by Mr Couper, as he had already been convicted of the first offence, thus was aware of it and was able to provide submissions in relation to it. He was not prejudiced by the passage of time. The delay was under nine months and an extension in the circumstances is necessary to do justice between the parties.

The appellant's submissions

In written submissions, counsel for Mr Couper conceded that the first ground of appeal fell away, due to the fact that Mr Couper is not 'an interested person'.
The submissions then addressed the second ground of appeal - that the assessor did not give sufficient weight to his letter dated 24 April 2014. In written submissions, and orally, counsel referred to inconsistencies between the police statement of material facts, his accounts of the events and Ms Alexander's written statement provided to the police. Counsel submitted that Ms Alexander sought to embellish and exaggerate the situation and the injuries resulting from it.
Counsel also raised provocation by the conduct of Ms Alexander at the time of the incident. This is referred to by Mr Couper in his letter to the assessor dated 24 April 2019. Mr Couper alleges that on 14 January 2013 Ms Alexander verbally assaulted him on three occasions, prior to the incident. On the first two occasions, he said he left the home. But on the third occasion he stated that her verbal attacks were provocation which 'the courts and the police could have taken into account as a defence' to the assault charge.
Counsel further referred to inconsistent reports to medical practitioners by Ms Alexander and to her history of domestic violence in her first marriage. In effect, counsel's submissions disputed the facts underlying the conviction amounted to an allegation that Ms Alexander was not a reliable historian. Counsel further argued that the conduct of Ms Alexander should be taken into consideration and reduce the award, pursuant to s 41 of the Act.
A further submission was that other factors significantly contributed to Ms Alexander's injuries, specifically her neck injury at work in 2013, and a subsequent motor vehicle accident in 2015. Counsel argued that pre‑existing injuries, non-compensable issues and subsequent separation and divorce outweighed any damage caused by the proven offence, to the extent such that the proven offence was not a contributory factor to the mental trauma alleged to have been suffered by Ms Alexander or any exacerbation of it.
Section 41 of the Act provides:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
Counsel argued that the behaviour relevant, on the part of Ms Alexander in the incident, was that she confronted Mr Couper after he had tried to remove himself on two occasions from the home, thereby contributing to her injury by putting the parties in a heated situation. Further, she argued that by physically stepping back and falling over she contributed to her own injury. The argument is twofold. Firstly, that she physically contributed to her injury by falling over and secondly that she was the author of her own misfortunes by confronting and provoking Mr Couper during the course of the argument.
To be considered under s 41(a) behaviour could be:[32]
Conduct such as provocation, where a victim acts wrongfully so as to deprive an offender of self-control and induce the offender to commit an offence against the victim in the heat of the moment …
[32] Edmonds v Juniper [2016] WADC 7 [19] and [46].
Mr Couper, in his letter of 24 April 2018, stated that he considered the verbal attacks upon him to be provocation. The assessor did consider his letter,[33] contrary to the assertion in ground 2 in this appeal.
[33] Alexander [2019] WACIC 10 [40].
The fatal flaw in this argument is that Mr Couper pleaded guilty to the offence of aggravated assault in the Magistrates' Court on 10 September 2013. The facts put before the magistrate, which were not disputed by his counsel, have been set out at the beginning of these reasons. In submissions on sentence, counsel submitted that he 'took full responsibility for his actions'. There was no reference made by counsel at that time of any provocation such as would undermine his guilty plea.[34]
[34] Assessor's Matter Book, pages 124 - 126.
In an appeal to this court under the Act, or before an assessor, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.[35] It is axiomatic that a plea of guilty to a criminal charge involves an admission by the offender of the elements of the offence with which he has charged. Proof of the conviction may constitute evidence of the material facts upon which it was based.[36]
[35] Underwood v Underwood [2018] WADC 13 [46], [56] - [57].
[36] Bennett v The State of Western Australia [2012] WASCA 70 [49], [66] - [67] and [110].
Where an offender pleads guilty it must mean necessarily that all relevant defences are excluded. The facts given to a court as the material facts for the purposes of sentence in the presence of the accused, particularly where represented by counsel, are a reliable guide to any issue in relation to identifying these facts. This does not exclude mitigation in the surrounding circumstances, personal history or other matters, which may have relevance to penalty.
There is no merit in the argument that Mr Couper was provoked in law, given his plea of guilty. The court will consider the surrounding circumstances for the purposes of s 41 of the Act.
It is relevant that, before the magistrate, Mr Couper took full responsibility for the incident. In my view, that is entirely consistent with the details given in court. In my view, the fact that one party persistently argues with another in no way justifies a resort to physical violence of the kind admitted by Mr Couper. I do not accept that by stepping back and falling, Ms Alexander contributed to her injury. The police facts show that she stepped or walked backwards because she had been hit by Mr Couper. His actions caused her to fall, directly or indirectly. Thereafter, he continued to assault her by kicking. There is no merit in the argument that she contributed to her injury on that night, for the purposes of s 41 of the Act.
The second issue relied upon by Mr Couper are alleged pre‑existing conditions such as childhood trauma and domestic violence in her first marriage and subsequent events that have caused her either similar injury or an exacerbation of injuries. In counsel's submissions, this is said to reduce or remove any causative involvement of the first offence in Ms Alexander's conditions.
The reports evidence Ms Alexander's psychological state and treatment over an extended period, where clearly other life events had impacted upon her health. The assumption in the appellant's submissions is that the assessment somehow has attributed the full extent of her psychological condition to the appellant's conduct in the first offence. This does not appear to be the assessor's approach.[37] It is not the approach that this court will adopt.
[37] Alexander [2019] WACIC 10 [59].
Pre-existing and subsequent conditions may be considered under s 41 of the Act. They may equally be considered using the principles of common law in the assessment of damages. Under the Act, the assessment starts with a proved offence and then must determine causation.
I am satisfied that the first offence is a proved offence under s 12 of the Act. What is in issue is compensation for both physical and mental injuries as a result of Mr Couper's conduct on the night of 14 January 2013.

Assessment of compensation

Under s 12 of the Act, compensation is payable if a person suffers injury as a consequence of the commission of a proved offence.
Injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. Loss is defined in s 6(2) to mean:
In the case of a victim who is injured, loss means -
(a)expenses actually and reasonably incurred by or on behalf of the victim -
(i)that arise directly from; or
(ii)that arise in obtaining any report from a health professional or a counsellor in relation to,
the injury suffered by the victim; or
(b)expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or
(c)loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or
(d)any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.so far as relevant expenses incurred by or on behalf of the victim that arise directly from the injury suffered by the victim and loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim.
Mental and nervous shock contemplates a more enduring injury than simply fright and anguish. The injury in question needs to be something significant, enduring and detrimental. A court cannot award compensation for mental and nervous shock unless satisfied that the victim also suffered bodily harm as a result of the commission of the alleged offence.[38] In this instance, clearly, it has been demonstrated that physical injury was caused to Ms Alexander by Mr Couper when he knocked her down and kicked her.
[38] Section 35(2) of the Act.
It is necessary that a claimant establish, on the balance of probabilities, causation of the injury by the commission of the offence and causation of the loss for which compensation is sought. It does not have to be the sole cause of any injury or loss but it needs to be a materially contributing factor to the injury or loss.[39]
[39] Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666; S v Neumann (1995) 14 WAR 452 [463] - [464].
The maximum compensation that may be awarded in favour of a person for a single offence is $75,000.[40] The maximum compensation payable under the Act is a jurisdictional limit and is not to be reserved for the worst cases.[41] Ms Alexander is the victim of a proved offence to which Mr Couper pleaded guilty, and was sentenced in the Magistrates' Court to a community based order.
[40] Section 31(1) of the Act.
[41] S v Neumann [463].
It is necessary to assess the physical and mental consequences to Ms Alexander of the assault upon her, which constitute the relevant injury.
The starting point in the assessment of compensation is the proved offence. The facts put to the sentencing Magistrates' Court were that Mr Couper struck Ms Alexander to her face, as a result of which she walked or stepped backwards through a sliding door and fell to the floor. Mr Couper then approached her and kicked her in the buttocks three times leaving noticeable bruising.
In the victim impact statement submitted with her application for compensation in relation to the first offence, Ms Alexander described the matrimonial relationship as being characterised by domestic violence. She describes the offence in greater detail than that given above. She said that Mr Couper was in a rage.
In my assessment, it is not necessary to resolve issues between Mr Couper's account of the first offence and Ms Alexander's, nor to analyse alleged inconsistencies in her accounts to various treating doctors. The facts upon which Mr Couper was convicted are sufficient to encompass what is relevant in his assault upon her.
It appears that after the first offence, there was a period of separation, but that the relationship resumed in about September 2013, until final separation in September 2014. Ms Alexander states that Mr Couper's behaviour did not change upon resumption of co‑habitation. She described him as being violent, manipulative and intimidating. Mr Couper does not accept this characterisation.
Ms Alexander described herself as having suffered from anxiety, depression and post-traumatic stress disorder, plus common chronic fatigue and neck and back injuries as a result of the first offence. She confirms she attended upon her general practitioner, Dr Cullingford, was referred to a psychologist, underwent counselling and attended Relationships Australia.
Ms Alexander also recounts that, in September of 2013, Mr Couper took out a violence restraining order against her, which she clearly found to be deeply distressing. The order was not confirmed. Ms Alexander indicated that there followed a 'nasty property settlement'. She detailed many other matters involving Mr Couper, which caused her distress in this period.
The report of Dr Cullingford confirms that Ms Alexander attended the Stirling Lakes Medical Centre on 15 January 2013, as a result of the assault the previous day.[42] Dr Cullingford was informed by Ms Alexander that the assault was not an isolated instance. Dr Cullingford confirmed, from the practice records, that she had attended upon a colleague on 15 February 2012, following a physical assault (this became the second offence).
[42] Assessor's Matter Book, page 153.
Dr Cullingford said that, on examination on 15 January 2013, he had observed substantial bruising to her right and left buttocks. His opinion was that this was consistent with the alleged assault. No treatment was necessary for bruising. He saw her again on 8 February 2013, prepared a mental health care plan and referred her to a psychologist. He said that her depression, anxiety and stress were consistent with severe depression, anxiety and stress, in the context of screening her for the mental health care plan. He reported that the physical consequences of the assault settled quickly, but the emotional consequences continued to have an impact on her life.
Dr Cullingford saw her in July 2013, when she was suffering from loss of enjoyment in life, feelings of hopelessness and despondency. She had poor sleep and was lonely and anxious. She was, at that time, working three days a week.
In December 2014, Dr Cullingford reported that Ms Alexander continued to have 'a torrid time' with respect to a marital breakdown, malicious accusations and court appearances. He also noted that she was distressed in relation to interactions between Mr Couper and her daughter, restraining order proceedings and financial stresses, also concerning her daughter. He noted there was stress at work, including an incident involving an anonymous letter.
Dr Cullingford concluded that Ms Alexander would be likely to make a full recovery, presumably from her symptoms as noted in December 2014, but only after the end of the court process and a period for settlement of symptoms.
Subsequently, in 2016, Ms Alexander was referred to a clinical psychologist, Georgina Timms, pursuant to a mental health care plan. Ms Timms detailed attendances upon her by Ms Alexander in 2016.[43] She gave the cost of therapy as $160 per session, for which she received Medicare rebates of $124.50. Ms Timms was of the opinion that Ms Alexander was suffering from post-traumatic stress disorder associated with traumatic stress originating from a physical violent situation with Mr Couper, for which he was charged and convicted. Ms Timms also noted a number of other stressors impacting upon Ms Alexander's condition. Ms Timms' view was that the post-traumatic stress disorder was rated entirely on the traumatic assault at the hands of Mr Couper.
[43] Assessor's Matter Book, page 132.

Ms Alexander had earlier seen Mr Kevin Hanovan, of Applecross Counselling, on referral from Dr Cullingford. He saw her on six occasions between 31 January 2013 and 27 June 2013. There was a second referral in March 2014. He saw her again on a further nine occasions. Mr Hanovan in his report described Ms Alexander's stress and anxiety as being related to her relationship with Mr Couper.[44] She described the physical assault by Mr Couper and his being charged with an offence. Mr Hanovan described Ms Alexander as suffering from anxiety related to trauma of the assault.
[44] Assessor's Matter Book, page 135.
Mr Hanovan expressed the view that her emotional distress was likely to have been a result of multiple factors. He noted that she found the police investigation and the court process highly stressful, contributing to her emotional stress and trauma. Mr Hanovan treated Ms Alexander with therapeutic support and counselling. He described the legal processes, the violence restraining order and property settlement as representing significant maintaining factors, which would have contributed to the protracted experience of her trauma symptoms.
His view was that the likely effects of trauma would diminish with time but sensitivity to stimuli associated with the trauma were likely to remain. He said that she would require further psychological treatment of between 12 and 18 sessions over 12 months.
Ms Alexander consulted a naturopath, Mr Kraats, a mental health social worker, Mr Percy and a Mr Paul Dillon, a chiropractor.
A radiological report of Dr Heino Kaard, of 19 September 2013, reports X-ray findings from her cervical spine indicating multi level facet arthropathy and there may have been the same of her lumbar spine.[45] Her pelvis showed a slight pelvic tilt. Dr Kaard is the radiologist only not a treating physician of Ms Alexander.
[45] Assessor's Matter Book, page 146.
Mr Dillon, the chiropractor, saw her on 19 September 2013 in relation to neck, shoulder and lower back pain.[46] She reported to him that the neck pain had been off and on for three years and lower back pain of two to three months duration. She said she had had previous episodes of left lower back pain in March 2013. She said that her neck and lower back pain were aggravated by two assaults, one in January and one in March 2013.
[46] Assessor's Matter Book, page 147.
Mr Dillon reported that Ms Alexander suffered a motor vehicle accident on 9 April 2015, which perpetuated her problems. He saw her in the clinic between 2013 and 2015, totalling 55 attendances, some of which were paid for by the Insurance Commission of Western Australia.
A report of Mr Kraats, of Next Generation Physiotherapy, dated 21 March 2013, shows that she attended him as a result of a work accident on 5 March 2013.[47] She had sat down hard on a chair that was broken and this resulted in the immediate onset of lower back and mid thoracic pain.
[47] Assessor's Matter Book, page 140.
The report of Dr Andrew Fairhurst, a medico-legal consultant, is in effect a review and overview of the history. His report is dated 24 November 2015.[48] On examination, Dr Fairhurst diagnosed Ms Alexander with mechanical neck and lower back pain and psychological symptoms. He concluded that the injuries sustained by Ms Alexander during her relationship contributed to neck and lower back symptoms she complained of. He was not optimistic as to the prognosis. He was of the view that she would likely require psychological advice on an extended basis.
[48] Assessor's Matter Book, page 158.
It is of note that the file in relation to the motor vehicle accident of April 2015 contains the only report from a specialist (neurosurgeon), in relation to her neck symptoms. Dr Bryant Stokes' view was that those symptoms were attributable to the motor vehicle accident on 9 April 2015. It is significant, in my view, that a report of Dr Cullingford contained with the Insurance Commission file, notes that she was asymptomatic in relation to her neck between 2010 and 2015.
In addition to the medical evidence, the letter from the head master of the school at which Ms Alexander worked is of assistance in assessing her functioning. The head of school was, at the end of 2014, aware that Ms Alexander was dealing with a range of significant issues. He observed that she was under significant stress. He did not want her to move to full time employment which might place her under additional stress and jeopardise the school's reputation if she was unable to perform efficiently. He did not criticise her skills or knowledge in any way. He said that during the course of 2015 she was able to take on a greater teaching load.
It is relevant that the first offence was not the first occasion upon which Ms Alexander had suffered violence at the hands of Mr Couper, as evidenced by the second offence.
It is not for this court, on an appeal of this nature, to review the entire course of the matrimonial relationship between Ms Alexander and Mr Couper. From the materials presented by Mr Couper and the accounts given by Ms Alexander, although they differ in many details, it is abundantly clear that this was a conflicted marriage and a stressful ongoing situation for Ms Alexander. Furthermore, it emerges from the history given by Ms Alexander to Ms Timms and Dr Fairhurst that she had previously been married for over 20 years which relationship was also characterised by domestic violence.

Assessment

I make the following findings:
1.Ms Alexander suffered physical injury by reason of the first offence. She suffered bruising to her buttocks when he kicked her, and was struck to the face and fell. In that context, I accept that she was shaken and sore and suffered a minor aggravation of her underlying cervical degenerative condition. Dr Cullingford confirms that this settled quickly and she was effectively asymptomatic between 2001 and 2015 with respect to her neck, until the motor vehicle accident.
2.As a result of that physical attack, she suffered from post‑traumatic stress disorder, depression and anxiety as recorded by Dr Cullingford.
3.The physical symptoms arising from the assault settled quickly. The psychological consequences were more protracted and resulted in her GP referring her for counselling, in 2013, to Mr Hanovan.
4.Had the events of January 2013 been the end of the marriage to Mr Couper, without further stressors from the resumption of the relationship, plus further incidents, matrimonial separation, Family Court proceedings, violence restraining order proceedings, difficulties within her wider family, financial difficulties and all the consequences of such upheaval, it would have been reasonable to expect that Ms Alexander's condition as a result of the assault would have settled within the year 2013, based upon the fact that Mr Hanovan saw her six times in 2013 and that a further referral only came later post separation in 2014.
Post-traumatic stress disorder is well recognised as a serious psychological condition in the DSM-5.[49] Injury, for the purposes of the Act, includes mental or nervous shock. I have no doubt that post‑traumatic stress disorder satisfies the term of mental or nervous shock and is an injury under the Act. It is of an enduring character not an emotional reaction. This has been upheld in many decisions of this court in criminal injuries compensation appeals.[50]
[49] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (5^thEdition).
[50] AH v RW [2016] WADC 114; Townend v McAlindon [2017] WADC 63; Underwood v Underwood [2018] WADC 13.
I am satisfied that the injury included anxiety, depression and post-traumatic stress disorder as a consequence of the commission of the proved offence. However, as noted by her treating psychologists, Mr Hanovan and Ms Timms, many other factors have had a bearing upon the ongoing condition suffered by Ms Alexander, and reported on later in time.
Insofar as Ms Alexander may have been vulnerable, due to violence in a prior marriage, to suffering from a psychological condition following the assaults by Mr Couper, in my view, this does not in any way reduce the causative effect of his conduct in the proved offence. He takes his victim as he finds her. However, the evidence shows that there are continuing, unrelated and co-existing causes of the ongoing psychological condition which Ms Alexander has suffered, which are non‑compensable. An award of compensation should generally be reduced to take into account that fact.[51]
[51] Malec v JC Hutton Pty Ltd [No 2] (1990) 169 CLR 638.
If it is possible to do so on the evidence, the court is required to attempt to distinguish between the degree of injury caused by the commission of the compensable offence and the degree of injury caused by other non-compensable causes or offences.[52]
[52] McDavitt v McDavitt [No 2] [2013] WADC 198 [23].
Where it is not possible to disentangle the consequences of non‑compensable co-existing causes from compensable causes an applicant is entitled to the compensation for the full injury and loss suffered if it is established that the proven offence contributed materially to her injury or loss.
I find, as set out above, that the psychological condition due to the proved offence would have resolved reasonably quickly but for other causes, which have perpetrated its impact.
The proper approach to adopt in assessing compensation under the Act is to apply the ordinary tortious principles for the assessment of damages, subject to the limitations imposed by the definitions of injury and loss in the Act and the jurisdictional limit it provides. The court cannot compensate parties for injuries effected by other outside events unconnected with the proved offence.
In this case, there are a number of other events that clearly have had a profound emotional and psychological effect upon Ms Alexander. They include subsequent conduct of Mr Couper, divorce proceedings, family trauma, financial trauma, the stresses of litigation and other accidents specifically at work in March 2013, and a motor vehicle accident in April 2015.
Taking all of those matters into consideration, I cannot fault the assessment of the assessor. She dealt with two comparable offences, both involving Mr Couper. The events are of a similar character and similar injury.
The assessor determined that $20,000 was appropriate for the non‑financial consequences of both the first and second offences. She divided this sum equally between the two occasions.
Taking all these factors into consideration, in my view, $10,000 is appropriate compensation for the non-financial losses.
No criticism has been made of the award made by the assessor for the cost of reports and treatment expenses. They were based upon the evidence presented and uncontested.
The assessor made no allowance for loss of earning capacity. Ms Alexander's claim in relation to financial loss was not initially included in the application. Submissions were made to the assessor on the basis that Ms Alexander's advancement in her teaching career was delayed by her injuries. Given my findings in relation to the numerous adverse events in Ms Alexander's life, at about the same time, I am not satisfied that any economic loss or loss of earning capacity due to the first offence is proved. Many matters would have held her back at that time.

Conclusion

For the reasons set out above, it is my determination not to make any alteration to the award of the assessor in relation to the proved offence.
Accordingly, the determination of the assessor is confirmed and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
ZB
Associate to her Honour Judge Braddock
5 MAY 2020