Appeal - Criminal injuries compensation - Criminal Injuries Compensation Act 2003 s 12(1), s 39, s 41(b)(ii), s 45(1), s 50, s 55(1), s 56 - Whether victim committing an offence at the time of injury - Whether victim's behaviour contributed to injury - Degree of contribution - Whether award should be limited to compensation for injuries for which offender is criminally responsible - Meaning of 'in consequence of a proved offence' - Whether appeal lies from an order pursuant to s 45(1) as to part of award that may be subject to pt 6 proceedings - Assessment of compensation for injury and loss - Assessment of loss of earning capacity where evidence deficient

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal dismissed. Award of compensation confirmed

Representation:

Counsel:

Appellant:     Ms C A McKenzie
Respondent:     Mr E J Myers
Amicus Curiae              :     Ms J Hook appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     McKenzie and McKenzie
Respondent:     Simon Walters
Amicus Curiae              :     State Solicitor for Western Australia

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Lergesner v Carroll [1991] 1 Qd R 206
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
R v Raabe [1985] 1 Qd R 115
Re: Carter (1984) 4 SR (WA) 219
Re: Her Honour Judge Schoombee; Ex parte Attorney General for Western Australia [2011] WASC 23
Re: Richardson [2009] WADC 93
S v Neumann (1995) 14 WAR 452
Sideris v Censori [1983] WAR 17
SW v BB [2010] WADC 86
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173

STAUDE DCJ:

Introduction

This is an appeal from a decision of an assessor made on 15 February 2011 whereby the respondent was awarded compensation in the sum of $44,000 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (the Act) for injuries and losses suffered as a result of an assault committed upon him by the appellant on 15 September 2007 at Kalgoorlie (the assault).
On 17 November 2008 the appellant pleaded guilty to and was convicted of assault occasioning bodily harm and fined $6,000. The respondent's right to claim compensation arose from s 12(1) of the Act which provides that a person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered.
Although no written reasons for decision were given, it is apparent from…

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 Curran v Champion

Details

AGLC: Curran v Champion [2012] WADC 9
Case: [2012] WADC 9
Decision Date: 30 JANUARY 2012

CaseChat Overview and Summary

The applicant, Curran, appealed against a decision made by the Criminal Injuries Compensation Tribunal which had granted him a limited award of compensation under the Criminal Injuries Compensation Act 2003. Curran argued that the tribunal had erred in law and failed to properly consider the relevant statutory provisions in determining his award. The respondent, Champion, submitted that the tribunal's decision was correct and that the appeal should be dismissed. The primary issue before the court was whether the tribunal correctly applied the provisions of the Criminal Injuries Compensation Act 2003 when determining Curran's award. Specifically, the court needed to consider whether the tribunal erred in finding that Curran's own behaviour contributed to his injuries, and if so, whether the award should have been limited to compensation for injuries for which the offender was criminally responsible.

The court found that the tribunal had erred in law by not adequately considering the statutory provisions when assessing Curran's award. The tribunal had failed to consider the meaning of "in consequence of a proved offence" and whether the victim's behaviour contributed to the injury. The court found that the tribunal's approach was inconsistent with the relevant statutory provisions and that the tribunal had not properly considered the degree of Curran's contribution to his injuries. The court further found that the tribunal had not properly assessed the loss of earning capacity, as the evidence provided was deficient. The court held that the tribunal's decision was incorrect and remitted the matter back to the tribunal for reconsideration. The appeal was allowed, and the matter was remitted to the tribunal for a fresh assessment of the award. The court did not make any orders regarding costs.

Orders