Dam v JTV
[2017] WADC 2
•12 JANUARY 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DAM -v- JTV [2017] WADC 2
CORAM: HERRON DCJ
HEARD: 3 FEBRUARY & 3 JUNE 2016
DELIVERED : 12 JANUARY 2017
FILE NO/S: APP 80 of 2014
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: DAM
Appellant
AND
JTV
First RespondentSLB (deceased)
Second Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :L V DEMPSEY
File No :CI 001508 of 2013, CI 000075 of 2014, CI 000076 of 2014, CI 000077 of 2014
Catchwords:
Criminal injuries compensation - Application made out of time - Whether just to extend time to make compensation application - Significant delay - Adequacy of evidence - Multiple offences committed over extended period of time
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Criminal Injuries Compensation Act 1985 (WA) s 17, s 23
Result:
Appeal dismissed - Application for extension of time dismissed
Representation:
Counsel:
Appellant: Mr A Sharpe
First Respondent : No appearance
Second Respondent : No appearance
Amicus Curiae : 3 February 2016 Ms R Paljetak appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
3 June 2016 Ms D Underwood appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Family Violence Prevention Legal Service
First Respondent : Not applicable
Second Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hatfield v Under Secretary for Law (Unreported; WASC, Library No 4012, 15 December 1980)
M v J and J v J (Unreported; WASC, Library No 920598, 19 November 1992)
Makita Australian Pty Ltd v Sprowles (2001) 52 NSWLR 705
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re McHenry [2014] WADC 92
S v Neumann (1995) 14 WAR 452
HERRON DCJ:
Introduction
By application dated 26 July 2013 to the Assessor of Criminal Injuries Compensation (Assessor) the appellant (DAM) claims criminal injuries compensation pursuant to s 12(1) and s 16(2) of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
The application was made in respect of the following four incidents:
(a)On 18 June 1993 the first respondent JTV unlawfully assaulted DAM (AR 4767/93). JTV was convicted of common assault and sentenced in the Court of Petty Sessions in Armadale on 19 August 1993.
(b)On 6 April 2001 JTV and the second respondent SLB unlawfully assaulted DAM. On 27 April 2001 in the Joondalup Court of Petty Sessions JTV was convicted of two counts of common assault (JO 4734 ‑ 4735/01) and was fined $600. On 2 May 2001 SLB was convicted of one count of common assault (JO 5119/01) and was sentenced in the Carnarvon Magistrates Court.
(c)On 23 April 2003 in the Katanning Magistrates Court JTV was convicted of breaching a violence restraining order on 3 October 2002 which was taken out by DAM (PE 41834/02) and fined $400.
(d)DAM claimed that following an incident on 22 January 2002 JTV was charged (alleged offence). However, inquiries by the Assessor revealed that there was 'no relevant Incident Report and nor was JTV charged': see the Assessor's reasons dated 19 June 2014 (page 1).
The application was made approximately 7 years out of time, the application being required, by s 9(1)(b), to have been made within 3 years after the last of the offences was committed, the relevant offence being the 'proved offence' when JTV was convicted on 23 April 2003. The application therefore sought an extension of time in which to make an application for criminal injury compensation pursuant to s 9(2) of the Act.
By written reasons dated 19 June 2014, the Assessor (pursuant to s 9 of the Act) formally refused to grant DAM an extension of time in which to claim criminal injuries compensation in respect of each of the offences or incidents and therefore refused to award criminal injuries compensation to DAM.
In her reasons the Assessor stated that there were 'unsatisfactory reasons' for the 'substantial delay' in filing the applications (page 2).
On 7 July 2014 DAM filed a notice of appeal against the decision of the Assessor. The sole ground of appeal is that 'the Assessor failed to properly exercise her discretion under section 9(2) of the [Act]'.
The notice of appeal was filed within the time allowed by s 55(3) of the Act.
History of the appeal
The appeal was initially set down for hearing before me on 3 February 2016. At that hearing a preliminary issue was raised regarding the correct legal status of the second respondent, SLB. A death certificate for SLB certifying she died on 18 May 2007 was provided to the court. No executor or personal representative of SLB's estate was, despite inquiry, able to be identified. Therefore the appeal, insofar as the named second respondent was concerned, was against a non‑existent legal entity. Although if an award of compensation is to made, payment of the award is, pursuant to s 46 of the Act, from the Consolidated Account, with a right of recovery against any person who is or has been convicted of the offence in accordance with s 50, the issue remained as to whether the proceedings could be maintained against SLB as a second respondent. That issue was left unresolved to allow DAM to address the real issue on the appeal being whether under s 9(2) of the Act I ought to exercise my discretion to extend time and grant DAM leave to proceed with her application for criminal injuries compensation.
I then raised with counsel for DAM some concerns I had regarding the evidence filed in support of her application and the appeal to this court (ts 22 ‑ 29). Principally those concerns regarded the sufficiency of the evidence, including the medical evidence, filed in support of both the application for compensation and the application for an extension of time for bringing the application. Counsel then applied for an adjournment to address the concerns I had raised with a view to seeking further evidence to be filed in support of the appeal and the application to extend the time for bringing the application for compensation. I granted the adjournment.
The matter next came on before me for further hearing on 3 June. In further support of the appeal and the application for an extension of time, DAM filed an affidavit sworn by her on 26 May 2016. A further book of documents described as 'book of documents 2 of 2' in support of the appeal was filed on 3 May 2016. The purported affidavit was not sworn on each page and I was asked by counsel to treat it more in the nature of a witness statement rather than a formal affidavit. The book contained medical records from Joondalup Health Campus, a copy of a violence restraining order application and an affidavit in support, both of which were unsigned, undated and not stamped as having been filed, although the document described as an affidavit refers in its heading to the Albany Court of Petty Sessions. It appears the documents may have been prepared in 2002. There is also a further document described as a 'Display Offence Report By Or Number Search' described as being executed on 27 November 2013 but referring to an incident report on 17 June 2003. Additionally, counsel handed up copies of a handwritten report from the Mirrabooka Medical Centre dated 8 March 1998 and a one page outpatient case notes of Royal Perth Hospital dated 12 March 1998.
In her supplementary written submissions filed on 31 May 2016 DAM helpfully provided the following chronology identifying the incidents in respect of which she brings her claim for criminal injuries compensation:
Date
Offence
Alleged / Proven
*18 June 1993
Assault by first respondent
Proven
1994
Assault by first respondent
Alleged
1995
Assault by first respondent
Alleged
March 1998
Assault by first respondent
Alleged
*6 April 2001
Assault by first and second respondent
Proven
Late 2001 or early 2002
Threat to kill and assault by first respondent
Alleged
Late 2001 or early 2002
Assault by first respondent
Alleged
Late 2001 or early 2002
Sexual assault by first respondent
Alleged
*22 January 2002
Assault for first respondent
Alleged
The incidents marked with asterisks are those incidents which were the subject of the original claim filed with and dismissed by the Assessor. The other incidents were not the subject of the original claim before the Assessor and were only included as a part of the overall claim for criminal injuries compensation when the appeal was relisted for further hearing before me on 3 June. DAM seeks leave to include the further alleged incidents in both the claim for criminal injuries compensation and in the application for an extension of time in which to make the claim or bring the application. It must be noted at the outset that in respect of the alleged incidents in 1994 and 1995, if claims were made separately in respect of each incident, the three‑year period in which the application in respect of the incident in 1994 should have been made expired in 1997 and in respect of the 1995 incidents in 1998. Therefore, if assessed separately, the applications are, respectively, 19 and 18 years out of time.
If the application for compensation having been filed on 26 August 2013 in respect of the incident involving the first respondent, JTV, on 18 June 1993 was only regarded as relating to that incident (which by s 9(1) of the Act should have been made by 17 June 1996) it was made 17 years out of time.
However, if the application for compensation is treated as relating to all the incidents, the time in which the application must be made is, as I have earlier noted, within 3 years from when the last of the offences was committed, so by no later than 22 April 2006.
Background
On 26 August 2013, DAM lodged an application for compensation dated 26 July 2013 in respect of an incident involving JTV on 18 June 1993 at Huntingdale.
Attached to the application was a statement by DAM dated 26 July 2013 concerning the incident on 18 June 1993 (which she referred to as having happened on 18 June 1999) and another incident involving JTV on 21 January 2002. The Assessor wrote to DAM on 24 September 2013 seeking clarification as to whether claims were also being pursued for offences against DAM on 6 April 2001 and 3 October 2002. In a letter to the Assessor dated 3 October 2013, DAM's lawyer, Mr Hickson, advised he had made a typographical error in the statement by referring to 1999 instead of 1993. The letter also advised that though documentation from Joondalup Health Campus had been received for an assault on 22 January 2002, no documentation had been received by police, which was another reason for the delay in filing the claim.
Although the application lodged did not refer to the incident on 21 January 2002, the Assessor proceeded on the basis that DAM intended to make a claim in respect of the incident on 22 January 2002.
By letter dated 24 September 2013, the Assessor wrote to DAM noting that JTV had been convicted of offences against DAM on 6 April 2001 and 3 October 2002, and inquiring why no applications had been made in respect of those convictions.
By letter dated 10 January 2014, DAM's solicitor wrote to the Assessor to confirm that DAM would like to make a claim in respect of incidents involving JTV on 6 April 2001 (although incorrectly identified in the letter as an incident on 6 April 2011) and 3 October 2002.
On 14 January 2014, the Assessor confirmed that files had been opened for incidents involving JTV on 6 April 2001, 22 January 2002 and 3 October 2002. By this letter, the Assessor also inquired whether DAM wished to make an application regarding SLB's unlawful assault against her on 6 April 2001 at Banksia Grove.
By letter dated 17 February 2014, DAM's solicitor confirmed that DAM did wish to make an application regarding SLB's unlawful assault against her on 6 April 2001 at Banksia Grove.
Extension of time refused
By a statement dated 16 August 2013 DAM provided an explanation for why the application for criminal injuries compensation had been brought out of time.
There was further correspondence regarding the delay in bringing the application by:
(a)the Assessor dated 24 September 2013,
(b)DAM's solicitor dated 3 October 2013,
(c)the Assessor dated 4 October 2013, and
(d)DAM's solicitor dated 10 October 2013.
By letter dated 19 June 2014, the Assessor, as I have earlier noted, informed DAM that she had decided to refuse to allow an extension of time and therefore refused the application for criminal injuries compensation.
Compensation application made out of time – principles
By s 9 of the Act:
Time limit for making compensation application
(1)A compensation application must be made within 3 years after the date on which —
(a)the offence to which it relates was committed; or
(b)if it relates to more than one offence, the last of them was committed.
(2)Despite subsection (1), an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.
'Offence' is defined in s 3 as meaning 'an alleged offence or a proved offence'. 'Alleged offence' is defined as meaning 'a crime, misdemeanour or simple offence of which no person has been convicted'. 'Proved offence' is defined as meaning 'a crime, misdemeanour or simple offence of which a person has been convicted'.
I adhere to what I said in Re McHenry [2014] WADC 92 [10] – [27] regarding the principles to be applied when considering an application for an extension of time for making an application for criminal injuries compensation.
As in Re McHenry, a threshold issue arises here as to what is the relevant event from which the three-year period commences and in which the application must be made.
By reference to the basis upon which the application was made to the assessor, the claim related to more than one offence, the last of them being committed on 3 October 2002 for which, on 23 April 2003, JTV was convicted of breaching the violence restraining order in favour of DAM. So, on that basis the claim for compensation ought to have been commenced by no later than 22 April 2006. Therefore, the compensation application (filed on 26 August 2013) is more than seven years out of time.
As I found in Re McHenry [27]:
In considering whether to grant an extension of time in which to make the application, the overriding consideration pursuant to s 9(2) is whether it is just to do so (emphasis added).
The time limit imposed by s 9 is a substantive provision and is not merely a procedural time limit imposed by the rules of the court which might be treated with more indulgence. The onus is on the appellant to explain to the court's satisfaction the reasons for the delay in failing to make the application within three years of the commission of the relevant offence. The burden on the appellant is no triviality and she must make out a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time in which to make the application: Re McHenry [15] – [18].
Reasons for delay in making the application
Amongst the papers originally filed with the assessor in support of the claim for compensation is a statement signed by DAM and dated 16 August 2013 which is headed 'Statement regarding extension of time' which is in the following terms:
During the years I was in a relationship with [JTV] and experiencing many incidents of domestic violence, I felt totally powerless within the relationship because I was frightened of what [JTV] would do to me.
I did not report all incidents to the Police. When I did report matters to the Police, [JTV] pleaded guilty and I was therefore not required to attend court. I did not access Victim Support Services.
I only found out that the history of violence committed against me over the years could form the basis of a Criminal Injuries Compensation Claim after a family member [an Aunty] used the service herself.
I now ask that I be provided with an extension of time to be allowed to file my claim.
In her affidavit/statement signed on 26 May 2016 DAM expanded upon the reasons for the delay in making the application for compensation.
Meeting with Richard Hickson
390.On one of my weeks off, I went to see my aunty, [PF], who lives in Katanning.
391.Aunty [PF] told me something to the effect that 'The house is all clean because someone important is coming around.'
392.The 'someone important' was Richard Hickson, a lawyer from the Family Violence Prevention Legal Service.
393.Aunty [PF] told me to stay at her place and talk to Richard after she had met with him.
394.Aunty [PF] told me to talk to Richard about what [JTV] did to me and about applying for criminal injuries compensation.
395.I thought I might be too late to apply but Aunty [PF] told me I should talk to Richard.
396.When Richard came to Aunty [PF]'s, I spoke to Richard and told him about my history of domestic violence with [JTV].
397.I did not mention the incidents with Matthew to Richard.
398.We just talked about a claim against [JTV].
399.I spoke to Richard about the incidents with [SLV] and when [JTV] broke my eye socket because [JTV] was charged for them.
400.Richard took some details down but the meeting was brief because Richard had to go.
401.Richard said he would look into it.
402.After we met, Richard and I mainly talked over the phone because I was away on my 4 and 1 shift.
403.Richard told me he was looking for police records.
Application for criminal injuries compensation
404.I made an application for criminal injuries compensation in August 2013.
405.I know this was outside of the time limit for making an application.
406.It took time for Richard to collect evidence and file the claim in 2013.
407.My lawyer has told me that my Aunty [PF] made a claim in 2009.
408.I did not know that my Aunty [PF] made a claim in 2009 she never spoke with me about that one.
409.Even though it says in my application for a violence restraining order from 2002 that I was going to see Community Legal Services to get legal advice about family law, I never did as, at that time in 2002, I was very sick.
410.I had 3 boils on my hip that had to be cut out at the hospital in Albany.
411.It was very painful.
412.I was also moving around a lot at that time.
413.I did not speak to Victim Services at any time.
Reasons for delay
414.I had heard about compensation before but I never applied.
415.It was in 1993 that the Police told me I could make a claim.
416.When I spoke to Richard, I was settled in my life.
417.At that time, I was working fly in fly out on the mines, my Mum looked after the twins and my son [J] was also working.
418.Before that, my life was pretty chaotic.
419.It was very hard for me to deal with the effects of the violence by [JTV] who I was in a relationship with at the time and who is the father of my children.
420.Even after so long it is hard for me to talk about these issues.
421.When I sit down and think about it I get really angry and I have to remind myself he should not have done it and it is not my fault.
422.Now and again I would go into depression and that is when I started drinking a lot.
423.I tried to leave him so many times but then he would say he had changed, he had a job and he tried to convince me everything would be different and he would drag me back into the relationship but it was always the same thing.
424.The domestic violence cycle continued with the honeymoon stage as they call it.
425.It was so hard to get away from [JTV].
426.I tried many times during the 10 years we were together to leave him.
427.I went to refuges but he would always seem to find me.
428.It seemed so hopeless.
429.It was so hard with all the children.
430.He would say words to the effect 'let's get back together for the kids.
431.I wanted to believe he had changed and could be a good father and treat me with respect, so I would allow him back into my life.
432.I know now this is the cycle of domestic violence that I was caught up in.
433.From 2002 when the relationship finally ended I did not even think about claiming compensation.
434.I was trying to get myself and my kids sorted out.
435.I was struggling with depression, drinking a lot and feeling very down, I felt like ending my life many times.
436.I tried to slit my wrists but I obviously did not go deep enough as I did not need medical attention, although I still have some scars on my wrists which are fading.
437.I took pills too, painkillers, anything I could get.
438.I never went to hospital for that either, I would just wake up with a really bad headache I told myself to snap out of it as the kids needed me.
Move to Yanchep
439.I moved away from Katanning finally in around March 2015.
440.I stopped working then as the work ran out.
441.My 5 children still live with me at our home in Yanchep.
442.In October 2015 I started working again as a FIFO cleaner.
443.Since then I have found another job working in Perth so I no longer have to do FIFO work.
DAM also explained that during 2010 she was persuaded by her stepfather and sister to stop drinking and taking illicit drugs and that if she did they would assist her obtain work. She obtained necessary trade qualifications to allow her to work on a construction site and started working on a fly‑in fly‑out basis on the mines in May 2011. She was working four weeks on and one week off. It was during one of her weeks off that she saw her aunt, through whom she was introduced to Mr Hickson, a lawyer from the Family Violence Prevention Legal Service who later gave her advice regarding a claim for criminal injuries compensation and who initiated the current proceedings. She does not say when she first met with Mr Hickson but I infer it was in 2011 or 2012.
Subsequently DAM filed a document described as an affidavit affirmed by her on 13 November 2015. Again that document was not signed on each page but I was prepared to accept it as a witness statement. DAM did not refer to or adopt that statement when she gave evidence. At the hearing before me on 3 February, I expressed concern about the reliability of the document and whether it had been properly read before it had been signed. For example, par 47 included what appeared to be a note to someone to clarify with DAM when she lived with her mother for about nine months. Also, in par 45, there appeared to be an obvious typing error in the first line which reads 'From 2002 when the relationship finally needed ....' which clearly should be a reference to when the relationship finally 'ended'. The subsequent statement or affidavit of DAM which she had adopted in her evidence in the hearing before me on 3 June largely superseded and replaced the 15 November 2015 statement and so for the purposes of these reasons, I have ignored the November 2015 document. The later statement essentially repeated, expanded upon and clarified what was set out in the earlier statement.
At the hearing on 3 June DAM gave evidence and confirmed the contents of the affidavit/statement dated 26 May 2016 were true and correct except to making an amendment to par 12 as to the address at which she was then living, to clarify the references to an eye socket in pars 48 and 49 was a reference to her left eye, to say in par 182 that JTV had punched 'into me' three or four times in the head. She also made a correction to par 29 to refer to the right elbow instead of the left elbow.
Basis of application for compensation
As I have noted at the commencement of these reasons, the original application for compensation before the assessor identified the three proven offences and the alleged offence on 22 January 2002 as set out in the chronology. When this appeal proceeded to further hearing before me on 3 June 2016, it proceeded on the basis the application included all of the incidents identified in the chronology set out above [11]. Rather than require DAM to make a further application for compensation in respect of those further incidents, to be initially determined by the Assessor, I formed the view the most practicable way to proceed, having regard to the need to determine applications expeditiously (s 18) was to permit DAM to amend her application (s 19(1)(a)) to include those further alleged incidents.
The second respondent – SLB
As I earlier noted, SLB died on 18 May 2007. Attempts to identify the executor or administrator of her estate to allow these proceedings to be served on a legal entity were unsuccessful. The claim against SLB was only in relation to the incident on 6 April 2014 during which DAM says SLB punched her three or four times in the face after the first respondent JTV held DAM down and told SLB to punch her. In her affidavit DAM said that as a result of each of the first and second respondents hitting her she had a very sore and swollen head, she had bruising around the jaw line and lumps and bumps all over her head. She did not seek medical attention.
The police record (page 40, book 1) states that 'Forensic job booked for photos of bruising to face' which supports DAM's evidence that she did suffer bruising to her face. The police record notes the case file was created at Joondalup DVU which I understand to mean the Domestic Violence Unit.
The police record also confirms that POIs (persons of interest) were interviewed and charges were preferred and that the result of the inquiry was that JTV was arrested and SLB was summonsed.
In her police statement dated 6 April 2001, taken at the Joondalup Police Station at 2.35 pm, DAM refers to the threats made to her by JTV earlier that day and him telling SLB to assault DAM, but SLB trying to calm JTV down and refusing to hit DAM. After some persistence by JTV DAM says SLB hit her to the left side of the face with a clenched fist causing her glasses to fall off and her to stumble backwards. As she went to pick up her glasses SLB punched her to the right side of the face with a clenched fist. DAM then grabbed SLB's hair who then walked off. Shortly afterwards DAM and JTV drove away with their children and JTV continued to threaten to harm DAM and then hit her once, very hard, to the left side of her face with a clenched fist.
In those circumstances I am satisfied the main aggressor and the instigator of the incidents that day, during which I am satisfied DAM was assaulted suffering bodily harm, was JTV. While I am satisfied SLB punched DAM twice to the face, I am satisfied the main cause of any physical injury suffered by DAM was the assaults by JTV rather than SLB.
In his oral submissions counsel for DAM advised she no longer sought to proceed with her claim as against SLB or any legal entity representing the estate of SLB. It was also accepted that given the amended application covered more incidents than previously when the application for compensation was initially filed, the relative significance of SLB's involvement was diminished. In those circumstances counsel sought to discontinue the proceedings against the second respondent SLB.
I am satisfied that as no legal entity for the second respondent has been able to be identified and the proceedings have not been served on any legal entity, and particularly in circumstances outlined above where the role played by SLB in any injuries suffered by DAM was minimal that DAM be given leave to discontinue the proceedings against the second respondent. I accordingly grant leave to discontinue the proceedings against the second respondent.
The claim against the first respondent JTV
18 June 1993 – Assault by first respondent
JTV was convicted on 19August 1993 in the Armadale Court of Petty Sessions (as it then was) of assaulting DAM on 18 June 1993. He was fined $400.
The facts of the assault as stated on the police arrest warrant, which I accept, are that JTV punched DAM to the face for no apparent reason when she opened the door. She suffered bruising to her face. JTV was intoxicated. The offence occurred at 23:10 hours.
The Armadale‑Kelmscott Hospital accident and emergency notes record that DAM arrived at 00:55 and was discharged at 01:55. She was brought to the hospital by police. She gave a history that she had been punched to the head twice and her head hit the wall. She was also punched three times to the face and was bleeding from the right nostril.
Upon examination she was totally orientated and lucid and her gait was normal. There were drops of blood on her jeans. There was obvious bruising of her right cheek and lower eyelid. There were three bumps on her head. Her nose deviated to the right and she was unable to inhale through the right nostril. There was a small amount of blood seen in the nostril. Her jaw was tender and painful when opened against resistance. Her right zygoma/maxilla (right cheek) was tender.
The diagnosis was a probable fracture of the nose and a possible fracture of the right zygoma/maxilla. Otherwise bruising was noted. There was no neurological deficit. DAM was referred to have X-rays taken of her face and jaw later that morning.
The hospital records record that X-rays showed DAM had a fractured nose but no fracture of the right zygoma/maxilla. She was referred to a doctor for follow‑up.
In her affidavit of 26 May 2016, DAM provides further detail of the incident. She says that this incident was the first time JTV hit her. Earlier in the day she and JTV were at a party when JTV had a fight with his brother as a result of which the police were called and JTV was taken away. DAM was taken to JTV's parents' house and while she was there JTV came to the house and knocked on the door. When she opened the door JTV hit her in the face and continued to hit her in the head and face and pulling her hair. Other family members intervened and the police were again called and again took JTV away. The police also took her to the hospital.
DAM said she suffered two black eyes which took two to three weeks to heal. She says one of her eye sockets was fractured and sits lower than the other one. Parts of her hair were pulled out. Her glasses were broken and had to be replaced at a costs she estimates of $600 ‑ $700. Her mother bought her the new glasses.
She said she felt so down and angry with herself because she had never been through this before. She had experienced domestic violence by her father towards her mother and from uncles beating aunts but never thought she would experience it personally.
6 April 2001 – assault by first respondent
This is the incident involving the second respondent SLB which I have earlier briefly outlined when granting DAM leave to discontinue the proceedings against SLB. DAM describes being assaulted by both JTV and SLB.
In her affidavit she described that over a period of time JTV was taking drugs and not sleeping and accused her of infidelity and taking his drugs. At JTV's direction she drove him to SLB's house for the purpose of obtaining drugs. When they arrived at the house JTV told SLB to 'beat up' DAM. She then ran to her nephew's house but was followed by JTV who grabbed her by the hair and dragged her back to SLB's house. As he dragged her back he punched her two or three times in the head and threw her into a chair. He then held her down by the shoulders and got SLB to punch her in the face three or four times. Apparently the police had been contacted and when JTV and SLB were told police had arrived they ceased their assault upon DAM.
DAM was taken by police to a police station to make a statement. She said that as a result of being hit by JTV and SLB she had a sore and swollen head and bruising around her jawline. She did not seek medical attention.
I have earlier outlined the relevant entries in the police records when dealing with the position of SLB and will not repeat what I have outlined. There is also a statement of material facts on the police file which records JTV hit DAM to the left side of her face with a clenched fist causing swelling and a bruise to appear on her left cheek. JTV was charged with two offences of common assault. A violence restraining order was also served on him. He pleaded guilty in the Joondalup Court of Petty Sessions on 27 April 2001 and given a global fine of $600.
22 January 2002 – assault by JTV
In her affidavit DAM says there was an incident in January 2002 when she ended up going to hospital after JTV choked her and threatened to hit her over the head with a shovel. She thought JTV was charged with assault as a result of that incident but has been advised that no police record, to confirm JTV was charged, has been located.
There is however some documentary confirmation by the Joondalup Health Campus of an incident on 22 January 2002 in which JTV assaulted DAM.
The Joondalup Hospital notes record DAM was seen in the emergency department on 22 January 2002 at 20:30 hours. She was brought there by police. The recorded history is that DAM presented following an alleged assault from her partner who punched her in the face. She complained of pain in the nose and the right side of her jaw. A further handwritten note recorded at 22:30 notes she was brought in by police and had been hit in the right side of her jaw. There were bruising marks around her neck. There is a further notation 'ETOH' which counsel accepts is a reference to ethanol indicating DAM had been drinking alcohol. DAM was recorded as being alert and orientated. She was given assault pamphlets and left the department at 01:00 hours. There is no evidence of the contents of the pamphlets.
A further handwritten note states that DAM was seen by a doctor at 2300 hours. The final diagnosis was 'assault – minor facial injury'. It is noted that DAM previously had a restraining out against JTV but it was withdrawn on the understanding that he would do counselling. It is recorded that DAM was choked, punched in the mouth, head butted and slapped. A note further records that this occurred at a friend's house, which is to be contrasted with DAM saying in her affidavit that it happened at her house in Clarkson. The note also records that she was complaining of sore teeth and a sore jaw. There was obvious bruising around the neck and her shirt was torn around the left shoulder. Her right jaw was painful and she was unable to fully open her mouth. There was also bruising to her gums.
In later notes it is recorded DAM did not wait for medical advice and did not sign a discharge form. She was discharged against medical advice.
There is a radiological report dated 22 January 2002 noting 'no boney injury detected'.
3 October 2002 – breach of VRO by JTV
In her affidavit of 26 May 2006 DAM says that when she had been staying at an aunt's house in Katanning for six months, JTV came to the house in October 2002 and was charged with breaching a violence restraining order. There is otherwise no detail provided regarding this alleged incident and how it is alleged to have caused injury to DAM.
Police records confirm that on 3 October 2002 DAM made a complaint to police that JTV had breached a violence restraining order in her favour. It is recorded that JTV breached the order by approaching DAM and a child who were covered by the VRO. DAM was spoken to by police but a statement was not taken. There is a further record which confirms JTV was convicted in the Katanning Magistrates Court on 23 April 2003 of breaching a violence restraining order and fined $400.
Further medical evidence
Section 35(2) provides:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied —
(a)that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or
(b)that the victim was the person against whom, or against whose property, the offence was committed; or
...
In further support of her appeal DAM filed a report of a psychiatrist Dr Ng dated 1 December 2015. The report was not before the Assessor. Dr Ng assessed DAM on 1 December 2015. Dr Ng recorded a history that DAM had been in a relationship with her partner for six months but was uncertain about the future of the relationship because she lacked trust in men. She was living with four of her five children. She was working as a fly‑in fly‑out cleaner.
She reported a family history of domestic violence by her father against her mother but neither her nor her brothers or sisters were physically abused.
After her relationship with JTV ended she was in a relationship with another partner for about a year during which she was subjected to verbal abuse and some degree of physical violence.
She reported she was currently drinking 24 stubbies of light beer a week but was in the process of reducing her alcohol consumption. She denied the use of illicit drugs but admitted that during her relationship with JTV she had started using speed or methylamphetamine. After the relationship ended she continued to use speed as she felt depressed. She also used more alcohol.
She was in a relationship with JTV between 1993 and 2002. The relationship started when she was about 21 years of age. After a few months he started to verbally abuse her and later physically abused her. Dr Ng records that DAM told him that she was punched, hit with a baseball bat, her hair was pulled and JTV dragged her like a ragdoll. She had been raped at least once. JTV threatened to hit her with a shovel and had driven her to the pines and threatened to bury her. She said that for many years she was too frightened to leave him but in the end she left him because he broke her ribs and she had had enough of him. She said there were many times she thought she would be dead and she cut her wrist many times leaving scaring on her wrist. She described feelings of worthlessness, bouts of crying and nightmares. She said that after the relationship ended he continued to follow her. She felt depressed and anxious.
Both during the relationship and after it ended she used speed and drank alcohol to excess. She stopped using speed about six years ago.
Dr Ng's report records the circumstances of the four incidents the subject of the initial applications for compensation generally in terms consistent with DAM's affidavit or statements to which I have earlier referred.
Dr Ng also said that DAM reported she did receive some counselling in Katanning and was treated with antidepressant medication.
She feared that after the relationship ended, JTV would be mad at her if she made a claim against him.
She reported she enjoyed her current relationship. She was no longer tearful. She only occasionally thinks of JTV but has an ongoing fear that he would find and bash her. She distrusts men. Emotionally she was starting to feel back to normal. She socialised with friends. She described her current life as good.
Dr Ng concluded that from the history provided by DAM that she suffered clinically significant distress and from impairments in general, social and occupational functioning. However she did not attain the level of a psychiatric disorder but he reported depressive and anxiety symptoms would have caused her emotional distress and would have arisen directly as a result of the alleged verbal and physical abuse and would have been greater than mere emotions. He goes on to conclude that in his opinion the symptoms would have satisfied the concept of mental and nervous shock.
He further comments that the reported depressive and anxiety symptoms more likely than not would have satisfied the diagnosis criteria of discrete episodes of adjustment disorder with mixed anxiety and depressive mood to varying severities. He relates her increased substance abuse following the end of the relationship with JTV to ongoing anxiety and depressive symptoms.
He did not think DAM currently suffered from a diagnosable psychiatric disorder but suffered from residual anxiety.
Later in his report Dr Ng answers specific questions asked of him as to the consequences for DAM of any mental or nervous shock suffered as a result of the offences the subject of the claim.
Finally, he purports to offer an explanation as to why there was delay in making a claim for criminal injuries compensation.
As I raised with counsel for DAM at the initial hearing before me on 3 February 2016 and which was the subject of further submissions on 3 June, the report of Dr Ng causes me significant concerns, particularly as to its reliability. For an expert opinion to be admissible in a court the facts upon which the report is based need to first be established. That is particularly important in a case such as this where a psychiatrist is being asked to express an opinion as to whether DAM suffered psychiatric injury, or in terms of the definition of 'injury' in s 3, 'mental and nervous shock', based upon a history reported to him by DAM going back over 20 years ago: Pollock v Wellington (1996) 15 WAR 1; Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Makita Australian Pty Ltd v Sprowles (2001) 52 NSWLR 705. Although, by s 18, the Assessor is not bound by the rules of evidence and may inform himself or herself in any manner he or she thinks fit, I am of the view the principles from those authorities are relevant to the weight to be given to a medical report, (rather than whether it is admissible) in a criminal injuries application.
Normally, for a psychiatrist to be able to express an opinion, as to whether someone has suffered psychiatric injury, which is admissible, or, in the circumstances of a criminal injuries compensation, for weight, if any, to be accorded to the opinion, would require the doctor to be provided with a detailed history by both the person being assessed and by independent or corroborating evidence, particularly contemporaneous evidence, especially in circumstances such as in this case, where he is being asked to provide an opinion regarding DAM's medical condition based upon a history going back in excess of 20 years. He is also being asked for his opinion as to DAM's medical condition during a period long before he saw DAM. It puts the doctor in an extremely difficult position. He is almost entirely reliant upon the history provided to him by the applicant as being truthful, reliable and accurate, particularly where contemporaneous documentation has either not been obtained or has not been provided to him.
To the extent that Dr Ng provides an opinion based upon the history provided to him by DAM, I am not persuaded the factual background have been properly or fully established so that Dr Ng's opinion can be relied upon. I do not accept the factual background has been established from which it can be concluded DAM has suffered impairments in general, social and occupational functioning during the period of her relationship with JTV or that she suffered clinically significant distress during that time by which I can be satisfied his opinion that DAM did suffer from episodes of adjustment disorder with mixed anxiety and depressed moods is reliable. In particular, there is no contemporaneous documentation or corroborating evidence that DAM was hit with a baseball bat, dragged like a rag doll, raped, threatened with a shovel and driven to a pine plantation with a threat to be buried. Until her recent statement which DAM adopted as her evidence in the hearing before me on 3 June 2016, there was no evidence of these alleged incidents. They were not the subject or basis of the application for compensation to the Assessor. They have only been included in the application at this very late stage.
Given the significant delay in making any report of these incidents and that by her own admission, DAM was abusing both illicit drugs and alcohol during the relationship with JTV, and after the relationship ended, I cannot be satisfied as to the accuracy and reliability of DAM's memory of the happening of the incidents. Nor can I be satisfied as to whether any injury as defined, particularly mental and nervous shock, has been caused by any of the incidents or an accumulation of them.
I am not satisfied DAM suffers any mental condition which satisfies the meaning of 'mental and nervous shock'.
It is well accepted that the phrase 'mental or nervous shock', comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury. The term includes distress, horror, disgust, and the other similar adverse mental reactions but excludes mere fright, humiliation or anguish: Hatfield v Under Secretary for Law (Unreported; WASC, Library No 4012, 15 December 1980) (Burt CJ) [5]; S v Neumann (1995) 14 WAR 452, 461 (Murray J); M v J and J v J (Unreported; WASC, Library No 920598, 19 November 1992) (Scott J).
To the extent that Dr Ng expresses the opinion that any distress DAM did suffer satisfied the concept of mental and nervous shock that is inadmissible, that is, I do not accept it, as it expresses a legal opinion and not a medical opinion.
Although I am satisfied for the purposes of s 35(2) DAM has suffered bodily harm and is the person against whom JTV offended, I am not satisfied DAM suffers any condition within the meaning of mental and nervous shock. Dr Ng says that currently she does not suffer from a diagnosable psychiatric disorder and then goes on to comment that she does suffer from some residual anxiety and an ongoing lack of trust in men. Accepting that DAM does suffer from anxiety and an ongoing lack of trust in men, those conditions do not meet the test of what is mental and nervous shock.
Without formally conceding the report of Dr Ng was not sufficient to establish DAM had suffered mental and nervous shock and without formally resiling from the basis upon which the claim for compensation is brought, the submission that based upon Dr Ng's report the appellant has suffered mental and nervous shock, was not pressed (ts 75). The main basis for the claim is physical or bodily harm.
Fresh claims
As set out above at [37] I granted DAM leave to include in this appeal claims for compensation in relation to other alleged incidents in which it is alleged DAM was assaulted by JTV even though those incidents had not previously been the subject of a claim for criminal injuries compensation and had not been the subject of a determination or assessment by the Assessor. Nor, except for an incident in late 2001 or early 2002, were the incidents reported to police and JTV has not been convicted in relation to those incidents.
The basis of the application for compensation in respect of those incidents must therefore be pursuant to s 17 which reads:
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
...
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied —
(a)if the application is made under subsection (2) — that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;
...
(5)If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.
1994 incident
In her affidavit of 26 May 2016, DAM describes an incident when she was breastfeeding her 3‑month‑old son when JTV pulled her along by her hair and slapped her around the head with an open hand. She describes her head as being sore.
1995 incident
She describes a further incident in 1995 at the house in which she was living with JTV in Falcon. She was six months pregnant with another son. She describes her brother coming to their house. He was drunk and arguing with her. JTV and her brother then fought outside the house after which JTV came back in to the house in an angry mood. He began abusing DAM and then grabbed her by the throat and pushed her into a wardrobe. He threatened to punch her in the stomach. She describes her neck and back as being sore.
March 1998 incident
She describes a further incident in 1998 when they were living in Balga. Family members of JTV were at their house for a barbeque when arguments developed between them following which JTV pushed DAM into their house and into the bedroom where he punched her in the nose with a clenched fist. She saw herself in the mirror and describes her nose as being crooked and pointing to the right. She suffered two black eyes as a result of that assault which took two to three weeks to heal. She suffered breathing problems. She says nine days after JTV hit her she went to the Mirrabooka Medical Centre. The doctor referred her to Royal Perth Hospital where a doctor straightened her nose under a local anaesthetic. Her nose was painful for a few days after she was treated at Royal Perth Hospital.
There is contemporaneous documentation with supports DAM's account.
A referral letter from Dr Cutts of the Mirrabooka Medical Centre to the ENT clinic describes DAM as being hit in the face on 2 March 1998 leaving her with a deformed nose.
An outpatient case note apparently signed by Dr Yuen on 12 March 1998 (which is difficult to read) records a history that DAM was head‑butted to the nose '111/7 ago' which I understand to be a shorthand notation for three days. Also, at the end of the handwritten record there is a notation '1/52' which I understand to refer to one week. The reference to three days ago might be a reference to the referral of Dr Cutts which is dated 8 or 9 March.
The outpatient case note later records a right nasal obstruction and a deviated nasal obstruction to the right. There is a further note which seems to refer to a fractured nose.
Late 2001 or early 2002 incident – assault by JTV
In her affidavit DAM describes an incident when JTV took her out to a pine plantation near a quarry near to the Ocean View Tavern. She says JTV threatened to bash her head in and told her he was going to kill her and he had a baseball bat. As he was driving DAM to the pine plantation he punched her in the jaw on the right side of her face with a clenched fist. Her jaw became swollen. She did not seek any medical treatment because JTV would not let her.
She does not otherwise describe how that incident ended and what if anything happened afterwards.
Late 2001 or early 2002 incident – further assault by JTV
She describes a further incident when together with members of JTV's family they were watching football at their home in Clarkson. JTV was drunk. While she was standing up JTV pushed her over and she fell backwards landing upon a glass on a table. The glass broke and she had a piece of glass stuck in her elbow which she pulled out. She describes a lot of blood. The police were called and took her to the hospital where the wound was stitched following which she was sent home. She has a scar about an inch long on her right elbow.
An emergency department medical record of the Joondalup Hospital dated 21 November 2001 confirms that DAM was admitted to hospital at 23:13 and seen by a doctor at 00:10. DAM presented with a laceration to the right elbow from a glass which was described as a deep laceration with subcutaneous fat protruding very near to bone. DAM is described as having had some alcohol that night (10 drinks of spirits).
The entry in the nursing notes at 00:10 records '... immediately sutured and discharged patient before nursing intervention could be delivered'.
A later entry in the medical notes records a history that DAM was putting a phone down and cut her elbow on a broken glass. It was noted there was an 8 cm laceration over the medial humeral epicondyle and decreased sensation little finger.
The history recorded in the medical notes of how DAM suffered the cut elbow was inconsistent with her description in her affidavit that she was pushed by JTV and fell backwards. Her affidavit did not address that inconsistency. DAM was recalled to explain that inconsistency. DAM explained that she had difficulty remembering the details of the incident but thinks that while everyone was sitting and watching football on TV JTV started arguing and DAM said she went to ring the police. She was probably using the phone to ring the police when JTV pushed her and she fell back. The police eventually came and took her to the hospital.
Late 2001 or early 2002 – sexual assault by JTV
DAM describes a further incident when her and JTV were living at Clarkson when JTV forced her to perform oral sex on him by grabbing her by the head and forcing her to perform oral sex. It made her feel filthy and dirty.
May 2002 incident
In her affidavit of 26 May 2016 DAM describes an incident which took place not long before she finally left JTV. She was in bed with JTV who was insisting they have sex but she refused. He then ripped her clothes off, forced himself on top of her and, as she describes it, raped her. She was trying to fight him off but was unable to. Afterwards he held her down and punched her on the left side of her back causing bruising. Afterwards she was only able to move slowly because of a painful back.
She goes on to describe that she left JTV in May 2002 shortly after that incident. For a time she stayed with family members before being accepted into a refuge in Midland and later in Albany. She was assisted in obtaining a violence restraining order against JTV. While she was at the Albany refuge JTV found out where she was and travelled to Albany to see her. The refuge rang the police who arrested JTV.
She later moved to Katanning and lived with an aunt. It was while she was living with her aunt in October 2002 that JTV again approached her in breach of the violence restraining order following which he was charged with breaching the order.
Whether injury suffered
I accept the two incidents described by DAM in which she was assaulted in March 1998 and late 2001 or early 2002, which are corroborated or supported by contemporaneous medical documentation, occurred generally in the circumstances outlined by DAM, allowing for her understandable difficulties in remembering precisely the details of the incidents. I also accept she suffered the injuries outlined in the medical records. In my view, the injuries as detailed in the medical records were serious injuries and would have caused distress and pain to DAM at the time. I accept the injuries were suffered in traumatic circumstances during a pattern of ongoing physical abuse of DAM by JTV. However, and without downplaying the seriousness of the injuries at the time and the impact they would have had upon DAM, there is no evidence of the injuries having a lasting impact upon DAM. It seems that she recovered from the injuries.
Importantly, in relation to any claim brought on the basis that DAM suffered mental and nervous shock as a result of the injuries, there is no evidence that those incidents and the physical injuries or bodily harm suffered in them have caused psychological injury of an enduring character.
In relation to the other incidents which are not supported by contemporaneous documentation, even if I was to accept DAM's evidence as to the circumstances in which those incidents occurred, I am not satisfied they have caused any relevant harm which entitles DAM to be awarded compensation, even putting to one side the issue of delay.
Delay
I accept DAM's evidence that she ended her relationship with JTV in May 2002. For a period of time afterwards I accept she faced significant challenges and difficulties in escaping from a violent domestic relationship and to an extent, had to fend for herself with help from her family and friends. She said she took the opportunity to leave JTV after he finally fell asleep, having been awake for four days straight while using methylamphetamine. She only took a few clothes for her and her children. Her mother picked her up and she stayed with a friend of her mother's for about a week before staying for a few days at a Midland refuge. She then left the refuge after she learned JTV had come to the refuge looking for her. The Midland refuge arranged for her and her children to stay at a refuge in Albany and booked bus tickets for her.
She then stayed at the refuge for about a month during which time the refuge assisted her to obtain a violence restraining order against JTV for the protection of herself and her children. After about two weeks, JTV learned she was at the Albany refuge and came to the refuge but the police were called and arrested JTV before sending him back to Perth.
DAM was then able to arrange to stay with an aunt in Katanning for about six months before then moving into a house owned by her brother in Katanning where she lived with her children for about five years before having to leave that house because of family issues. She goes on to describe moving residences on a number of occasions. While she lived in Katanning she underwent counselling with Anglicare for about six months. In 2007 she says she moved to another house in Katanning which she rented for about 18 months before obtaining Homeswest accommodation in Katanning. She remained living in Katanning until early 2015 when she moved to Perth.
She says in her statement she was not a heavy drinker during the time her and JTV were together and would not get too drunk. She describes drinking to excess between 2002 – 2004, drinking a carton of beer a day, which she attributes to the stress of trying to get away from JTV. She was also stressed because of the uncertainty of where she was going to live. She was constantly on edge and used alcohol to calm her nerves. She says that she was depressed. She was on edge all of the time and drank alcohol to calm her nerves.
In 2003 and 2004 she started a TAFE course and started playing netball. She was drinking less when she played netball, which seems to contradict her earlier statement that she was drinking heavily during that time. Also, her statement that she was not a heavy drinker during the time of her relationship with JTV would seem to be contradicted by the note in the Joondalup Hospital records dated 21 November 2001 (to which I earlier referred) which records that she had 10 drinks of spirits that night.
In her statement she goes on to say that in 2004 she developed a relationship with another man with whom she had been a drinking buddy for a couple of years. They were in a relationship for about two years and during that time she was using drugs on a daily basis. The relationship was marred by mutual illicit drug use on a daily basis. She felt she was suffering from bad depression at the time. After she ended the relationship, she continued to use drugs but gradually weened herself off of drugs over a period of time. However, she was still using drugs in 2007 when she moved into the Homeswest house in Katanning. She was using drugs once a week or a fortnight. As a result of taking drugs, she stopped playing netball and going to TAFE.
She also describes two further short‑term relationships in which she was subjected to domestic violence and on one occasion the police attended.
She later describes that in about 2010 her stepfather and sister told her if she stopped drinking and taking illicit drugs they would help her to get a job. She then started to turn her life around, obtained trade qualifications and started working on a fly‑in fly‑out basis in the mines in May 2011.
Since May 2011 she has worked on a fly‑in fly‑out basis on the mines.
In her statement, DAM says that it was in 1993 that police told her she could make a claim for compensation. When she spoke to Richard Hickson in 2011 or 2012, her life was at that time settled whereas previously her life was chaotic and it was hard for her to deal with the effects of the violence perpetrated upon her by JTV with whom she was in a relationship and who was the father of her children. She found it difficult to talk about the issues and still does. After she separated from JTV, her life continued to remain chaotic, particularly in relation to her unsettled accommodation arrangements and having the care of five children.
Conclusion
I accept what DAM says in her statement on 16 August 2013 regarding an extension of time that due to experiencing many incidents of domestic violence she felt totally powerless within the relationship because she was frightened of what JTV would do to her.
I accept that during that period she faced challenging and difficult times. Certainly I accept that during the time of her relationship with JTV, during which there were various separations and reconciliations, when she had the care of five young children, it was reasonable for her to not pursue a criminal injuries compensation claim. It is understandable that she would not follow up the advice from the police in 1993 regarding being able to make a claim for compensation. Of course in 1993, her relationship with JTV had only just begun. It is also understandable that not every incident of domestic violence against her by JTV would be reported to be police. No criticism should be made of her for, either her failure to report every incident of domestic violence to police, or to follow up the advice of the police in 1993 and make a claim for compensation within the time limit in relation to the assault in June 1993.
Indeed, had a claim for compensation been made at that time, by s 36, the assessor may not have made a compensation award in favour of DAM because of her relationship or connection to JTV who committed the offence. By reason of their continuing relationship, he was likely to benefit from payment made under the award.
It should of course be noted that had a claim been made at the time in relation to the June 1993 assault, it would have been subject to the provisions of the Criminal Injuries Compensation Act 1985 which has since been repealed by the Act. By s 17 of that Act (which is in almost identical terms to s 9 of the 2003 Act) an application was required to be made not later than three years of the commission of the offence or alleged offence, or all of the offences or alleged offences, to which the application relates but the Chief Assessor was empowered, if he thought it just to do so, to grant leave to make an application after the three year period has expired. Section 23 of the 1985 Act read:
23.No award where compensation likely to benefit offender
The Chief Assessor shall not make an award of compensation to an applicant if he considers that, by reason of any relationship or connection between the person who committed the offence or alleged offence and the applicant or a close relative of the deceased person, as the case may be, any compensation awarded is likely to result in a benefit or advantage to the person who committed the offence or alleged offence.
So the same considerations applied pursuant to s 23 as apply in relation to s 36 of the 2003 Act.
Therefore, to an extent, the reasons for not making claims of compensation during the time she was in a relationship with JTV can be readily understood and perhaps accepted. The real issue concerning the delay is why she took so long to bring these applications which are presently before me after she separated from JTV in May 2002.
In my view there is no satisfactory explanation for why DAM failed to make her application for compensation within the three years from May 2002 or October 2002. Although I accept that she has suffered trauma because of the domestic abuse to which she was subjected by JTV, which to an extent would have continued to have impacted upon her life after she separated from him, I am not satisfied she was unable to make reasoned decisions or was unable to seek legal advice regarding the possibility of a claim for compensation. Although I accept for a period of time her life was in turmoil and there would have been other more pressing issues in her life, nevertheless she remained able to make a decision to proceed with or at least seek legal advice about a claim for compensation, particularly in circumstances where she had been advised by police in 1993 of her rights to make a claim. She did not suffer a level of impairment which impeded or impacted upon her ability to make an application for compensation – compare Re McHenry [38]. Although I accept it was not until her life gained some stability, when she stopped drinking alcohol to excess and ceased using illicit drugs and obtained steady employment, when she was perhaps in a better position to make reasoned decisions, it wasn't until she learned that her aunt had made a successful claim for criminal injuries compensation in 2009, that she decided to seek advice, apparently at the urging of her aunt, about pursuing a claim for compensation. Therefore the reason for the delay in bringing the application seems to be more related to learning from her aunt that she had made a successful claim for compensation than to what appears to have been a chaotic lifestyle. In my view, if the reason a person has delayed making an application is that they were unaware of the right to make a claim and only made the claim once they became aware of an entitlement, that is not, by itself, a sufficient reason to allow an application for compensation to be made after the three-year limitation period. If that were the case it would have the potential of rendering the limitation period imposed by s 9 nugatory. It would be contrary to the need for the time limit to be complied with, which as I have earlier observed by reference to Re McHenry, is a substantive provision laid down in the Act and is not a mere procedural time limit imposed by the rules of the court which might be treated with more indulgence. A substantial case must be made for it being just and proper for the court to exercise its statutory discretion to allow the application to be brought out of time. The burden on DAM to satisfactorily explain the reasons for failing to make the application within the three year time period is no triviality.
In my view, DAM has not established that because she made the claim for compensation soon after she learned from her aunt that her aunt had made a successful claim that it is just and proper to exercise the discretion in s 9(2) in her favour to allow the application to be brought out of time. I am not satisfied that in all of the circumstances DAM has made out a substantial case that it is just to permit the application to be brought out of time pursuant to s 9(2). In reaching this conclusion I also take into account the significant delay of in excess of seven years.
Further, I am not satisfied that DAM's chaotic lifestyle, during which period she was abusing illicit drugs and alcohol and was in various relationships to which she was subjected to further domestic violence and abuse, was causally related to any injury suffered by her, whether it be mental or nervous shock, or physical injury, during the period of time in which she was in the relationship with JTV and when I accept she was physically and emotionally abused by JTV. Neither do I accept that during that time DAM was impaired to such an extent as to prevent her from being able to seek advice about making a claim for compensation or pursue a claim. In my view, the delay from 2006, by when the claim ought to have been made, to 2013, when it was made, a delay of seven years, has not been satisfactorily explained. DAM has not discharged the onus upon her to satisfactorily explain the reasons for the delay in making the application so that it would be just and proper to exercise my discretion in her favour to allow the application to be now made.
That conclusion is able to be more readily arrived at in relation to the various incidents which were not the subject of the original application for compensation filed with the assessor in August 2013 and which were only joined to the application at the resumed hearing before me on 3 June 2016. Those matters were first mentioned when DAM was assessed by Dr Ng on 1 December 2015, at the request of her lawyers, after the application was dismissed by the Assessor.
The failure to satisfactorily explain the reasons for the delay is compounded by the claims which have only recently been made in relation to various incidents which have not previously been the subject of an application for compensation. I am not persuaded a substantial case has been made out that it is just to allow the application for compensation to be made out of time.
Finally, I also have had regard to s 38 which reads:
An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
As I have earlier observed, except for one incident in late 2001 or early 2002, none of the incidents for which claim for compensation is now made were reported to police. While in the context of an ongoing domestic relationship, especially a relationship marred by domestic abuse and mutual illicit drug use and abuse of alcohol, it is perhaps understandable that every incident would not be reported to police, nevertheless, in the context of an entitlement to an award of compensation under the CICA an assessor is constrained from making an award of compensation if the assessor is of the opinion that the claimant did not do the act or thing which she ought reasonably to have done to assist the prosecution of the person who committed the offence. It might, with some force, be argued that in circumstances where DAM was subjected to continual domestic violence that her failure to report each incident to police was not unreasonable and ought be excused. However, in the circumstances which arise in this case where there is a considerable delay in making an application for compensation, where the incidents said to give rise to the application occurred over 20 years ago, and when the memory of what exactly happened must be necessarily impaired by reason of that delay, particularly when DAM was regularly abusing alcohol and illicit drugs, the failure to report the incidents to police is a relevant consideration in determining whether it is just to allow the compensation application to be made after the three year limitation period.
Accordingly, I dismiss the appeal.
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