DPJB v NCI - [2011] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DPJB -v- NCI [2011] WADC 150

CORAM: GOETZE DCJ

HEARD: 21 SEPTEMBER 2011

DELIVERED : 23 SEPTEMBER 2011

FILE NO/S: APP 95 of 2010

BETWEEN: DPJB
Appellant
AND
NCI
Respondent

ON APPEAL FROM:
For File No               :  APP 95 of 2010
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :THE CHIEF ASSESSOR
File No  :CI 000942 of 2010

Catchwords:

Criminal injuries compensation - Appeal from assessor out of time - Appeal based on claimed withdrawal of complainant's allegations which had been accepted at trial and which had resulted in convictions of the appellant - Appeal against convictions dismissed

Legislation:

Criminal Injuries Compensation Act 2003
District Court Rules 2005

Result:

Leave to appeal refused
Appeal dismissed
Appellant to pay respondent's costs

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms M Howley
Amicus Curiae              :     Ms J Harman on behalf of The Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Not applicable
Respondent:     Slater & Gordon
Amicus Curiae              :     State Solicitor for Western Australia

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

Bentham v WASS [2004] WADC 47
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Burke v Vittorio; Burke v Persall [2008] WADC 169
DPJB v The State of Western Australia [2010] WASCA 12
DPJB v The State of Western Australia [2010] WASCA 12(S)
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson [1990] HCA 30
Gleeson v Lee (1996) 18 SR (WA) 353
Re Hondros [1973] WAR 1
Scott v KIevill (2002) 28 SR (WA) 226
SW v BB [2010] WADC 86
Welsh v Kelly [2008] WADC 149

GOETZE DCJ:

Introduction

On 21 September 2011, this matter came on for hearing. I refused leave to extend the time within which to appeal, dismissed the appeal and ordered that the appellant DPJB pay costs to the respondent NCI in the sum of $360.
These are my reasons for those orders.

Background

In August 2008, DPJB stood trial in the District Court of Western Australia at Perth on an indictment containing 25 counts, mostly alleging assault of a sexual nature against his daughter NCI, the respondent to this appeal.
After trial, DPJB was found guilty of five counts, being four counts of sexual penetration and one count of unlawful assault.
DPJB appealed to the Court of Appeal, but only succeeded in overturning one count of sexual penetration. His convictions on the other four counts remain intact – DPJB v The State of Western Australia [2010] WASCA 12; DPJB v The State of Western Australia [2010] WASCA 12(S).
DPJB then prepared documents seeking special leave to appeal to the High Court of Australia, but apparently he filed incorrect documents which were never accepted by the High Court. The application for special leave to appeal to the High Court has not been taken any further.
In due course, NCI made application for compensation against DPJB…

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 DPJB v NCI

Details

AGLC: DPJB v NCI [2011] WADC 150
Case: [2011] WADC 150
Decision Date: 23 SEPTEMBER 2011

CaseChat Overview and Summary

The matter of DPJB v NCI arose in the appellate court, where the appellant, DPJB, sought to appeal an assessment regarding criminal injuries compensation. DPJB's appeal was grounded in the assertion that the complainant had withdrawn her allegations, which had previously been accepted by the trial court and led to DPJB's convictions. The appeal was dismissed as it was filed beyond the statutory time limit, and the appellant argued that this withdrawal of allegations warranted an out-of-time appeal. The court was tasked with determining whether the late filing of the appeal could be justified under any circumstances and if the alleged withdrawal of the complainant's statements sufficiently impacted the fairness and outcome of the trial.

The central legal issues revolved around the timeliness of the appeal and the impact of the alleged withdrawal of the complainant's allegations on the appeal process. The court needed to assess whether the appellant's appeal was within the permissible time frame and whether the purported retraction of the complainant's statements warranted exceptional circumstances for an out-of-time appeal. Additionally, the court had to consider the effect of the alleged withdrawal on the conviction and whether it constituted a substantial miscarriage of justice.

The court held that the appeal was indeed filed beyond the statutory time limit and that there were no exceptional circumstances to permit an out-of-time appeal. The court found that the alleged withdrawal of the complainant's allegations did not undermine the conviction as the statements had already been accepted at trial and the evidence was sufficient to support the verdict. The court emphasised that the appellant had not presented any new evidence or changed circumstances that would justify allowing the late appeal. Consequently, the appeal against the conviction was dismissed.

The court's final orders confirmed the dismissal of the appeal against the conviction. The appellant was not granted permission to file an out-of-time appeal, and the original conviction remained in place. The decision underscored the importance of adhering to statutory time limits for appeals and the stringent criteria required to permit an out-of-time appeal. The court reaffirmed the need for substantial evidence or circumstances to justify any deviation from the established legal timelines.

Orders