DPJB v NCI
[2011] WADC 150
•23 SEPTEMBER 2011
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 pursuant to the provisions of the Criminal Injuries Compensation Act 2003 (the Act).
On 8 November 2010, the assessor of criminal injuries compensation made an award in favour of NCI in the sum of $95,826.55 for injuries and loss suffered by her as a result of the offending by DPJB, together with an additional $330 for past psychiatric expenses and $4060 for future psychiatric and psychological consultations and antidepressant medications. The learned assessor who ordered also ordered that the sum of $50,000 be recovered from DPJB.
The learned assessor has not been requested to provide written reasons for the award. He has not done so.
DPJB now appeals the award made to NCI.
The appeal
By s 55(1) of the Act, an appeal may be brought to the District Court against the assessor's decision:
(a)to make or refuse to make a compensation award;
(b)as to the amount of the compensation award.
By s 55(3) of the Act:
The appeal must be commenced within 21 days of the date of the decision.
By r 51(4) of the District Court Rules 2005:
A notice of appeal must be filed and served within 21 days after the date of the appealable decision.
Section 55(4) of the Act provides as follows:
If it is just to do so, the District Court may allow an appeal to be commenced after 21 days, and may do so even if the period has expired.
DPJB's notice of appeal is dated 29 November 2010, but it was not in fact filed until 8 December 2010. It was therefore neither filed nor served within time and as such, leave is required to extend time to commence the appeal.
Nature of the appeal
Section 56 of the Act provides as follows:
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following –
…
(b)confirm, vary or reverse the assessor's decision, either in whole or in part.
Notwithstanding that the appeal is to be determined 'without being fettered by the assessor's decision', it is nonetheless appropriate to have regard to the assessment made by the learned chief assessor as a specialist tribunal in the field of criminal injuries compensation: Burke v Vittorio; Burke v Persall [2008] WADC 169 [34]; Welsh v Kelly [2008] WADC 149 [9] – [10].
The grounds of appeal
By his grounds of appeal, DPJB does not seek to appeal the actual amount of compensation awarded by the assessor. He does not complain that the compensation should be reduced. Rather, the appeal is based on the following grounds:
With due respect to the Court, I am innocent of the charges of which I was convicted. I have maintained my innocence from the outset. The case was based on Oath against Oath.
In a letter to the OCIC dated 4 October 2010 (copy attached), I wrote the following:
'I note that N [Respondent] has signed the paperwork in February 2010.
N [Respondent] came to visit me on the 26 June 2010 at her request. During the visit, she told me that she is not certain whether the allegation she made against me had happened or not, that some days she is certain that they happened and other days she is uncertain whether they had happened or not.'
I wrote a letter via the VMU to the Respondent on 24 October 2010 (4 pages copy attached – I also sent a copy to the OCIC on 24 October 2010) in which I asked the Respondent to confirm my understanding of what the Respondent had said to me on 26 June 2010.
However, I have not received a reply to my letter of 24 October 2010, nor has the OCIC (confirmed over the phone today the 29 November 2010).
If the Respondent is not certain whether the allegations she made against me took place or not, she can't make a compensation claim.
Also in the last paragraph of my letter to the OCIC of 4 October 2010, I requested the OCIC to suspend processing the claim until I received a reply from N [Respondent] to my letter [the one I was going to send to the Respondent and did send on 24 October 2010].
DPJB's letter dated 24 October 2010 to NCI includes the following:
During the visit, you told me, among other things that:
a)I was a good person and should not be in prison;
b)you were not certain whether the allegations you made against me had happened or not;
c)some days you were certain they had happened and some days you were uncertain they had happened, and;
d)you had discussed these doubts with your counsellor.
Can you please confirm in writing to me that this, in essence, is what you told me?
DPJB's submissions in support of the appeal
By his written submissions filed in support of the appeal, DPJB sought the following orders:
1.NCI be given 28 days to confirm whether or not she agrees with statement (a) to (c) of my letter of 24th October 2010.
2.If NCI replies under oath within the time limit, either orally or in writing,
2.1and agrees with any of the statements (a) to (c) of my letter of 24th October 2010, then the total compensation amount and the amount payable by me should be reduced, or,
2.2and disagrees with all of the statements (a) to (c) of my letter of 24th October 2010, then the total compensation amount payable by me should remain as is.
3.If NCI does not reply under oath within the time limit, then the total compensation amount and the amount payable by me should be reduced to zero.
DPJB submitted that the matters set out in his letter dated 24 October 2010 to NCI at (a) – (c) above:
are material and should have been taken into account when calculating the compensation amount.
In passing, it should be noted that at [2.1], the submissions above suggest that, in the postulated circumstances of that paragraph, the compensation amount be 'should be reduced'. The grounds of appeal do not refer to a reduction of the amount at all and they do not specify particulars relied on to reduce the award as required by District Court r 51(3). Such new ground could only be argued with leave as required by District Court r 56.
Rule 51(3) and r 56 provide as follows:
51(3)The grounds of appeal in a notice of appeal must not merely allege that an appealable decision is against the weight of the evidence or that it is wrong in law, they must specify the particulars relied on to demonstrate that the decision is against the weight of the evidence and the specific reasons why it is wrong in law.
56.Except with the leave of the Court, a party to an appeal is not entitled to seek any relief or rely on any ground that is not set out in the notice of appeal or the answer, as the case may be.
In the event, if it is not necessary to consider an amendment to the grounds of appeal to reduce the award for reasons appearing below at [34] ‑ [36].
Application for leave to appeal out of time
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549 (Toohey & Gummow JJ), it was held that the fact that the refusal of an application to grant leave to extend time to bring an action otherwise barred by a statutory limitation provision means that the applicant can never litigate his or her claim cannot be enough of itself to warrant an extension of time because if it were, then there would be no discretion to be exercised.
In Gleeson v Lee (1996) 18 SR (WA) 353, 354 – 355 (Hammond CJDC) and in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J), four factors were identified for consideration in relation to an application for extension of time to appeal a judgment, namely the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent.
Subsequently, in Gallo v Dawson [1990] HCA 30 [2], McHugh J held that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the time limit will work an injustice upon the applicant, having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for an extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the appeal succeeding and to bear in mind the fact that upon expiry of the time for appealing, the respondent has a vested right to retain the judgment.
Although the factors listed in Gallo overlap to a large extent with the factors referred to in Gleeson and Esther Investments, the factors listed in Gallo are more appropriate as the wording of the High Court rule is similar to the wording of s 55(4) of the Act – SW v BB [2010] WADC 86 [19] (Schoombee DCJ).
The notice of appeal is dated 29 November 2010, but was filed nine days out of time on 8 December 2010. That delay is not a considerable amount of time. However, DPJB did not provide any reasons whatsoever for the late filing, whether that be by way of affidavit or submissions.
The history of the proceedings and the conduct of the parties in these proceedings are neutral matters, but this is an appeal from the assessment of criminal injuries compensation following the conviction of DPJB on serious sexual offences and the rejection, in the main, of his appeal.
Further, NCI has already received the majority of the compensation award and she would suffer prejudice to the extent that a successful appeal might affect her entitlement to that compensation and any use she may have made of it.
Importantly however, the appeal has no prospects of success in that the filed grounds of appeal do not challenge the quantum of the award or any of the component parts of it, but rather, the appeal is based on DPJB's claim that he 'is innocent of the charges of which he has been convicted', such that it follows that compensation should not be paid at all.
DPJB has exhausted his rights of appeal against conviction. The Court of Appeal in this State has dealt with this matter and DPJB incorrectly filed an application for special leave to appeal to the High Court of Australia which he has not sought to correct. It will be an abuse of process for this court to go behind the convictions. A conviction cannot be challenged by way of a defacto appeal against conviction: Bentham v WASS [2004] WADC 47 [5]; Scott v KIevill (2002) 28 SR (WA) 226 [7]; Re Hondros [1973] WAR 1 [3].
True it is, that, by s 56(1) of the Act, I am required to assess the award by way of a hearing de novo. However, by his written submissions, DPJB expressly indicated, that, if NCI:
disagrees with all of the statements (a) to (c) of [his] letter of 24th October 2010 then the total compensation amount payable by me should remain as is.
NCI filed an affidavit sworn 19 September 2011 deposing that:
3.I am certain that the Applicant committed multiple crimes against me including those for which he was convicted.
Given that NCI disagrees with (a) – (c) of DPJB's letter dated 24 October 2010, the award should remain undisturbed as submitted by him and there is no need to consider a reduction of it for particulars not specified by him.
There is therefore nothing to be gained in conducting an assessment by way of a hearing de novo on grounds that have not been articulated by DPJB.
The hearing
On 20 September 2011, DPJB wrote to the Principal Registrar as follows:
Given NCI has stated under oath on 19 September 2011 that she is certain that I committed multiple crimes against her including those for which I was convicted, it does not make sense for me to continue with the Appeal. Therefore, I withdraw my Appeal.
Please note that I maintain my innocence and what NCI said to me at our meeting on 26 June 2010 as outlined in my letter to her of 24 October 2010 is correct.
If appropriate, please remove the 'bring up' order for me for tomorrow.
I would appreciate it if you could inform the SSO and Slater and Gordon that I have withdrawn my Appeal.
Please keep the DPP's files in the Court as I have a question on them and I will come back to you on this later in the week.
On 21 September 2011, DPJB attended the hearing of the appeal. I explained to him that my proposed course of action was to refuse leave to appeal out of time and to dismiss the appeal rather than to allow him to simply withdraw the appeal. I explained my reasons to him as to why that was so. He did not seek to dissuade me from that course.
Result
In the circumstances, given that DPJB is not in fact appealing the award by the learned assessor, but rather, he is really seeking to appeal his convictions, I refused the application for leave to appeal out of time for the additional reasons that the delay has not been explained, there was no arguable case that will succeed on the grounds pleaded, ie to set aside the four convictions and further, there was likely to be prejudice suffered by NCI.
Orders
1.Leave to appeal out of time be refused.
2.The appeal be dismissed.
3.The appellant do pay the respondent's costs of the appeal filed at $360.
0
5
2