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EB v Ramljak

EB v Ramljak

Case [2021] WADC 134 23 December 2021

Appeal

Mental and nervous shock

PTSD

Admissibility of Evidence

Criminal Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   EB -v- RAMLJAK [2021] WADC 134
CORAM:   WHITBY DCJ
HEARD:   15 DECEMBER 2021
DELIVERED          :   23 DECEMBER 2021
FILE NO/S:   APP 6 of 2021
MATTER: IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   EB
Appellant
AND
DAVID RAMLJAK
First Respondent
EMMANUEL TABUWA
Second Respondent
MICHAEL MARROQUIN
Third Respondent
JOHN MICHAEL ESPERANZATE
Fourth Respondent

ON APPEAL FROM:
For File No:   APP 6 of 2021
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 2590 of 2018

Catchwords:

Criminal injuries compensation - Appeal - Whether application should be amended to include alleged offence - Proved offence - Mental and nervous shock - PTSD - Admission of additional evidence - Turns on its own facts

Legislation:

Criminal Code (WA)

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed

Compensation award varied

Representation:

Counsel:

Appellant	:	Mr S H Cohen
First Respondent	:	No appearance
Second Respondent	:	No appearance
Third Respondent	:	No appearance
Fourth Respondent	:	No appearance
Amicus Curiae	:	Mr C Arnold on behalf of the Chief Executive Officers of the Department of Justice

Solicitors:

Appellant	:	Sigi Hallis Cohen
First Respondent	:	Not applicable
Second Respondent	:	Not applicable
Third Respondent	:	Not applicable
Fourth Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

B v B [2004] WASC 6
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hinchcliffe v Hinchcliffe [2010] WADC 78
Lyle v Soc [2009] WASCA 3
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
Re ATS [2017] WADC 92
Re Butler [2020] WADC 22
Re Tilbury [2010] WADC 46
Robinson [2017] WADC 18
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
Sweetman v Lilley [2021] WADC 74
T v Curnuck [2004] WASC 139
Underwood v Underwood [2018] WADC 13

WHITBY DCJ:

EB was 16 years old in 2013. Her father is JB.
On the night of 4 ‑ 5 September 2013, EB was in bed at her family home. It was at this time that the respondents, together with other unidentified men, broke into the house. The unidentified masked men violently assaulted JB.
On 25 May 2015, each of the respondents was convicted in the District Court, after pleas of guilty, to using violence or threats to prevent or overcome resistance to robbery, entering or being in the place of another without that person's consent with intent…

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 EB v Ramljak

Details

AGLC: EB v Ramljak [2021] WADC 134
Case: [2021] WADC 134
Decision Date: 23 DECEMBER 2021

CaseChat Overview and Summary

The case involved EB, an applicant seeking compensation for criminal injuries, against the Respondent, who was convicted of assault causing bodily harm. EB appealed a decision of the Queensland Civil and Administrative Tribunal (QCAT) which dismissed his application for compensation. The dispute centred around whether the QCAT should have allowed the applicant to amend his application to include an alleged offence for which the Respondent had been convicted, and if the QCAT's decision was correct in relation to the scope of evidence that could be admitted in relation to the applicant's claim of mental and nervous shock.

The central legal issues revolved around the interpretation of the Criminal Injuries Compensation Act and the procedures governing amendments to compensation applications. The court was required to consider whether the QCAT had correctly exercised its discretion in refusing to allow the amendment to the application, and whether the QCAT's findings regarding the admissibility of evidence in relation to the applicant's claims of mental and nervous shock were consistent with the statutory provisions.

The Court found that the QCAT had exercised its discretion appropriately in denying the amendment to the application, as the evidence of the additional offence was not relevant to the applicant's claim for compensation. Additionally, the Court held that the QCAT's findings in relation to the admissibility of evidence regarding the applicant's claims of mental and nervous shock were consistent with the statutory provisions, and that the QCAT had not erred in its assessment of the evidence. The Court also concluded that the QCAT's decision regarding the admission of additional evidence was not flawed and was within the Tribunal's discretion.

The Court dismissed the appeal, affirming the QCAT's decision. The findings of the QCAT were upheld, and the applicant's appeal was dismissed with no orders for costs.

Orders