Edmonds v Juniper
[2016] WADC 7
•22 JANUARY 2016
EDMONDS -v- JUNIPER [2016] WADC 7
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 7 | |
| Case No: | APP:28/2015 | 9 DECEMBER 2015 | |
| Coram: | GOETZE DCJ | 22/01/16 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeals dismissed | ||
| PDF Version |
| Parties: | MICHAEL JOHN EDMONDS ANDREW JAMES JUNIPER GARETH CHARLES EDMONDS |
Catchwords: | Appeal Criminal Injuries Compensation Act 2003 Section 41 Alleged behaviour of victim |
Legislation: | Criminal Injuries Compensation Act 2003 |
Case References: | MJN v MAJS [2003] WACC 9 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
ANDREW JAMES JUNIPER
Respondent
BETWEEN : GARETH CHARLES EDMONDS
- Appellant
AND
ANDREW JAMES JUNIPER
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
Citation : [2015] WACIC 5
File No : CI 1776 of 2012, CI 1146 of 2014
Catchwords:
Appeal - Criminal Injuries Compensation Act 2003 - Section 41 - Alleged behaviour of victim
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeals dismissed
Representation:
APP 28 of 2015
Counsel:
Appellant : In person
Respondent : Mr B Hocking
Amicus Curiae : Ms J Rhodes appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Respondent : Bradley Bayly Legal
Amicus Curiae : State Solicitor for Western Australia
APP 31 of 2015
Counsel:
Appellant : In person
Respondent : Mr B Hocking
Amicus Curiae : Ms J Rhodes appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Respondent : Bradley Bayly Legal
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
MJN v MAJS [2003] WACC 9
- GOETZE DCJ:
Introduction
1 Michael Edmonds and his son Gareth Edmonds were both convicted after trial of certain offences involving Andrew Juniper who applied for, and obtained, orders for criminal injuries compensation against each of Michael and Gareth in their separate capacities. Michael was ordered to pay $5,000 and Gareth $23,000 by way of criminal injuries compensation to Mr Juniper.
2 Michael and Gareth now appeal the decisions of the Chief Assessor of Criminal Injuries Compensation.
The offending and the convictions
3 Michael's daughter Zoe, who is Gareth's sister, was previously in a relationship with Mr Juniper. Michael and Gareth alleged that she purchased a motor vehicle for the sum of $4,600 and that Mr Juniper wrongly transferred ownership of that vehicle into his own name.
4 Mr Juniper claimed to have contributed $3,000 to the purchase price of the vehicle. This was disputed by Michael and Gareth.
5 Over time, Michael and Gareth attempted to have the registration of the vehicle transferred to Zoe and to retrieve possession of it for her. Their attempts were resisted by Mr Juniper.
6 On 18 May 2011, Mr Juniper was living in Nannup. The vehicle was then in his possession. Michael and Gareth were living in Armadale. They drove to Mr Juniper's Nannup property. After pleasantries were exchanged, Michael and Gareth sought Mr Juniper's execution of the transfer of registration of the vehicle to Zoe. Mr Juniper refused. In consequence thereof, Gareth threatened Mr Juniper with a flogging if he did not sign the transfer paper. Whilst Gareth was making threats, Michael went to his car to obtain the transfer paper. Mr Juniper was beaten severely with a wooden rod by Gareth. Mr Juniper sought refuge in the motor vehicle. Gareth smashed the window of the vehicle in which Mr Juniper was seated with the same wooden rod which he had previously used to beat Mr Juniper.
7 Both Michael and Gareth were charged with making a threat with intent to cause a detriment to Mr Juniper, unlawfully doing grievous bodily harm to him and wilful and unlawful damage to the motor vehicle.
8 Both Michal and Gareth were convicted of making a threat with intent to cause a detriment to Mr Juniper. They were both acquitted of the grievous bodily harm charges. Michael was found not guilty of wilful and unlawful damage, but Gareth was found guilty thereof.
9 Further, on 5 June 2011 at the Palmyra home of Mr Juniper's mother, whilst Mr Juniper was present thereat with his mother, his brother and his brother's young child, Gareth smashed a window and entered the premises with a wooden pole, which he used to hit Mr Juniper. Gareth was found guilty of burglary, aggravated by various matters, including causing bodily harm to Mr Juniper and threatening to kill him.
The appeals
10 Various grounds of appeal against the awards of compensation are contained in Michael and Gareth's notices of appeal and their affidavits. It is proposed to deal with each ground separately.
Charges not legal; falsely accused
11 This was the only ground of appeal as set out in Michael and Gareth's notices of appeal. It seems that this ground related solely to Gareth in respect of the property damage offence. Only he was convicted of that offence. His argument was that the property, being the motor vehicle, did not belong to Mr Juniper. This is not an arguable ground and was abandoned at the hearing of the appeal.
Section 41 Criminal Injuries Compensation Act
12 Michael and Gareth both complain that the chief assessor did not apply s 41 of the Criminal Injuries Compensation Act 2003. This is the main ground of their respective appeals.
13 Section 41 provides as follows:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor —
(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b) may, if he or she thinks it is just to do so —
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.
15 Michael and Gareth both complain that the chief assessor failed to apply s 41. They say she did not have regard to Mr Juniper's behaviour, attitude or disposition prior to the offending which, they submitted, contributed to his injuries. They complain that if she had had regard to his behaviour, attitude or disposition prior to the offending, then by reason of that contribution, the chief assessor would have refused to make a compensation award or at least, she would have reduced any award.
16 However, even accepting, for the sake of this ground of appeal, that Mr Juniper behaved improperly and that the motor vehicle in fact belonged to Zoe, such that Mr Juniper should not have transferred registration of it into his name, should have transferred the registration of it to Zoe and should have delivered possession of the vehicle up to her, or to Michael and Gareth on her behalf, those facts would not justify Michael and Gareth attending at Nannup, and Gareth attending at Palmyra, and acting in the criminal manner in which they did, as found by the jury.
17 Michael and Gareth also claim that Mr Juniper was intoxicated and aggressive on occasions prior to the May and June 2011 offences. Threats were allegedly made by him to Zoe. Again, even accepting these claims to be true for the sake of this ground of appeal, these matters do not constitute behaviour, condition, attitude or disposition of Mr Juniper that warranted the offending on either 18 May or 5 June 2011 such as to justify a refusal to make a compensation award or to reduce an award within the meaning of s 41.
18 Any impropriety on the part of Mr Juniper prior to 18 May 2011 did not justify the criminal actions of Michael and Gareth on that date. Likewise, any such impropriety on Mr Juniper's part prior to 5 June 2011 did not justify Gareth's criminal actions on that date. Further, Mr Juniper's conduct on 18 May and 5 June 2011 did not justify the criminal conduct of Michael and Gareth respectively. Indeed, Michael quite properly conceded that the threats should not have been made.
19 An example of the 'behaviour, condition, attitude, or disposition' of a victim referred to in s 41(a) might be, in an appropriate case, conduct such as provocation, whereby a victim may have acted wrongfully so as to deprive an offender of self-control and thereby induce the offender to commit an offence against the victim in the heat of the moment before passion and temper have cooled. But that was not the case here on either 18 May or 5 June 2011.
20 Michael and Gareth both claim they only went to Nannup and Palmyra respectively by reason of Mr Juniper's prior refusals to transfer registration of the vehicle, and possession of it, to Zoe. Their offending could never be described as acting in the heat of the moment before passion and temper had cooled.
21 However reluctantly, Michael and Gareth should have accepted that Mr Juniper was disputing their claim and was refusing to cooperate.
22 Members of the public who have a dispute with other members of the public must not take the law into their own hands and act in a vigilante fashion. There are mechanisms by which disputes in our society can be resolved in an orderly manner. That is one of the fundamental tenets of our democratic and free society. However wrong it may have been on his part, Mr Juniper's conduct prior to the offending, on 11 May 2011 and 5 June 2011, did not justify the criminal acts of Michael and Gareth.
23 If necessary, Zoe could, and should, have commenced proceedings in the Magistrates Court minor claims division which has been established to assist parties in person without the aid of a solicitor. If a criminal act was alleged to have been committed by Mr Juniper, then the proper procedure was to have recourse to the police. Michael and Gareth could no doubt have assisted Zoe in either of these two ways.
Fresh hearsay evidence and s 19
24 This ground relates to hearsay information having been provided to the chief assessor by Zoe who, later, provided a statutory declaration and then subsequently, an affidavit. Complaint was made that, under s 19(2)(a) of the Criminal Injuries Compensation Act, the chief assessor should have required Zoe to attend to give evidence to prove the conduct of Mr Juniper prior to the alleged offending. The chief assessor did not request Zoe's attendance. Zoe's information related to matters personal to Mr Juniper and she detailed some history of the matter as set out at [3] - [6] above.
25 As indicated above at [14] – [18] above, Mr Juniper's conduct prior to the alleged offending is irrelevant. In any event, the information attributed to and subsequently provided by, Zoe did not assist to determine the making of awards of criminal injuries compensation.
Acquittal of grievous bodily harm
26 Gareth complained that by reason of the 'assault' charges being dismissed, compensation should not have been awarded. However, the learned chief assessor found that there were other offences for which compensation was payable, being the threats at Nannup and the burglary at Palmyra, as to which, see [35] – [37] below.
Mr Critchison's report
27 This ground was raised at the hearing of the appeal on the basis of incorrect information having been provided by Mr Juniper to a psychologist, Mr Barry Critchison. It was argued that the chief assessor relied on this report in making the awards. Gareth also appealed on the basis that Mr Juniper falsely claimed he was a moderate drinker before the Nannup offending occurred.
28 It is true that the chief assessor referred to the report of Mr Critchison but, it is also clear from her reasons that the chief assessor was aware of:
(1) selective information having been supplied to Mr Critchison by Mr Juniper;
(2) Mr Critchison's reference to Mr Juniper's use of alcohol to self-medicate being common for people with post-traumatic stress disorder but, without Mr Critchison acknowledging that Mr Juniper's drinking problem was a pre-existing habit;
(3) observations regarding Mr Juniper's liver in 2007 resulting from long term alcohol consumption, rather than only arising after May 2011, although Mr Critchison seemed to be only aware of the ultrasound from October 2011; and
(4) Mr Juniper's quality of life problems pre-existing in May 2011.
29 This ground of appeal is without merit by reason that, rather than accepting Mr Critchison's report, the chief assessor in fact pointed out the deficiencies in that report. It should also be noted that the chief assessor did not accept the contents of a report from a psychiatrist, which she also summarized. Other expert reports were not so criticized by Michael and Gareth. The chief assessor had ample other evidence on which to make the awards.
30 The chief assessor had copies of files from Albany Regional Hospital, Fremantle Hospital and Sir Charles Gairdner Hospital detailing Mr Juniper's pre and post-hospital attendances and the reasons therefor.
31 The chief assessor had a referral and a report from Southern Regional Medical Group dated 16 June 2011 and 26 July 2011 respectively detailing Mr Juniper's pre and post-offence conditions and his need for hospitalization after the offending.
32 The chief assessor had a report dated 12 October 2011 from Dr J J Kriek at Southern Regional Medical Group in which he advised of the consequences for Mr Juniper of the proven offending. Dr Kriek also wrote to Mr Juniper on 28 September 2011. Dr Kriek referred to Mr Juniper's subsequent admissions to hospital for mental health and drug and alcohol assessment and treatment. Dr Kriek noted great psychological damage. Dr Kriek referred to Mr Juniper suffering posttraumatic stress disorder. He was receiving treatment for emotional trauma.
33 Suffice it is to say, that, the chief assessor read the reports and understood Mr Juniper's pre and post-offence mental condition and drinking problem. She found that, prior to the offending, he did not have control of his drinking problem. She found the threats in Nannup giving rise to convictions were 'frightening and unsettling'. She said the burglary at Palmyra was 'significantly violent and threatening resulting in minor physical injuries but, more importantly, constituted a further psychological strain' on Mr Juniper. Both offenders were aware Mr Juniper suffered an alcohol problem and she found each offender was 'responsible for the significant exacerbation of that pre-existing conduct brought about by their conduct'.
34 In MJN v MAJS [2003] WACC 9, Martino J said:
49 However, in MEM v CLF Judge Macknay did not reduce an applicant's award where there had been offences committed upon the applicant for which compensation could be awarded and offences committed for which compensation could not be awarded.
50 Where an applicant has been the victim of offences for which compensation or a certificate can be awarded (compensable offences) and of offences for which compensation or a certificate cannot be awarded (non-compensable offences) the onus is on the applicant to prove that the compensable offences did contribute materially to the applicant's injury or loss. The compensable offences need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlaw[1956] AC 613; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666.
51 If it is not possible to disentangle the consequences of non-compensable offences from the consequences of compensable offences the applicant is entitled to compensation for the full injury and loss if the applicant has established that the compensable offences did contribute materially to the applicant's injury or loss: Bonnington Castings Ltd v Wardlow; Fagan v Crimes Compensation Tribunal; Watts v Rake (1960) 108 CLR 158: Purkess v Crittenden (1965) 114 CLR 164.
52. Where the evidence establishes that the non-compensable offences had a propensity to cause the applicant's injury or loss and did contribute to the injury or loss the award of compensation will be reduced to take account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
35 Even though there were alleged offences for which compensation could not be awarded, being the unlawful grievous bodily harm for both Michael and Gareth and the property damage for Michael, it is clear that Mr Juniper was the victim of offences for which compensation could be awarded, being the threats, property damage and the aggravated burglary.
36 At the relevant times, Mr Juniper was in a fragile condition and susceptible to further deterioration of his mental condition and his problem with alcohol. Both offenders were aware of this. By reason of the proved offences having been committed against Mr Juniper, his mental condition and alcohol problem worsened dramatically.
37 Mr Juniper has proved that those offences attracting compensation did materially contribute to his injuries. Those offences attracting compensation need not be the sole cause of Mr Juniper's injuries, but clearly the chief assessor disentangled the consequences of the physical injuries received at Nannup: reasons [27].
38 The Criminal Injuries Compensation Act does not require a precise mathematical calculation in assessing an award. The making of an award is a matter of discretionary judgment. It cannot be said, and it was not argued, that the awards were excessive.
39 The quantum of the awards reflect the different roles played by Michael and Gareth.
Flawed sentencing remarks
40 Michael and Gareth allege that flawed remarks by the sentencing judge may have made matters more difficult for the chief assessor.
41 Michael alleges the sentencing remarks indicate that the trial judge sentenced Michael for the property damage. However, that requires a selective reading from the sentencing remarks. A full reading of those remarks shows otherwise. Michael was clearly not sentenced for that offence. It is accepted by Michael and Gareth that incorrect factual matters recited by the sentencing judge are not a ground of appeal.
42 This ground of appeal must be dismissed.
Mr Juniper's departure from Nannup
43 In his materials provided to the chief assessor, Mr Juniper indicated that by reason of the offending, he was forced to leave his home at Nannup. Michael said this is palpably false and that it should have been the subject of a hearing by the chief assessor. It was however, up to the assessor to determine whether to conduct a hearing or not so as to resolve this disputed issue. Hearings are not usually conducted before an assessor.
44 It seems that the chief assessor did not find it necessary to resolve this apparent conflict of evidence and that is perfectly understandable given the findings above.
The victim impact statement
45 Complaint was made that the victim impact statement did not refer to the burglary, yet the chief assessor found that such was
significantly violent and threatening resulting in relatively minor physical injuries to the applicant, but, more importantly, constituted a further psychological strain on the applicant.
46 Further, Michael has observed that the learned sentencing judge noted that the victim impact statement only referred to the incident at Nannup and that it related only to the physical consequences from the alleged grievous bodily harm in respect of which both Michael and Gareth were acquitted. The sentencing judge therefore found the victim impact statement to not be relevant to any charge on which a conviction had been recorded.
47 Whether or not the non-physical injuries from Nannup and the burglary are referred to in the victim impact statement is irrelevant given other documentation on the file including the trial transcript detailing the nature of the compensable offending during both incidents and the medical reports as outlined above. Just as a victim should not be over-compensated for overstating consequences of offending, neither should a victim be under-compensated for understating consequences of offending.
Section 35
48 This ground of appeal was abandoned.
No award
49 This ground of appeal is simply a submission that an award should not have been made against Michael without stating anything further. It is exactly that, only a submission, and not a ground of appeal.
Conclusion
50 The appeals are both dismissed.
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