EM v CL

Case [2021] WADC 127

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   E M -v- C L [2021] WADC 127

CORAM:   BURROWS DCJ

HEARD:   24 NOVEMBER 2021

DELIVERED          :   22 DECEMBER 2021

FILE NO/S:   APP 5 of 2020

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   E M

Appellant

AND

C L

Respondent

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   C F HOLYOAK-ROBERTS

File Number            :   CIC 3082 of 2017


Catchwords:

Criminal injuries compensation - Appeal - Refusal of compensation - Application of s 36 - Whether any award would benefit offender - Additional evidence and information - Principles relevant to assessment - Turns on its own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant : Mr T E Pontre
Respondent :

No appearance
Amicus Curiae : Ms L J Italiano appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant : Kimberley Community Legal Services Inc (Kununurra)
Respondent :

Not applicable
Amicus Curiae : State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Bennett v Minister of Community Welfare (1992) 176 CLR 408

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Dos Santos v Dos Santos [2000] WADC 256

DR v CD [2018] WADC 148

Guy v Hampson [2019] WADC 19

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)

Hinchcliffe v Hinchcliffe [2010] WADC 78

Husher v Husher (1999) 197 CLR 138

James v Northern Territory of Australia [2012] NTSC 51

MBP v LKP [2018] WADC 65

Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221

Quine v Keerasawat [2014] WADC 150

Re ATS [2019] WADC 76

Re HCM [2018] WADC 20

Re Robinson [2017] WADC 18

Re TLJ [2016] WADC 74

S v Neumann (1995) 14 WAR 452

Shepherd v Shepherd [2010] WADC 30

Underwood v Underwood [2018] WADC 13

BURROWS DCJ:

  1. On 10 October 2017, the appellant made an application under s 12 and s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) in respect of injuries and losses suffered as a result of three proved assaults (the s 12 incidents) and four alleged assaults (the s 17 incidents) committed upon her by the respondent between 30 January 2014 and 26 March 2016.

  2. The appellant applied for compensation.  Her application was refused on the basis that the assessor was satisfied, for the purposes of s 36 of the Act, that there was a relationship or connection between the appellant and respondent, and by reason of the relationship or connection any money paid under an award was likely to benefit or advantage the respondent.  The decision was initially communicated by letter dated 19 December 2019, with written reasons for the decision of the assessor provided on 27 March 2020.

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Details
AGLC
E M v C L [2021] WADC 127
Case
[2021] WADC 127
Decision Date

CaseChat Overview and Summary

In the matter of EM v CL, the applicant sought review of a decision to refuse her claim for criminal injuries compensation under the Criminal Injuries Compensation Act 2004 (WA). The primary dispute was whether the refusal was lawful and whether the application of section 36 of the Act was appropriate, considering the nature of the relationship between the parties and the benefits that might accrue to the offender. The case was heard and determined by the Supreme Court of Western Australia.

The central legal issues revolved around the interpretation and application of section 36 of the Act, which allows for the refusal of compensation if it would benefit an offender. The court had to decide whether the evidence supported a finding that any award of compensation would benefit the offender, CL. Additionally, the court needed to assess whether the assessor appropriately considered all relevant principles and evidence, including the additional information provided after the initial assessment.

The court found that the assessor had not fully considered the principles relevant to the assessment of compensation under section 36. It was noted that the relationship between the parties was complex, with intermittent contact and a history of violence. The court held that the refusal of compensation was not justified on the basis that any award would benefit the offender, as the evidence did not sufficiently support this conclusion. The additional information provided after the initial assessment also played a crucial role in the court's reasoning, as it highlighted ongoing issues and contact between the parties.

Consequently, the court set aside the decision to refuse compensation and remitted the matter back to the original decision-maker for reconsideration in light of the court's findings. The court emphasised that each case turns on its own facts, and the decision must be made based on a comprehensive assessment of all relevant evidence and principles.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is clear from the documents before the assessor, the police incident reports and subsequent documents lodged with the court in response to a notice to produce issued to the commissioner dated 12 October 2021, that the parties continued to have intermittent contact until 25 February 2021. This contact is detailed in submissions of the amicus as follows:[40][40] Submissions dated 23 July 2021, pars 109 - 140.III Evidence before the CourtRelationship or connection109.In addition to the evidence provided by the Appellant, the following evidence is before this Court in relation to whether there is a relationship or connection between the Appellant and the Respondent.110.On 27 November 2016 the Respondent described the Appellant as his 'partner' to police, and on 29 November 2016 the Appellant described the Respondent as her 'partner' to police.111.On 15 December 2016, [CW] visited the Appellant and the Respondent in Mulan Community. Both separately stated that they were not in the same community. It 'was ascertained that [the Respondent] and [the Appellant] are not residing in the same house'.112.On 15 December 2016 police responded to an incident after receiving a call in which the caller stated 'that her partner [the Respondent] has been hitting her and dragging her'. When police attended they observed the Appellant and the Respondent 'at the house together and all appeared fine'.113.On 31 January 2017 case manager [CW] overheard an argument between the Appellant and the Respondent, that the parties later stated was about the Appellant cooking for the Respondent.114.On 20 February 2017 [RF], who had known the Appellant for six months and assisted her to get work, signed a statement. [RF] stated 'I am aware that [the Appellant] no longer is in a relationship with [the Respondent]. He now no longer lives in Mulan. On 2 occasions [the Appellant] has phoned me to get the Police because [the Respondent] has come around to work and she wanted him removed'.115.On 22 February 2017, case manager [CW] received a phone call from the Respondent asking for information that had already been provided to the Appellant.116.On 23 February 2017, case manager [CW] 'attended the home of [the Respondent] and [the Appellant]'.117.On 23 March 2017 the Appellant deposed in an affidavit that she had 'told [the Respondent] that she no longer want[ed] to live with him' and that because of the violence, she was 'no longer in a relationship with [the Respondent]'.118.On 28 March 2017 case manager [CW] spoke with a witness who stated that the Appellant previously told her 'that she believed [the Respondent] was having an affair and she was worried about this'.119.By 20 April 2017, an interim violence restraining order protecting the Appellant had been served on the Respondent.120.On 26 May 2017 [MS] received an email stating that the Appellant 'waited for [the Respondent] for most of the day, and as soon as he was released, she walked straight up to him …'.121.On 30 May 2017 case manager [MS] received information that the Respondent was ' "doing the right thing" and staying away from [the Appellant]'.122.On 1 June 2017 the Appellant called police 'and said that she was being punched by her partner [the Respondent]'.123.On 6 June 2017 police attended an incident and observed the Appellant and the Respondent asleep together on the back landing of a house.124.At some time on or after 16 June 2017, police attended an incident and received information that earlier in the week the Appellant had removed a VRO protecting her from the Respondent, but subsequently there were two violent incidents and the Appellant wanted to get another VRO in place. The Appellant stated that on 15 June 2017 the Respondent had 'punched her after they had an argument over jealousy issues'. At around 12.30pm on 16 June 2017, the Appellant and the Respondent were both in the living room of a unit.125.On 19 June 2017 police attended an incident and the Appellant informed them that the Respondent had 'coerced her out of the place she was staying'. The Appellant had returned to the place where she was staying without the Respondent.126.On 8 August 2017 case manager [MS] spoke with the Appellant who stated that '[the Respondent] has a new girlfriend and that she is now living in Fitzroy Crossing'.127.On 21 August 2017 police received a call from a woman who stated 'that she was assaulted by her partner last night'. When police attended they located the Appellant who 'told police that she had been hit last night by her partner [the Respondent]'.128.On 13 October 2017 police received a call during which the caller 'state[d] her husband [was] beating her' and that 'her ex partner [the Respondent] had assaulted her'. At the time of the call the caller was outside the Respondent's house.129.On 20 October 2017 police attended an incident during which witnesses observed that the Appellant had gone to the Respondent's house that morning.130.On 26 April 2018 a case manager spoke with the Respondent who 'advised that both he and [the Appellant] will return to the Mulan Community' and 'that he and [the Appellant] plan not to drink and commit themselves to having regular contact with [their son]'.131.On 7 May 2018 case manager [KT] spoke with the Appellant who indicated that 'she would tell [the Respondent] that they need to stop fighting, drinking and that [the Respondent] will stop smoking (gunja?)'.132.On 3 September 2018 case manager [MR] spoke with the Respondent who 'agreed he and partner, [the Appellant], will have to be sober all the time, no domestic violence reports before contact [with their son] could occur'.133.On 24 December 2018 both the Appellant and the Respondent referred to each other as their 'partner' when speaking with police. The Respondent also stated that the Appellant had 'just returned from Broome and was blaming him for being with other women whilst she was away.'134.On 4 January 2019 the Appellant stated to police that 'she didn't want to be with [the Respondent] anymore'.135.On 9 January 2019 police attended an incident after receiving a call from a caller who stated that the Respondent had been following her. Subsequently a witness confirmed that the Appellant had been attending the address where the Respondent was and arguing with him.136.On 8 March 2019 the Appellant stated to police that 'she wanted a break from [the Respondent]'.137.On 15 April 2019 police attended an incident and observed the Respondent in his bedroom attempting to sleep and the Appellant in another bedroom attempting to collect her belongings.138.On 24 April 2019 police attended an incident during which the Appellant described the Respondent as her partner.139.On 30 April 2019 police attended an incident. During the incident, the Respondent described the Appellant as his wife and stated that she 'had become argumentative over Jealousy while intoxicated'. A witness 'observed [the Appellant] following [the Respondent]' to the childcare centre where the incident occurred.140.On 20 August 2019 police attended an incident. During the incident, the Respondent shouted 'We'be going home' to the Appellant, Appellant 'made multiple demands for Police to let [the Respondent] stay with her at the address, and then for Police to take [the Respondent] away from the address. [The Appellant] was told to stop attempting to speak with [the Respondent] but continued to walk up to the Police pod and verbally abuse and converse with [the Respondent]', and the Respondent 'denied any fighting with [the Appellant'... Stated he just wanted to go home to sleep wither [sic] her.'(footnotes omitted)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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