Fairhead v Quartermaine
[2010] WADC 1
•18 JANUARY 2010
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : BUNBURY | ||
| CITATION |
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| CORAM | : DEANE DCJ | ||
| HEARD |
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| DELIVERED |
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| FILE NO/S |
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| MATTER |
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| BETWEEN |
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WILLIAM LARRY (JUNIOR) FAIRHEAD
Second Appellant
AND
KELVIN FRANK QUARTERMAINE
Respondent
ON APPEAL FROM:
| Jurisdiction | : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA | ||
| Coram |
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| Citation |
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| File No |
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| Catchwords: |
Criminal law - Criminal injuries compensation - Attack on respondent by a group of assailants including two appellants - Appellants charged separately and convicted individually of common assault - Contribution of appellants actions to respondent's injuries - Assessment of criminal injuries compensation payable by individual appellant - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal allowed
Representation:
Counsel:
| First Appellant | : | Ms R M Parkes |
| Second Appellant | : | Ms R M Parkes |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr M Danger appeared on behalf of the Chief Executive Officer of the Department of the Attorney General |
Solicitors:
| First Appellant | : | Edward John Myers |
| Second Appellant | : | Edward John Myers |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
[2010] WADC 1
Case(s) referred to in judgment(s):
Asjes v Assessor of Criminal Injuries Compensation (1994) 11 SR (WA) 226
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS [2000] WASCA 270
Blezard v Chief Executive Officer of the Ministry of Justice (2002) 23 SR (WA)
278
CAH v MJH [2003] WASC 272
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
Lloyd v Small (1996) 16 SR (WA) 111
LMC by her next friend The Public Trustee in and for the State of Western
Australia v RJO [2002] WADC 147
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
MES v KG (1995) 12 SR (WA) 330
MJN v MAJS (2003) 35 SR (WA) 219
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221
Nominal Defendant v Owens (1978) 22 ALR 128
Parsons v McWilliam [2002] WADC 62
R v Forsythe [1972] 2 NSWLR 951
RJE v Bandy, unreported; SCt of WA; Library No 1365; 31 May 1974
S v Neumann (1995) 14 WAR 452
[2010] WADC 1
DEANE DCJ
DEANE DCJ: This is an appeal pursuant to s 55 of the Criminal Injuries Compensation Act 2003 ("the Act"), against a decision of an Assessor of Criminal Injuries Compensation.
2 On 20 April 2007 an application was lodged within the time allowed
pursuant to the Act on behalf of Kelvin Frank Quartermaine ("Mr Quartermaine") claiming compensation for injuries suffered by him as a consequence of an incident which occurred at Busselton on 28 October 2005 as a result of which both of the appellants Mr Fairhead (senior) and Mr Fairhead (junior) as well as a Marshall Daniel Fairhead were charged, inter alia, with assaulting Mr Quartermaine, who is the respondent in this appeal. As the charges against the alleged offenders had not been determined as at 20 April 2007 the application was made pursuant to s 16 of the Act.
3 A hearing in the Bunbury Magistrates Court was held and the
charges against the alleged offenders were subsequently determined by Magistrate Fisher on 28 April 2008. It should be noted that each of the appellants were separately charged on prosecution notices and convicted of common assault on Mr Quartermaine. No finding was made that either appellant caused Mr Quartermaine bodily harm and the appellants therefore contend that there was no basis on the proven offence for the award against either appellant.
4 On 24 December 2008 the Assessor of Criminal Injuries
Compensation ("the Assessor") awarded Mr Quartermaine criminal injuries compensation in the sum of $17,687 pursuant to s 30 of the Act. As previously noted, the compensation was awarded pursuant to an application made under s 16 of the Act and this was subsequently amended by the Assessor to a section 12 application in respect of injuries and losses suffered by the respondent as a result of a number of assaults committed against him by a group of people, including the two appellants.
5 On 7 January 2009 the appellants filed a notice of appeal against the
decision of the Assessor on the grounds that:
1.
Each of the appellants were charged with assaults, but no finding was made that either appellant caused the injuries of the respondent.
2.
The award was excessive and outside the range of sound discretionary judgment given that neither of the appellants were found to have caused any injury to the respondent.
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DEANE DCJ
3. The Assessor proceeded on the basis that the appellants were jointly liable for the injuries to the respondent when it was not open to do so on the evidence; and
4. The Assessor failed to take into account the provocation offered by the respondent.
6 Reference will be made to the background to the incident and what
occurred thereafter in the course of these reasons. It should be noted that although there was no appearance at the appeal on behalf of the respondent Mr Quartermaine, an affidavit of service of Kim Andrew Hooft sworn 23 September 2009 attests that on 21 September 2009 Mr Quartermaine was served with an Order in this action which was issued out of the District Court of Western Australia at Bunbury against him, dated 23 July 2009. Service was effected by inquiring of a male person whether they were authorised to receive that document on behalf of Mr Quartermaine and that person replied in the affirmative.
Legal principles and statutory framework
7 On an appeal under this Act the Court must determine the application
to which the decision relates afresh, without being fettered by the Assessor's decision and the Court may do so solely on the evidence and material that was in the possession of the Assessor or the Court may receive further evidence. At the hearing of this appeal the appellants did not seek to rely upon additional material. Therefore an appeal under the Act is, following an amendment to the Act in July 2008, a hearing de novo; Gullelo v Halloran [2008] WADC 145 at 5.
8 Compensation is available in respect of crimes, misdemeanours or
simple offences of which a person has been convicted, and is payable where a person has suffered "injury" in consequence of the commission of an offence; s 12(1) of the Act.
Section 3 of the Act contains a number of relevant definitions:
"…
'Injury' means bodily harm, mental and nervous shock, or
pregnancy;'Proved offence" means a crime, misdemeanour or simple
offence of which a person has been convicted;'Satisfied' means satisfied on the balance of probabilities."
[2010] WADC 1
DEANE DCJ
Section 6(2) of the Act provides that in the case of a victim who is injured, "loss" means –
"(a) expenses actually and reasonably incurred by or on behalf
of the victim –
(i) that arise directly from; or (ii) that arise in obtaining any report from a health professional or a counsellor in relation to the injuries suffered by the victim; (b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injuries suffered by the victim; (c) loss of earnings suffered by the victim as a direct consequence of the injuries suffered by the victim; or (d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injuries."
11 On the hearing of an appeal the Court may confirm, vary or reverse
the Assessor's decision either in whole or in part; s 56(2)(b) of the Act and further the Court may also amend the applicant's application; s 56(2)(b) and s 19(1)(a) of the Act. Even if no cross-appeal is filed, it is open to the Court upon hearing an appeal to increase or decrease the award of compensation; Dos Santos v Dos Santos [2000] WADC 256; Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221. Although it is the case that the application 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 Assessor as a specialist tribunal in the field of criminal injuries compensation; Hogben v Darcy [2009] WADC 63 at 13.
12 As previously noted the original application for compensation made
on behalf of the respondent was pursuant to s 16 of the Act and that was subsequently amended by the Assessor to an application pursuant to s 12 of the Act. Section 12 permits such an application to be made because it relates to any injuries caused by the two proved offences of assault arising out of the incident. Counsel for the Chief Executive Officer ("the CEO")
[2010] WADC 1
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submits that it is also possible in this matter that an application could have been made under s 13 of the Act in relation to any injuries caused by an alleged offence committed by a person who was charged but subsequently acquitted and further an application could have been made pursuant to s 17 of the Act in relation to any injuries caused by an alleged offence by other members of the group that attacked the respondent, but who were not charged with any offences.
13 The correct approach to adopt in fixing the appropriate amount of
compensation is to apply the ordinary tortious principle for assessment of damages subject to any jurisdictional limit imposed by the Act which in this case is $75,000, being the relevant prescribed maximum; s 31(1) and s 33 of the Act. The maximum compensation payable under the Act is a jurisdictional limit only and is not reserved for the worst cases; S v Neumann (1995) 14 WAR 452 at 463 per Murray J. Therefore in fixing the appropriate amount of compensation the Court is obliged to apply the ordinary tortious principles for assessment of damages but subject to the limitations imposed by the definition of "injury" in the Act and also to the jurisdictional limit imposed by the Act; M v J and J v J, unreported; SCt of WA (Scott J); Library No 920598; 19 November 1992; RJE v Bandy, unreported; SCt of WA (Burt J); Library No 1365; 31 May 1974 at 3. Further in assessing the amount of compensation which should be awarded, the Court must have regard solely to the injuries suffered by an applicant in consequence of the commission of the offence or offences and the amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim; B v W (1989) 6 SR (WA) 79 at 89 per Williams DCJ; R v Forsythe [1972] 2 NSWLR 951 at 953 per Jacobs P.
14 A comparison of other awards of compensation or damages for
personal injuries has long been disavowed by the courts as providing an effective means of quantifying damages because of the inability of appeal courts and tribunals to know that they are comparing like with like; Asjes v Assessor of Criminal Injuries Compensation (1994) 11 SR (WA) 226 at 7 – 8 per Commissioner Nisbet.
15 The standard of proof in criminal injuries compensation cases that an
alleged offence has occurred is the civil standard and the onus of proving that alleged offences have occurred is on the applicant; BAS v The Estate of NAS [2000] WASCA 270 at 11 per Pidgeon, Ipp and Anderson JJ. For an applicant to discharge the burden of proof, he or she must show that there are more than conflicting inferences of equal degrees of probability so the choice between them is a mere matter of conjecture; Nominal
[2010] WADC 1
DEANE DCJ
Defendant v Owens (1978) 22 ALR 128 at 132 – 133 per Muirhead J; Lloyd v Small (1996) 16 SR (WA) 111. It is also the case that the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proven; that is particularly so when criminal conduct is alleged; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170 – 171 per Mason CJ, Brennan, Deane and Gaudron JJ; MES v KG (1995) 12 SR (WA) 330.
16 In order for an applicant to be entitled to compensation it is not
necessary for the offences which are the subject of the application to be the sole cause of the injuries; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 at 673. It does not follow, however, that where non-compensable events contributed to the injury, or had a propensity to do so, the applicant is entitled to compensation for the full injury; MJN v MAJS (2003) 35 SR (WA) 219 at 47 - 52 per Martino J; LMC v RJO [2002] WADC 147 at 20 – 23 per Yeats DCJ. In relation to the issue of causation the principle cause of an event is a question of fact which must be determined by applying commonsense to the facts of each particular charge is apposite to the question of whether the injury or loss is "a consequence of" an offence; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 515 per Mason CJ.
The incident and its background
17 On the evening of 28 October 2005 the two appellants in company
with approximately five other people were the occupants of two motor vehicles at Yoganup Park in Busselton. Mr Fairhead senior had found a bullet lodged in his vehicle, which he believed had come from the vicinity of that park, about 15 to 20 minutes earlier that evening and so he returned there with Mr Fairhead junior and others to investigate the matter. At that same time in the park was another group of people amongst whom the respondent Mr Quartermaine was one. Overall there was quite a large number of people present at the park and police officers were in attendance. They advised members of the appellants' group to leave but they were not disposed to do, so as one of their group believed they had been shot at. It would appear that members of these two opposing groups advanced upon each other, despite having been asked by police to disperse or leave. It would seem that emotions were running high and when the two groups confronted each other a melee erupted, during the course of which that according to the findings of the learned Magistrate on evidence at trial, that proceeded over a number of days and contained voluminous evidence, a number of specific events occurred. In making
[2010] WADC 1
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these findings the learned Magistrate correctly referred to the onus of proof being on the prosecution to establish any offence charged beyond a reasonable doubt and to negative any defence raised to that same standard.
18 It was clear on the evidence that a bullet had struck the left-hand
front pillar of the appellants' vehicle and this had occurred at around 8.40 pm that evening in the environs of Yoganup Park on Marine Terrace, Busselton. This caused damage to the vehicle and was a matter of some concern and alarm to the members of the appellants' group. It was this that precipitated the return of the group to the park where they found police present and making inquiries regarding the shot. On the evidence available it was not possible to determine who had discharged the firearm which caused the bullet to lodge in the vehicle and therefore the court was not persuaded that any person in the respondent's group or the respondent himself was involved in the discharge of the firearm.
19 After trial the learned Magistrate found on the respondent's evidence
that he was sprayed in the eyes with pepper spray by Mr Fairhead junior and very soon after the respondent was punched by Mr Fairhead junior before being punched by Mr Fairhead senior. There was no finding as to where specifically on his body the respondent was punched, only that the blows connected. The respondent then felt further blows which he thought were delivered by other persons in the appellants' group. This evidence was corroborated by another witness at trial, a Mr Khan. The respondent's account of being assaulted by a number of persons before being felled was also supported by a police officer who was present and observed the respondent being punched initially by two persons before others crowded around the respondent punching him further, whilst the respondent was attempting to protect himself. The learned Magistrate therefore found as a fact that the respondent received numerous blows including being punched, kicked and struck by weapons, both before and after he was felled to the ground. However on the evidence it was not possible to identify beyond a reasonable doubt the individuals who were responsible for each individual blow or assault. The learned Magistrate was not persuaded that the respondent was at the initial stage struck with a bat wielded by Mr Fairhead junior which caused the respondent to go to the ground. Nonetheless he noted in passing that the effect of the blows rendered to the respondent caused him significant injuries amounting to bodily harm. However he noted that quite properly the prosecution had not alleged the causing of bodily harm to the respondent as against either of the appellants.
[2010] WADC 1
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20 Each of the appellants were charged separately and each were
convicted separately of common assault on the respondent, in that Mr Fairhead junior was found to have sprayed the respondent in the face with pepper spray before punching him and Mr Fairhead senior was found to have punched the respondent. Although Mr Fairhead senior was found guilty of the initial assault against the respondent, he was found not guilty of what was termed a "subsequent closing assault" on the respondent consisting of striking him with a bat. This was because on the evidence, Mr Fairhead senior was found to be acting in a dissociated state at the time. In the end result each of the appellants was convicted separately of one count of unlawful assault upon the respondent Mr Quartermaine and each appellant was fined $3,000 with $100.70 costs.
21 Counsel for the appellants before submitted that there was no
evidence and no finding by the learned Magistrate that either of the assaults perpetrated by the appellants upon the respondent caused the injuries upon which the learned Assessor based the compensation award and so it is argued that the issue of causation is not established. The appellants do not take issue with the injuries suffered by the respondent as a result of the incident, but argue that the injuries that were established on the medical evidence did not relate to the consequences of any acts or actions on the part of either of the appellants and that the learned Assessor was in error, not only in awarding the amount of $17,687 by way of compensation to the respondent jointly as between the two appellants, but also in light of their role in the incident it is contended that such an award was excessive as against the appellants. Counsel for the appellants therefore made it plain that the amount awarded to the respondent for the injuries he sustained was not excessive, rather it was excessive as against the appellants given the respective roles they played in the assaults upon the respondent. It is submitted that a more modest award of compensation as against each appellant individually is appropriate. In this context it was pointed out, quite correctly, by counsel for the appellants that they were never charged jointly with each other or others relevant to the offending against the respondent, despite a prosecution submission relevant to s 8 of the Criminal Code at the conclusion of the trial. In any event this was rejected by the learned Magistrate in his findings. It should be noted that arising out of the incident numerous charges were laid against a number of people, including the appellants, and each person charged was charged as an individual. It was on this basis that the alleged offences were dealt with by the learned Magistrate.
22 In considering the application for compensation the learned
Assessor, following the findings of the learned Magistrate, was provided
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with access to the prosecution brief as well as a copy of the reasons for decision. The brief included a statement made by the respondent on 4 November 2005 relating to the incident and its history. It also made reference to the injuries the respondent claimed he sustained as a result of the assaults upon him. These are referred to in some detail in the learned Assessor's reasons for decision. He observed:
"Having regard to the applicant's description of how the incident started and then developed and the Magistrate's findings in that regard, I was satisfied that a concerted attack had been made upon the applicant by several persons, some of whom were armed with weapons. The concerted attack had been initiated by William Fairhead junior. William Fairhead senior and others had then joined in that attack."
23 In this respect I accept the submission made on behalf of the
appellants that the learned Assessor has proceeded on the basis that the appellants were jointly liable with each other and others for the injuries to the respondent, when given the manner in which the charges against the appellants were laid and the manner in which the prosecution case was run, as well as the findings of the learned Magistrate on the evidence it was not open for the Assessor to do so. In this regard it cannot be said that the appellants were part of a concerted attack upon the respondent because as counsel for the appellants correctly points out, if that were the case the appellants would each have been convicted of assault occasioning bodily harm pursuant to either s 7 or s 8 of the Criminal Code.
24 It is relevant to consider the medical evidence concerning the injuries
suffered by the respondent. After the incident on the Friday evening the respondent went home and rested that night and the whole of the following day, but given his condition on the Sunday he attended with others at the Busselton hospital and was examined. Notes taken on presentation refer to contusions to the face, loss of consciousness and injuries to the ribs which were tender in the lower area. There was a graze to the right loin and tenderness to that area. There was no renal injury apparent however the respondent was admitted for overnight observation. According to the Emergency Department notes of 30 October 2005 there was a report of the respondent being hit on the head, back and ribs with objects including a baseball bat, boots and shoes accompanied by punching. After the assault the respondent felt groggy and had frontal and occipital headache, but no vomiting. There was a degree of nausea and some dizziness on standing. The respondent sustained a right black eye with bruising to the right maxillary and mandible. Pain medication was
[2010] WADC 1
DEANE DCJ
prescribed but no neurological compromise was noted and a haematoma
resolved.25 In a report dated 1 March 2006 from Dr Boston who saw the
respondent following his injuries, it was noted that he suffered from an undisplaced fracture of his right zygomatic arch, an undisplaced fracture of his nasal bones, bruising to the abdomen accompanied by haematuria and a fractured left lower rib. In November 2005 on review it was noted that the bruising around the respondent's right eye was settling and his vision was normal. There was continued pain from the fractured ribs on coughing and some muscle spasm of the lower thoracic spine. The respondent reported some difficulty pushing a lawn mower and getting out of bed and was taking painkillers. On 12 December he reported ongoing pain in the right lower chest and some giddiness when bending forward, with difficulty eating tough foods. He was still taking analgesics at that time. The giddiness had worsened by 12 January 2006 and there was still some pain relating to a fractured left rib as well as a degree of positional vertigo. By 1 March 2006 the respondent's left chest pain had settled and his right zygomatic arch was no longer painful, although there was still some pain on the right side of his chest, which interfered with his sleeping ability. The symptoms of giddiness though persisting were controlled by medication.
26 Dr Hanemaaijer in a report of 11 March 2006 reviewed the
respondent on 31 October 2005 after his admission to hospital and noted minimally displaced fracture of the right zygomatic arch, a fracture of the nasal bone and a fracture of the left 10th rib. The respondent did not
complain of pain and was alert and orientated, though bruising was noted over his right cheek. He exhibited a normal range of eye movements with no diplopia and was able to breathe through both nostrils. He was referred to his general practitioner Dr Boston for follow up in the following five days, the results of that review have been previously referred to in these reasons.
27 On considering the material before the Court in this appeal, I am
satisfied on the balance of probabilities that the respective assaults on the respondent, first by Mr Fairhead junior of spraying the respondent in the eyes with pepper spray and almost immediately thereafter punching him and the assault on the respondent by Mr Fairhead senior punching the respondent occurred. Further I am satisfied that these acts being common assaults contributed to the overall injuries of the respondent. I accept the medical evidence as to what those injuries were relevant to both their nature and extent. I do not find, however, that the respective common
[2010] WADC 1
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assaults by the two appellants upon the respondent were the sole cause of all of the respondent's injuries, as clearly on the evidence he was assaulted by a number of other persons by being punched and kicked and struck with implements or weapons both before and after he was felled to the ground. Whilst it is not possible however to make findings as to which precise blows or assaults caused which specific injuries, I am satisfied that the common assaults by each of the appellants caused physical distress and pain and in all probability bruising to the respondent.
28 In my view the most sensible and practical way to assess the role or
contribution of each of the appellants' assaults upon the respondent, insofar as they contributed to the respondent's injuries, is to apportion a monetary figure by way of criminal injuries compensation to the respective acts of each of the appellants. In that regard I consider that an award of $4,000 should be made in relation to the actions of Mr Fairhead junior to reflect his contribution towards the respondent's injuries and an award of $3,000 should be made in relation to the contribution the assault by Mr Fairhead senior contributed to the overall injuries of the respondent. These assessments are made pursuant to s 12 of the Act.
29 I have considered s 13 of the Act insofar as it relates to the proven
assault which occurred later in the course of the melee when Mr Fairhead senior struck the respondent whereby he hit the respondent with some implement, it not being clear that the implement was a bat. Mr Fairhead senior was, as has been previously noted, acquitted of this offence on the basis that it was in essence an unwilled act. As Mr Fairhead senior was therefore not criminally responsible for that assault, pursuant to s 13(5) the alleged offence cannot be taken to have been committed for the purposes of s 13(4). Nonetheless counsel appearing as amicus curiae on behalf of the C.E.O submits that it is incumbent upon the Court to consider whether, if a non-compensable event, in this case being the aforementioned assault occurred, to what degree that assault contributed to the overall injuries of the respondent. If the Court is able to make such a finding then it is open to reduce the overall award of compensation to the respondent. I have carefully considered this submission but in the circumstances it is simply not possible to determine on the balance of probabilities on the material available, to what extent, if any, that non-compensable event contributed to the overall injuries sustained by the respondent.
30 In relation to s 17 of the Act in the circumstances of this case I
consider that it is somewhat speculative to apply that provision. The section applies if an alleged offence is committed but no person is charged
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with it. In this case a number of offences were committed by various people, including the two appellants against the respondent and a number of people were charged separately with committing those alleged offences. It therefore does not seem to me to be a case where an offence or offences were committed, but no-one was charged in connection with the commission of the offence or offences.
It is also necessary in the context of this appeal to consider the application of s 41 of the Act which states:
"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."
32 I have carefully considered the contents of that section of the Act in
the context of the material before the Court in this matter. I note that in
his reasons for decision the learned Assessor stated at par 12:"In relation to the requirements of section 41 of the Act, on the evidence presented to me there was no basis for concluding that it would be just to reduce the compensation assessed for the applicant's injuries and losses on account of any behaviour, condition, attitude or disposition of the applicant."
33 With respect I agree with those sentiments because in my view
although it is correct that the learned Magistrate found that Mr Fairhead senior's vehicle was struck by a bullet shortly before the incident and in the vicinity of where the incident occurred, there was and is no evidence in my opinion which would permit of a finding, even on the balance of probabilities, that the respondent was involved in the discharge of the firearm or played any role in that occurring. There is no evidence at all from which one could infer the identity of the person who discharged the
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firearm. For that reason I do not consider there is sufficient evidence on the balance of probabilities to find that the respondent contributed intentionally or inadvertently to the injuries he sustained by this or indeed any other conduct, behaviour, condition, attitude or disposition on the evening in question. All that can be said is that the respondent was part of one group in the park that evening which came into confrontation and conflict with the group of which the two appellants were members and that a melee subsequently ensued.
34 There then arises an issue as to whether an order relating to
reimbursement may be made pursuant to s 45 of the Act. In his reasons
for decision the learned Assessor noted at par 15:"Because I recognise that in addition to the offenders it was probable that other persons had been involved in the attack upon the applicant, I gave consideration to the possibility of invoking the provisions of s 45(1) of the Act to order that in respect of the offenders only part of the compensation award may be the subject of reimbursement proceedings under Part 6 of the Act. The offenders, however, had not responded to letters notifying them of the application and inviting their responses. That being the case, it seemed to me that it would be preferable to refrain from making a determination of their liability to reimburse the State until they had been given a further opportunity, in accordance with the provisions of Part 6 of the Act, particularly s 52(2), to give evidence or make submissions concerning their involvement in the attack upon the applicant and the injuries suffered by him."
35 The situation since that time has altered as reflected by the
instigation of this appeal and the orders sought on behalf of the appellants. They may be liable to repay any award made pursuant to an application under s 12 of the Act. Awards in specific amounts, being part of the whole award, have been made against each of the appellants individually by this Court. As I understand the submissions made on behalf of the C.E.O it is that person who needs to order that the appellants repay any amount of the award made by a court. In this instance on appeal the Court determined that Mr Fairhead junior by virtue of his assault upon the respondent caused $4,000 worth of injury to the respondent and Mr Fairhead senior by virtue of his assault caused $3,000 worth of injury to the respondent. Those respective awards concerning the individual appellants in no way detract from the respondent receiving by way of total criminal injuries compensation the sum of $17,686. That sum includes
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the sum of $187 which was reasonably incurred as expenses but I make no order in relation to either of the appellants individually as to the payment of any medical expenses or associated costs for treatment. I will hear counsel for the appellants as to the specific orders that are now sought, the appeal having been allowed.
36 In relation to the question of costs however I note the submissions on
behalf of counsel for the C.E.O that on appeal the Court may award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed by the Criminal Injuries Compensation Regulations 2003 ("the regulations") and s 56(2)(d) of the Act. Further pursuant to reg 5 of the regulations, where a successful party is represented by a legal practitioner, a maximum of $180 may be awarded for the preparation of an appeal and a maximum of $180 may be awarded for each day of the hearing. Also, pursuant to that regulation in any case a successful party is entitled to any expenses that he or she has reasonably and properly incurred for the purposes of the appeal. However, as is correctly pointed out, this is a case where the respondent, Mr Quartermaine, has not been represented at the appeal, despite having been served with notice of it and therefore it cannot be said he has contributed to the costs of the appeal. There then arises an issue as to whether it would be appropriate to make an award of costs against him. In these circumstances I am not minded to do so: Parsons v McWilliam [2002] WADC 62 at 42 per H H Jackson DCJ. I accept the submission that no costs order should be made against the C.E.O because he is not an unsuccessful party to this appeal. It should be further noted that counsel on behalf of the C.E.O has performed a helpful role in these proceedings, which otherwise would not have been performed: Blezard v Chief Executive Officer of the Ministry of Justice (2002) 23 SR (WA) 278 at 34 per H H Jackson DCJ; Jones v Macey [2000] WADC 101 at 29 per Williams DCJ; CAH v MJH [2003] WASC 272 at 7 per McKechnie J.
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