| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GREEN [2011] WADC 225 CORAM : COMMISSIONER GETHING HEARD : 7 DECEMBER 2011 DELIVERED : 7 DECEMBER 2011 FILE NO/S : APP 76 of 2011 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003 BETWEEN : CLINT COLE GREEN
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : B G HILLEN File No : CI 630 of 1997 Catchwords: Criminal injuries compensation - Application to extend time to commence Legislation: Criminal Injuries Compensation Act 1985 (WA)
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Result: Application refused Representation: Counsel:
Appellant : In person
Amicus Curiae : Mr I A Repper on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Assessor of Criminal Injuries Compensation v Pearson (Unreported, WADC, Library No D990072, delivered 29 March 1999)
Crumby v Kuru (1995) 13 SR (WA) 331
Longman v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D980340, delivered 9 December 1998)
Lucas v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D980366, delivered 16 December 1998)
Re Karra (1984) 2 SR (WA) 97
Re Spencer (Unreported, WADC, Library No D980338, delivered 1 December 1998)
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1 COMMISSIONER GETHING: [This judgment was delivered extemporaneously on 7 December 2011 and edited from transcript].
2 By appeal notice dated 19 October 2011, the appellant commenced an appeal against the chief assessor of Criminal Injuries Compensation in respect of a decision of an assessor dated 16 September 1998 to grant criminal injuries compensation to one Jodie Pearson. The award was in respect of injuries sustained by Ms Pearson to her thumb when, as a police officer, she was attempting to apprehend the appellant, Mr Green. The injuries occurred on 19 January 1995. 3 In late 1995, the appellant was convicted of a charge of assaulting a public officer in relation to this incident. The assessor awarded damages of $7,780; being $7,500 general damages, $220 loss of earnings and $60 for a medical report. The award was made pursuant to Criminal Injuries Compensation Act 1985 (WA) (the 1985 Act). The appeal notice was outside the 21-day appeal period provided for by s 41(2) of that Act. 4 At a directions hearing on 29 November 2011, the appellant made an oral application for extension of time with which to appeal. The deputy registrar listed this application for hearing before me today. At the same time, the deputy registrar made an order that the appeal be deemed to be an appeal against the reimbursement order made on 9 March 1999, and the reference to the respondent be deleted. 5 In my view, looking at the ground of appeal set out by Mr Green, which I will refer to later, it seems clear that the appeal is actually an appeal in substance against the decision of the assessor. One consequence of looking at the appeal as an appeal in substance is that if I were minded to grant leave, then I ought to hear the respondent on that point. 6 Section 41 of the 1985 Act gives the court the power to extend time within which to appeal, in the following terms: The appeal shall be commenced within 21 days after the date of the order or refusal, but a District Court judge may, if he thinks it is just to do so, grant leave to commence an appeal after the expiry of that period. 7 The length of time that has elapsed since the award was made is some 13 years. This is a significant factor against the grant of leave. 8 At the hearing before me, Mr Green was sworn and gave evidence. In relation to the delay in commencing the appeal, Mr Green's evidence was that he had not had the time to commence the appeal. He had first found out that there was an award of damages against him in the amount (Page 4)
of about $7,500 when he received correspondence from the company charged with recovering this amount from him. 9 Mr Green gave evidence that he had received correspondence from that company, on and off, for the last 5 to 10 years. His evidence was that he ignored the letters. He also gave evidence that, during this time, he was living in an environment where there was a lot of drinking, a lot of arguing and a lot of stress, and that contributed to him not having the time, and perhaps the inclination, to do anything about the appeal. 10 It seems to me that the reasons for the delay in commencing the appeal do not suggest that there ought to be leave. 11 The other factor that is appropriate that I consider is the merits of the appeal. The grounds of appeal are as follows (the reference to Jodie in the appeal ground is to Ms Jodie Pearson, the beneficiary of the award of criminal injuries compensation). Jodie says that I broke her little finger. I pleaded not guilty. Then she says I dislocated her thumb. I told the lawyer, at the time, I wanted to plead not guilty all the way. Mr Shane Brennan, who was telling me to plead guilty to dislocating her thumb, and he was telling me, at the time, she only had a slight bruise on the limb of her thumb. Just want the court to go back on the medical record evidence. I don't like the thought of paying money back that was awarded. 12 The grounds set out two arguments that might be made before a judge in considering the appeal on the merits. The first is that Mr Green pleaded guilty to the offence, not withstanding his instructions to his lawyer that he wanted to plead not guilty. The second is that he did not believe that the injury was serious. Each of these points was elaborated on in the evidence Mr Green gave before me. 13 In relation to the first point, the assessor was entitled to proceed on the basis that Mr Green had pleaded guilty to the charge that had been brought against him in relation to the injuries to Ms Pearson. The grounds raised by Mr Green in relation to the issues with his lawyer and pleading guilty, to my mind, do not go to the merits of the appeal. 14 The second ground is Mr Green's belief that the injury was not serious. 15 In evidence before me this afternoon, Mr Green said that he remembered clearly what had happened. In the course of Ms Pearson, then a constable with the Western Australian Police, trying to apprehend (Page 5)
Mr Green, he pulled his hand out of Ms Pearson's grip. He gave evidence that he did not think that what he did could cause any serious injury. 16 In the materials before me, there is a report of the initial assessment at the Armadale-Kelmscott Memorial Hospital, dated 16 July 1995. This report stated that Ms Pearson sustained: A soft tissue injury to the right thumb. 17 In her statement, filed in relation to the charges, Ms Pearson stated that she received a ruptured ligament and cartilage in her right thumb. She stated that she was receiving physiotherapy three times a week. She was off work for six weeks, and upon returning to work, was only able to undertake office duties. She had to wear a hand brace to avoid complicating the injury. The statement of material facts described the injury as a dislocated right thumb. 18 In her application for criminal injuries compensation, Ms Pearson stated that, at the hospital, her thumb was x-rayed and found not to be broken. She says that the swelling and bruising remained for six weeks. 19 In a covering letter from her lawyer, the assessor was informed that it was some 8 to 10 months before the injury was completely healed. 20 It seems to me that, on the material before me, there is a very consistent statement of the nature of the injury, being to the right thumb, not resulting in any bones being broken, but resulting in a soft tissue injury. There is also nothing to undermine the evidence given by Ms Pearson as to the impact of that injury and the length of time it took to heal. 21 Section 41(3) of the 1985 Act directs that an appeal is by way of hearing de novo, and the court is not fettered by the determination of the assessor. Re Karra (1984) 2 SR (WA) 97. As the assessor is a specialist tribunal, it is appropriate to have regard to the amount of the award made by the assessor: Crumby v Kuru (1995) 13 SR (WA) 331, 333 and 334. 22 In their covering letter dated 4 March 1998, Ms Pearson's solicitors set out a number of decisions of the District Court, which they stated were relevant in determining the level of compensation. They submitted that the appropriate award of compensation was in the vicinity of $10,000. 23 I reviewed a number of the decisions at the time, being 1998 or thereabouts, in relation to the award of criminal injuries compensation, (Page 6)
to get a sense of whether or not the present award was within the range then being given. 24 In the matter of Re Spencer (Unreported, WADC, Library No D980338, delivered 1 December 1998) the appellant sustained a blow to the face resulting in injury to his teeth. The judge found that it was likely that the appellant would be required to undergo ongoing treatment in relation to the injuries to the tooth, and that he sustained cosmetic effects of the injury. In the circumstances, the judge awarded compensation of $5,000. 25 In the matter of appeal by Longman v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D980340, delivered 9 December 1998), a decision of her Honour Judge Kennedy, a police officer was assaulted in the course of his duties. He was assaulted by a group of men, and the assault included a heavy blow to the back of the head. The injuries left some permanent, though minor, cosmetic defects, and led to a depressive episode. The judge assessed the criminal injuries compensation at $6,000. 26 In the decision of Lucas v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D980366, delivered 16 December 1998), a decision of her Honour Judge Kennedy, the appellant sustained severe facial fractures, black eye and bruises as a result of an assault. She also developed PTSD. In the circumstances, the judge assessed general damages at $10,000. 27 The final decision relates to a claim by Ms Pearson, the subject of Assessor of Criminal Injuries Compensation v Pearson (Unreported, WADC, Library No D990072, delivered 29 March 1999). The incident in question occurred shortly after the incident the subject of the present proceedings. In that incident, at the Armadale-Kelmscott Hospital, a Mr Kahn was exhibiting behaviour that was aggressive and agitated, leading to Ms Pearson, again as a police officer, moving to deal with that situation. In the course of doing so, Mr Kahn spat directly into her face, causing saliva to enter into her right eye. As Mr Kahn had been recently eating and swallowing dirt, some grains of dirt and sand entered her right eye in combination with the saliva. She was advised that her assailant had tested positive for both hepatitis C and scabies. She was unfit for work for a period of two weeks with respect to the problem with her eye. However, she suffered no further vision problems with the eye after that time. The judge found that she suffered mental or nervous (Page 7)
shock, within the meaning of the 1985 Act, as a result of the offence. An award was made of $2,000. 28 I conclude, from this brief assessment, the award in the present case seems within the range of awards being made at the time. Put in the negative, I am not persuaded that the award is so far outside the range of appropriate awards for an injury of the kind sustained that the interests of justice would require the appellant to be given an opportunity, 13 years later, to challenge it. 29 In summary then, I am not persuaded that it will be just to grant leave to commence an appeal this long after the decision was made. The reasons for delay do not indicate anything other than a choice by Mr Green not to pursue the appeal over the last 5 to 10 years. Even if the appeal were proceeded with, in my view, it is most unlikely that there would be any change in the assessment. 30 On that basis, the application for leave to extend time within which to appeal is dismissed. The compensation order stands.
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