Hansen v Bolton
[2017] WADC 25
•27 FEBRUARY 2017
HANSEN -v- BOLTON [2017] WADC 25
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 25 | |
| Case No: | APP:30/2016 | 18, 25 & 31 JANUARY 2017 | |
| Coram: | HERRON DCJ | 27/02/17 | |
| PERTH | |||
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed and compensation awarded | ||
| PDF Version |
| Parties: | LAWRENCE MAXWELL HANSEN GRAHAM BOLTON |
Catchwords: | Criminal injuries compensation Shooting incident Secondary victim Post-traumatic stress disorder Delay Whether a separate offence committed |
Legislation: | Criminal Injuries Compensation Act 2003 s 9, s 35(2)(c), s 39(1)(b) Liquor Control Act 1988 |
Case References: | Devos v James [2009] WADC 161 Hutching v Lachlan [2012] WADC 89 JY [2013] WADC 187 MJN v MAJS (2003) 35 SR (WA) 219 PK [2013] WACIC 24 Re Jackamarra [2014] WADC 9 Re McHenry [2014] WADC 92 Re PK (by her next friend the Public Trustee) [2014] WADC 139 Re TLJ [2016] WADC 74 TAW v NJS [2011] WADC 187 Zadeh [2015] WADC 136 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
GRAHAM BOLTON
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : ASSESSOR L V DEMPSEY
File No : CI 2501 of 2014
Catchwords:
Criminal injuries compensation - Shooting incident - Secondary victim – Post-traumatic stress disorder - Delay - Whether a separate offence committed
Legislation:
Criminal Injuries Compensation Act 2003 s 9, s 35(2)(c), s 39(1)(b)
Liquor Control Act 1988
Result:
Appeal allowed and compensation awarded
Representation:
Counsel:
Appellant : Mr V Kurup (18 January 2017) & Mr N Morrisey (25 & 31) January 2017
Respondent : No appearance
Amicus Curiae : Mr G Stockton appeared on behalf of the Chief Executive Officer for the Department of the Attorney General
Solicitors:
Appellant : CLP Legal Pty Ltd
Respondent : Not applicable
Amicus Curiae : State Solicitors for Western Australia
Case(s) referred to in judgment(s):
Devos v James [2009] WADC 161
Hutching v Lachlan [2012] WADC 89
JY [2013] WADC 187
MJN v MAJS (2003) 35 SR (WA) 219
PK [2013] WACIC 24
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re PK (by her next friend the Public Trustee) [2014] WADC 139
Re TLJ [2016] WADC 74
TAW v NJS [2011] WADC 187
Zadeh [2015] WADC 136
- HERRON DCJ:
Background
1 On 8 April 2016 the Assessor of Criminal Injuries Compensation Ms L V Dempsey (the assessor) refused the appellant's (Mr Hansen) application for criminal injuries compensation in respect of injuries and losses suffered by Mr Hansen as a result of the respondent (Mr Bolton) committing the offence of intent to maim by unlawful wounding. The application was refused pursuant to s 39 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) on the basis that Mr Hansen was committing a separate offence under s 119 of the Liquor Control Act 1988 (WA) when the appellant was injured.
2 On 22 April 2016 the appellant filed a notice of appeal against the decision of the assessor on the ground that:
The Assessor erred in concluding that the provisions of section 39 of the [Act] applied and that she was precluded from making a compensation award in favour of the Appellant.
3 Mr Hansen filed his application for criminal injuries compensation on 5 November 2014. The application incorrectly stated Mr Bolton was charged with 'intent to maim by unlawful wounding' on 14 November 2009 which charge was heard in the Magistrates Court on 10 March 2011 when Mr Bolton was sentenced to 6 years 3 months' imprisonment. In fact, Mr Bolton was convicted of three offences following a trial in the District Court before a judge and jury on 27 January 2011. Mr Bolton was convicted of one offence of unlawfully doing grievous bodily harm with intent to maim, disable or do grievous bodily harm, one offence of unlawful wounding with intent to maim, disable or do grievous bodily harm and one offence of unlawfully doing an act as a result of which the life, health or safety of another was, or was likely, to be endangered. In relation to the first offence of unlawfully doing grievous bodily harm with intent to maim, disable or do grievous bodily harm, the complainant was Lisa Marie Woods. That conviction was in relation to count 1 on the indictment which read:
On 14 November 2009 at Narrogin, Graham Bolton with intent to maim, disable or do grievous bodily harm to Todd Jackson unlawfully did grievous bodily harm to Lisa Marie Woods.
4 In relation to the second offence (count 3 on the indictment), the complainant was Dean Nathan James Colbung. In relation to the last offence (count 6 on the indictment), the complainant was Sidney Leonard Ugle.
5 Mr Hansen was therefore not a complainant, or a person named as the intended victim, in respect of any of the offences of which Mr Bolton was convicted. However, he was present at the time the offences were committed and the complainants, or victims, were injured. Mr Hansen did not suffer any physical injury or bodily harm as a result of the commission of the offences. He makes the application on the basis he suffered mental and nervous shock as a result of the commission of the offences of which Mr Bolton was convicted. He therefore brings this application pursuant to s 35(2)(c) of the Act.
6 Mr Hansen made his application for criminal injuries compensation to the assessor nearly two years out of time. The reasons for Mr Hansen's request for an extension of time in which to make his application are outlined in a statement of Mr Hansen dated 2 July 2014. In her letter of 8 April 2016, the assessor granted Mr Hansen's request for an extension of time.
The issues
7 This appeal gives rise to four issues as follows:
1. Whether, pursuant to s 9(2) of the Act, Mr Hansen be allowed to make his compensation application after the three-year period in which, by s 9(1), the application was required to be made. The offences of which Mr Bolton was convicted occurred on 14 November 2009. Therefore, the compensation application was required to be made by no later than 13 November 2012. As earlier noted, the application was made on 5 November 2014, nearly two years after the last date before which the application should have been made.
2. Whether Mr Hansen was drinking alcohol at the time Mr Bolton committed the offences and Mr Hansen suffered injury and, if so, where was he drinking alcohol.
3. If Mr Hansen was drinking alcohol on a public reserve or park, was any offence committed by him which, by s 39(1)(b) of the Act, disentitles him to an award of compensation. Specifically, did Mr Hansen commit an offence contrary to s 119 of the Liquor Control Act 1988.
4. Whether Mr Hansen suffered a relevant injury for the purposes of the Act. Specifically, is he a secondary victim for the purposes of s 35(2)(c). Has Mr Hansen suffered mental or nervous shock as a result of being present at the time Mr Bolton committed the offences of which he has been convicted and because Mr Hansen witnessed the victims suffering injury, ie, being shot, as a result of Mr Bolton's offending. Further, has Mr Hansen suffered injury, being mental or nervous shock, because he realised he could also have been physically harmed as a result of Mr Bolton's offending.
8 A related issue arises as to whether, if Mr Hansen has suffered mental or nervous shock, it is causally related to the offending of which Mr Bolton was convicted, that is the 'proved offence', for the purposes of s 12, or whether any such harm is caused by or contributed to by other or subsequent unrelated matters.
Extension of time – s 9
9 Although, as I earlier noted, the assessor allowed Mr Hansen to proceed with his compensation application even though it was made out of time, because an appeal to this court is a hearing de novo I am required to consider again whether Mr Hansen should be allowed to make the application out of time.
10 An application for compensation under the Act must be made within three years after the date on which the offence to which it relates was committed or, if it relates to more than one offence, the date on which the last of those offences was committed.
11 I adhere to my explanation in Re McHenry [2014] WADC 92 of the relevant principles regarding the limitation period prescribed by s 9 and what factors govern the exercise of a discretion to grant an extension of time.
12 An assessor may allow an application for compensation to be made after the three year period if he or she thinks it is just to do so, and may do so on any conditions that the assessor thinks it is just to impose. The onus is on Mr Hansen to explain to the satisfaction of the court the reasons for the delay in bringing the application. There are strong policy reasons for imposing limitation periods and ensuring they are complied with. The time limit set out in the Act is a substantive provision of the Act and not merely a procedural time limit imposed by the rules of court. As such, it ought not be treated with the indulgence appropriate to merely procedural rules. The burden on Mr Hansen is thus no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
13 That refusal of the application which means that an applicant can never litigate his or her claim is not, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised. Similarly, that an applicant for compensation was unaware of his or her right to make a claim for compensation is not, by itself, a sufficient basis upon which to grant an extension of time within which to apply.
14 Factors that may be relevant to the exercise of the court's discretion under s 9(2) include (Re Jackamarra [2014] WADC 9 [20]; Re McHenry [16]):
(a) the history of and background to the proposed application;
(b) the length of the delay;
(c) the reasons for the delay;
(d) the nature of the proposed application;
(e) the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f) the prospects of the compensation application succeeding; and
(g) whether injustice will be suffered if an extension of time is refused.
15 In a short statement dated 2 July 2014 and filed in support of the application for compensation, Mr Hansen said at the time of the incident he was unaware he could make a claim for criminal injuries compensation and it was not until September or October 2013 that he was informed by his partner, who was in turn informed by another family member, he could make such a claim. The statement then goes on to say that after he spoke to his partner he spoke to his daughter who referred him to solicitors and he instructed them to act on his behalf to make a claim for criminal injuries compensation.
16 The application, however, was not filed until 5 November 2014. The statement does not identify exactly when Mr Hansen instructed his solicitors to make the application. There is no explanation for the delay between September or October 2013 and 5 November 2014 when the application was filed.
17 Mr Hansen goes on to say that before he instructed his solicitors 'there was no way' he would have been able to deal with the matter because he was under a lot of stress, he lived in fear because people were hanging around outside his home watching his family, and because he was so frightened he could not go out and get information to help him lodge his claim. He also said that he had received death threats and he was only able to start dealing with these matters until after he sought the help of a psychologist. After speaking to the psychologist he was able to speak about what had happened and was able to follow up on his criminal injuries compensation claim.
18 Given Mr Hansen was unaware he could make a claim until September or October 2013, which was after the expiration of the limitation period in November 2012, it is necessary to explain how the stress he says he was under and the fear and fright from which he was suffering is relevant as explaining the reason for the delay in bringing the application. In effect it is submitted Mr Hansen did not turn his mind as to whether he might have any legal entitlements arising out of the shooting incident because he was preoccupied with, and focused on, the issues affecting his health which were impacting on his life.
19 Mr Hansen saw a psychologist, Ms Mutton in May 2010 and received counselling and treatment from her for a number of months throughout the latter part of 2010. Mr Hansen was well within the three year period in which he ought to have made the application after he had seen Ms Mutton. He gives no explanation of why, after he had seen Ms Mutton and received help from her, which is when he says he was able to follow up his compensation claim, he delayed in seeking any legal advice about any possible entitlements and why he delayed in bringing the application.
20 When this appeal initially came on for hearing before me on 18 January 2017 I raised with counsel who then appeared on behalf of Mr Hansen a number of concerns about the adequacy of the evidence filed in support of the appeal. One of the areas of concern I raised was as to the adequacy of the evidence explaining the reason for the delay in making application and the reason in particular for the delay between September/October 2013 and when the application was made in November 2014. Counsel later requested an adjournment which I granted. When the matter next came before me on 25 January different counsel appeared and sought a further adjournment because Mr Hansen, because of a family emergency, was unable to attend the hearing. The hearing of the appeal was further adjourned to 31 January 2017 when the hearing was finally concluded.
21 In further support of the appeal, Mr Hansen swore an affidavit dated 27 January 2017. His partner, Ms Bernice Inman, also swore an affidavit on 27 January and Mr Hansen's solicitor, Mr Kurup, affirmed an affidavit on 27 January. All of those affidavits were tendered into evidence in support of the appeal. Both Mr Hansen and Ms Inman also gave viva voce evidence on 31 January 2017.
22 Those further affidavits, supplemented by the viva voce evidence, addressed to a significant extent the deficiencies in the evidence which had been filed in support of both the appeal in this court and the application for compensation to the assessor.
23 In his affidavit sworn on 27 January 2017, Mr Hansen, in further explaining the reasons for delay in making the application, states:
81. About September/October 2013, my partner, Bernice was told about Criminal Injuries Compensation by Georgina Ugle.
82. Georgina's nephew had been shot and he had got Compensation. So she asked me if we had got Compensation for the shooting.
83. About a month after that, my daughter, Natasha told us about CLP LEGAL.
84. We did not go to see CLP LEGAL straight away because it was around Christmas and we were stressed about.
85. Around the first week of January 2014, my daughter, Natasha bought us to CLP LEGAL.
86. My Solicitor's have informed me that I came to the office of CLP LEGAL on 8 January 2014. I could not remember the exact date.
87. On the 8 January 2014, I instructed the firm to assist me in lodging a claim for Criminal Injuries Compensation.
88. I was advised that it would take a bit of time to lodge the application because they needed to gather evidence and obtain and psychologist report.
24 Counsel for the amicus points to three separate periods of time as relevant to a consideration whether, pursuant to s 9(2), it is just to allow the compensation application to be made beyond the three-year limitation period. The three separate periods of time are:
(a) the period between the date of the shooting incident on 14 November 2009 and when Mr Hansen first learned about criminal injuries compensation in September/October 2013;
(b) between September/October 2013 and 8 January 2014 when Mr Hansen instructed solicitors to make a claim for criminal injuries compensation;
(c) between 8 January 2014 and 5 November 2014 when the application was finally filed with the assessor.
25 To those three separate periods of time I would, in relation to the period 8 January 2014 to 5 November 2014, separately consider the period from 8 January 2014 to 2 July 2014 (when Mr Hansen signed the compensation application form and the two statements filed in support of the application), and then the period from 3 July 2014 to 5 November 2014.
26 I accept it is useful to break down the periods of time in that way in considering whether a satisfactory reason or explanation for the delay in making the application has been provided which persuades me it is just to allow the application to be brought out of time, that is, beyond the three-year time limit.
27 Counsel for Mr Hansen, in effect, put forward the following factors from which he submits I can be satisfied it is just to grant an extension of time:
(a) Mr Hansen suffered from post-traumatic stress disorder (PTSD) which manifested itself by Mr Hansen having difficulties coping with day-to-day activities;
(b) further, Mr Hansen's symptoms impaired his ability to seek legal advice about any legal entitlements he might have arising out of the shooting incident;
(c) his inability to engage in, or consider, any legal proceedings;
(d) he was stressed and anxious about having to give evidence at the trial of Mr Bolton on 19 January 2011;
(e) he was the full-time carer for his partner Ms Inman who suffers from a serious medical condition. He was also the carer for two young grandchildren;
(f) he lived a relatively unsophisticated life in a small, remote country town;
(g) his symptoms of anxiety and stress which impaired his ability to cope on a day-to-day basis were heightened or aggravated by him and his family being subjected to ongoing and constant threats and abuse from Mr Bolton and his family as a result of which Mr Hansen left the house less often than he had previously, causing him, to some extent, to become isolated.
28 In her report dated 31 October 2014, the clinical psychologist Ms Mutton said she first saw Mr Hansen in May 2010 and lists the various symptoms from which he was suffering and from which she diagnosed Mr Hansen as suffering acute PTSD. The report outlines that Mr Hansen attended several counselling sessions in the latter part of 2010 but made little progress. Ms Mutton explains there were a number of reasons for that, the main one being the threatening behaviour of the family and friends of the offender Mr Bolton. Mr Hansen was subject to various acts of aggression and vandalism on an ongoing basis which rendered him basically housebound and living in constant fear of his life. This in turn, Ms Mutton explains, led to Mr Hansen becoming so distressed and fearful that he again began drinking alcohol which later led to various heated arguments with family members as a result of which Mr Hansen was served with a formal eviction notice by Homeswest. Mr Hansen immediately stopped drinking and was able to resist the eviction notice. It was a stressful and anxious time for the whole family.
29 Ms Mutton stated that the most effective treatment for PTSD with a possibility of a full recovery is for the treatment to commence within several days of the traumatic incident that caused the PTSD. However, because Mr Hansen did not receive the treatment until six months after the incident, his condition had become chronic causing it to be more entrenched and difficult to treat. The ongoing trauma to which Mr Hansen and his family were subjected by Mr Bolton's family and friends aggravated Mr Hansen's condition. Mr Hansen's ability to cope with day-to-day activities was significantly affected. He became too frightened to leave the family home. His marital relationship was adversely impacted. He continued to live in constant fear of injury or death.
30 Although Mr Hansen did not refer to it in his statement of 2 July 2014, he gave evidence at the trial of Mr Bolton on 19 January 2011. He was interviewed by the prosecutor for the purposes of the trial on or about 13 January 2011. Although he does not say so, I readily accept that having to relive the circumstances of that day and give evidence at the trial would have been traumatic and stressful and would have impacted upon his ability to consider whether he might have any legal remedies or entitlements, such as an entitlement to criminal injuries compensation for the PTSD from which he was diagnosed as suffering in May 2010. That view is supported by Mr Hansen's statements at pars 113 and 114 in his affidavit sworn on 27 January 2017:
113. The incident plus the subsequent threats intimidations and having to give evidence via video link caused me a lot of stress. I just wanted to complete my testimony and get it over and done with.
114. There was too much on my mind. I was a bit confused.
31 I readily accept that the nature of his medical condition impacted upon his ability to cope with day-to-day activities, which was exacerbated by ongoing threats made to him and his family causing him to live in fear of his life, and has interfered with, and impaired, his ability to consider whether he might have any legal avenues open to him because of Mr Bolton's offending and the PTSD Mr Hansen had suffered.
32 I also accept that until Mr Bolton had been convicted of the offences someone in Mr Hansen's position, who was not physically harmed as a result of Mr Bolton's actions, might not have appreciated he could have a claim for compensation and to seek advice about the prospects of such a claim.
33 Accordingly, I am satisfied there is a reasonable explanation for failing to bring the application within the three-year time limit, that is by no later than 13 November 2012, and why Mr Hansen did not learn of criminal injuries compensation until September/October 2013. I am satisfied that because of his medical condition, and the various matters affecting his day to day life, Mr Hansen was preoccupied with, and was focused upon, those issues and did not turn his mind to whether he might be able to pursue any legal entitlements. Although Mr Hansen said in his statement of 2 July 2014 that it was not until after he saw Ms Mutton he was able to speak about what had happened and then follow up his application for compensation, his memory about the timing would seem to be unreliable. In her reports Ms Mutton states the counselling she provided to Mr Hansen in 2010 was ineffective mainly because of the stress caused by the ongoing threats from Mr Bolton's family. Therefore, I do not accept that Mr Hansen's contact and involvement with Ms Mutton is relevant in explaining the delay in making the application. However, I accept that had he turned his mind to the possibility of whether he had any legal entitlements, it may have been he would have made enquiries earlier, such as of family members, as to whether he might have any legal remedies. The reason why he did not do that earlier is explained, at least in part, because of the stress and anxiety, from which I accept he was suffering, which adversely impacted upon his daily functioning.
34 Further, I am satisfied there is a reasonable explanation for the further delay between September/October 2013 and 8 January 2014 when Mr Hansen first consulted and then instructed solicitors in respect of a claim for criminal injuries compensation. That further delay is relatively insignificant. It is understandable that in the circumstances I have outlined, including ongoing symptoms of stress and anxiety, ongoing threats made to Mr Hansen and his family and the anxiety associated with giving evidence at Mr Bolton's trial in January 2011, and given Mr Hansen was living in a small country town, that he might have been hesitant about approaching solicitors with a view to possibly becoming involved in further legal proceedings.
35 I now turn to consider whether the substantial delay between 8 January 2014 and 5 November 2014 has been satisfactorily explained. While I readily accept it would have taken Mr Hansen's solicitors some time to investigate the merits of a claim for compensation and obtain and collate relevant information before being able to assess and advise regarding the merits of a claim for compensation, particularly in circumstances such as exist in this case where Mr Hansen was not physically harmed and was not a complainant or victim in the offending of which Mr Bolton was convicted, in my view, in circumstances where the limitation period had already expired, the application for compensation should have been made earlier than it was. I was informed by counsel from the bar table that if an application is filed in incomplete form beyond the three-year limitation period, it is rejected by the assessor's office which is why no notice of intention to make an application was given to the assessor. Although I make no observation about whether that is the practice of the assessor's office, I am of the view the application should have been expedited.
36 Applicants for compensation need to understand the importance of the statutory requirement to make an application within three years. There should not be an expectation that an extension of time will be granted as a matter of course. I reinforce and reiterate the principles I have earlier set out that the time limit in the Act is a substantive provision. It is not merely a procedural time limit imposed by the rules of the court. An application for an extension of time will not be treated with an indulgence appropriate to merely procedural rules. Applicants, and legal practitioners acting for them, need to understand that the burden on an applicant to establish that it is just to grant an extension of time is no triviality and a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time must be made out. In my view it is essential for solicitors who receive instructions to investigate whether a criminal injuries compensation application can be made, and who first receives instructions after the limitation period has expired or when the period is about to expire, to take every step to progress an application expeditiously.
37 In this case I note the application for compensation form was signed by Mr Hansen on 2 July 2014. That is the same date as the two statements filed in support of both the application and the application for an extension of time was signed by Mr Hansen. However, the application was not filed until 4 November 2014. The detailed report of Ms Mutton is dated 31 October 2014. Although no explanation is provided for the delay between 2 July and 4 November 2014, I infer that further period of delay related to awaiting receipt of Ms Mutton's report. It seems to me the application was filed within a relatively short time after Ms Mutton's report would have been received. In those circumstances, and while the reason for that further delay could have been more satisfactorily explained, I accept there is a reasonable explanation for it.
38 I am, in all of those circumstances, satisfied it is just to allow Mr Hansen an extension of time in which to bring his application for compensation.
Was Mr Hansen drinking alcohol at the time of the shooting incident?
39 Before considering this issue further, it is necessary to explain the factual background to the offending and Mr Hansen's involvement in the circumstances which unfolded that day. I take, and adopt, the following summary of facts from the remarks of the sentencing judge Derrick DCJ of 10 March 2011 (ts 582 – 586):
During 2009, there had in Narrogin been in existence an ongoing feud between certain members of two Aboriginal family groups; the Ugles and the Colbungs on the one hand and the Kicketts and the Boltons on the other. The feud had on occasions manifested itself in violence between members of the family groups. However, the violence had never involved the use of guns.
On 14 November 2009 the funeral of an Aboriginal elder, Ms Velma Ugle, was held in Narrogin. There were a large number of members of the Ugle and Colbung families in Narrogin on that day. They were there to attend the funeral.
The funeral of Ms Velma Ugle took place without any incident that required police involvement. Following the funeral and burial service, an afternoon tea or wake was held in a local Aboriginal community centre.
After the wake at the community centre, a large number of the Ugle and Colbung family members went to the house of Dean Colbung to continue the wake. Dean Colbung lived at 12 Clark Street in Narrogin. He was the oldest son of Velma Ugle. By this time, it was late afternoon or early evening.
The house of Dean Colbung was across the road from a park called Ashworth Park. A number of the mourners at Dean Colbung's house were in his front yard. However, because of the large number of people present, there was not enough room for everyone to stay in the front yard, therefore some of the mourners spilled out across the road into the park. The mourners spent their time talking and socialising. Some of them were drinking alcohol.
At the same time, a number of members of the Bolton and Kickett families were gathered at a house situated at 4 Floyd Street in Narrogin. 4 Floyd Street is approximately half a kilometre away from Dean Colbung's house in Clark Street. You and your wife Penny Bolton were at 4 Floyd Street.
…
Your daughter, Kylie Bolton, lived at 15 Ashworth Crescent. 15 Ashworth Crescent was across the road from the south-western corner of Ashworth Park and was situated very close to the intersection of Ashworth Crescent and Clark Street. It was approximately 100 metres from 12 Clark Street, the house of Dean Colbung. It was possible to see 12 Clark Street from 15 Ashworth Crescent.
…
During the trial, varying accounts were given as to precisely what occurred next. What is clear is that a number of the younger males from the Ugles and Colbungs who were standing in the park opposite 12 Clark Street saw the group of Kicketts and Boltons walking across the park and a fight broke out between them. The fight quickly turned into an all-out brawl which involved members of both families throwing at each other bottles, rocks and whatever else they could take hold of.
It is not clear on the evidence exactly how many people were involved in the brawl. The estimates from the witnesses varied from 50 to well over 100. I find that the number was at least 50. I also find that there were significantly more people from the Colbungs and Ugles than the Kicketts and Boltons involved. This was always going to be the case, given the large number of the Ugles and Colbungs who had gathered for the wake at Dean Colbung's house.
While the brawl was taking place, you were standing in the front yard of 15 Ashworth Crescent watching what was occurring. Unfortunately you decided to involve yourself in a very significant and serious way. You obtained or were provided with a double barrel shotgun from inside the house. You inserted two cartridges into the barrel.
You then stood behind your ute and you took aim at Mr Todd Jackson, who was one of the persons who had been at Dean Colbung's house. Todd Jackson was, at the time, approximately 50 metres away from you. He was standing near the driveway of 16 Clark Street. He had armed himself with a rake at the time which he intended to use in the brawl. He was not, at the time, posing any immediate threat to you or anyone else who was at 15 Ashworth Crescent.
Having taken aim, you fired the shotgun at Mr Jackson. You intended to do him serious injury, however, moments before you fired the shotgun, Mr Jackson's partner, Lisa Woods, observed you to be taking aim at Mr Jackson. She ran towards him in order to knock him out of the way of your shot. She was successful in doing this.
Unfortunately for her, the result was that your shot hit her. She was struck with three shotgun pellets, one to the abdomen. She fell to the ground severely injured. It was your action in shooting Ms Woods while aiming at Mr Jackson that constituted the offence of unlawfully doing grievous bodily harm to Ms Woods with intent to maim, disable or do grievous bodily harm to Todd Jackson. This offence was the subject of count 1 on the indictment.
At the same time, Dean Colbung Jnr, the son of the Dean Colbung that I've already mentioned, was sitting or standing near the low fence that separated the front yard of his parents' house from the house of their neighbours at 14 Clark Street. He was approximately 90 metres away from you. He was not involved in the brawl that was taking place. He was not posing any threat to you or the members of your family who were at 15 Ashworth Crescent. You took aim at Dean Colbung Jnr and fired the second of the cartridges that you had loaded into your double barrel shotgun. In shooting at Mr Colbung, you intended to do him serious injury. One of the pellets from your shotgun struck Mr Colbung in the lower left quadrant of his abdomen close to his hip. He reported having been shot to his parents and was taken to hospital by his mother.
It is your action in shooting Mr Colbung that constituted your offence of unlawfully wounding Mr Colbung with intent to maim, disable or do grievous bodily harm to him. This offence was the subject of count 3 on the indictment.
Meanwhile, another member of the Ugle Colbung family, Mr Sidney Ugle, had seen the injured Lisa Woods lying on the ground. By this time she had been carried to somewhere outside the front of 12 Clark Street. Sidney Ugle was not involved in the fighting. He decided that he would use his car to drive Ms Woods to hospital.
He drove his car to where she was. Family members put Ms Woods in his car. He then started driving slowly down Clark Street towards the intersection with Ashworth Crescent, which was the most direct route to the hospital. He drove slowly because there was glass on the road and people were running around.
As Mr Ugle approached the intersection, you pointed a shotgun in the direction of his car and fired a shot at his car. You were about 40 metres away from the car at this time. You fired the shot from either the double barrel shotgun which you had reloaded or a single barrel shotgun which was also in your possession at the time.
You were not intending to hit Mr Ugle when you fired the shot. Fortunately you did not hit him. However, a number of the pellets from your fired shot struck the lower front left portion of his car. That is, the front passenger side in the area of the bumper.
Mr Ugle, after getting over his shock at his car being hit by your shot, turned right at the bottom of Clark Street into Ashworth Crescent, that is, away from where you were, and drove Ms Woods to hospital. It is your act in shooting at Mr Ugle's car that constituted your offence of unlawfully doing an act as a result of which the life, health or safety of Mr Ugle was or was likely to be endangered. This offence was the subject of count 6 on the indictment.
40 The references to 'you' and 'your' are references to Mr Bolton to whom the sentencing judge was directing his remarks.
41 At the trial, as I have noted, Mr Hansen gave evidence on 19 January 2011. In examination-in-chief Mr Hansen, relevantly, gave the following evidence (ts 190):
And who lived at 12 Clark Street? – Dean Colbung.
What was the purpose of going back to Dean's house? – We had a wake after the funeral.
Now, I want to ask you about what happened that night. Was there – was there some trouble that happened? – Yeah. Well, we was having a drink then and two boys come from the east side of the park and walked onto – was swearing at Fraser Ugle and then Fraser walked down. And one bloke hit him.
…
Where were you when you saw these two boys? – We was out the front of 12 Clark Street, across the park – near the park.
You were across the road from 12 Clark Street? – Yeah.
42 In cross-examination Mr Hansen gave the following evidence (ts 192):
Okay. Now, were you outside the front of Dean Colbung's house for the entire time? – Yeah, we was all in the park there, drinking.
I beg your pardon? – We was in the front of Dean's place, across the road. Sat down there drinking.
43 From an email from the prosecutor to defence counsel on 13 January 2011 she noted that when proofing Mr Hansen he told her he was 'standing in the front yard of 12 Clarke Street', 'it was around 1800 or 1830', and that he had 'been drinking; he had a couple of beers'.
44 In the statement Mr Hansen made to police on 17 November 2009 he made no reference to where he had been standing and whether he had been drinking.
45 Mr Hansen also made another statement dated 2 July 2014 (that is, a further statement to the earlier statement I have referred to which was also made on 2 July 2014) filed in support of his application. That statement did not refer to where he had been standing and whether he had been drinking.
46 When Mr Hansen's solicitors filed the application for compensation there was no appreciation that there might be any significance as to whether or not he was drinking alcohol in a public place at the time and whether he had committed a separate offence. That issue only became relevant when it was raised by the assessor in her letter of 26 February 2016, which issue was revisited in her letter of 8 April 2016 informing Mr Hansen's solicitors that she, in effect, found Mr Hansen was drinking alcohol in a public place and had therefore committed a separate offence. She found that s 39 precluded her from making a compensation award to Mr Hansen.
47 When the assessor first raised the issue with Mr Hansen's solicitors, they replied by letter dated 3 March 2016 enclosing a statement signed by Mr Hansen on the same date in which he stated:
…
3. On the day of the incident I was with the boys in front of Dean Colbung's place.
4. There was about eight (8) of us boys. We were there after attending the funeral for Dean's mother.
5. I was watching them drinking alcohol. I was having a Diet Coke.
6. I hadn't had alcohol for some time and I was not drinking alcohol with the boys.
7. A few months before this incident I had abstained from consuming alcohol.
8. A few weeks after the incident I became very depressed and was suffering from anxiety and started consuming alcohol again.
9. I thought that would help me get over it.
10. I drank heavy for about year, I was depressed.
11. I was advised by my wife and the psychologist to stop drinking because it won't solve my problems.
12. Both of them told me that turning to the drink wouldn't help.
13. I slowly started to reduce my alcohol consumption.
14. Around the middle of 2011 I stopped consuming alcohol.
15. I haven't had a drink since then.
…
48 By her letter dated 8 April 2016, the assessor advised she did not accept Mr Hansen's statement that he was drinking Diet Coke was accurate. By reference to the transcript of Mr Hansen's evidence at the trial, (the relevant parts of which I have earlier set out), the assessor advised:
I consider that it is usually well understood that when someone says they were drinking, they were referring to drinking (alcohol). In my view, if your client was not drinking alcohol with the others, he would have made a distinction with his involvement of drinking alcohol and said words to the effect: 'We was all in the park there was drinking'.
49 Although she made no formal finding, it is implicit from the statements in her letter of 8 April that she was of the view Mr Hansen was drinking alcohol in a public place at the time of the shooting incident so that he was committing an offence contrary to the Liquor Control Act.
50 In his affidavit of 27 January 2017 Mr Hansen said (pars 89 – 114):
…
89. I explain the following answers to the questions:
90. Question: 'where were you when you saw these two boys'
91. Answer: 'we was out the front of 12 Clark Street, across the park, there near the park.'
92. Question: 'you were across the road from 12 Clark Street'
93. Answer: 'Yeah.'
94. Dean's house was across the road from the park.
95. Bernice's was in the car near the park.
96. When the shooting occurred I was on the front lawn of Dean's house.
97. I answered yes to the question 'you were across the road from 12 Clark Street' because I had been across the road before the shooting.
98. I was not across the road when the shooting had happened. I had only been across the road in the park when Fraser was arguing with two (2) others.
99. I had not gone back to the park.
100. I thought the question was asking if I had been in the park so I answered 'yeah'.
101. I had been under a lot of pressure and stress from that night.
102. Question: 'were you outside the front of Dean Colbung's house for the entire time'
103. Answer: 'yeah, we was all in the park there, drinking'
104. Question: 'I beg your pardon'
105. Answer: 'we was in the front of Dean's place, across the road. Sat down there drinking'.
106. When I said we were all in the park there drinking, that was when Fraser and the two (2) others coming across the park were arguing. I was drinking Diet Coke.
107. We had walked back to the car Bernice was in and watched for a bit. This is when we sat down.
108. We had been sitting down drinking near the car on the park side, before the shooting took place. It was when we went to see what was happening in the park with Fraser. I was drinking Diet Coke
109. We later got some more drinks from Bernice's car and went back to Dean's house.
110. About five (5) minutes after we had left park side is when the shooting happened. I was outside Dean's house on his lawn.
111. At the time of the shooting there was a large group of people outside, 12 Clark Street.
112. Some were having alcohol and some of us were having soft drinks. I was having soft drinks.
113. The incident plus the subsequent threats intimidations and having to give evidence via video link caused me a lot of stress. I just wanted to complete my testimony and get it over and done with.
114. There was too much on my mind. I was a bit confused.
…
51 In her affidavit of 27 January 2017, Ms Inman, relevantly, states:
…
11. Lawrence is now my full time carer.
12. When we got together, we both use to drink. But not too much.
13. Before the incident in 2009 Lawrence stopped drinking, because I got sicker and I needed a full time carer to look after me.
…
17. The funeral was in the afternoon on the 14 of November 2009.
18. After the funeral, we went to the recreation centre in Narrogin for afternoon tea.
19. About 4:30/5:00pm we arrived at Dean's. Lawrence wanted to go and see his uncle.
20. When we got there, I was sitting in my car, I did not get out.
21. I was there with my grandchildren.
22. There was me, Erica (Rest in Peace) and Shirley Eades). I was sitting with them because they did not want to get out and mix with the men.
23. We were sitting in the car listening to music.
24. Lawrence got out of the car.
25. Later on he came back to the car and got two (2) cans of Diet Coke. We had them in the car in the Esky.
26. Lawrence had walked down from the park.
27. He took one (1) for him and one for his uncle.
28. After that, they walked back to the house.
…
38. Lawrence started drinking about two (2) months after. He was very nervous and he thought that is what would calm him down.
…
52 There are also two, relatively, contemporaneous reports of Ms Mutton dated 17 May and 18 May 2010 addressed respectively to Mr Gary Forward, a community corrections officer at the Department for Corrective Services in Narrogin, and Mr Shane Conder, a Homeswest manager in Narrogin, which record a history that Mr Hansen had been alcohol-free for 18 months and saw Ms Mutton because he was acutely emotionally destabilised and had been using excessive alcohol to try and cope. He told Ms Mutton that he witnessed the serious shooting incident in which a woman standing next to him was shot and he saw her fall to the ground bleeding which distressed him. He also told her that he had since learned that he was in fact the target that night. He has since received ongoing death threats and general hostile reactions from Mr Bolton's family. It was because of the symptoms of PTSD following the shooting incident that he again began drinking alcohol.
53 It is unclear whether from the history Ms Mutton reports that Mr Hansen told her he had not drunk alcohol for 18 months before the shooting incident or 18 months before he saw her in May 2010. Whatever is the correct history, if it is accepted Mr Hansen had been alcohol-free for a period of time and had only resumed drinking after the incident, it corroborates or supports Mr Hansen's recent evidence, and his statement dated 3 March 2016, that he was not drinking at the time of the incident. When Mr Hansen reported that history to Ms Mutton he was unaware of criminal injuries compensation. He was also unaware of the significance of whether, if he was drinking in a public place, he was committing a separate offence at the time Mr Bolton committed the offences of which he has been convicted and which form the basis of Mr Hansen's claim for compensation. Therefore those statements carry far more weight than any recent statement prepared and provided after Mr Hansen became aware of the significance of whether he was drinking in a public place at the time the incident occurred, that is whether he was committing a separate offence at the time.
54 I place little weight on what is recorded in the prosecutor's email of 13 January 2011, when she proofed various witnesses, including Mr Hansen, as to whether he was drinking alcohol at the time of the incident. It is apparent the prosecutor had proofed a number of witnesses at the same time and her email reflects bullet points as to what the various witnesses said. Whether or not Mr Hansen had been drinking alcohol at the time would not have been an issue of any particular significance at the trial. It was not an issue which was explored at the trial. Mr Hansen was not cross-examined about whether he had been drinking alcohol. The prosecutor's proofing notes contain the only direct evidence that Mr Hansen was drinking alcohol.
55 I accept Mr Hansen's and Ms Inman's evidence that at the time the incident took place Mr Hansen was not drinking alcohol and was not drinking in a public place. I am satisfied he had not consumed alcohol for a significant period of time prior to the incident and only resumed drinking alcohol after the incident because of difficulties he had in coping with the aftermath of the incident and the ongoing threats to him and his family. After reverting to drinking for a period of time he later again ceased to consume alcohol.
56 There are also inconsistencies in Mr Hansen's evidence as to for how long after the incident he drank alcohol and when he stopped drinking alcohol. In his statement of 3 March 2016, Mr Hansen said he drank heavily for about a year and stopped consuming alcohol around the middle of 2011. However, in his evidence-in-chief before me he said he started drinking alcohol again about two months after the incident and then drank alcohol for about two months before again stopping. The inconsistency was explored in cross-examination. Mr Hansen said that after having a couple of months off drinking alcohol he may have started again because he had that much on his mind. He said he has now been off alcohol for over four years (ts 20 – 21, 24).
57 It is unnecessary for me to resolve for approximately how long Mr Hansen continued drinking alcohol after the incident. I am satisfied that at the time of the incident he was not drinking alcohol and only resumed drinking alcohol sometime after the incident, probably about two months afterwards.
Whether Mr Hansen committed the separate offence of public drinking contrary to s 119 Liquor Control Act 1988
58 It follows from my findings above that Mr Hansen did not commit a separate offence of public drinking contrary to s 119 of the Liquor Control Act. It therefore also follows that s 39 of the Act does not preclude an award of criminal injuries compensation being made to Mr Hansen. In my respectful view, the assessor was in error when she found that s 39 precluded her from making a compensation award to Mr Hansen because he had committed an offence against s 119 of the Liquor Control Act.
59 In those circumstances, it is unnecessary for me to consider the correct statutory construction of s 39 and in particular whether there is an onus of proof on either party when determining if a claimant was committing an offence when injured – see Hutching v Lachlan [2012] WADC 89. However, and without expressing any concluded view, my preliminary view is that an onus remains on an applicant for compensation to prove, on the balance of probabilities, that he or she was not committing an offence at the relevant time if evidence or material is before the assessor indicating an offence may have been committed.
Should the matter be remitted to the assessor to determine whether an award of compensation ought to be made?
60 Section 56 sets out how the District Court is to deal with an appeal brought under the Act.
61 Section 56(1) provides that:
On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information. (emphasis added)
62 Section 56(2) provides the court may do any or all of the following:
On an appeal under section 55 the District Court may do any or all of the following —
(a) exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b) confirm, vary or reverse the assessor's decision, either in whole or in part;
(c) make any order that an assessor could make under this Act;
(d) order an unsuccessful party to the appeal to pay a successful party's costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e) refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f) make any necessary consequential order.
63 In Zadeh [2015] WADC 136, Sleight CJDC, referring to the expression 'must decide the application' in s 56(1) said [15]:
This section mandates that the District Court on appeal is to 'decide the application to which the decision relates afresh'. In my opinion, this means the District Court must decide the case itself afresh, which is incompatible with remitting the matter back for reassessment by the Assessor. This is consistent with authorities that the power to remit a matter is consistent with a rehearing appeal and inconsistent with an appeal de novo: Sperway Constructions (Syd) (Pty) (1976) 135 CLR 616 (621); Allesch v Maunz (2000) 203 CLR 172 [44]; Sal Galofaro v Metropolitan Fire & Emergency Services Appeal Commission & Ors [2005] VSC 356 [61]; Waterhouse v Racing Appeals Tribunal [2002] NSWSC 1143 [94].
64 In that case the appellant was appealing the amount of compensation awarded by the assessor. The question arises whether the District Court has the power to remit a matter to the assessor for the assessment of compensation where an appeal is allowed and the assessor's decision to refuse to award compensation is reversed. In Re TLJ [67], Goetze DCJ, upon allowing the appellant's appeal against the assessor's refusal to make a compensation award considered that the assessment could then be remitted to the assessor as a consequential order pursuant to s 56(2)(f). However, in that case his Honour, who had all of the information that was before the assessor and seeing no practical benefit in remitting the matter to the assessor, proceeded to assess the compensation award.
65 I also note that in Devos v James [2009] WADC 161 [69], Schoombee DCJ concluded:
Neither party made any submissions in respect of the amount of compensation that would be just and it would be more expedient if the Assessor were to determine the amount of the compensation payable. Pursuant to s 56 of the Act a court may reverse the Assessor's decision and make any necessary consequential order. I see no reason why this would not entitle the Court to refer the assessment of the compensation payable back to the Assessor.
66 Notwithstanding those observations, her Honour decided against remitting the matter to the assessor and determined the award of compensation.
67 In Zadeh [19], his Honour the Chief Judge observed in relation to Devos v James:
As I have already mentioned, the de novo appeal must be conducted in relation to 'the decision it relates'. In Devos v James, the de novo decision made by Judge Schoombee related to the liability issue of whether a claim could be made under the Act. In my opinion, this left the court the power to remit the matter back to the Assessor to complete the assessment. In this case before me, the appeal relates to the decision of the amount awarded. In my opinion, this is an appeal under the second category of cases, that is, as to quantum. Accordingly, this court should proceed to assess the quantum entitlement afresh and if the amount awarded is inadequate substitute the court's opinion for it.
68 Whether I should remit the matter to the assessor to determine whether an award of compensation ought to be made was not the subject of submissions before me and therefore I make no observation about the power of the District Court to remit matters to the assessor for the determination of whether an award of compensation ought be made in circumstances where this court allows an appeal against a refusal to make an award of compensation. It is unnecessary for me to resolve that issue. I am satisfied I have all of the necessary materials before me to determine whether an award of compensation ought be made and if so, the amount of the award. There is no practical purpose in remitting the matter to the assessor to now determine whether an award of compensation ought be made. I now proceed to determine that issue.
Whether Mr Hansen has suffered injury as a result of a proved offence
69 As earlier outlined, Mr Hansen brings his application pursuant to s 12 on the basis he has suffered injury as a consequence of the commission of the offences of which Mr Bolton was convicted following trial. Section 12, relevantly, reads:
Proved offence
(1) A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
…
(3) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied —
(a) if the application is made under subsection (1) — that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence …
Mental and nervous shock, compensation for limited to certain persons
(2) An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied —
…
(c) that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed …
71 In his affidavit of 27 January 2017, Mr Hansen stated:
…
22. Later we went down to the lawn, this is when we heard the gun shots.
23. When we heard them we ran down the lawn to see what was happening.
24. We were on the lawn.
25. While we were on the lawn, Lisa Wood walked past and I went down to the footpath started to walk towards her. She appeared to have a bit to drink. I wanted to ask her to come back to the house.
26. I followed her to next door, and I saw her fall.
27. I asked her what happened and she had been shot.
28. I told her to come back. I ran back to the house to get help.
29. I told Dean Colbung and the other out the front the Lisa has been shot.
30. After I heard the gun shots, I felt nervous.
31. I was cold. My body went cold. Like I was freezing. I broke out in cold sweat.
32. I was confused and trembling.
33. I thought I was going to get shot by Graham and I was frightened.
34. The Bolton's were after me all day and all week, I thought that the shot that hit Lisa was meant for me.
35. I was frightened to go out of the yard after that.
36. Once I was in the house I did not go out again.
37. The Police came about ten (10) minutes later.
38. I did not speak to the Police.
39. I was there while the Police were in the house for around ten (10) to fifteen (15) minutes.
40. I left, I went over the back fence to my Uncle's house because Bernice was waiting there for me to pick me up.
41. My Uncle is Gerald Ugle.
42. Once I was with Bernice, we went home.
43. When I got home I was frightened for my partner and my kids.
44. I sat up all night. I basically sat up all night drinking coffee.
45. I could not sleep, and I still can't sleep.
46. I felt panicky and anxious.
47. The next day the Police came to my house and asked me for a statement.
48. I think I did provide a statement. I remember saying something to the Police.
49. The next couple of days I only walked across the road to my cousin's house.
50. After the shooting the Bolton family continued to threaten us.
51. The day after the incident they had come around in their cars.
52. The threats and harassment got worse.
…
72 Under the heading 'After the incident' Mr Hansen goes onto say:
…
53. Around one (1) months after the incident, Basil Kickett bought an old man to our house.
54. He was an Aboriginal Medicine man.
55. They told us that because they could not knock us off they were going to make us suffer.
56. I shook the doctor's hand and ever since I have been suffering.
57. I get pains up my arm, and down my legs.
58. I have been to the Doctors had had all sorts of tests. Needles, ultra sounds and everything, but they have not found anything wrong.
59. About two (2) months after the incident I started drinking again.
60. I was stressed right out.
61. I was worried for the kids.
62. My relatives and friends used to come over while I was drinking because I was frightened and needed company.
63. The Bolton family would drive past my house, and make hand signs.
64. One (1) night Graham's son, Darren Bolton came to my door and knocked on the door. We rang the Police and told the Police. But I don't know if they went to talk to them or not.
65. We would not open the door.
66. I now have anxiety attacks.
67. When I can sleep, I get nightmares from the incident.
68. After the incident I went bony, like small, I lost a lot of weight.
69. After the incident I was very ill. We hardly left the house.
70. We stayed with the children and did not go out, and only socialised with the family who came to the house.
71. About six (6) months after the incident I went to see my GP, Dr Kerrigan at Federal Street Clinic.
72. He gave me some pain killers and sleepers
73. Since then I have continued to see my GP because of what I have been through.
74. I cannot recollect exactly, but either Dr Beaton or Dr Kerrigan referred me to Lyn Mutton, Psychologist.
75. I don't remember the exact date the referral was made somewhere around 2010.
76. I saw Lyn Mutton in 2010.
77. When I saw Lyn Mutton, we discussed the shooting, what I had been through, how I was stressing and my grand kids.
78. I have seen Lyn Mutton a lot of times, I can't say how much I have seen her.
79. The last time I saw here was around two (2) months before Christmas 2016.
80. I still think about the incident and have flash backs of the incident.
…
73 When Ms Inman gave evidence she was asked about whether she noticed any changes in Mr Hansen's behaviour after the shooting incident and said (ts 39):
… With him? Yes, I have. I've noticed a lot with him. He's hardly sleeping at night. He's getting headaches all the time. He sleeps during the day when we're awake. If he hears any noises he's up jumping. He's complaining to me about his body aching every day. He wakes me sometimes at night nearly crying. He's in that much pain because – since the day the shooting incident happened, a couple of days before that a – a guy came through our house and threatened Lawrence with witchcraft. And since he shook that man's hands he hasn't been the same. He's just been aching all over and they can't do anything for him.
74 Counsel for the amicus asked further questions about the timing of when Mr Hansen was threatened by witchcraft and Ms Inman confirmed it was before the shooting saying it was about a month or three weeks before the shooting. The old aboriginal man said to Mr Hansen that (ts 40):
… And he said that they weren't going to kill him. He said, 'We'll make you suffer for the rest of your life'. That's what this old man said to Lawrence.
75 She then went onto say the shooting incident happened two months afterwards.
76 Although Ms Inman gave inconsistent accounts as to the timing of when Mr Hansen was threatened with witchcraft she was consistent in her explanation that it happened before the shooting incident. That explanation is inconsistent with Mr Hansen's evidence in his affidavit that the threatened witchcraft happened a month after the shooting incident. That inconsistency was not clarified by counsel.
77 The timing of when Mr Hansen was threatened with witchcraft, in particular whether it occurred before or after the shooting incident, is in my view not that important. The significance about this incident is that, whether or not it occurred before the shooting incident, it has caused Mr Hansen to suffer from stress and anxiety and significantly, physical symptoms of his body aching and having pain in his arms and legs for which he has sought medical treatment. There is no medical explanation for those symptoms. Despite Mr Hansen saying he was referred by his general practitioner, Dr Kerrigan or Dr Beaton, to the psychologist, Ms Mutton, and that doctors have performed various tests, no medical report has been provided in support of the application.
78 In his evidence Mr Hansen said that he saw Dr Kerrigan because he was getting nightmares and pain throughout his body and 'was stressing right out'. Dr Kerrigan gave him antibiotics and painkillers. He was also having trouble sleeping and Dr Kerrigan prescribed sleeping tablets (ts 33).
79 Mr Hansen also gave evidence during examination-in-chief that he had nightmares and flashbacks about seeing guns going off which frightened him and woke him up during the night. He also had flashbacks about seeing Lisa who was shot falling beside him (ts 20).
80 He said that nobody told him he was the intended target of the shooting but because the offender Mr Bolton and members of his family used to come past his house every day of the week before the incident threatening him and wanting to fight him, he assumed he was the target of the shooting (ts 24 – 25).
81 Mr Hansen also said in his evidence that whereas before the shooting incident he would visit family and friends two or three days a week, since then he does not visit friends and just leaves the house to go shopping, to fill up his car with petrol or to take Ms Inman to the doctors. Whereas previously friends and family would sometimes visit, now they hardly come around.
82 He also said that he hears noises and panics, checks the windows and doors to see if they are locked. He has become short tempered and less tolerant of people, particularly his grandchildren when they make noise.
83 In his statement dated 2 July 2014 filed with the application for compensation Mr Hansen said:
…
17. Following the incident and the conviction of the offender, there have been many death threats made by the Bolton family against me and my family.
18. The death threats have left me in fear for my life and the lives of my family members.
19. I have found out after the incident that the shot which hit Lisa was meant for me. They were trying to shoot me but got her instead. This is really scary.
20. I have seen some people hanging around outside my house watching me and my family. I have even been able to identify some of these people as the offender's nephews.
21. I have my grandkids living with me and they are also very frightened.
22. I have had nightmares following the incident.
23. The offender is still in prison but that does not make me feel safe. I fear that the offender will come after me when he is released from prison.
24. I am still in so much fear for my own safety and the safety of my grandkids.
25. As a result of the incident, I have had to start seeing a Psychologist to help me cope with my feelings of anxiety.
26. I have been feeling really stressed out and frightened.
…
Causation
84 I respectfully adopt as correctly setting out the law as to whether a person suffers injury as a consequence of the commission of a proved offence and the assessment of compensation, the following summary by Martino DCJ (as he then was), in MJN v MAJS (2003) 35 SR (WA) 219 [50] – [51]:
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 Wardlaw; Fagan v Crimes Compensation Tribunal; Watts v Rake(1960) 108 CLR 158; Purkess v Crittenden(1965) 114 CLR 164.
(See also TAW v NJS [2011] WADC 187; Re TLJ [2016] WADC 74 [82]).
85 I also adopt the following reasoning of Sleight DCJ (as he then was) regarding the relevant principles where an applicant has a pre-existing condition in JY [2013] WADC 187 [13]:
13 Where a complainant has a pre-existing condition a number of principles must be taken into account:
(a) The onus is on the claimant to prove that the compensable offence did contribute materially to the claimant's injury and loss. However the offence 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] HCA 49; (1982) 150 CLR 666.
(b) Compensation will not be awarded if the injury and loss would have occurred in any event due to a pre-existing condition: Smith v Leech Brain & Co Ltd [1962] 2 QB 405. Where it cannot be positively stated that the event (the injury or loss) would have occurred in any event but it remained a probability then the award of compensation must be reduced to take into account that probability.
(c) If it can be proved that the offence has made a pre-existing condition worse by aggravation, or brings on a condition earlier, the assessment of compensation is made on the basis of the worsening or acceleration or both as the case may be: Zumeris v Testa [1972] VR 839.
(d) Where it is not possible to disentangle the consequences of a pre-existing condition and the consequences of the offence, the claimant is entitled to compensation for the full injury and loss if the claimant has establish that the compensable offence did contribute materially to the claimants injury or loss: Bonnington Castings Ltd v Wardlaw; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164;MJN v MAJS (2003) 35 SR (WA) 219, 227 (Martino J).
(e) In respect of events which have already occurred the court decides on the balance of probabilities whether a specific event has occurred or not and damages are assessed on an all or nothing approach. However, where it is necessary to assess a hypothetical situation such as whether a claimant's pre-existing condition would in any event have prevented the claimant from working in the future, the court must perform an estimate of the likelihood that the hypothetical situation may occur. If there is a fair chance that the hypothetical situation may occur, the court must evaluate that chance and discount the compensation by the percentage that represents that chance: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 499 – 500. These adjustments for probabilities is relevant to general damages and past and future loss: Wilson v Peisley (1975) 50 ALJR 207, 212 (Stephen J); SW v BB [2010] WADC 86.
35 … It seems to me that generally an assessment would be guided by common law principles. However, I acknowledge that in cases such as the present case, where there is no respondent, the principles that apply in relation to disentangling the effects of a pre-existing condition are not easy to apply. This is because the principle is based upon the onus of proof. In a contested common law claim the burden lies on the defendant to adduce evidence that the plaintiff's claim was wholly or partly the result of some pre-existing condition. Where the defendant is unable to disentangle the effect of an injury caused by a defendant and the future effect of a pre-existing condition, the claimant is entitled to all the loss and damage flowing from his current and likely future loss of earning capacity because the defendant has failed in fulfilling the onus on the defendant: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (160). However, as stressed in Purkiss v Crittenden [1965] HCA 34; (1965) 114 CLR 164, the onus of establishing the loss was a consequence of the injury suffered still remains on the claimant. At 168, Barwick CJ, Kitto and Taylor JJ stated:
It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v Rake[1960] HCA 58; (1960) 108 CLR 158 was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant's case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence.
(my emphasis)
87 I readily accept that being present at the scene of the shooting and hearing shots would have been a frightening, distressing and traumatic experience. Further, having seen a person next to or near you fall to the ground suffering injury as a result of being shot would have in itself been a distressing and traumatic experience. I also accept that Mr Hansen being present at the scene of the shooting and being in the vicinity of someone who was injured as a result of being shot, whom he witnessed falling to the ground, could easily have believed he was the intended victim of the shooting especially in the context and against the background of an ongoing feud between the various families where threats had been made to him and his family. I also accept that Mr Hansen has suffered a degree of shock from a realisation that he could easily have been the person who was shot whether or not he was the intended victim. Although none of the victims of the shooting died as a result of their injuries, that seems to me to be pure luck. Although Mr Hansen does not say as much, I accept that following the incident he believed he could have been shot and killed or seriously injured.
88 Although in her report of 31 October 2014, Ms Mutton does not define or explain what is post-traumatic stress disorder (PTSD), she does list symptomology with which Mr Hansen presented when he first saw her in May 2010 which she says is consistent with a diagnosis of acute PTSD as defined in DSM-V. DSM-V summaries the diagnostic criteria for PTSD as exposure to death, threatened death or actual or threatened serious injury by direct exposure, witnessing the trauma or learning that a relative or close friend was exposed to trauma, resulting in various symptoms such as intrusive thoughts, nightmares, flashbacks, emotional distress after exposure to traumatic reminders and a physical reaction after exposure to traumatic reminders. Other symptoms associated with PTSD are irritability or aggression, hypervigilance, heightened or startled reaction, difficulty concentrating and difficulty sleeping. The symptoms last for more than a month.
89 The various symptoms that Mr Hansen presented with include frequent panic reactions, severe anxiety, chronic sleep disturbance, intrusive nightmares, extreme emotional volatility ranging from depression through to fear, overwhelming fear of imminent death, extreme hypervigilance, persistent flashbacks of the shooting incident, severe deterioration of cognitive function including memory, dysfunction, loss of concentration, inability to think clearly or make decisions, significant deterioration of physical health, deterioration and frustration tolerance, loss of appetite, social withdrawal and avoidance, significant reliance on alcohol.
90 While the evidence adduced in support of the claim that Mr Hansen suffers from PTSD is not as thorough or detailed as it might have been, I am satisfied that Mr Hansen has generally suffered, and continues to suffer, from the symptoms detailed in Ms Mutton's report. I accept that those symptoms are consistent with a diagnosis of PTSD. I accept Mr Hansen suffers from PTSD. I am satisfied that PTSD satisfies the definition of 'injury' in that it is mental or nervous shock.
91 The real issue for the purpose of this appeal is whether the offending of Mr Bolton is causative of the symptoms and PTSD suffered by Mr Hansen. That is, whether the shooting incident has caused Mr Hansen to suffer those symptoms.
92 I am satisfied Mr Hansen has suffered PTSD as a result of the shooting incident. I accept that his presence at the scene of the shooting, witnessing Lisa who was standing next to or in his vicinity being shot, directly exposed him to, or he genuinely believed he was exposed to threatened death or actual or threatened serious injury. Further, he witnessed the trauma caused by the shooting. I also accept that he believed he could easily have suffered serious injury or been killed by being shot. As I have found, I am satisfied his reaction to being present at the scene and witnessing the shooting satisfies the criteria of PTSD.
93 However, I do not accept that all of the symptoms, and the longevity of them, suffered by Mr Hansen are caused by the shooting incident, that is, by being present at the incident and witnessing the trauma of it. That is, I am not satisfied the PTSD has caused, in the sense that it materially contributed to, all of the symptoms from which Mr Hansen suffers.
94 The physical symptoms suffered by Mr Hansen, the generalised body pain and aches, are not caused by the trauma of the shooting incident. They are caused by the incident when he believes he was subjected to witchcraft. Further, most of Mr Hansen's symptoms of anxiety, stress, sleeplessness, loss of concentration, hypervigilance, social withdrawal and his reliance upon alcohol for a period of time after the shooting incident are all significantly contributed to by ongoing threats of harm being made to both he and his family by either Mr Bolton or members of Mr Bolton's family. Mr Hansen's statements and evidence reflect that. To the extent that Mr Hansen has suffered symptoms of mental or nervous shock associated with or caused by those other actions of Mr Bolton and his family, it is non-compensable.
95 In terms of his day-to-day activities Mr Hansen has largely been able to maintain the same level of activity that he undertook prior to the shooting incident and prior to him being diagnosed as suffering from PTSD. His daily life largely revolves around him caring for his partner, Ms Inman, who suffers a serious medical condition. He was her carer before the shooting incident and he has continued to perform his role as her carer since the incident. Indeed, Ms Inman's medical condition has significantly deteriorated since the incident such that she needs a much higher level of care which Mr Hansen has been able to provide. He continues to cook for her and his two grandchildren. He assists her to shower and dress. He takes her to medical appointments. He cleans the house and works in the garden.
96 However, his social activities have reduced. While I accept that to some extent his social activities have been restricted because of the need to provide an increased level of care to Ms Inman, I am satisfied that the stress and anxiety from which he suffers has resulted in social withdrawal and that he is now largely restricted to his home. He socialises very little compared to the level of socialising before the shooting incident.
97 In her report of 31 October 2014, Ms Mutton states:
... Lawrence has been the victim of constant and severe threats to his life and that of his family and various aggressive and vandalistic acts. This ongoing targeting of Lawrence has rendered him basically housebound, dysfunctional and in constant fear of his life. The family all check who is at the door before opening it and do not open it after dark. They are constantly panicked if their dog or the neighbour's dog begins to bark. Although the grandchildren are involved in various local sports competitions, ie: football, netball, basketball, Lawrence and Bernice are too worried to go and watch them play. They tried initially but were again subject to threats and abuse.
98 Although the evidence filed in support of the application does not support or establish the extent of the factual background reported to and relied upon by Ms Mutton in support of her opinion as to the extent to which Mr Hansen's life has been restricted and affected, I accept his social activities and day to day activities have become quite restricted and he has become socially isolated. I accept the PTSD has materially contributed to that social withdrawal.
99 He has nightmares and flashbacks directly related to the trauma of the shooting incident and witnessing what happened. He suffers from sleeplessness which in turn is associated with fatigue and tiredness during the day. His concentration, mood and temperament have been affected. His enjoyment of life has deteriorated. I accept these symptoms are materially contributed to by the PTSD.
100 In my view a reasonable award of compensation to take into account all of the symptoms suffered by Mr Hansen, but excluding the physical pain and aching related to the witchcraft incident, is $15,000 which I would reduce by one third to take into account the extent to which his condition has been worsened, exacerbated or prolonged by him and his family continuing to be subjected to ongoing threats of harm and violence by Mr Bolton and his family. I therefore award Mr Hansen the sum of $10,000.
101 I then turn to assess the further sums claimed by Mr Hansen.
102 Mr Hansen seeks a sum to compensate him for future counselling and expenses as recommended by Ms Mutton being 12 sessions of psychotherapy at $241 per consultation or $2,892 in total, less the Medicare rebate of $124.50 per session, to a maximum of 10 sessions at a total of $1,245, leaving a shortfall in the amount claimed of $1,647.
103 Mr Hansen gave evidence that he did not feel any benefit from the counselling sessions he did attend with Ms Mutton. He has apparently not seen Ms Mutton for treatment since 2010. Although Ms Mutton's report of 31 October 2014 is relatively recent, it is unclear when she last reviewed him. The only reference to Mr Hansen receiving any treatment is to Mr Hansen attending several sessions in the latter part of 2010 but he made little progress, mainly because of the ongoing threats and abuse made by Mr Bolton's family to him. The issue is then whether it is reasonable to award an amount for future psychological counselling sessions if Mr Hansen is unlikely to benefit from them or unlikely to attend them. A further issue arises as to whether the need for ongoing counselling is in part related to the heightened symptoms suffered because of the ongoing threats to which Mr Hansen and his family is subjected.
104 In my view a reasonable award for the cost of future psychological counselling is $800. That award is subject to s 48 by which the chief assessor must be satisfied the expenses have been reasonably incurred by Mr Hansen: see also Re PK (by her next friend the Public Trustee) [2014] WADC 139; PK [2013] WACIC 24.
105 A claim is made for Ms Mutton's report fee in the sum of $1,335 and in my view that is reasonably claimed and I award that sum.
106 Pursuant to reg 5 of the Criminal Injuries Compensation Regulations 2003 Mr Hansen also claims court filing and process service fees and hearing fees as follows:
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107 By reg 5 the court may award costs against an unsuccessful party in favour of the successful party in accordance with the scale of costs prescribed by the regulations.
108 No costs orders should be made against the chief executive officer because the chief executive officer is not an unsuccessful party to an appeal. Further, counsel for the chief executive officer appears as amicus curiae for the purpose of assisting the court.
109 In my view, in a case such as this where the respondent has not participated in or been represented at the appeal, and has therefore not contributed to the costs of the appeal, it is inappropriate to make an order of costs against him. Further, and although it was not addressed in argument before me, in the circumstances of this case where there is evidence, which I have accepted, that Mr Hansen and his family have been subjected to ongoing threats of harm and violence by the respondent Mr Bolton and his family, to make an order for costs against Mr Bolton personally which could only be enforced against Mr Bolton, is only likely to exacerbate a volatile situation and risk Mr Hansen being subjected to increased threats of harm and violence. In my view an order for costs against Mr Bolton would do more harm than good.
110 Accordingly, I decline to make any order for court costs.
111 In summary, I allow the appeal and award Mr Hansen compensation in the following sums:
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