Hill v Clarke
[2015] WADC 93
•10 AUGUST 2015
HILL -v- CLARKE [2015] WADC 93
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 93 | |
| Case No: | APP:111/2014 | 24 JUNE 2015 | |
| Coram: | STAUDE DCJ | 10/08/15 | |
| PERTH | |||
| 38 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Compensation assessed and awarded | ||
| PDF Version |
| Parties: | AARON HILL PAUL EDWARD JAMES CLARKE |
Catchwords: | Appeal Criminal injuries compensation Whether victim committing an offence at the time of injury Whether victim's behaviour contributed to injury Whether inferences can be drawn from jury verdicts Significance of findings of trial judge for sentencing purposes Whether credibility based findings adverse to the victim can be made where court has not heard the evidence Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 s 39, s 41 |
Case References: | A v D (1994) 11 WAR 481 Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186 Attorney General of Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 Barendse v Comptroller–General of Customs (1996) 136 FLR 243 Bennett v The State of Western Australia [2012] WASCA 70 Briginshaw v Briginshaw (1938) 60 CLR 366 D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Fox v Percy [2003] HCA 22, (2003) 214 CLR 118 Gamser v Nominal Defendant (1977) 136 CLR 145 Gaunt v Hooft [2009] WASC 36 George v Rockett [1990] HCA 26; (1991) 70 CLR 104 Hogben v Darcy [2009] WADC 63 Hutchings v Lachlan [2012] WADC 89 M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) McDavitt v McDavitt [2013] WADC 22 Medlin v State Government Insurance Commission [1995] HCA 5, (1995) 182 CLR 1 MES v KG (1995) 12 SR(WA) 330 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66; (1992) 67 ALJR 170 R v Carroll [2002] HCA 55; (2002) 213 CLR 635 Re Carter (1984) 4 SR (WA) 219 Re Hondros [1973] WAR 1 Roebuck v Beadle [2009] WASC 236 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 S v Neumann (1995) 14 WAR 452, 463 The State of Western Australia v Thompson [2014] WASCA 108 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
and
IN THE MATTER OF an appeal by
- Appellant
AND
PAUL EDWARD JAMES CLARKE
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
File No : CI 1906 of 2013
Catchwords:
Appeal - Criminal injuries compensation - Whether victim committing an offence at the time of injury - Whether victim's behaviour contributed to injury - Whether inferences can be drawn from jury verdicts - Significance of findings of trial judge for sentencing purposes - Whether credibility based findings adverse to the victim can be made where court has not heard the evidence - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 s 39, s 41
Result:
Appeal allowed
Compensation assessed and awarded
Representation:
Counsel:
Appellant : Mr M E Curden SC
Respondent : Not applicable
Amicus Curiae : Mr W A Fitt appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Patrick J Cannon Coburn & Associates
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Abbott v The State of Western Australia [2005] WASCA 42; (2005) 152 A Crim R 186
Attorney General of Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Barendse v Comptroller–General of Customs (1996) 136 FLR 243
Bennett v The State of Western Australia [2012] WASCA 70
Briginshaw v Briginshaw (1938) 60 CLR 366
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1
Fox v Percy [2003] HCA 22, (2003) 214 CLR 118
Gamser v Nominal Defendant (1977) 136 CLR 145
Gaunt v Hooft [2009] WASC 36
George v Rockett [1990] HCA 26; (1991) 70 CLR 104
Hogben v Darcy [2009] WADC 63
Hutchings v Lachlan [2012] WADC 89
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
McDavitt v McDavitt [2013] WADC 22
Medlin v State Government Insurance Commission [1995] HCA 5, (1995) 182 CLR 1
MES v KG (1995) 12 SR(WA) 330
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66; (1992) 67 ALJR 170
R v Carroll [2002] HCA 55; (2002) 213 CLR 635
Re Carter (1984) 4 SR (WA) 219
Re Hondros [1973] WAR 1
Roebuck v Beadle [2009] WASC 236
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
S v Neumann (1995) 14 WAR 452, 463
The State of Western Australia v Thompson [2014] WASCA 108
- STAUDE DCJ:
Introduction
1 On 14 June 2011 the respondent was convicted after trial by jury of unlawfully doing grievous bodily harm to the appellant on 29 January 2009 by striking him on the left shoulder with a sword. The offence was committed on the roadway in front of the respondent's home in Armadale, in the course of an altercation with the appellant which had commenced a short time earlier in the respondent's house. The appellant suffered a deep laceration with dissection of the deltoid muscle and posterior capsule, avulsion of a small fragment of the humeral head, and dissection of the acromion process lateral to the acromioclavicular joint. On 27 July 2011 the respondent was sentenced to 3 years' imprisonment for the offence.
2 The respondent was acquitted at the same trial of two counts of unlawful wounding of the appellant alleged to have been committed in the house prior to the grievous bodily harm offence, and of one count of unlawful wounding of one Jonathan McKinnon, alleged to have been committed after the grievous bodily harm offence.
3 The appellant's claim for compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act) was refused on the grounds that the appellant was committing an offence at the time he was injured. The decision was notified by letter dated 15 October 2014 to the appellant's solicitor. From that decision the appellant appeals pursuant to s 55.
4 The appeal is a hearing de novo. The court is to determine the application afresh without being fettered by the determination of the assessor: s 56(1). The court may confirm, vary or reverse the assessor's decision in whole or in part: s 56(2). The appellant does not have to show error on the part of the assessor, although in this case the appellant submits that the decision can be shown to be incorrect. It is appropriate to have regard to the assessor's reasons for decision: Hogben v Darcy [2009] WADC 63 [13].
5 There was no hearing at such at first instance. Section 33 permits an assessor to make or refuse to make an award of compensation without a hearing. The learned chief assessor was informed by the transcript of the trial and sentencing of the respondent, the prosecution file and brief, and medical and hospital records relating to the appellant's injuries. The learned chief assessor also had the benefit of submissions made by the appellant's solicitors and an undated and unsigned statement of Camiell Roslyn Gidgup.
6 The s 39 issue arose from a letter by the respondent to the chief assessor dated 27 November 2013 in response to the appellant's claim. The respondent stated:
The applicant, Aaron Hill, was invited onto my property by my carer at the time of the incident and during this visit initiated an attack on my carer which I tried to defend and assist my carer from being injured [sic]. Therefore the incident/injury I believe would not have occurred had the appellant not entered the property with intent to initiate an attack on my carer. The applicant returned to my property a second time with the intent to harm and I defended myself, during this defence an injury was sustained by the applicant [sic].
7 The respondent took no part in the appeal. The appeal notice is dated 30 October 2014. At a directions hearing on 21 January 2015 an order for substituted service was made deeming service by way of advertisement approved by the court in the public notices section of The West Australian newspaper to be good and sufficient service on the respondent. This order was made upon the application of the appellant supported by an affidavit by his solicitor which annexed a chronology of attendances by a process server on six occasions at the respondent's last known address. The affidavit of Paula Jane Howden sworn 22 June 2015 deposes to the advertisement of the appeal and the order for substituted service in The West Australian of 5 March 2015. The appeal proceeded on the basis that the court was satisfied that the appellant had complied with the order for substituted service.
8 Leave was given to the chief executive officer to be represented as amicus curiae.
9 At the hearing of the appeal I granted leave to the appellant to give oral evidence of his injuries and disabilities and to counsel for the amicus to cross-examine generally.
Section 39
10 Section 39 provides, relevantly:
(1) If an assessor is satisfied –
(a) that a person was injured as a consequence of the commission of an offence; and
(b) that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The evident purpose of s 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed 'at the same time'. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
12 Whether s 39 operates to preclude an award of compensation is a matter for the assessor to determine. No causal nexus is required between the injury for which the claim is made and any offence committed by the victim. Section 39 merely requires a temporal connection: Attorney General of Western Australia v Her Honour Judge Schoombee [34]. Whether there is a sufficient temporal connection is a question of fact and degree: [54].
13 The civil standard of proof applies to a determination that the injured person was committing a separate offence. 'Satisfied' means satisfied on the balance of probabilities: see s 3. The same standard applies to proof of an offence for the purpose of claiming compensation under the Act where no conviction has been entered: Re Carter (1984) 4 SR (WA) 219 and MES v KG (1995) 12 SR(WA) 330, 331 - 332. In such a case, however, the claimant for compensation bears the burden of proving the offence. Where the question is whether the claimant was committing an offence when injured there is no onus of proof on either party: Hutchings v Lachlan [34] – [37].
14 The gravity of the imputation of a criminal offence and the significance of its consequences in this case warrant the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66; (1992) 67 ALJR 170 [2], following Briginshaw v Briginshaw (1938) 60 CLR 366 [362]. Where criminal conduct is alleged, clear and cogent evidence is required: see also Hutchings v Lachlan [2012] WADC 89 [37] and McDavitt v McDavitt [2013] WADC 22 [30].
15 These principles, which are not controversial, are more easily stated than applied. In this case the appellant has not been tried for any offence. At the trial of the respondent he was merely a witness. The jury's verdicts do not disclose the findings of fact on which they were based and there were no express findings by the trial judge made for sentencing purposes of any acts constituting an offence committed by the appellant. This court, like the chief assessor, does not have the advantage of seeing and hearing the witnesses and is therefore somewhat limited in its capacity to make findings on their credibility, though not altogether prevented from doing so: see Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; also Barendse v Comptroller–General of Customs (1996) 136 FLR 243, 256.
The chief assessor's decision
16 In her letter dated 30 April 2014 the chief assessor set out her provisional view of the matter as follows:
As you are aware Mr Clarke was acquitted of offences of unlawful wounding alleged to have been committed against your client during an altercation in the home of Mr Clarke. The count of grievous bodily harm which for which Clarke was convicted occurred shortly afterwards, outside the house. It was clear that the jury were not satisfied on the evidence of your client as to the circumstances of what happened inside the house leading to him sustaining more minor lacerations. Defences of self defence, defence of another, defence against home invasion and removal of a disorderly person from the home of Mr Clarke were raised and whilst it is not clear in respect of the acquittals which of the defence has succeeded, the offender was sentenced on the basis that in causing the significant injury to your client's shoulder he was acting in self defence but his action was excessive and disproportionate to the threat and was therefore unlawful. It was Mr Clarke's assertion that when your client sustained the significant shoulder injury, Mr Clarke was defending himself against a joint attack by your client and the other complainant in the matter, Mr McKinnon. Mr Clarke was acquitted of an offence in relation to Mr McKinnon also alleged to have been committed outside the house in immediately after you client sustained the shoulder injury.
In my opinion the jury did not accept your client's evidence as a reliable account of the incident. Had they done so it is likely that Mr Clarke would have been convicted of the alleged offences against your client which were said to have occurred inside the house. Mr Clarke's conviction of the offence outside the house is explicable on the basis of the nature of the weapon used to defend himself and the severity of the injury caused in defending himself from an attack by two others.
It is my provisional determination that the jury's verdict must be interpreted as involving a finding that Mr Clarke had an honest and reasonable belief of the need to defend himself. It is a necessary consequence therefore that they were satisfied that your client was attacking Mr Clarke and that section 39 of the Criminal Injuries Compensation Act 2003 therefore constitutes a barrier to his claim succeeding. Alternatively your client, in arming himself and returning to the scene, significantly contributed to the injuries he suffered. I note that he asserts he returned to protect his mother, however on the evidence it appeared she had left the house and was free to remove herself from any danger before your client and Mr McKinnon approached Mr Clarke.
17 Further submissions were invited. On 30 June 2015 the appellant's solicitors wrote to the chief assessor, submitting that:
1. The offence of unlawfully doing grievous bodily harm, of which the respondent was convicted, was removed in time and place from the earlier incident, the subject of counts 1 and 2 (unlawful wounding).
2. There was a number of possible explanations for the jury's verdicts of acquittal in respect of counts 1 and 2, other than unreliability on the part of the appellant.
3. The acquittal verdict in respect of count 4 (unlawful wounding of McKinnon) may have been due to the unusual injury he suffered.
4. It was reasonable for the appellant, having left the respondent's house after being injured, to return in order to protect his mother and his uncle.
5. It was reasonable for the appellant to arm himself with a piece of wood when the respondent was armed with a samurai sword.
6. The offence of which the respondent was convicted was committed on the street, not on the respondent's property.
7. The jury's acceptance of the evidence of the witness Bracegirdle would have supported a verdict of guilty. The appellant's evidence was consistent with Bracegirdle's.
8. The purpose of the appellant returning to the place where the incident occurred was to defend his mother and his uncle.
18 An unsigned statement by Camiell Roslyn Gidgup was forwarded with the appellant's solicitors' letter. The statement read as follows:
1. I am cousin sister of Aaron Hill and I had been living at 13 Musoule Way [sic], Armadale for three years. It was only around the corner from that Clarke's place.
2. Aaron came running in bleeding from the chest and arm. He looked really frightened. He said he had been stabbed and I could see the blood. He was in shock.
3. I asked him what's going on, what's happened and he said that Johnnie and his mum and others were still down there. He was really worried about his mum. He was running around looking for something to arm himself with so he could protect his mum and the others.
4. He kept on shouting out that Johnny and the others were there and that this guy had already stabbed him. He grabbed a stick and kept saying that they were mobbing Johnny. He ran around the corner shouting he was going to get Johnny and his mum.
5. It would have been about five minutes. At this stage his girlfriend may have been on the phone to police.
6. I didn't make a statement to the police. I don't know they didn't ask me. I can be contacted on [number].
19 The chief assessor responded by letter dated 15 October 2014:
I have deferred further considering the matter whilst awaiting a signed copy of the statement of Camiell Gidgup, however, to date this has not been received. I have nevertheless proceeded to consider the contents of that statement and note that having carefully reviewed the file of the Director of Public Prosecutions (DPP), it is incorrect for Ms Gidgup to assert that she was not asked by the police to make a statement. The DPP file reveals that significant effort was expended in attempting to locate Ms Gidgup and the complainant, McKinnon, her partner, in the lead up to the trial. The prosecutor issued specific instructions to the investigating officer to make all efforts to locate Ms Gidgup and in a file note dated 2 February 2011 the prosecutor noted that he had received a phone call from the investigating officer.
The content of the call is recorded on the file as follows:
'She has spoken to Camille [sic] → only at house earlier before altercations. The others stayed and kept drinking. She only saw the complainants after the incident when they were bleeding and collapsed.'
In my opinion the information in this memo is inconsistent with Ms Gidgup's unsigned statement that she was not asked by police to make a statement and further, and more importantly, it is inconsistent with the context of her unsigned statement claiming that the applicant had indicated he was worried about his mother before returning, armed, to confront the accused.
In my opinion the most reliable interpretation of the evidence, and the one adopted by the judge and both counsel, was that the jury's verdict was based on a finding that in defending himself against a threatening approach by your client, the accused had acted in a way disproportionate to the threat and was therefore not entitled to acquittal on the grounds of self-defence. I therefore remain satisfied as expressed in my letter of 30 April 2014 that pursuant to section 39 of the Criminal Injuries Compensation Act 2003 your client was committing an offence at the time he was injured and is therefore ineligible for compensation.
The offences possibly committed by the appellant
20 The chief assessor's decision implies the commission of a separate offence of unlawful assault by the appellant. Counsel for the amicus suggests that the court should also consider the possibility of a Weapons Act 1999 offence.
21 The following provisions of the Criminal Code define and proscribe an unlawful assault:
222. Term used: assault
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
223. Assaults unlawful
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.
22 Section 8 of the Weapons Act 1999 relevantly provides:
(1) Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence —
(a) to injure or disable any person; or
(b) to cause any person to fear that someone will be injured or disabled by that use,
commits an offence.
Penalty: imprisonment for 2 years and a fine of $24 000.
(2) A person is presumed to have had the intention referred to in subsection (1) if —
(a) the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b) the contrary is not proved.
23 The learned sentencing judge made limited findings with respect to the circumstances of the offending. At ts 713, in the course of his sentencing remarks his Honour said:
Now, it seems to me that after the trial, and based on the verdicts of the jury, the relevant facts, in summary, are that Mr Hill, Mr McKinnon, his mother and uncle – that is Mr Hill's mother and uncle – were guests in your home. You were all drinking. Something happened to cause you to fetch a ninja sword. There was some difference of opinion, some unpleasantness and some situation that arose.
Counts 1 and 2 concern what happened in the house, and you were found not guilty on those counts.
Matters spilled out onto the road where we had the evidence of Mr Bracegirdle, who, as Mr Soh has described, saw you walking up the road in an aggressive manner. He was an independent witness. You said you went to the letterbox; but you also, I think, accepted that there was a confrontation out on the road. So you didn't just simply remain at the letterbox as you had said.
Now, the jury found you guilty of causing grievous bodily harm to Mr Hill. They found you not guilty of unlawful wounding of Mr McKinnon out in the road. On the version most favourable to you, you were acting in self-defence; but your actions were excessive in respect to Mr Hill. And what you did was not a reasonable response to the circumstances you believed that you faced out on the road, and it seems the jury may not have been satisfied with how Mr McKinnon suffered his injuries or that what you did with respect to him was a reasonable response as part of the self-defence.
24 The legal requirements of self-defence are set out in s 248 of the Criminal Code:
(1) In this section —
harmful act means an act that is an element of an offence under this Part other than Chapter XXXV.
(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).
(3) [not relevant]
(4) A person's harmful act is done in self-defence if —
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.
(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.
25 A harmful act is defined to include an act which causes grievous bodily harm and an assault.
26 In The State of Western Australia v Thompson [2014] WASCA 108 [28] the president of the Court of Appeal summarised the principles governing the trial judge's fact-finding role for the purpose, as follows:
Where the offender to be sentenced has been found guilty following a trial by jury, the judge who presided at the trial must determine the facts relevant to the sentencing process: Cheung v The Queen (2001) 209 CLR 1 [5], [36]. Although the facts found by the sentencing judge must be consistent with the verdict of the jury, it is the sentencing judge who must find the facts rather than speculate about the facts that may or may not have been found by the jury: Cheung [9] - [11]. It is only the facts necessarily implicit in the verdict of guilty after trial (the core facts) that cannot be controverted in the sentencing process. In relation to other facts, a sentencing judge may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough that they be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 [27].
27 The significance of factual findings made for the purpose of sentencing is demonstrated in Bennett v The State of Western Australia [2012] WASCA 70. The chief justice observed [67], in the context of the requirements of proof of a prior conviction for the purposes of s 31A of the Evidence Act 1906:
In some cases, issues may arise as to the precise identification of the facts evidenced by the conviction. In such cases, the record of the trial will provide the only reliable guide to that issue which will usually be established by the facts admitted for the purposes of sentence (in the case of a guilty plea), or the facts found by the trial judge for the purposes of sentence (in the case of a conviction after trial).
28 Thus, a person convicted of an offence is bound by the material facts admitted or found for the purpose of sentencing. At [43] the learned chief justice addressed the principle of incontrovertibility by reference to R v Carroll [2002] HCA 55; (2002) 213 CLR 635; Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [76] - [80]. However, I am informed of no authority to the effect that a person who is merely a witness in a criminal trial may be so bound.
29 The appellant submits that the trial judge's decision to sentence the respondent on the most favourable version of the offence consistent with the verdict does not involve a finding of guilt on the part of the appellant. In this case the trial judge was prepared to sentence the respondent on the basis that he responded unreasonably to a perceived threat of harm. As a matter of law, the trial judge was bound to do so unless satisfied beyond reasonable doubt of a higher level of culpability.
30 Moreover, logically, a factual conclusion that a person may, as a reasonable possibility, have had a reasonable belief that it was necessary to do a harmful act in self-defence, does not compel a conclusion that that person was necessarily the victim of an unlawful assault at that time. That is a separate matter of enquiry. Before the appellant may be altogether deprived of compensation for his injuries, s 39 requires the assessor or the court, as the case may be, to be satisfied to the civil standard, and to the degree appropriate to the gravity of the imputation, that the appellant was committing a separate offence when he was injured.
31 Senior counsel for the appellant submitted that in circumstances where no offence has been admitted, the court should be slow to make a finding of guilt on the basis of evidence given at the trial of the respondent. As counsel has observed, the principles applicable to a criminal trial, such as the presumption of innocence, the burden of proof and the standard of proof, impose limitations on the evidence that may be adduced and the manner in which the evidence may be tested. Moreover, the trial process does not require the jury to decide the guilt of any person other than the accused.
32 The Act permits the assessor to act informally and without regard to the rules of evidence; see also s 30. Those rules apply to this court on an appeal: s 43. Accordingly, regard can be given to the trial judge's findings. The trial judge is clearly in a most advantageous position when it comes to making findings of fact on the evidence at trial. But the trial judge is not directly concerned with the rights of the victim of an offence. Rather, the trial judge is to determine the factual basis upon which to sentence the offender.
33 It is conceivable that in some cases specific credibility based findings might be given great weight. Indeed, in earlier times, when an application for criminal injuries compensation was made to the trial judge, the judge was entitled to act upon his or her view of the evidence at trial, such that factual issues were not required to be re-litigated: Re Hondros [1973] WAR 1, 3.
34 In this case, the learned trial judge's basis for sentence in this case is a proper source of information, but does not determine the question of fact with which this appeal is concerned. In any event, a finding of a perception by the respondent of a threat of harm, or even a belief that it was necessary to defend himself, without more, does not permit a conclusion that the appellant committed an offence when he was injured.
Verdict of the jury
35 The learned chief assessor based her conclusions of fact upon an interpretation of the jury's verdicts. It is not disputed on the part of the appellant that the findings of fact upon a s 39 enquiry must conform with the verdict of the jury. Indeed, in my view, notwithstanding the fact that the appellant was not a party to the prosecution of the respondent, it would be inappropriate to come to conclusions of fact that are inconsistent with the verdict. Nevertheless, it is necessary to look at the evidence in order to determine whether the relevant fact is to be necessarily inferred from the jury's verdict.
36 Essentially, it is the appellant's submission, based on the defence of justification on the grounds of self-defence put by the respondent, and left to the jury by the trial judge, that the jury could not have convicted the respondent unless they were satisfied beyond reasonable doubt that his account of what happened was not true.
37 The respondent's position at trial was that he was attacked by both the appellant and McKinnon, that he defended himself with the sword (that he had been using as a walking stick) and that he did not deliberately strike the appellant with it, such that the appellant's injuries were caused unintentionally, and in self-defence (ts 589 - 591). He denied causing any injury to the appellant in the house as alleged in counts 1 and 2.
38 Interpreted according to the evidence, the appellant submits, the jury's verdict of guilty required a complete rejection of this version. Whether this so, requires an examination of the evidence.
The case against the respondent
39 The appellant's evidence was that on 29 November 2009 he, his partner Violet Penny, and their three children went to 12 Masuli Way in Armadale to visit Camiell Gidgup, his cousin, who lived with Jonathon McKinnon. His mother Noelene Hill and his uncle Cornell Hart were there also.
40 The respondent lived a short distance away with a friend, Graham Carty. Brendan Ugle was at the respondent's home that day. During the afternoon he and McKinnon went to the respondent's house in order to obtain alcohol. The respondent invited them in. Alcohol was consumed there until it ran out. More was purchased in the form of a 5-litre wine cask. The appellant and McKinnon contributed some money towards the purchase of the cask.
41 When the appellant was leaving the respondent's house, he picked up the cask. At that stage, McKinnon was already outside because he was feeling sick. There was a heated argument over the wine. The respondent told them all to leave. The appellant said he was going. At ts 262:
I'm like, 'well listen we're getting out of your fucking house, alright? We're just, you know, just – just give us a chance, more or less, to get out of your house'. And he's standing up and he's standing closely to this sword that I've noticed earlier as we've walked through the door.
42 The appellant said that the respondent went for the sword. He tried to stop him:
What did you do when you saw him do that? - - - I feared for my life. I, I – I tried to not – not, say, disarm him, but to try to stop him from – from pulling that out. You know what I mean? Like, pretty much, yeah, disarm him, but, but, to – to defend myself.
…
So what were you actually doing with your hands? - - - I was trying to stop him from pulling out the actual – trying to hold down from what – with my fingers, hold down from the actual, actual bench part of the sword.
43 The appellant said that the respondent pulled the sword from the scabbard and held it in both hands. He struck him with the sword three times, injuring him on the left side of the chest, in the solar plexus area, and near the second lower rib on the left. The appellant then punched the respondent and moved away from him. The respondent then raised his sword. The appellant grabbed a stool in his left hand. The respondent then struck him on the wrist with the sword. At ts 268:
Mum's jumped up. He's actually turned to the sword like he's going to hit her, and I've actually like – like, wanted to go him again, and he's turned back on me again, and I can – I could feel, like, someone trying to grab my shirt. It was my brother-in-law Johnny, and I could see on, on the corner of my eye, that Johnny was coming through with a rake. He was trying to push him – keep – keep him at bay.
44 The appellant said that as he went out through the front door, the respondent was still coming at him with the sword. He could hear the sword moving through the air. At the front of the respondent's house he went left towards Campbell Road. McKinnon went in the other direction. The appellant said he was running to get away from the respondent. When he was 30 or 40 m away, he realised that he had left his mother in the house with the respondent and decided to go back. He found a 'good size stick'.
45 Photographs of the ‘stick’ (which appears to be and was described in the evidence as a handle) show it to be observably aged, weathered and brittle. Photographs of the rake used by McKinnon depict a grass rake with a plastic head and an aluminium handle. Photographs of the sword show it to be in the style of a Japanese samurai sword capable of being held with two hands.
46 He went back towards the respondent's house and saw him at the front, swinging the sword 'like if he was a samurai ninja or something'. He said he was shouting at McKinnon, saying that he would cut his head off. He saw Graham Carty at the front door, Cornell Hart at the front verge and his mother on the lawn. Brendan Ugle was also there. His mother was trying to make her way from the yard. She was about one metre from the footpath near a tree.
47 The appellant said he came down the street towards the respondent. At ts 275:
So what was your intention in getting closer? - - - Getting Mum … just getting Mum back. Like I said, cause I – I – I actually ran out of the house, left Mum on the couch while I'm – I'm getting stabbed. Me uncle Cornell was sitting back in the toilet, so.
Tell us what you did? - - - I walked back. Like I said, at this point he's definitely spotted me coming down. You know, he seen that I'm armed with something.
- - - … You know, he's shouting at me, 'I want to fuck your fucking – you black cunt, I'm cutting your fucking head off' …
What did you tell him? - - - I said, 'you – you're not going to fucking cut my head off', you know? Yeah, I said, 'you're not – you're not fucking kill me' and I've come – I've come down the street and like I said, it was at – there was like a tiny little – I don't know, 10, 30 seconds little maybe stand off, kind of thing. We paused for a second and then we just kinda didn't hesitate. We just kinda both went at each other at the same time. But like I said, as I – as I'm coming up, right, he's already swinging around like this in the air. And the stick that I got, like I said, being a bit heavy, what not, and being a little bloke, I – I've got to actually lift it up from this side.
OK? - - - Right. So he – he's already – he's already coming with it, with a chopping motion. So I'm just going like that in a t-ball fashion. And at that point, we've hit, we've clashed together, mine's just ricocheted off – off his blade. His blade's gone upwards …
So what's clashed together? - - - The sword and the stick.
OK? - - - So his blade's come at me, I've hit the blade with him as well and mine's ricocheted down towards my, my right side, like this.
48 The appellant said that the respondent lifted his sword and brought it straight down across the top of his left shoulder. The respondent lifted his sword as if to strike him again. He (the appellant) was on one knee. The respondent was standing over him. McKinnon then ran at the respondent and tackled him from behind. He saw McKinnon bleeding from his neck. He then saw Brendan Ugle try to kick McKinnon in the face. He got up and picked up the piece of wood that he had to defend himself with and struck the respondent across the back. He hit him a second time in the top part of his neck and shoulder area 'because he was still cutting Johnny'. He and McKinnon then ran towards his sister's house.
49 In cross-examination, the appellant denied that McKinnon started an argument with the respondent and Graham Carty, and that he grabbed Carty and pushed him to the ground. He also denied grabbing a pair of scissors from the coffee table, holding them against Carty's head and saying that he would kill him. It was put to him that the argument had nothing to do with the cask of wine. He disagreed. He said it was only after he had been cut three times by the sword that he punched the respondent. It was put to him that never occurred and that all of his injuries were sustained in an altercation outside the house which occurred when he and McKinnon attacked the respondent, the appellant with a piece of wood and McKinnon with a rake. He disagreed. It was also put to him that he returned to the house with a piece of wood because he was furious at the respondent and wanted to fight him. The appellant responded (ts 325):
No, I wanted to go back and get my mother. How am I going to kill him when he's got a samurai sword?
50 It was put to the appellant that the respondent had not threatened his mother. The appellant disagreed. Then, at ts 326:
And you say when you've got back with the bit of wood Mr Clarke was in the street? - - - Yes he was in the street.
Your mother was on the grass? - - - She was on his grass.
Yes. There's no fence at the front of that place locking your mother in, is there? - - - No there isn't.
So if you wanted to get your mother why didn't you go and grab her? - - - Because at this point he had noticed what I got in my hand, he's started approaching me with the sword.
No, you approached him? - - - I've approached – that's right, I've got something – I've got something to self-defence myself with but I'm going back to get my Mum.
Let's get it right. You've approached him with the bit of wood, haven't you? - - - Not approached him. I was walking down towards my Mum. He – he's just happened to stand in the middle of the street.
...
Well, the truth is, you've come out to have a fight with him? - - - Oh, yeah, right. With a bloke with a samurai sword. Yeah, right.
51 At ts 329:
You've come at him and you've swung the bit of wood at him? - - - We've done it at the same time. He's come at me and I've gone at him.
52 The appellant maintained that the respondent was threatening to cut his head off and to kill him. He admitted striking the respondent twice with the piece of wood. He denied the proposition that his injuries resulted from him attacking the respondent.
53 The evidence of McKinnon was that he became ill when he was at the respondent's house and went outside. He heard a noise from inside over the music that was being played and went back inside. He saw the respondent hitting the appellant with a sword. He said the appellant was being struck 'pretty much everywhere'. He saw four or five blows. The appellant was on the floor. He then grabbed a rake which was leaning against the wall near a bedroom window, went inside and prodded the respondent in the chest with it, telling the appellant to run. He said he grabbed the appellant and threw him out the door. He said the respondent was 'waving' the sword 'like a crazy man'. He said he would cut his head off. He ran backwards, holding the rake. At ts 409:
I was saying 'what the fuck's going on? What the fuck's going on?' and he – I don't know, he's just saying, 'I want to chop your fucking heads off. I'm going to kill youse' and carrying on and like I was still dumbfounded on what was going on.
54 He was not hit by the sword in the house. He said he ran across the lawn and to his right. The appellant ran to the left. He ran for 80 to 100 m and then turned around and told the respondent to put the sword down. He said he had no intention of fighting him at all as he was a friend (ts 411). At that point he saw the appellant's mother and uncle leaving the house through the front door. He also saw the appellant coming down the road. At ts 412:
And what did Paul do? - - - He was waving the sword around still, just waving it around and – and scaring the absolute shit out of them.
…
… How close was he to Aaron's mother? - - - Well, they were on the front lawn and he was probably on the – either nature strip, between the – half way through the nature strip and the footpath. So he was pretty much on the edge of the footpath near the nature strip and they were just too bloody shit scared to even move off the front lawn.
55 He said the respondent was waving the sword at Noelene and Cornell.
56 According to McKinnon, the appellant said to the respondent 'Don't fucking wave that thing at my mother and my uncle' (ts 413). He said the appellant walked past his mother. The respondent came towards him. He said the respondent went to strike the appellant with the sword which struck the stick in the appellant's hands. Then the respondent struck the appellant on his shoulder. The appellant went down on one knee. The respondent raised the sword again, at which point McKinnon dropped the rake he had and spear-tackled the respondent, taking him to the ground. As he did so, he was cut on the neck with the sword. He and the appellant then ran away. The respondent chased them, swinging the sword and saying that he would kill them. He described trying to disarm the respondent whilst he was on the ground and Brendan Ugle kicking him four times in the face (ts 416).
57 In cross-examination McKinnon denied having an argument with the respondent and Graham Carty. He denied pushing Carty to the ground. He denied that the appellant grabbed a pair of scissors and held them to Carty's head. He said he did not know why the incident inside the house occurred. He was outside when it started. When he went inside he saw the respondent 'whacking into Aaron while he's on the floor' (ts 450). He did not see the respondent pick up the sword or take it out of its scabbard. This was contrary to what he told the police. He rejected the suggestion that when he went outside and grabbed the rake the appellant came out and grabbed the piece of wood and that they both then went inside and attacked the respondent with those articles (ts 456). He denied striking the respondent with the rake. He agreed that after being chased by the respondent the appellant came back armed with a stick. McKinnon denied wanting to fight the respondent (ts 464). He denied using the rake at all to strike the respondent outside the house. He said he only tried to defend himself when the respondent was swinging the sword, saying he was going to chop his head off. He denied striking him in the chest with the rake. He conceded that he never felt a blow to his neck during the altercation with the respondent. He did feel a blow to his foot as he was running away (ts 470).
58 There were a number of other witnesses at the trial.
59 Mr Cutajar was a local resident who was visiting Mr Albert Bracegirdle in Campbell Street when the incident occurred. He looked down the street to see a person with a sword and two other persons fighting him. He recognised the respondent as the person swinging the sword. He saw only the backs of the other two persons. He did not see if they had anything on them at the time. Sometime later one of those men came up the road with a slashed arm. An ambulance was called. He then saw the person go back down Masuli Way with a rake (ts 108).
60 His evidence, which seems to be mistaken in some respects, does not really bear in any meaningful way on the circumstances of the grievous bodily harm offence.
61 Mr Bracegirdle was a resident of Campbell Road. He was outside his home reading when he saw a young Aboriginal man come running up the street holding his arm which had a lot of blood on it. He had previously heard a row down the street. About five minutes later there was another row. At the corner of Masuli Way and Campbell Street he saw McKinnon with a rake in his hand and the respondent waving a samurai sword, threatening McKinnon. McKinnon was waving a garden rake and swearing at the respondent. He saw no physical contact between them (ts 128). After a while the respondent went back down the street to his house. Mr Bracegirdle saw the Aboriginal man with his arm in a bandage come towards McKinnon. The two went down the street towards the respondent's house. He said the Aboriginal man was bleeding. He saw him collapse (ts 130). He did not see Brendan Ugle.
62 Brendan Ugle gave evidence that he was staying with the respondent. On the day in question he was sleeping in a bedroom and was woken up by the respondent and asked to come into the lounge room. He said everyone was having a good time. He sat behind the respondent. They were watching television. He said McKinnon grabbed Graham Carty and held a pair of scissors to the back of his head. It was McKinnon, not the appellant, who held the scissors (ts 159). He got up to ring the police. The respondent grabbed his samurai sword (ts 161). Cornell Hart ran out the front door. The respondent tried to get McKinnon out of the house. He did not see him strike anyone inside the house. The appellant and McKinnon did not respond. He saw the appellant waving a chair at the respondent, each of them had a pair of scissors (ts 164). He did not recall what was said. He did not see the sword touch anyone. He went to the phone to ring the police. He said that McKinnon got a rake and was waving it around trying to hit the respondent (ts 166). The appellant had what looked like a star picket handle about a metre long which he described as wooden. He said he was waving it around trying to get back into the house. He did not see the wooden handle hit the respondent. The respondent was pointing the sword at the two men telling them to get out of the house (ts 167).
63 At the front of the house he saw the respondent being struck in the chest with a rake. This occurred near the letterbox. He decided to remain inside. After telephoning the police he went outside and saw the respondent near his letterbox. The appellant was to the right and McKinnon was standing on the other side of the appellant. The respondent was on the grass. He saw McKinnon stab the respondent in the chest with the rake and the appellant trying to hit the respondent with the handle. The respondent had the samurai sword. He did not see the respondent hit anyone with the sword. He saw the respondent use the sword to block blows. He did not see a pick axe handle strike the respondent. He saw the respondent fall on the road and the appellant swinging at him, but not connecting (ts 169, 171).
64 He then tried to stop McKinnon from stabbing the respondent in the chest with the rake, but he could not remember how he did so (ts 171). Mr Ugle said he was sure that it was McKinnon who put a pair of scissors to the back of Carty's neck. It was then that he went into the kitchen to call the police. He did not see the appellant throw a stool at the respondent. He saw McKinnon with a rake trying to get back into the house and the respondent was at the door. He did not see the appellant with the wooden handle until they were outside near the letterbox. He saw McKinnon striking the respondent in the chest with the handle of the rake and when he finally got off the phone to the police he came outside he saw the appellant and McKinnon attacking the respondent, McKinnon with a rake and the appellant with a wooden handle. He then intervened to protect the respondent (ts 186).
65 The appellant's mother, Noelene Hill, gave evidence that she went with Cornell Hart to get the appellant from the respondent's house and was invited inside. She took a seat on a sofa and was offered a glass of beer. Cornell Hart fell asleep. She said that things happened very quickly. She saw the respondent pull out a sword and swing it around (ts 208). She thought it was a joke. He then walked towards the appellant and poked him in the chest about six times. She saw blood coming from her son's chest (ts 209). The appellant and McKinnon went outside. Cornell was in the toilet. She went outside. The man with the sword was on the road swinging it and swearing at the appellant who asked him to put it down (ts 211). The man kept swinging the sword. McKinnon was nearby. She saw her son knocked down by the sword and she then saw him struck on the arm with the sword near the left shoulder (ts 213). Her son then ran away. The man with the sword then came towards her with the sword, she said to him 'Well, have you got a mother?'. He replied that he did and then pulled back (ts 214). She then saw her son come back. She saw McKinnon try to rush the respondent to get the sword. She saw him cut along the side of the neck she then saw the man with the sword chasing McKinnon. She then returned to Camiell Gidgup's place.
66 In cross-examination she admitted that her memory was not good and that she had been drinking (ts 221). She agreed that her son and McKinnon were drinking wine at the respondent's house. She did not recall McKinnon getting into a fight with another person or getting him down on the coffee table. She denied that the appellant took a pair of scissors from the coffee table and held them at this man's head. She recalled that McKinnon came into the house with a rake and tried to knock the sword out of the respondent's hand. She denied that her son had a piece of wood, but she admitted signing a statement in which she said that the appellant hit the respondent with a piece of wood. She maintained, when challenged, that the respondent came at her with the sword after her son was cut on the shoulder (ts 236).
67 It is reasonably clear that Ms Hill's evidence was mistaken in a number of material respects.
The defence
68 The respondent's evidence was that he was drinking at his house with Graham Carty, McKinnon, the appellant, Cornell Hart and Noelene Hill. They were drinking cask wine. At one point McKinnon became agitated and argumentative. He and Carty got into an argument. At this time he (the respondent) went into a bedroom and woke up Brendan Ugle and told him to come into the lounge room (ts 545).
69 He saw McKinnon grab Carty and fight him to the ground. The appellant then picked up some scissors from the table and said 'You're dead, you white cunt'. The respondent then grabbed the sword from the cabinet and pointed it at him, saying 'Get the fuck out of the house, you're trying to kill my fucking carer' (ts 546). He said he did not know what the argument between McKinnon and Carty was about. He feared he was going to be assaulted as he had been previously in an incident in Collie. He pointed the sword at the appellant because he had the scissors and he thought he was going to stab Carty. He said when he drew the sword McKinnon ran out the door and then came back in with a rake. He told him to get out of the house. He was then attacked by McKinnon with the rake. The appellant ran out the door and returned with a pick axe handle (ts 551).
70 He denied that there was any argument over the appellant taking the wine cask. He denied jabbing the appellant three times with the sword. He said he simply wanted to get them out of his house and off his property so that they would not attack Carty, himself or Ugle. He said that McKinnon stabbed him and belted him with the rake. He was swinging the sword to block the rake. He said that as the appellant ran out he threw a stool at him. He said that the appellant then came in with the pick axe handle and attacked him. He said he eventually managed to get them out the front door and push them back to the middle of the lawn. He said both just ran away, one to the right and the other to the left. He did not know whether he had made any contact with either of them with the sword. He said that each of them returned. He said he was waiting at about the letterbox for them (ts 553).
71 He denied swinging the sword at the appellant's mother inside or outside the house. When he saw the two men coming down Campbell Road towards the house he thought he was going to be killed. He was using the sword as a walking stick. He said he was attacked in the middle of the street. He was hit several times. He had thought he may have hit the appellant and McKinnon with the sword. At one point he tripped over and landed on his back (ts 556). He held the sword up to try to stop the pick axe handle and the rake from smashing his head. He described the appellant as using the pick axe handle in a chopping motion first and then as a spear. When he was on the ground he called out for Brendan Ugle who came outside and gripped McKinnon in a headlock. McKinnon and the appellant then went off down the road again (ts 557).
72 He said he used the sword to defend himself and to get the others out of his house and off his property. He did not know how the injuries suffered by the appellant were caused but he did not deny that they could have been from his sword (ts 558). He said he had no idea about how the appellant's shoulder injury was caused, but suggested that it happened in the melee. He said he was swinging around wildly just trying to stop them from hitting him. He gave evidence of injuries to his chest and head, leg and hand (ts 560). The pick axe handle used by the appellant was his. He said that any injuries suffered by the appellant and McKinnon were accidental (ts 591). He did not hit them deliberately, but was defending himself. He had no recollection of striking the appellant on the shoulder in a downwards action. He said 'If the sword got on him it might have got him. I can't tell you because I do not know' (ts 589).
Statement of Graham Carty
73 Graham Carty was not called as a witness. Although the prosecution arranged for him to give evidence by video-link from South Australia, he did not attend. He was unable to be served with a subpoena, which would not have been enforceable in any event: see letter from Mr R Soh of the Office of the Director of Public Prosecutions to the appellant dated 10 July 2012.
74 In his police statement signed the day after the incident he described a verbal altercation between McKinnon and the respondent in the house in the course of which the respondent took up a sword from the sideboard and swung it at McKinnon. Carty said the respondent looked like he was out of control. He moved towards him and tried to grab him. The respondent told him not to touch him and pushed him away. He saw everyone run out of the house. He went after the respondent to try to stop him. He said he eventually stopped swinging the sword. He took it off him and returned it to the house. Later he saw an incident in which McKinnon hit the respondent with a rake.
75 Carty's statement makes no mention of the appellant being involved in any altercation with him or the respondent. It makes no mention of any incident involving scissors being held at his head as the respondent described.
Evidence of appellant on appeal
76 At the hearing of the appeal the appellant gave further evidence of the incident when questioned by Mr Fitt for the amicus. He said he had been stabbed a number of times before he left the respondent's home. He returned in order to get his mother. The respondent was on the road. The respondent came at him with the sword and he defended himself with an old pick handle. He said he needed something to defend himself with because he wanted to go back to the house for his mother. He could not get to her because the respondent engaged him on the road. He said the respondent swung first. He blocked the sword with the pick handle. The sword ricocheted from the wood. The respondent then brought the sword down on his arm.
77 The appellant said that he was not walking towards the respondent, but towards his mother. She was on the grass. The respondent was on the road, swinging the sword. His only intention was to get his mother.
Was the appellant committing an assault?
78 From a background of conflicting accounts as to what occurred, both inside and outside the respondent's house, two different versions emerge of the respondent's offence.
79 Put in the most simple terms, the first is that the appellant, having been struck and injured by the respondent's sword in the house, fled, but returned, armed with a wooden pick handle, to protect his mother and remove her and his uncle from the respondent's house. He encountered the respondent who swung at him with the sword. He deflected that blow, but the respondent struck again, the sword striking his shoulder and causing the admitted grievous bodily harm.
80 The second version, also stated briefly, is that the respondent, having armed himself with the sword to protect Carty from the appellant, and whilst seeking to expel the appellant and McKinnon from his home, was attacked by the appellant and McKinnon, armed with a pick axe handle and a rake respectively, within his home. He was able to force them out of the house. They ran away, but returned and attacked him again. He defended himself with the sword. On this version the appellant was not struck by the sword inside the house but may have been, accidentally, in the altercations that ensued outside the house. The respondent hit neither of his antagonists deliberately.
130 Overall, the evidence in support of the claim for compensation is sparse and poor. There is no recent medical assessment and no satisfactory objective evidence of the extent to which the appellant's injuries restrict his earning capacity.
Non-pecuniary loss
131 In reaching an assessment of compensation for non-pecuniary loss, that is, pain and suffering and loss of enjoyment of life, I take into account the testimony of Dr Agrawal and the hospital and other records. I also take into account the evidence of the appellant himself and his previous statements in relation to the effects of his injuries.
132 The injury to the left shoulder was severe. It required surgical repair. The injury was likely, in the opinion of Dr Agrawal, to result in permanent disability. During his convalescence from the injury the appellant suffered considerable pain and stress.
133 I accept that the appellant has been left with a residual disability of the left shoulder due to pain and limitation of movement, although I am unable to find, due to the paucity of evidence, the extent of such disability relative to the full use of the shoulder. The history given to Dr Kang in February 2012 and his findings on examination suggest that the residual problems are not as great as the appellant has represented in his evidence, and the lack of medical review and treatment, even with analgesia, would also indicate that the residual symptoms are mild.
134 Although the appellant was reviewed in hospital by a psychologist, there is no evidence of injury in the form of mental and nervous shock. I accept that in the aftermath of the incident in which he was injured the appellant experienced nightmares and flashbacks. However, the absence of evidence of any ongoing distress of that kind, and the lack of expert evidence in this regard, indicates that he has recovered from such harm.
135 For non-pecuniary loss I assess compensation in the amount of $35,000.
Loss of earning capacity
136 I accept that the appellant's working capacity is reduced. However, in the absence of expert evidence of the extent of his left shoulder disability it is difficult to assess with any confidence the extent of the loss of the appellant's capacity to earn.
137 I am not satisfied on the evidence adduced by the appellant that he was assured of work in the mining sector, yet I accept that the chance to qualify and be selected for such work was lost as a result of his injury. In this respect I note that the Employment Pathway Plan was signed off only a couple of weeks before the injury.
138 Within the power conferred by s 19 the court is able to inform itself generally of average weekly wages for Western Australia over the period since the injury. According to the Australia Bureau of Statistics publications of average weekly earnings data, average male total earnings in Western Australia in August 2009 were $1,319.90. The corresponding gross figure for November 2014 is $1,680.10. (Damages are to be calculated on a net basis, after tax.)
139 The court can conclude, on the basis of its finding of a residual disability of the left shoulder, that the appellant has been and will be somewhat disadvantaged in the labour market. He was, of course, at a disadvantage in any event. He is an indigenous man and has a history of substance abuse. He did little by way of work in the six years he was in Perth prior to the incident of injury. To add to those employment disadvantages he now has a degree of restricted mobility and loss of function of the left upper limb.
140 Past loss of earnings and future loss of earning capacity cannot be assessed with any attempt at precision, yet a global assessment can be made, the court doing 'the best it can' on the available evidence. There are, as is often the case, many imponderables, but the difficulty in assessing the loss does not prevent an award being made of a global nature: Gamser v Nominal Defendant (1977) 136 CLR 145.
141 The appellant has not suffered a total loss of earning capacity by reason of his shoulder injury. It is only with respect to unrestricted physical work that he is at a disadvantage. The appellant would not, in my view, have been in continuous full-time or part-time employment from November 2009 had he not been injured. For six years prior to November 2009 the appellant's work history was marked by chronic unemployment.
142 In these circumstances, the court is required to evaluate the extent to which his loss of opportunity for work due to the effects of his injury has been or will be productive of financial loss: Medlin v State Government Insurance Commission [1995] HCA 5, (1995) 182 CLR 1. It is a difficult exercise when there is no expert evidence of the extent of the appellant's left shoulder disability or of his retained earning capacity.
143 From 29 November 2009 to date is a period of five years and eight months. At the commencement of this period the appellant, who was born on 6 November 1977, was aged 32. He is now aged 37.
144 It is reasonable to find that during the first 12 months of this period the appellant would have been totally unfit for work. Although he was not working at the date of the injury, he lost the chance of doing so altogether in that time. That loss of chance is not compensable unless it was likely that during this period he would have exercised his earning capacity to some extent doing unskilled or semi-skilled work for which he was fit. In the subsequent period he has been partially unfit for unrestricted physical work. Again, it is the loss of a chance. I find that the appellant did have a prospect of gainful work and that, accordingly, the diminution of his earning capacity has been productive of loss. Given the appellant's poor work history and the deficient medical evidence, no more than a modest global allowance can be made. Taking all matters into account, I would assess such past loss at $20,000.
145 Future loss of earning capacity is also to be assessed globally. The same considerations and contingencies apply. The appellant has a future working life of 28 years to age 65. The award should reflect a partial loss of earning capacity on the basis that by reason of his left shoulder disability the appellant has lost the opportunity to do unrestricted work for which he would otherwise be suited. As before, given the unsatisfactory state of the evidence a modest assessment is indicated. I allow $20,000.
146 I also award the claimed St John Ambulance transportation expense of $735.
Conclusion
147 As my assessment exceeds the statutory limit of $75,000, that sum should be awarded. Accordingly, I would allow the appeal, set aside the decision of the learned chief assessor, and award compensation pursuant to the Act in the amount of $75,000.
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