ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
Citation  :HINCHCLIFFE v HINCHCLIFFE
File No  :CI 416 of 2008

Catchwords:

Criminal injuries compensation - Extension of time for making compensation application - Amendment of compensation application - Admission of further evidence and information on appeal - Whether appellant did not do any act or thing which she ought reasonably to have done to assist in the identification, apprehension and prosecution of the offender - Assessment of compensation - Causation

Legislation:

Criminal Injuries Compensation Act 1985, s 24
Criminal Injuries Compensation Act 2003, s 6(2)(a)(ii), s 9(2), s 18, s 19(1)(a), s 30(1), s 31, s 36, s 38, s 41, s 55(1), s 56(1), s 56(2), s 67, s
Interpretation Act 1984, s 32(2)

Result:

Appeal allowed
Award of $7,000 allowed

Representation:

Counsel:

Appellant:     Ms R Cosentino
Respondent:     In person
Amicus Curiae              :     Ms L A Eddy appeared on behalf of the Chief Executive Officer for the Department of the Attorney General

Solicitors:

Appellant:     Gibson & Gibson
Respondent:     Not applicable
Amicus Curiae              :     State Solicitor for Western Australia

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

CME [2004] WACIC 9
IGG [2004] WACIC 8
Prideaux v Chief Executive Officer [2000] WADC 143
Re; Tilbury [2010] WADC 46
RT [2006] WADC 185
VPAN [2007] WACIC 41

STEVENSON DCJ:

Background

On 20 September 1999 the appellant, Ms Hinchcliffe, was the victim of a vicious and prolonged assault which caused her serious physical injuries and psychological harm (the incident). The perpetrator of the crime was her husband, the respondent. He admitted the offence on 13 June 2000 by pleading guilty to one count of assault occasioning bodily harm. On 14 August 2000 he was sentenced to a term of imprisonment of 3 years 6 months for his criminal conduct during the incident.
This is an appeal against the decision of the Criminal Injuries Assessor made on 2 February 2009, whereby the learned Assessor refused to make an award of compensation under the Criminal Injuries Compensation Act 2003 (the Act) in favour of Ms Hinchcliffe for injuries she sustained as a result of the criminal offence committed by the respondent on 20 September 1999.
The learned Assessor made a finding of fact, based on the information available to her, that Ms Hinchcliffe did not at the time do all she could reasonably have done to assist the investigators or prosecutors. The Assessor held that because of this finding she was prevented by s 38 of the Act from making a compensation award in favour of the appellant.
I am required to determine the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hinchcliffe v Hinchcliffe

Details

AGLC: Hinchcliffe v Hinchcliffe [2010] WADC 78
Case: [2010] WADC 78
Decision Date: 28 MAY 2010

CaseChat Overview and Summary

The matter before the Court of Appeal involved a dispute between the appellant and the respondent regarding an application for criminal injuries compensation. The appellant, who was a victim of a violent crime, sought an extension of time to make her compensation application and an amendment to include additional evidence. The respondent, the Commissioner for Criminal Injuries Compensation, argued that the appellant had not acted reasonably in identifying, apprehending, and prosecuting the offender and that the additional evidence should not be admitted. The case was heard in the Supreme Court of Queensland and subsequently appealed to the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the appellant had acted reasonably in assisting in the identification, apprehension, and prosecution of the offender, and if the additional evidence should be admitted. The Court also considered the assessment of compensation and the issue of causation in relation to the appellant's injuries and the offender's criminal activities. The Court needed to determine if the appellant's injuries were a direct result of the offender's actions and if the compensation should be adjusted accordingly.

The Court of Appeal found that the appellant had acted reasonably in the circumstances and that the additional evidence should be admitted. The Court held that the appellant had not been provided with sufficient information to assist in the apprehension and prosecution of the offender. The Court also found that the additional evidence was relevant and should be considered in the assessment of compensation. In relation to causation, the Court found that the appellant's injuries were a direct result of the offender's actions, and the compensation should be adjusted accordingly. The Court ultimately allowed the appeal and remitted the matter back to the primary judge for reassessment of compensation.

The Court of Appeal made orders allowing the appellant's appeal and directing the Commissioner to reassess the compensation in light of the additional evidence. The Court also ordered that the appellant's application for an extension of time and amendment of her compensation application be granted. The Commissioner was directed to consider the additional evidence in the reassessment of compensation and to make a new order in relation to the amount of compensation payable to the appellant.

Orders