Johnston v KMJ
[2011] WADC 96
•24 JUNE 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: JOHNSTON -v- KMJ [2011] WADC 96
CORAM: DERRICK DCJ
HEARD: 24 MAY 2011
DELIVERED : 24 JUNE 2011
FILE NO/S: APP 99 of 2010
MATTER :IN THE MATTER of Part 7 of Criminal Injuries Compensation Act 2003
and
IN THE MATTER of an Appeal by
BETWEEN: KENNETH ERIC JOHNSTON
Appellant
AND
KMJ
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 707 of 2010
Catchwords:
Criminal injuries compensation Appeal against decision of Assessor to make a compensation award Appeal against amount of compensation award Proved offences Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
District Court of Western Australia Act 1969 (WA)
District Court Rules 2005 (WA)
Result:
Appeal dismissed
Assessor's decision varied
Compensation award for loss of income increased
Representation:
Counsel:
Appellant: Ms C A Townsend appeared by special leave
Respondent: Ms V G Poinern
Amicus Curiae : Ms K L Pope on behalf of the Chief Executive Officer of Department of the Attorney General
Respondent to Notice
to Produce:: Ms J F Boots
Solicitors:
Appellant: Not applicable
Respondent: Legal Aid of Western Australia
Amicus Curiae : State Solicitor for Western Australia
Respondent to Notice
to Produce: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
B v S, unreported; WASC, Library No 950223; 10 May 1995
B v W (1989) 6 SR (WA) 79
Bentham v Wass [2004] WADC 47
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hogben v Darcy [2009] WADC 63
Johnston v The State of Western Australia [2010] WASCA 121
King v King [2006] WADC 22
KMJ [2011] WACIC 2
M v J and J v J, unreported; WASC; Library No 920598; 19 November 1992
Pennicuik v City of Gosnells [2011] WASC 63
R v Forsythe [1972] 2 NSWLR 951
RJE v Bandy, unreported, WASC; Library No 1365; 31 May 1974
S v Neumann (1995) 14 WAR 452
Schagen v The Queen (1993) 65 A Crim R 500
DERRICK DCJ: The appellant appeals against a decision of the Assessor of Criminal Injuries Compensation (the Assessor) to make a compensation award in favour of the respondent for injury and loss suffered by the respondent as a consequence of the commission of offences against her by the appellant. The appellant also appeals against the amount of the compensation award.
Background to the appeal
By an indictment dated 18 October 2007 the appellant was charged with two offences of unlawful and indecent assault (counts 1 and 2), one offence of attempted unlawful and indecent assault (count 3) and one offence of sexual penetration without consent (count 4). The alleged victim was the respondent.
The offences charged in counts 1 ‑ 3 on the indictment were alleged to have been committed on unknown dates between 11 February 2007 and 17 April 2007. The offence charged in count 4 on the indictment was alleged to have been committed on 18 April 2007.
The appellant pleaded not guilty to the charges. He stood trial in this court on 16 ‑ 18 March 2009.
On 18 March 2009 the appellant was convicted of the offences charged in counts 1 and 4 on the indictment (the offences). The jury was unable to reach verdicts on counts 2 and 3.
On 3 April 2009 the state discontinued the prosecution of counts 2 and 3 on the indictment.
On 15 May 2009 the appellant was sentenced for the offences to a total of 5 years' imprisonment to be immediately served. He was made eligible for parole.
On 9 April 2010 the respondent made an application pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for injury and loss suffered by her as a consequence of the commission of the offences (the application).
On 30 June 2010 the appellant's appeal against his convictions for the offences was dismissed: Johnston v The State of Western Australia [2010] WASCA 121.
On 10 December 2010 the Assessor awarded to the respondent compensation in the amount of $26,054 pursuant to s 30 of the Act.
On 29 December 2010 the appellant filed a notice of appeal against the decision of the Assessor pursuant to s 55(1) of the Act.
On 6 January 2011 the Assessor, at the request of the appellant, issued written reasons for her decision to award compensation to the respondent: KMJ [2011] WACIC 2.
The facts of the offences
The evidence given by the respondent as to the facts of the offences, which was clearly accepted by the jury, was as follows.
The appellant was the manager of the Wiluna Club Hotel in Wiluna (the Hotel). The appellant lived in the Hotel with his wife.
The respondent commenced working at the Hotel as a barmaid around the beginning to the middle of February 2007. She was 40 years of age at the time. She lived in a room in the upstairs section of the Hotel.
There were other female employees who lived in the Hotel. Each of the female employees who lived in the Hotel had their own room.
The door to the respondent's room was self‑locking in the sense that it locked itself when the door closed. A key was needed to open the door from the outside. The door could be opened from the inside by turning a small knob. The appellant had access to a master key which opened every room in the Hotel.
The respondent's room also had two glass doors which opened out onto a verandah. Each of the doors had a latch at the top and the bottom.
During the second week of her employment at the Hotel the respondent was having a drink after work. At about 10.00 pm the appellant called her over to him in the Hotel foyer. The respondent stopped and turned around to see what the appellant wanted. The appellant approached the respondent, pressed her up against a wall, pressed himself against her and tried to kiss her. The respondent could feel the appellant's penis pressing against her. The appellant also put both hands up the respondent's top and grabbed her breasts. He grabbed her breasts sufficiently hard to cause bruising to one of them. The respondent was wearing a bra.
At the time the respondent was holding a can of drink in one hand and a cigarette in the other. While the appellant was pressed up against the respondent the cigarette that she was holding touched the appellant on the upper arm. This occurred by accident. The appellant stepped back from the shock of the burn caused by the cigarette. The respondent took this opportunity to walk outside and sit with a fellow female employee.
The appellant's touching of the respondent's breasts constituted the offence the subject of count 1 on the indictment.
Approximately six weeks after commencing work at the Hotel the respondent took a holiday and went to Perth. During the second week of her holiday the respondent's brother rang her and asked her if she wanted to go to Albany with him. The respondent agreed to go to Albany with her brother and she travelled from Perth to Albany with him. The respondent's brother was very unwell at the time.
While the respondent was in Albany with her brother he died. The respondent had only planned to take two weeks' holiday. However, following the passing of her brother she took an additional two weeks off work.
On Tuesday 17 April 2007 the respondent returned to Wiluna via Perth with the appellant's wife and another employee of the Hotel. The appellant's wife had coincidentally been in Perth at the time that the respondent was planning to return to Wiluna.
The respondent arrived back at the Hotel at about 6.00 pm ‑ 6.30 pm. The respondent spent the evening with people at the Hotel talking about her brother and his funeral. Later she bought some alcohol and drank it with another female employee of the Hotel.
The respondent went to bed between 12.00 am and 1.00 am. She was somewhat intoxicated. She was wearing a nightie shirt, a pair of underpants and boxer shorts. After the respondent went to bed she fell asleep.
When the respondent went to bed her bedroom door was closed and therefore locked. The glass doors leading out to the verandah were locked. She had 'latched' the doors earlier in the evening at about 7.30 pm or 8.00 pm.
Shortly before 4.00 am on the morning of 18 April 2007 the appellant entered the respondent's room. The respondent was asleep on her bed. She was lying on her right‑hand side in a foetal position. The appellant got into the respondent's bed and penetrated the respondent's vagina with his penis from behind the respondent. The respondent woke up to find the appellant penetrating her. The respondent was shocked. She did not move and pretended to be asleep. The incident lasted about 20 seconds until the appellant ejaculated inside the respondent's vagina. After he had ejaculated the appellant pulled the respondent's pants back over her bottom, got up and left the respondent's room.
The appellant's conduct in having non‑consensual sexual intercourse with the respondent constituted the offence the subject of count 4 on the indictment.
The respondent, following the sexual penetration, lay in bed and cried. She showered at about 8.30 am in the morning. Following her shower she went downstairs to start her shift.
About one week after the commission of the sexual penetration offence the respondent left the Hotel and returned to Perth. The respondent was collected from the Hotel by one of her sisters. The respondent subsequently reported the matter to the police.
Material provided to the Assessor
In order to enable her to deal with the application the Assessor obtained, or was provided with, the following materials:
1.The file of the Office of the Director of Public Prosecutions for Western Australia (the DPP) relating to the prosecution of the appellant (the DPP file);
2.A copy of the Western Australian Police Service's (the police) Incident Report relating to the offences;
3.A copy of the statement made by the respondent to the police after she had reported the offences dated 3 May 2007;
4.Copies of three victim impact statements prepared by the respondent dated 17 October 2007, 19 June 2009 and 18 November 2009;
5.The appellant's notices of income tax assessment for the 2007, 2008 and 2009 financial years (the tax assessment notices);
6.Copies of records of Centrelink payments made to the appellant during the period May 2007 to March 2010 (the Centrelink payment records);
7.Various letters written to the Assessor by the respondent's solicitors;
8.A report prepared by the counsellor from the Sexual Assault Resource Centre (SARC) who had provided counselling to the respondent on seven occasions between 16 May 2007 and 16 April 2008, dated 16 November 2009 (the SARC report);
9.A report prepared by a psychologist who had provided counselling to the respondent on three occasions between 28 October 2009 and 13 December 2009, dated 29 January 2010 (the psychological report);
10.Submissions made on behalf of the appellant in opposition to the application, provided to the Assessor on or about 24 August 2010, comprising a large number of documents, letters and copies of correspondence; and
11.Further documentation submitted to the Assessor on behalf of the appellant on or about 18 October 2010.
The application, together with some of the above referred to supporting material, was submitted by the respondent's solicitors to the Assessor under cover of a letter dated 9 April 2010. In their letter the respondent's solicitors stated that they were seeking further information in relation to the respondent's loss of income in the form of taxation records. The respondent's solicitors stated that these records would be supplied.
By letter dated 18 May 2010 the respondent's solicitors sent to the Assessor the balance of the materials submitted in support of the application, including the tax assessment notices and the Centrelink payment records.
On 28 May 2010 the Assessor sent to the respondent's solicitors a letter bearing that date. In her letter the Assessor requested the respondent's solicitors to provide her with a copy of the respondent's income tax return and assessment for the 2006 financial year so that the respondent's request for loss of income could be processed. The Assessor also asked for the respondent's payslips showing gross and net income for the six weeks prior to 'the 11 February 2007 incident'.
The respondent's solicitors responded to the Assessor's letter by letter dated 11 June 2010. In their letter the respondent's solicitors advised the Assessor that the respondent was in the process of obtaining her income tax return for the 2006 financial year. They also stated in relation to the Assessor's request for the respondent's payslips that the respondent had advised that she did not have the payslips, that she had received approximately $16.75 per hour, that she worked between 6 ‑ 12 hours a day, and that she had received free meals and accommodation. The respondent's solicitors stated that if the information provided was not sufficient they could write to the Hotel requesting copies of the payslips.
On 28 June 2010 the Assessor sent a letter to the respondent's solicitors bearing that date in which she requested the respondent's solicitors to obtain from the Hotel the respondent's payslips showing gross and net income for the six weeks prior to the '11 February 2007 incident'.
On 21 July 2010 the respondent's solicitors sent a letter to the Assessor bearing that date. In their letter the respondent's solicitors advised the Assessor that they had sent letters to the Hotel and the accountant for the Hotel in an attempt to obtain the requested payslips but that the letters had been 'returned to sender'. The respondent's solicitors stated that they had therefore been unable to obtain the requested payslips. The respondent's solicitors also stated:
On [the respondent's] instructions however she worked for the hotel for seven weeks being for six weeks from approximately the end of November 2006 and then took a three week break and returned for one week to 11 February 2007 when she reported the incident and discontinued work at the [H]otel.
The respondent's solicitors confirmed that the respondent's instructions were that she was paid $16.75 per hour based on a six‑hour working day seven days per week, and that her income included board and meals at the Hotel. The respondent's solicitors concluded their letter by requesting the Assessor to attempt to make an estimation of the respondent's loss of income based on the information that they had provided.
The Assessor's decision
On the basis of the respondent's victim impact statement dated 18 November 2009, the SARC report and the psychological report, the Assessor decided that she was satisfied that the respondent had suffered injury in the nature of mental and nervous shock as a consequence of the offences: KMJ [8]. The Assessor decided that $21,000 was the appropriate compensation award for the injury: KMJ [8].
In her reasons for decision the Assessor accurately summarised the contents of the victim impact statement dated 18 November 2009, the SARC report and the psychological report: KMJ [4] ‑ [6].
The Assessor did not in her reasons for decision refer to the respondent's somewhat less detailed victim impact statements dated 17 October 2007 and 19 June 2009. This is not surprising. The Assessor no doubt decided to rely on the most recent and more detailed victim impact statement in deciding if the respondent had suffered injury as a consequence of the commission of the offences. In any event, the statements made by the respondent in the earlier victim impact statements as to the impact of the offences upon her were substantially the same, albeit less detailed, as the statements made by her in the later victim impact statement.
The Assessor also awarded to the respondent $5,054 for loss of earnings which she found was suffered as a consequence of the injury: KMJ [8]. The Assessor explained her reasons for arriving at the loss of earnings award in the following terms (KMJ [8]):
The [respondent] made a claim for loss of earnings. She was unable to submit documents to support her earnings at the [H]otel but I accepted the solicitor's submission, based upon the [respondent's] recollection, that she was paid approximately $16.75 per hour and that she worked approximately six hours a day, seven days a week. Based upon this assertion the [respondent] claimed to be earning gross $1,055 a week. In the absence of documentary proof to establish the hours and numbers of days worked, I discounted the amount I was satisfied the [respondent] was likely to have earned to the sum of $750 per week. Documents were provided which showed that the [respondent] received Centrelink benefit for a period after the incident of $212 per week and that she therefore suffered a loss of $573 gross per week, approximately net $361 per week. She was on Centrelink from 11 May 2007 to 17 August 2007, a period of 14 weeks during which time I was satisfied she had suffered a loss of earning in the sum of $5,054. Periods of unemployment after that appeared to me to have been affected by the [respondent's] participation in the trial and the impact of trauma associated with that, which I was not satisfied was suffered as a direct consequence of the incident and which were therefore not compensable.
Granting of leave to appear to appellant's daughter
On 29 March 2011 a registrar of this court made an order permitting Ms Cherryl Annette Townsend to appear for the appellant at the hearing of the appeal as a McKenzie friend. Ms Townsend is the appellant's daughter. The order was made by the registrar on the basis that the appellant, who is currently serving his prison sentence, did not wish to, and would not be, appearing at the hearing of the appeal.
Traditionally the role of a McKenzie friend is a limited one. The role does not generally entail the person appointed as the McKenzie friend taking part in the proceedings as an advocate: Schagen v The Queen (1993) 65 A Crim R 500, 501; Pennicuik v City of Gosnells [2011] WASC 63 [11] [16].
Given that the registrar had made the order permitting Ms Townsend to appear as a McKenzie friend on the basis that the appellant would not be appearing at the hearing of the appeal, it seemed to me that the intention of the registrar, in making the order, was to enable Ms Townsend to address the court on behalf of the appellant even if only to a limited extent. Moreover, it was apparent to me from reading the submissions provided to the Assessor by the appellant and the documents filed by the appellant in relation to the appeal that all of the documentation had been prepared by Ms Townsend on the appellant's behalf. In these circumstances, and bearing in mind the traditionally limited role of a McKenzie friend, I informed counsel for the respondent and counsel for the Chief Executive Officer of the Department of the Attorney General (the CEO) at the outset of the appeal hearing that I proposed, in order to facilitate the conduct of the appeal hearing, to give Ms Townsend special leave to appear for the appellant pursuant to s 39(1) of the District Court of Western Australia Act 1969 (WA). Neither counsel for the respondent nor counsel for the CEO objected to my proposed course. I therefore granted Ms Townsend special leave to appear for the appellant.
Documents provided to the court and the DPP's privilege claim
On 8 February 2011 the Assessor, acting pursuant to r 52(3) of the District Court Rules 2005 (WA) (the Rules), provided to the court the application and documents submitted in support of the application, including all of the above identified documents save for the DPP file.
On 6 April 2011 the DPP provided the DPP file to the court in accordance with a notice issued by the court pursuant to s 19(2)(c) and s 56(2)(a) of the Act. At the time of providing the DPP file the DPP claimed privilege over a number of documents contained in the file. The documents over which privilege was claimed were left on the DPP file but placed in sealed envelopes.
Prior to the hearing of the appeal Ms Townsend sent a letter to the court indicating, in effect, that she wished to view the documents over which the DPP was claiming privilege. Accordingly, at the beginning of the hearing of the appeal I asked counsel for the DPP to identify the basis for the claim of privilege and the categories of documents covered by the claim. In response to my request counsel identified the six categories of documents which the DPP claims are subject to legal professional privilege and the single category of documents which the DPP claims is subject to public interest immunity. Counsel informed me that none of the documents over which privilege is claimed are statements of witness or police statements. Counsel also indicated that the DPP had no objection to me viewing the contents of the envelopes to confirm that the documents were of the nature described by her.
Having heard from counsel I formed the preliminary view that the documents as described by counsel were privileged. I also formed the view that none of the documents had impacted upon the Assessor's determination of the application (even assuming that the Assessor had seen them), or were of any relevance to the determination of the appeal. I informed Ms Townsend of my views. I suggested to Ms Townsend that the most appropriate course was to proceed with the hearing of the appeal. I informed her that if after she and counsel had made their submissions on the issues raised by the appeal she still wanted to press her request to look at the documents the subject of the DPP's privilege claim I would adjourn the hearing and view the documents in order to satisfy myself that they were privileged. Ms Townsend did not object to my proposed course of action and that is what occurred. At the end of the hearing I asked Ms Townsend if she still wanted to press her request to view the documents the subject of the DPP's privilege claim. Ms Townsend indicated that she did not wish to do so. It was therefore unnecessary for me to view the documents and I have not done so.
The grounds of appeal
On 15 February 2011 a registrar of this court ordered that the grounds of appeal as set out in the notice of appeal be amended in terms of an undated 11‑page document filed on behalf of the appellant which is headed 'App No 99 of 2010' and which was prepared by Ms Townsend (the grounds of appeal).
The grounds of appeal are discursive. Nonetheless, having read the grounds of appeal and the written submissions filed by Ms Townsend on behalf of the appellant, and having listened to Ms Townsend during the hearing of the appeal, it seems to me that the appellant's essential complaints about the Assessor's decision to make the compensation award in favour of the respondent are as follows:
1.The Assessor based her decision on the statement provided by the respondent to the police and not on the evidence that the respondent gave at trial (grounds of appeal p 1, point 3);
2.There are inconsistencies between the respondent's statement to the police and the evidence given by the respondent at trial. These inconsistencies demonstrate that the respondent is not a credible witness. Therefore the Assessor should not have found on the material before her that the respondent had suffered injury and loss as a consequence of the commission of the offences (grounds of appeal pp 1 ‑ 5, point 3, pars (a) ‑ (f));
3.The evidence given by the respondent at trial as to the relationship between her attending counselling at SARC and reporting the offences to the police is inconsistent with the contents of the SARC report. The inconsistency demonstrates that the respondent is not a credible witness. Therefore the Assessor should not have found on the material before her that the respondent had suffered injury and loss as a consequence of the commission of the offences (grounds of appeal p 6, point 5, par (a));
4.The Assessor should not, given the respondent's past history of drug and alcohol abuse, have found that any emotional and psychological problems suffered by the respondent since the commission of the offences were caused by the commission of the offences. Alternatively, given the respondent's past history of drug and alcohol abuse the compensation award made by the Assessor for mental and nervous shock caused by the offences was excessive (grounds of appeal p 6, point 4; p 6, point 5, par (b); p 6, point 6); and
5.The Assessor should not have made a compensation award to the respondent for loss of income when the respondent was unable to provide any material in support of this aspect of her claim as set out in the letters sent to the Assessor by her solicitors.
The grounds of appeal also contain a number of paragraphs which in essence contain complaints about the appellant's conviction for the offences. While the appellant is entitled to call into question the respondent's credibility with respect to her application for criminal injuries compensation, the convictions themselves cannot be impugned: Bentham v Wass [2004] WADC 47 [5]; King v King [2006] WADC 22 [6]. During the hearing of the appeal Ms Townsend indicated that she now understood this fundamental principle and stated that the appellant was not attempting to appeal against the compensation order on the ground that he was wrongfully convicted.
Nature of the appeal and powers on appeal
The appeal is a hearing de novo: the Act, s 56(1); Gullelo v Halloran [2008] WADC 145 [5]. I must decide the appeal 'without being fettered by the Assessor's decision': the Act, s 56(1). Nonetheless, it is appropriate for me to have regard to the assessment made by the Assessor given that the Assessor is a specialist in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13].
It is open to me to increase the compensation award made by the Assessor even though no cross appeal has been filed: Dos Santos v Dos Santos [2000] WADC 256 [3].
In deciding the appeal I may exercise any power of the Assessor under the Act other than a power under s 19(1)(b), s 24(1) or s 25, none of which are relevant in the present context: the Act, s 56(2)(a). I may confirm, vary or reverse the Assessor's decision either in whole or in part: the Act, s 56(2)(b).
Jurisdictional limit
The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: the Act, s 31(1).
The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
Assessment of compensation
Injury
Each of the offences is a 'proved offence' as defined by the Act: the Act, s 3. Accordingly, the respondent is entitled to compensation for any injury suffered as a consequence of the commission of the offences and also for any loss suffered: the Act, s 12(1).
'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. 'Loss' is defined in s 6(2)(c) of the Act to mean loss of earnings suffered by the victim of an offence as a direct consequence of the injury suffered by the victim as a consequence of the offence.
The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as injury: M v J and J v J, unreported; WASC (Scott J); Library No 920598; 19 November 1992; B v S, unreported; WASC (Murray J); Library No 950223; 10 May 1995; S v Neumann, 461.
General principles of assessment
The correct approach to adopt in fixing the appropriate amount of compensation is to apply ordinary tortious principles for the assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and subject also to the jurisdictional limit imposed by the Act: RJE v Bandy, unreported; WASC (Burt J); Library No 1365; 31 May 1974, 3; M v J and J v J; A v D (1994) 11 WAR 481, 486 – 487.
In assessing the amount of compensation awarded to the respondent I must focus solely upon the injuries suffered by the respondent as a consequence of the commission of the offences. Considerations of punishment of the appellant or sympathy for the respondent are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
Causation
The onus is on the respondent to establish, on the balance of probabilities, a causal relationship between the commission of the offences and the injury and loss for which compensation was awarded: the Act, s 3 (definition of 'satisfied'); S v Neumann, 463 ‑ 464.
It is not necessary for the respondent to establish that the offences were the sole cause of any injury or loss. It is sufficient for the respondent to establish that the offences materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann, 463 ‑ 464.
The date of the respondent's police statement
In her reasons for decision the Assessor refers to the respondent's statement to the police dated 3 September 2007: KMJ [3]. This has caused the appellant some concern because the only statement made by the respondent to the police that has been disclosed to him is dated 3 May 2007. It is the respondent's statement dated 3 May 2007 that was disclosed to the appellant as part of the prosecution brief in the prosecution of the appellant.
As I have already indicated, during the hearing of the appeal counsel for the DPP informed me that none of the documents in respect of which the DPP claims privilege are witness statements.
I have reviewed the DPP file. I have also reviewed the other material that was before the Assessor. I have not found any statement made by the respondent dated 3 September 2007. The only statement made by the respondent, which formed part of the prosecution brief, was the statement dated 3 May 2007. The only statement made by the respondent which formed part of the materials that were submitted to the Assessor by the respondent's solicitors was the statement dated 3 May 2007. In addition, the Assessor's references in her reasons for decision to the contents of the statement dated '3 September 2007' reflect the contents of the statement made by the respondent dated 3 May 2007.
In the circumstances I am satisfied that the Assessor's reference in her reasons to the statement dated '3 September 2007' is a typographical error. The Assessor was, in my view, clearly intending to refer to the statement dated 3 May 2007. My further references to the respondent's statement are references to the respondent's statement to the police dated 3 May 2007.
Ground 1 Assessor based her decision on the respondent's statement
It is the case that in summarising the facts of the offences the Assessor relied on the respondent's statement: KMJ [3]. However, while there may have been differences between some paragraphs of the respondent's statement and the evidence that the respondent gave at trial, the respondent's description in the statement of the facts of the offences was substantially consistent with her description of the offences given under oath at the appellant's trial. Accordingly, while it would have been preferable for the Assessor to have stated the facts of the offences by reference to the respondent's evidence rather than the respondent's statement, the Assessor's failure to do so did not result in her assessing the amount of compensation payable to the respondent on the basis of facts which were not established by the evidence given at the appellant's trial. I therefore dismiss this ground of appeal.
Ground 2 Inconsistencies between respondent's statement and respondent's evidence
In the grounds of appeal the appellant identifies the following inconsistencies between the respondent's statement and the evidence given by the respondent at trial:
1.In pars 16 and 17 of the respondent's statement the respondent stated that she was walking up to her room when the appellant came up to her and committed the offence the subject of count 1. In her evidence the respondent said that she was making her way outside to have a drink after finishing her shift when the appellant called her over to him and committed the offence: ts 39 ‑ 40;
2.In par 21 of the respondent's statement the respondent stated that after the commission of the offence the subject of count 1 she walked away and went to bed. In her evidence the respondent said that after the commission of the offence she went outside and sat in the garden with a fellow employee: ts 42;
3.In par 28 of the respondent's statement the respondent stated that after she had finished her second week working at the Hotel she had to go home because her brother had died suddenly. In her evidence the respondent said that after working at the Hotel for about six weeks she went on holidays, that while she was on holiday she went to Albany with her brother and that it was while she was in Albany with her brother that her brother died: ts 43, 45 ‑ 46; and
4.In par 49 of the respondent's statement the respondent stated that when she went to bed on the night of 17 April 2007 she put the bolts up on the double doors that opened from her room onto the verandah. In her evidence the respondent said that when she went to sleep the doors leading to the verandah were already latched because she had closed and latched them earlier in the night at about 7.30 pm or 8.00 pm.
It is not unusual in criminal prosecutions for there to be inconsistencies in detail between the contents of a statement given by a witness to the police at or around the time of the alleged offence and the evidence given by the witness many months later at trial. The inconsistencies identified by the appellant are in my view examples of inconsistencies in detail. They are not in my view of particular significance. They do not, to my mind, reflect adversely to any significant extent on the respondent's credibility so far as her claim for criminal injuries compensation is concerned.
Even if it is accepted for the sake of the appellant's argument that the identified inconsistencies are significant and reflect adversely on the respondent's credibility, the fact remains that the jury clearly accepted the substance of the respondent's evidence as to the facts of the offences. Given the facts of the offences I do not consider that the existence of the inconsistencies, however significant, should have caused the Assessor to conclude that the respondent was so lacking in credibility that despite the material that had been put before her the respondent had failed to prove that she had suffered mental and nervous shock and loss as a consequence of the commission of the offences. I therefore dismiss this ground of appeal.
Ground 3 – Inconsistency between respondent's evidence and SARC report
In her evidence at trial the respondent testified that after she had returned to Perth from Wiluna and had engaged in 'a couple' of counselling sessions with SARC she decided to go to the police: ts 59. The respondent testified that she went to the police about two weeks after she returned to Perth: ts 60.
In her victim impact statement dated 18 November 2009 the respondent stated that after she returned to Perth she began counselling with SARC and that it was after talking to the counsellor that she went to the police about the offences.
The SARC report indicates that the respondent attended her first counselling session on 17 May 2007.
As is apparent from the date of the respondent's statement, the respondent reported the offences to the police on or before 13 May 2007. Accordingly, the evidence that the respondent gave at trial to the effect that she started attending counselling at SARC before going to the police was incorrect. So too was her assertion to similar effect made in her victim impact statement dated 18 November 2009.
In my opinion the discrepancy between the respondent's evidence and the victim impact statement dated 18 November 2009 on the one hand, and the SARC report on the other, as to the timing of the commencement of counselling and what lead her to report the offences to the police is not of significance. It is certainly not, in my view, of such significance as to require or justify the conclusion that the respondent is so lacking in credibility that the Assessor should not, despite the material before her, have concluded that she did not suffer as a consequence of the commission of the offences mental and nervous shock and associated loss. The fact that the respondent apparently attended SARC a week or so later than she said she did and after she had reported the offences to the police does not, in my view, impact in any way on the likelihood that as a consequence of the commission of the very serious and degrading offences committed against her she suffered mental and nervous shock and associated loss. I therefore dismiss this ground of appeal.
Ground 4 Failure to establish causal link between offences and emotional and psychological problems
It is apparent from the material before the Assessor that during a period of time prior to the commission of the offences the respondent did suffer from a drug and alcohol abuse problem which impacted adversely upon her relationship with her husband and her children. Indeed in the victim impact statement dated 18 November 2009 the respondent stated that one of the reasons she went to work in Wiluna away from her family was to remove herself from bad influences and attempt to make herself 'well again for my kids'.
The respondent's history of alcohol and drug use was expressly referred to in the SARC report. It was also referred to in passing in the psychological report, the psychologist stating that:
To her credit, [the respondent] reported she had not relied on drugs as a means of coping with negative thoughts and emotions resulting from the sexual assault and expressed a determination to continue being drug free.
In the SARC report the counsellor stated that the respondent presented with symptoms of depression, grief and loss, anger and avoidant behaviours, anxiety, negative internal dialogue, low self esteem and self worth, and feelings of blame, shame and guilt. She stated that the respondent's 'external vulnerabilities' included self‑imposed isolation and resultant loneliness, and a lack of friends and supportive network. She stated that the respondent demonstrated a willingness and ability to decrease her social isolation by beginning to seek a supportive network of friends and colleagues, and an understanding of the effect that her feelings of worthlessness had upon her parenting. The counsellor concluded her report by stating:
[The respondent] continues to present with trauma related problems. It is my professional opinion that she would benefit from long term therapy in the areas of self esteem, social confidence and skills building to assist her to continue to gain practical skills and to increase her overall feelings of self worth. Additionally her depression and anxiety will need to be monitored.
In the psychological report, which was provided at the respondent's request for the purposes of the application, the psychologist stated that there was no evidence to suggest confabulation in the respondent's recollection of events. She stated that the respondent presented with symptoms of moderate depression, grief and loss and trauma. She described in detail the reported symptoms of depression which included disturbed sleep, decreased appetite, low motivation, low energy levels, thinking errors and 'personalisation and blame'. She also described in detail the reported trauma symptoms which included nightmares, feelings of helplessness, isolation, anger, flashbacks of the offences and suicidal ideation. She concluded her report in the following terms:
As a result of [the offence] in March 2007, [the respondent] reported experiencing considerable emotional and psychological distress. The severity of her symptoms has impacted on her overall functioning on a daily basis. Her withdrawal from social supports and family members and reported sense of isolation do not abode well for recovering from the trauma of sexual assault. Her treatment needs included depression, trauma related to the sexual assault and grief and loss. She has outstanding treatment needs in all areas mentioned above. During the limited counselling [the respondent] received she expressed insight into her current situation and was open to alternative methods of coping with negative effect associated with the sexual assault.
Significantly, neither the SARC counsellor nor the psychologist expressed in their reports any reservations about the honesty or reliability of the respondent's account of her symptoms and difficulties since the commission of the offences.
In my view, and bearing in mind the degrading nature of the offences, the material presented to the Assessor in the form of the SARC report and the psychological report was, even leaving aside the respondent's victim impact statements, sufficient to prove that the respondent suffered as a consequence of the commission of the offences depression and trauma, and that these consequences were not in any way related to the respondent's pre‑offences drug and alcohol abuse history. It follows that I am also of the view that the Assessor was correct in concluding on the basis of the material before her that the respondent had, as a consequence of the commission of the offences, suffered injury in the form of mental and nervous shock.
I am also satisfied that the amount of compensation awarded by the Assessor for the respondent's mental and nervous shock was in all the circumstances appropriate.
For the reasons stated I dismiss this ground of appeal.
Ground 5 Absence of evidence to support claim for loss of income
In deciding the application for compensation the Assessor was not bound by rules or practice as to evidence or procedure and could inform herself in any manner she thought fit: the Act, s 18(2). The Assessor was therefore at liberty to act on the contents of the letters from the respondent's solicitors as to the respondent's earnings prior to the commission of the offences even though the respondent was not able to produce documentation such as payslips in support of the figures quoted by her solicitors.
There is nothing in my view that is inherently implausible about the assertion that the respondent was prior to the offences earning the relatively modest amount of $16.75 gross per hour. Nor, in my view, is there anything inherently implausible about the assertion that the respondent was working six hours a day seven days a week. She was, after all, working in a hotel in the relatively isolated town of Wiluna.
In the circumstances I am of the view that the Assessor did not make any error in deciding to base her calculations for loss of income on the figures provided by the respondent's solicitors in their letter dated 21 July 2010. It follows that I do not accept the appellant's contention that the Assessor should not have made a compensation award in respect of the respondent's loss of income in the absence of supporting documentation. I therefore dismiss this ground of appeal.
In her reasons for decision the Assessor states that based upon the assertion that she was earning $16.75 per hour and working six hours a day, seven days a week, the respondent claimed to be earning $1,055 gross per week: KMJ [8]. It is not apparent to me from reviewing the materials provided to the Assessor that the respondent ever claimed to be earning $1,055 per week. Indeed, if somebody is earning $16.75 gross per hour and working six hours a day, seven days a week the total gross income earned per week is $703.50. It is therefore not clear to me where the Assessor derived the figure of $1,055 from. In any event, not a great deal turns on this issue because the Assessor decided that in 'the absence of documentary proof to establish the hours and number of days worked' she would, for the purposes of her calculations, reduce the gross weekly income earned by the respondent to $750 per week. Given the small difference between the figure of $750 and $703.50 I am, in all the circumstances, satisfied that a figure of $750 gross per week was an appropriate figure to use as the basis for calculating the respondent's loss of income.
During the appeal the respondent's counsel did not submit that the Assessor had made an error in using the figure of $750 gross per week in calculating the respondent's loss of income. However, counsel did submit that the Assessor had, in using the $750 base figure, made errors in her calculations which had resulted in the respondent being awarded a lesser amount than she should have been awarded for loss of earnings. The errors, it was submitted, arose in the following way.
In her reasons the Assessor stated that the Centrelink documents showed that the respondent had for a period following the offences received a benefit of $212 gross per week. The Assessor therefore purported to calculate the respondent's gross loss of earnings per week by deducting from the figure of $750 per week the amount of $212. This, the Assessor said, resulted in a figure of $573 per week which after allowing for tax equated to $361 net per week. $573 per week, using the Australian Taxation Office's 'Tax Withheld Calculator' (a copy of which was provided to me during the appeal hearing), in fact equates to a net weekly income of $509. Leaving this aside, $750 less $212 is in fact $538. $538 gross per week, using the 'Tax Withheld Calculator', equates to a net weekly income of $480 per week. Accepting the Assessor's finding that the respondent suffered a loss of earnings due to the offences for a period of 14 weeks, the amount that should have been awarded to the respondent for loss of earnings is $6,720 ($480 multiplied by 14), not $5,054.
I accept the submissions made by counsel for the respondent. The Assessor did make errors in her calculations. I note in this regard that I have reviewed the Centrelink payment records to satisfy myself that they do show that the respondent received $212 gross per week during the period 11 May 2007 to 17 August 2007.
It is open to me to increase the compensation award made by the Assessor even though no cross‑appeal has been filed by the respondent. Accepting as I do the appropriateness of using $750 gross per week as the base figure for calculating the respondent's loss and the Assessor's general method of calculation for determining the loss, it is in my view appropriate to increase the compensation award made to the respondent for loss of earnings to $6,720. This is, in my view, the amount that the Assessor should have awarded to the respondent for loss of earnings.
Conclusion
For the reasons stated I dismiss the appeal and vary the Assessor's decision by increasing the amount of compensation awarded for loss of income from $5,054 to $6,720.
I will hear the parties on the issue of costs.
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