K E-A O - [2011] WADC 224

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: K E-A O [2011] WADC 224

CORAM: COMMISSIONER GETHING

HEARD: 5 DECEMBER 2011

DELIVERED : 5 DECEMBER 2011

FILE NO/S: APP 81 of 2011

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: K E-A O
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 000256 of 2010

Catchwords:

Criminal injuries compensation - Leave to commence out of time - Stay

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Application to extend time in which to commence appeal granted

Representation:

Counsel:

Appellant: Mr G Droppert
Amicus Curiae : Mr N T L John on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Donna Percy & Co
Amicus Curiae : State Solicitor's Office of Western Australia

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

Nil

COMMISSIONER GETHING: [This judgment was delivered extemporaneously on 5 December 2011 and edited from transcript].
By appeal notice dated 18 October 2011, but filed 11 November 2011, the appellant commenced an appeal against the Chief Assessor of Criminal Injuries Compensation in respect of a decision of an assessor, dated 16 June 2011, refusing her application for criminal injuries compensation. The appeal notice was filed outside the 21 day appeal period provided for by the Criminal Injuries Compensation Act2003 (WA) (CIC Act), s 55(3). Accordingly, by application dated 1 November 2011, but also filed 11 November 2011, the applicant sought an order that the time within which she may commence the appeal be extended to 1 April 2012. CIC Act s 55(4) provides that:
If it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired.
Although the appellant has sought an order extending the time within which she may commence the appeal to 1 April 2012, in my view, the appellant's application is really two fold. The first is an order that the time within which she may commence her appeal be extended to 11 November 2011, being the date on which she actually commenced her appeal. The second is that programming orders be made such that the next step in the appeal does not occur until some stage in April 2012. It seems to me that the application is appropriately dealt with in two stages corresponding to these two issues.
The appellant's application for criminal injuries compensation arose out of a sexual assault which she says occurred on or about 16 March 2007. The appellant has a history of mental illness, and up to the date of the alleged sexual assault, had various diagnoses, including borderline personality disorder, antisocial personality disorder and bipolar disorder. She was admitted to Graylands as an involuntary patient on 2 March 2007. She remained there at least until 13 July 2007.
On 16 March 2007, she was escorted by two Graylands medical staff for medical treatment at Sir Charles Gairdner Hospital. She says she absconded from the care of Graylands staff, who were responsible for her, shortly before midnight on 16 March 2007. In the materials before me, she then describes a series of events which led to her having sex with a male who she is now unable to identify. She says that she does not recall consenting to have sex with this man, nor does she recall being unwilling. As a consequence of the sexual assault, she became pregnant and gave birth to a male child on 4 December 2007.
In his decision dated 16 June 2010, the assessor refused the appellant's application for criminal injuries compensation. The assessor was unable to conclude that any offence was committed on or about the evening of 16 March 2007. This is because, on the evidence available to the assessor, he formed the view that the defence of honest and reasonable mistake of fact as to consent could, in all the circumstances, be made out.
By orders made on 15 January 2010, J J O was appointed limited administrator of the appellant, pursuant to the Guardian Administration Act. Mr O swore an affidavit, dated 18 October 2011, in which he stated that he was outside the Australian jurisdiction between 4 June 2011 and 9 August 2011. Therefore, he could not take action on behalf of the appellant to either commence an appeal within the time allowed or take action within that time to extend the time within which the appeal might be lodged. Mr O annexed flight itineraries to his affidavit, and I accept that he was out of the jurisdiction at the relevant time.
In his affidavit, Mr O sets out two broad reasons why the appellant seeks more time for the determination of the appeal. The first is that there has been ongoing contact with the detectives from the Sexual Assault Squad regarding their continuing investigations to identify the offender involved in the incident that occurred on or about 16 March 2007. It appears from Mr O's affidavit that the primary outstanding line of inquiry relates to DNA evidence obtained from the appellant's son. His most recent advice from detectives of the Sexual Assault Squad was that due to resource distribution demands arising from the then upcoming Commonwealth Heads of Government Meeting, it was likely that further progress with regard to the DNA evidence collection from the appellant's son would not proceed at least until November 2011.
The second reason is that the appellant again, via her administrator, Mr O, has commenced an action against the Minister of Health in relation to the incident that occurred on or about 16 March 2007. That District Court action bears the number CIV 718 of 2010. As at the date of swearing the affidavit, those proceedings were still ongoing, and the matter is yet to be resolved. Mr O has requested the court to grant an extension of time to appeal the appellant's criminal injuries compensation claim to a date after the identity of the offender is known, and until the outcome of the District Court action may be known. As I have indicated, the current date suggested is April 2012.
In my opinion, the fact that the appellant's affairs were under the control of an administrator, and the administrator was out of the jurisdiction at the time the decision was handed down and the appeal period expired, provides a sufficient reason for it to be just to allow the appeal to be commenced after the 21 day period in the legislation. The commencement of the appeal on 11 November 2011 is not an unreasonable length of time, given the need for the appellant and her next friend to obtain legal advice on these issues. I will therefore make an order extending the time within which the appellant may commence this appeal until 11 November 2011.
In relation to the second issue, delaying the hearing of the appeal, the reasons advanced by the appellant provide cogent reasons for deferring the appeal. The fact that there is an outstanding inquiry based on DNA evidence means that there is at least some prospect that the offender may be identified. If identified, it appears from the material before me that the appellant may well pursue her complaint in relation to the sexual assault. It will then be up to a jury to determine whether or not the defence of mistake of fact has any foundation, assuming of course it raised by the offender.
The progress of the District Court action is also relevant. This is for the pragmatic reason that if the District Court action is able to be resolved either by settlement or trial and provide the appellant with compensation in relation to the loss or damage caused, including the costs of raising her son, then the utility of proceeding with the criminal injuries compensation may well fall into question.
There is no respondent identified in the materials before me, for the reasons that I have stated. There is therefore no corresponding prejudice to any party that I can identify against the deferral of the conduct of this action.
I will therefore list this action for a further mention in judge's chambers, at a date to be agreed with counsel, in approximately April 2012.