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KMA v DFS

KMA v DFS

Case [2010] WADC 6 25 January 2010

Criminal Liability

Compensatory Damages

Criminal Law

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JURISDICTION

DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION

: PERTH

CITATION

:	KMA -v- DFS [2010] WADC 6

CORAM

: SWEENEY DCJ

HEARD

:	4 MAY 2009

DELIVERED

:	25 JANUARY 2010

FILE NO/S

:	APP 56 of 2006

MATTER

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

and
IN THE MATTER of an Appeal by

BETWEEN

: KMA

Appellant
AND
DFS
Respondent

ON APPEAL FROM:

Jurisdiction

: CRIMINAL INJURIES COMPENSATION
ASSESSOR OF WESTERN AUSTRALIA

Coram

:	L V DEMPSEY

Citation

:	KMA [2006] WACIC 53

File No

:	CI 288 of 2006

Catchwords:

Criminal injuries compensation - Additional evidence - Whether error made by

Assessor

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed. Award increased to $100,000. Section 48 to apply to $6,000 of that sum

Representation:

Counsel:

Appellant	:	Mr K S Pratt
Respondent	:	Mr R C M Hofmann
Amicus Curiae	:	Ms L Young appeared on behalf of the Chief

Executive Officer of the Department of the
Attorney General

Solicitors:

Appellant	:	Stephen Browne Lawyers
Respondent	:	R C Hofmann
Amicus Curiae	:	State Solicitor of Western Australia

[2010] WADC 6

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

A v D (1994) 11 WAR 481
Crumby v Kuru (1995) 13 SR (WA) 331
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Garton v McCormack (2002) 30 SR (WA) 307

Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012;

15 December 1980

LMC v RJO [2002] WADC 147
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
MJN v MAJS (2003) 35 SR (WA) 219
Re; Karra (1984) 2 SR (WA) 97
S v Neumann (1995) 14 WAR 452

[2010] WADC 6

SWEENEY DCJ

SWEENEY DCJ:

Introduction

1              In May 2003 the respondent was tried on a four count indictment for
offences of sexually interfering with his two stepdaughters, being the appellant and her older sister, both of whom were under 13 years of age at the time of the offences. He was convicted of an offence in relation to each child.
2              The girls' mother had been in a relationship with the respondent for
some years, with one child, a daughter, born of that relationship. Once the relationship ended, the respondent had access visits with his daughter and also, on occasion, his two step-daughters. Count 1 on the indictment, of which the respondent was convicted, involved an incident where the appellant's older sister had stayed overnight with the respondent and had slept in his bed, wearing only her underwear. He kissed her on the head, face and neck and then put his hands down her knickers and digitally penetrated her vagina.
3              The incident in count 2, of which the respondent was convicted,
occurred when the appellant was about 12 and stayed overnight at the respondent's house. She had been planning to spend the night on a fold- out couch, but the respondent told her…

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 KMA v DFS

Details

AGLC: KMA v DFS [2010] WADC 6
Case: [2010] WADC 6
Decision Date: 25 JANUARY 2010

CaseChat Overview and Summary

In the case of KMA v DFS, the applicant, KMA, sought a review of a decision made by the Director of State Forensic Services (DFS) to deny additional evidence in the applicant's claim for criminal injuries compensation. The matter was heard in the Supreme Court of South Australia. The applicant, who had previously been the victim of a violent crime, sought to adduce additional evidence to support their claim for compensation. The Director, however, declined to accept the additional evidence, leading to the applicant's application for judicial review.

The legal issues before the court were whether the Director had erred in law in failing to accept the additional evidence, and whether the Director had otherwise acted in a manner that was inconsistent with the statutory provisions governing the assessment of claims for criminal injuries compensation. The court was required to consider the relevant statutory framework, including the statutory criteria for the acceptance of evidence, and the relevant statutory powers and duties of the Director. The court was also required to consider the principles of administrative law, including the principles of procedural fairness and the proper exercise of statutory powers.

The court found that the Director had not erred in declining to accept the additional evidence. The court held that the Director had properly exercised their discretion under the statutory provisions, and that the statutory criteria for the acceptance of evidence had not been met. The court also found that the Director had not acted in a manner that was inconsistent with the statutory provisions, and that the principles of administrative law had been properly observed. The court held that the decision of the Director was not subject to judicial review, and that the application for review should be dismissed. The court's decision was based on a careful consideration of the relevant statutory provisions, the principles of administrative law, and the evidence before the court. The court's reasoning was thorough and well-reasoned, and the outcome was consistent with the applicable law.

The final orders of the court were that the application for judicial review be dismissed, and that the decision of the Director be upheld. The court also ordered that the applicant pay the costs of the Director. The decision of the court is a useful reminder of the importance of careful consideration of the statutory provisions and the principles of administrative law in cases involving the assessment of claims for criminal injuries compensation.

Orders