KMM v SG

Case [2023] WADC 136 17 November 2023

Type to search within this case.

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KMM -v- SG [2023] WADC 136
CORAM:   FLYNN DCJ
HEARD:   3 OCTOBER 2023
DELIVERED          :   17 NOVEMBER 2023
FILE NO/S:   APP 41 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN: KMM
First Appellant
AEG
Second Appellant
AND
SG
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 3228 of 2018

Catchwords:

Criminal injuries compensation - Extension of time to appeal - Proved offences against partner and child - Alleged offences against partner and child - Alleged offence of failing to protect a child from harm - Mental and nervous shock - Assessment of compensation - Loss of earning capacity - Turns on own facts

Legislation:

Children and Community Services Act 2004 (WA), s 28
Criminal Injuries Compensation Act 2003 (WA), s 101

Result:

Awards varied

Representation:

Counsel:

First Appellant	:	Mr T M Lettenmaier
Second Appellant	:	Mr T M Lettenmaier
Respondent	:	Not applicable
Amicus Curiae	:	Ms J J E Perera appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

First Appellant	:	Tom & Co Legal
Second Appellant	:	Tom & Co Legal
Respondent	:	Havilah Legal (Excused from attendance on the hearing of the appeal)
Amicus Curiae	:	State Solicitor for Western Australia

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

ATB v LA [2021] WADC 64
Bothma v Hildebrand [2019] WADC 92
Campbell v The King [2023] NSWCCA 258
DCN v RJS [2004] WADC 63
ELK v CFB [2009] WADC 90
Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Girardi v Chief Assessor of Criminal Injuries Compensation [2005] WADC 194
Hansen v Bolton [2017] WADC 25
Harris v Sycamore [2022] WADC 4
Insight Vacations Pty Ltd v Young [2010] NSWCA 137
Lyle v Soc [2009] WASCA 3
Madigan v XYZ [2022] WADC 123
Martin v Martin [2015] WADC 138
R v Chan-Fook [1994] 1 WLR 689
Re AB [2023] WADC 28
Re Anderson [2022] WADC 97
Re Harvey [2023] WADC 83
Re Hojetzki [2009] WADC 77
Re Homewood [2012] WADC 88
Re RJA [2022] WADC 106
S v Neumann (1995) 14 WAR 452
Scatchard v The Queen (1987) 27 A Crim R 136
Sunderland v Curnack [2002] WASC 158
TAW v NJS [2011] WADC 187
Teubner v Humble [1963] HCA 11; (1963) CLR 491
Ward v Davey [2023] WADC 78

FLYNN DCJ:

Introduction

SG and KMM married in 2003. They separated in November 2015. They have three children: AEG, born in 2004, TBG born in 2006 and ANG born in 2010.
On five occasions between 1 January 2014 and 10 November 2015, when AEG was aged 10, SG unlawfully assaulted her (AEG Proven Assault Offences). On 4 December 2015, SG committed offences of breach of protective bail conditions and breach of a violence restraining order; the victim of each offence was KMM (KMM…

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 KMM v SG

Details

AGLC: KMM v SG [2023] WADC 136
Case: [2023] WADC 136
Decision Date: 17 NOVEMBER 2023

CaseChat Overview and Summary

The matter before the court involved an application by the respondent for an extension of time to appeal a decision concerning criminal injuries compensation. The applicant, KMM, had applied for compensation following alleged offences against her partner and child, including physical and sexual abuse. The child also suffered injuries and was diagnosed with post-traumatic stress disorder. The respondent, SG, had been convicted of various offences related to these incidents but was deemed unfit to stand trial for some charges. The court was tasked with assessing the applicant's claim for compensation, including mental and nervous shock, loss of earning capacity, and the overall assessment of compensation.

The court was required to determine several legal issues, including whether the respondent's application for an extension of time to appeal should be granted, the extent of the applicant's entitlement to compensation for the alleged offences against her partner and child, and the appropriate assessment of compensation for the injuries and psychological harm suffered by the applicant and her child. The court also had to consider the relevance of the respondent's unfitness to stand trial on some charges to the assessment of compensation.

In granting the respondent's application for an extension of time, the court found that the respondent's appeal was arguable and that there were exceptional circumstances warranting an extension. The court assessed the applicant's claim for compensation based on the evidence presented, taking into account the injuries and psychological harm suffered by the applicant and her child. The court found that the applicant was entitled to compensation for the alleged offences against her partner and child, as well as for the mental and nervous shock experienced as a result of the respondent's conduct. The court also considered the applicant's loss of earning capacity due to the injuries and psychological harm suffered. Ultimately, the court determined the appropriate amount of compensation to be awarded, taking into account the specific facts of the case.

The court made orders for the respondent's application for an extension of time to appeal to be granted, and for the applicant to be awarded compensation for the injuries and psychological harm suffered, including mental and nervous shock, and loss of earning capacity. The exact amount of compensation was determined based on the specific circumstances of the case.

Orders