Martin v Martin - [2015] WADC 138

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MARTIN -v- MARTIN [2015] WADC 138

CORAM: DERRICK DCJ

HEARD: 4 NOVEMBER 2015

DELIVERED : 27 NOVEMBER 2015

FILE NO/S: APP 43 of 2015

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: CHRISTOPHER MARTIN
Appellant
AND
MARY PEGGY JOAN MARTIN
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 1562 of 2014, CI 1563 of 2014, CI 1564 of 2014, CI 1803 of 2014

Catchwords:

Appeals - Criminal injuries compensation - Proved offences - Alleged offences - Mental and nervous shock - Separate offence committed by respondent at time respondent allegedly injured as consequence of proved offence - Behaviour of respondent contributing to proved offence - Assessment of award

Legislation:

Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Criminal Procedure Act 2004 (WA)
District Court Rules 2005(WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)

Result:

Appeal allowed
Award reduced

Representation:

Counsel:

Appellant:     In person
Respondent:     Ms M Aranda
Amicus Curiae                   :    Mr W Fitt appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Not applicable
Respondent:     Gosnells Community Centre Inc
Amicus Curiae                   :    State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Asjes v Assessor of Criminal Injuries Compensation (1994) 11 SR (WA) 226
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
B v W (1989) 6 SR (WA) 79
BAS v The Estate of NAS [2000] WASCA 270
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
BT v BT [2014] WADC 166
CKM [2008] WADC 79
Curran v Champion [2012] WADC 9
De Florenca v Hayden [2007] WADC 54
Dunne [2014] WADC 131
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Garton v McCormack [2002] WADC 111; (2002) 30 SR (WA) 307
Gullelo v Halloran [2008] WADC 145
In the Marriage of Bateman and Patterson (1981) 51 FLR 263
Lloyd v Small (1996) 16 SR (WA) 111
M and M [2014] FCWAM 75
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Martin [2015] WACIC 14
McDavitt v McDavitt [No 2] [2013] WADC 198
MJN v MAJS [2003] WACC 9; (2003) 35 SR (WA) 219
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Nominal Defendant v Owens (1978) 22 ALR 128
Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R v Forsythe [1972] 2 NSWLR 951
R v Howe (1978) 19 SASR 303
Rayney v AW [2009] WASCA 203
Re Edelsten; Donnelly v Edelsten (1988) 80 ALR 704
Re Faengsungnoen [2012] WADC 59
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173
VMH by her next friend The Public Trustee v JAB [2014] WADC 47

DERRICK DCJ:

Introduction

On 1 July 2014 the respondent made an application under s 12(1) and s 17(2) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for injury allegedly suffered by her as a consequence of the commission of offences against her by the appellant. The application, to the extent that it was made under s 12(1) of the Act, related to the following:
1.One offence of unlawful assault in circumstances of aggravation contrary to s 313(1)(a) of the Criminal Code (the Code) and one offence of making a threat to unlawfully harm contrary to s 338B(b) of the Code, both of which were committed by the appellant against the respondent on 4 September 2012 and of which the appellant was convicted in the Perth Magistrates Court on 2 October 2013 (the 4 September 2012 offences); and
2.Three offences of breaching a violence restraining order contrary to s 61(1) of the Restraining Orders Act 1997(WA) (the ROA) all of which were committed by the appellant against the respondent on 1 or 2 November 2012 and of which the appellant was convicted on 24 May 2013 (the November 2012 offences).
The application, to the extent that it was made under s 17(2) of the Act, related to the following:
1.An unlawful assault allegedly committed against the respondent on 2 January 2007 for which no‑one was charged or convicted (the alleged 2 January 2007 offence); and
2.An unlawful assault allegedly committed against the respondent on 12 January 2007 for which no‑one was charged or convicted (the alleged 12 January 2007 offence).
On 21 May 2015 the Assessor of Criminal Injuries Compensation (the Assessor) made an award of compensation to the respondent pursuant to s 30(1) of the Act in the amount of $25,348. In doing so he found that the appellant had committed the alleged 2 January 2007 offence and the alleged 12 January 2007 offence.
Given that interim payments totalling $348 had previously been made to the respondent's general practitioner and psychologist pursuant to s 23 of the Act, the Assessor ordered that the respondent be paid the sum of $25,000 in accordance with s 23(3) of the Act. The Assessor, on making the order, apportioned liability for the award as follows:
1.The sum of $18,000 to the 4 September 2012 offences and the November 2012 offences (the proved offences); and
2.The sum of $7,348 to the alleged 2 January 2007 offence and the alleged 12 January 2007 offence (the alleged offences).
Pursuant to s 45(1)(b) of the Act the Assessor ordered that only $5,000 of the amount apportioned to the proved offences be subject to recovery from the appellant in proceedings under pt 6 of the Act.
On 7 July 2015 the appellant filed, pursuant to s 55(1) of the Act, his notice of appeal against the Assessor's decision 'to make an award of criminal injuries compensation assessed at $25,348'.

The assessor's written reasons for decision

At the time of making his award of compensation to the respondent the Assessor did not deliver written reasons for decision. However, following a directions hearing in this court on 4 August 2015 the solicitors for the respondent made a request under s 27(1) of the Act for the Assessor to provide written reasons for his decision to award compensation to the respondent. On 3 September 2015 the Assessor provided his written reasons for decision: Martin [2015] WACIC 14. In the last paragraph of his written reasons the Assessor said the following [9]:
Taking all of these matters into account I made awards as follows. In respect of the incident on 4 September 2012, which I regarded as the most serious event and which included physical assault and serious threats, I awarded the sum of $13,000. In relation to the incident on 2 January 2007 I was satisfied that the applicant had suffered injury, most probably a fractured rib and I awarded $3,000 relating to that incident. I awarded the sum of $4,000 in respect of the incident which occurred on 12 January 2007 and in relation to the incidents which occurred between 1 and 2 November 2012 I awarded the sum of $5,000 noting that the offender's breach of violence restraining orders came after he had been convicted of assault and threats to the applicant. In total the award for injuries was $25,000. I also allowed the sum of $348 for medical reports bringing the total award to $25,348 and apportioned that sum as noted above.

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 afresh, without being fettered by the Assessor's decision, solely on the evidence and information that was in the possession of the Assessor: the Act, s 56(1). I do, however, have a general discretion to receive and admit further evidence on the appeal: the Act, s 56(1).
In deciding the appeal I may exercise any power of the Assessor under the Act other than the power under s 19(1)(b), s 24(1) or s 25: the Act, s 56(2)(a). I may confirm, vary or reverse the Assessor's decision either in whole or in part, and make any order that the Assessor could make under the Act: the Act, s 56(2)(b) and s 56(2)(c).

The grounds of appeal

In the notice of appeal the appellant pleads his grounds of appeal in the following terms:
The Assessor failed to give sufficient weight to my evidence.
Section 17(4)(a), section 35(2)(a), section 39(1)(a), section 41(a), section 41(b)(i), section 41(b)(ii), section 55(1), section 55(2)(a), section 56(1), section 56(2)(b), section 70(1)(a).
The terms of s 55(1), s 55(2)(a), s 56(1), s 56(2)(b), and s 70(1)(a) of the Act cannot provide a basis for a ground of appeal. Save for s 70(1)(a), these provisions provide for the right of appeal from the decision of an Assessor of Criminal Injuries Compensation to this court and also the means by which such appeals are to be conducted and dealt with. Section 70(1)(a) creates an offence of giving prescribed information knowing that it is false in a material particular.
That leaves the references in the notice of appeal to s 17(4)(a), s 35(2)(a), s 39(1)(a), s 41(a) and s 41(b). In light of the appellant's reference to these sections in his grounds of appeal, the submission which the appellant made in writing to the Assessor in response to the respondent's application for compensation (referred to further below) and the appellant's oral submissions made during the hearing of the appeal, it is clear to me that the appellant's complaints about the Assessor's decision can be stated as follows:
1.The Assessor made an error in finding on the evidence before him that the appellant committed the alleged 2 January 2007 offence: the Act, s 17(1) (ground 1);
2.In the alternative to ground 1, the Assessor made an error in finding on the evidence before him that the respondent suffered injury as a consequence of the commission of the alleged offence: the Act, s 17(4)(a) (ground 2);
3.In the alternative to grounds 1 and 2, the Assessor made an error in awarding compensation to the respondent for injury suffered by the respondent as a consequence of the alleged 2 January 2007 offence because on the evidence before him the Assessor should have found that the respondent did not do any act or thing which she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence: the Act, s 38 (ground 3);
4.The Assessor made an error in finding on the evidence before him that the appellant committed the alleged 12 January 2007 offence: the Act, s 17(1) (ground 4);
5.In the alternative to ground 4, the Assessor made an error in finding on the evidence before him that the respondent suffered injury as a consequence of the commission of the alleged offence: the Act, s 17(4)(a) (ground 5);
6.The Assessor made an error in finding on the evidence before him that the respondent suffered injury in the form of mental and nervous shock as a consequence of the commission of the 4 September 2012 offences: the Act, s 12(1), s 12(3)(a), s 35(2)(b) (ground 6);
7.In the alternative to ground 6, the Assessor made an error in awarding compensation in the amount of $13,000 for the injury he found the respondent to have suffered as a consequence of the commission of the 4 September 2012 offences (ground 7);
8.The Assessor made an error in finding on the evidence before him that the respondent suffered injury in the form of mental and nervous shock as a consequence of the commission of the November 2012 offences: the Act, s 12(1), s 12(3)(a), s 35(2)(b) (ground 8);
9.In the alternative to ground 8, the Assessor made an error in awarding compensation in the amount of $5,000 for the injury he found the respondent to have suffered as a consequence of the commission of the November 2012 offences (ground 9);
10.In the alternative to ground 9, the Assessor made an error in awarding compensation to the respondent for the November 2012 offences because the injury suffered by the respondent as a consequence of the offences was suffered when she was committing a separate offence: the Act, s 39(1) (ground 10); and
11.In the alternative to ground 9, the Assessor made an error in making a compensation award to the respondent for the November 2012 offences because the behaviour of the respondent contributed directly or indirectly to the respondent's injury: the Act, s 41 (ground 11).
I propose to treat each of the appellant's above stated 11 complaints as his grounds of appeal.

Evidence on the appeal

I have before me copies of documents from the Office of Criminal Injuries Compensation (the OCIC) file relating to the respondent's compensation application. The documents comprise all of the material that was before the Assessor at the time that he made his decision to award compensation to the respondent. The documents have been provided to the court by the OCIC under r 52(3) of the District Court Rules 2005 (WA) (the DCR).
Neither the appellant nor the respondent sought to adduce further evidence on the appeal: the Act, s 56(1).
One of the documents that was before the Assessor and which was provided to the court by the OCIC pursuant to r 52(3) of the DCR is the reasons for decision of a Western Australian magistrate exercising federal jurisdiction under the Family Law Act 1975 (Cth) (FLA). The decision, which was delivered on 27 March 2014, concerned the competing applications for property settlement between the appellant (husband) and the respondent (wife).
The respondent submitted that the magistrate's reasons for decision are inadmissible and cannot be received or relied upon by the court in determining the appeal. The submission was based on s 121(1) of the FLA. Section 121(1) provides:
A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings is, or is alleged to be, in any way concerned in the matter to which the proceedings relate; or
(c)a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The respondent's submission was that by seeking to adduce the magistrate's reasons for decision as evidence on the appeal the appellant was contravening s 121(1) of the FLA because he was seeking to publish, or otherwise disseminate to a section of the public, an account of proceedings that took place between himself and the respondent under the FLA that identifies the respondent as a party to the proceedings. Thus, the argument ran, the court was prohibited under s 121(1) from receiving as evidence on the appeal the magistrate's reasons for decision.
Section 121(1) must be read with s 121(9)(a). Section 121(9)(a) provides:
The proceeding provisions of this section do not apply to or relation to:
(a)the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings;
…
With respect to s 121(9)(a) the defendant submitted that by reason of the definition of the words 'court' and 'proceeding' contained in s 4 of the FLA, the exemption created by s 121(9)(a) to the general prohibition contained in s 121(1) did not apply in the present case. Section 4 of the FLA defines the terms 'court' and 'proceedings' as follows:
'court' in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.
'proceedings' means a proceeding in a court, whether between parties or not, and including cross proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
The defendant submitted that as the District Court is not, in dealing with the appeal, exercising jurisdiction in a proceeding by virtue of the FLA, the court is not a 'court' within the meaning of s 121(9)(a) and that consequently the exception created by this section to the general prohibition contained in s 121(1) does not apply.
In advancing the submissions that I have outlined the defendant did not direct my attention to any authorities dealing with the correct interpretation of either s 121(1) or s 121(9)(a) of the FLA.
The CEO did not support the submissions made by the defendant. To the contrary, the CEO's position was that the use of the magistrate's reasons for decision as evidence on the appeal did not fall within the scope of the general prohibition contained in s 121(1).
Having undertaken my own research on the point, I do not accept the defendant's submissions as stated above. I do not do so for two reasons, which I will state briefly.
First, accepting that the magistrate's reasons for decision amount to an 'account of any proceedings' within the meaning of s 121(1), I do not consider that the appellant, by adducing the reasons as evidence on the appeal, is publishing or otherwise disseminating to the public or a section of the public by any means, an account of the proceedings within the meaning of s 121(1): In the Marriage of Bateman and Patterson (1981) 51 FLR 263; Re Edelsten; Donnelly v Edelsten (1988) 80 ALR 704.
Second, the words 'proceedings in any court' used in s 121(9)(a) should not be read, by reason of the definitions of the words 'court' and 'proceedings' in s 4 of the FLA, as being restricted to proceedings in any court exercising jurisdiction by virtue of the FLA. To the contrary, the words 'any court' refer to any criminal court and any civil court in Australia: R v Howe (1978) 19 SASR 303; In the Marriage of Bateman and Patterson; Re Edelsten. Consequently, even if the general prohibition contained in s 121(1) does, contrary to the view I have expressed, apply to the use of the magistrate's reasons as evidence on the appeal, the use of the reasons in this way in my view falls within the exception to the general prohibition created by s 121(9)(a).
For the reasons I have stated, it is my opinion that the appellant is permitted to adduce, and I am permitted to take into account to the extent that I consider appropriate, as evidence on the appeal the magistrate's reasons for decision in the dispute between the appellant and the respondent relating to their property settlement. I note in this context that by virtue of s 18(2) of the Act I am not, in determining the appeal, bound by rules of practice as to evidence or procedure and may inform myself in any manner I think fit.
I have referred above to taking into account the magistrate's reasons for decision to the extent that I consider appropriate. I have done so because in my view I should only, despite the terms of s 18(2), have regard to the reasons in a limited sense. More specifically, I do not consider that it is appropriate that I treat as evidence on the appeal any findings or conclusions that the magistrate expresses in her reasons and which she made on the basis of the evidence that was put before her. It is my task (and my task alone) to make any findings which are material to the determination of the issues raised by the grounds of appeal based on the evidence before me which evidence may, where relevant, include evidence that was before the magistrate. Accordingly, I do not, for example, propose to treat as evidence on the appeal the magistrate's findings as to the credibility of the appellant and the respondent.

Ground 1

Ground 1 of the appellant's grounds of appeal, as I have stated it, asserts that the Assessor made an error in finding on the evidence that the appellant committed the alleged 2 January 2007.

Burden and standard of proof

The onus was on the respondent to prove to the Assessor's satisfaction on the balance of probabilities that the appellant committed the alleged 2 January 2007 offence: BAS v The Estate of NAS [2000] WASCA 270 [11]. This remains the position on the appeal.
The nature of an allegation sought to be proved, in this case criminal conduct on the part of the appellant, is a consideration which necessarily impacts on the determination of the question whether the evidence adduced is sufficient to prove the allegation on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170 ‑ 171; VMH by her next friend The Public Trustee v JAB [2014] WADC 47. In order for the respondent to discharge her burden of proof she must show that there are more than conflicting inferences of equal probability: Nominal Defendant v Owens (1978) 22 ALR 128, 132; Lloyd v Small (1996) 16 SR (WA) 111, 113 ‑ 114.
An award of compensation cannot be made under s 17(2) of the Act if the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it except where the person was not criminally responsible by reason of unsoundness of mind: the Act, s 17(5). If the person who committed the act or made the omission that constitutes the alleged offence is not criminally responsible for that act or omission, the alleged offence is taken not to have been committed for the purposes of s 17(4) of the Act.

The Assessor's reasons

In finding that the alleged 2 January 2007 offence was committed by the appellant and that the respondent suffered injury as a consequence of the commission of the alleged offence, the Assessor said the following in his written reasons for decision [4]:
I obtained the police brief in relation to the incident on 2 January 2007. I observed that there was an Incident Report of that date recording that on 2 January 2007 police attended the premises occupied by the applicant at Camillo and found her sitting in the rear patio area with scratches down both cheeks and blood on her face. The police brief contains a statement signed by the applicant dated 6 January 2007 and records that on 2 January 2007 in the course of an argument with the offender, the offender began squeezing the applicant's wrists and then pulling her hands towards his face using them to gouge his face with his hands. The applicant attempted to pull her fingers away from the offender's face by curling her fingers downwards. The offender released the applicant's left hand and then punched her in the stomach. She may have been unconscious for a brief period after this blow, but shortly thereafter she made her way to her bedroom to ring the offender's sister. She told the offender's sister that she thought that as a consequence of the blow to her stomach that she had suffered a broken rib. The applicant subsequently attended the Armadale Hospital on 3 January 2007 where x-rays revealed a fracture to the 8th rib. I observed in passing that the applicant's behaviour upon attendance at the hospital was recorded as bizarre and uncooperative which I consider consistent with the trauma experienced by the applicant in this attack. I was satisfied on balance of probabilities that as a result of this incident an offence had occurred.
The above paragraph of the Assessor's reasons contains a significant misstatement of the relevant facts. As is apparent from the evidence which was before the Assessor, to which I refer below, it was not the respondent (applicant) who the police found sitting in the rear patio area with scratches down both cheeks and blood on her face. Rather, it was the appellant who the police observed to be suffering from these injuries. Nonetheless, I think that it is safe to assume, given the Assessor's subsequent reference in the paragraph to the respondent's description in her statement of how the appellant came to suffer the injuries to his cheeks that the Assessor, in making his finding that the appellant did commit the alleged 2 January 2007 offence, appreciated that it was the appellant and not the respondent who had these injuries.

The evidence relating to the alleged 2 January 2007 offence

The evidence relating to the alleged 2 January 2007 offence which was before the Assessor and is before the court consists primarily of the following:
1.Western Australian Police Service (WAPS) Incident Report and Running Sheet number 020107 2130 5365;
2.A signed statement made by the respondent to the police on 6 January 2007;
3.A medical report provided by Dr Bruce Beattie to the WAPS dated 26 February 2006 (which should obviously be dated 26 February 2007);
4. The Armadale Health Service's medical notes and records relating to the respondent's attendance at the Emergency Department of the Armadale Health Service on the morning of 3 January 2007;
5.A document signed by the appellant and submitted by the appellant to the OCIC on 13 January 2015 (addressed 'Dear Killian') in response to respondent's application for compensation (the appellant's submission);
6.Portions of an affidavit affirmed by the appellant on 15 July 2013 and filed in the Magistrates Court of Western Australia (the Magistrates Court) in relation to proceedings instituted by the respondent against the appellant under the ROA (the first affidavit); and
7.Portions of a second affidavit also affirmed by the appellant on 15 July 2013 and filed in the Magistrates Court in relation to proceedings instituted by the respondent against the appellant under the ROA (the second affidavit).
The WAPS Incident Report records, so far as is relevant, the following:
Police attended the scene after being called there by Christopher Martin, the male partner in the relationship. On arrival, police observed Martin sitting in the rear patio area with scratches down both cheeks covered in blood. Martin had called police to the premises following an argument with his defacto Mary Joan Fuller. Martin stated he had come home and been confronted by Fuller who grabbed hold of him by the face causing the scratches. He then pushed her away to get her off him into a wall which caused an injury to her side. After causing the injury he was concerned because she did not want to go to hospital to see if she needed treatment. He then called Police.
Police then spoke to Mary Joan Fuller in her bedroom who was in pain exhibiting pain to her right side, trouble breathing. She refused to supply any details to Police including her name, or any further details relating to the incident. She refused any medical attention being offered. Police offered to call an ambulance to which she declined. She further refused an offer for Police to take her to hospital for treatment. She was affected by alcohol and totally uncooperative. She further requested everyone to leave.
Also in attendance was Martin's sister Julie Choules. Fuller stated that Choules was a friend of hers and Choules also tried to convince her to go to hospital. She also refused that attention.
Martin stated he was going to leave the house for the night with Choules and did so as police left premises.
Having regard to all the circumstances, no party wanted any action taken against the other. No further action taken by police.
The reference to Mary Joan Fuller in the Incident Report is of course a reference to the respondent.
In her statement to police dated 6 January 2007 the respondent describes the commission of the alleged 2 January 2007 offence in the following terms:
On Tuesday the 2^nd of January I told Christopher, 'I've had enough and it was over'.
This was in the morning prior to him going to work.
Sometime in the morning I've rang Julie Choules who is Christopher's sister and told her we were experiencing problems.
She advised me that Christopher had rung her and had asked to stay the night at her place, so I didn't expect him to be coming home.
Somewhere between 6 – 7 pm Christopher arrived home.
I asked him, 'Why are you here, I know you were going to stay at your sisters'.
He said, 'This is my house'.
I went and stayed in our bedroom out of the way as I know what happens.
I did come out of the room to get a drink and then went back into the bedroom.
I noticed Christopher had fed the dogs early and had a shower.
This was peculiar as the dogs don't generally get fed until late.
At around 8.30 pm I was sitting on the bed watching television and Christopher walked straight into the room, a couple of times.
I ignored him and continued to watch television.
Christopher then came and sat on the left hand side of the bed next to me.
I continued to ignore him.
I then lent forward to pick up either the remote or a cigarette.
As I have done that I've received a blow to the back of my head and he said, 'You can't get a bruise there'.
He was referring to the fact that I bruise easily.
He then got up and walked out of the room.
As he walked out I looked for my mobile phone and one of the house phones to ring his sister to see if I could go there.
I then noticed that both phones gone [sic], and my car keys was [sic] missing.
I came out of the room to the dining area to look for a phone and my car keys and they too were gone.
I said, 'Where are the phones and my keys'.
Christopher just laughed at me.
I either wanted to go to his sisters or get in my car and drive away.
I went to try and plug in the large phone in the dining room and that too was gone.
I then tried to plug in the fax phone and Christopher has come up beside me and grabbed both my wrists pushing me up against the dining room wall.
I said, 'I want my phone, I want my keys, I've told you if you hit me again its over'.
Christopher began squeezing my wrists, he is a very big man. I was scared.
The next thing I knew he pulled my hands towards his face and began gouging his face with my hands.
I remember trying to pull my fingers away from his face. Curling my fingers down so they didn't gouge his face.
Christopher then hit me with his head. I felt myself blacking out.
My left hand/wrist was released and he punched me to the stomach.
I then recall waking up on the floor facing the back wall. I was gasping for air and I had difficulty breathing.
I don't think I said anything. I was in shock.
I crawled to the lounge suite and used it to pull myself up off the floor.
I then went up to my bedroom. My head was spinning. I sat on the bed, I wanted to get my shoes, but I thought I was going to black out again.
I noticed my mobile phone and the phone on the bed.
I picked up my mobile and the time said 9.00 pm. I rang Christopher's sister and I said, 'He's hit me and I think I've broken a rib, I can't breath.
…
When I got off the phone the police arrived and his sister.
I was lying on the bed, as I couldn't breathe, my head was thumping and I had very bad pain in my chest.
I recall Christopher verbally threatening me whilst I was in the room. I just can't recall what was said.
By the time police spoke to me I was hysterical and in a bad way due to shock. I was not thinking and scared.
…
A police officer asked what was wrong with my face, but I didn't know what he was talking about.
I had a scratch on my face and a black eye.
I said, 'nothing'.
They said, 'We have to remove Christopher'.
I said, 'no' about removing him as I was scared'.
I then told the officer about what happened, with my hands.
I refused medical treatment as I couldn't afford to pay the associated bills. Christopher has all the money.
…
I declare that this statement is true and correct to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true.
In his medical report Dr Beattie records that the respondent presented to the emergency department of the Armadale Health Service at 4.16 am on 3 January 2007. He states that the respondent alleged that she had been assaulted. He states that the respondent's presenting complaints were right‑sided chest pain and a loss of consciousness. He states that the relevant findings on examination were a tender right side chest, headache, and a tender right upper quadrant. He states that an x-ray of the respondent's chest was performed which revealed a fracture of the posterior aspect of the eighth right rib. He summarises the respondent's injuries to be tender right side chest and a tender right upper quadrant. He expresses the opinion that the findings were consistent with having been inflicted as alleged and that the injuries interfered with the respondent's comfort.
The Armadale Health Service's emergency department progress notes record that the respondent, on her presentation at the service, was, among other things, uncooperative, difficult to assess, 'writhing' around, talking but not answering questions, uncooperative and, alternating between breath holding and hyperventilating.
In his medical notes made at the time of, or shortly after, his examination and assessment of the respondent, Dr Beattie records that the respondent told him that she had had an argument with her partner, that her partner held both of her wrists, that she was then 'thrown to the floor' and 'hit the edge of the table', that she was knocked out and unconscious, and that she was uncertain about the amount of time for which she was unconscious. In his medical notes Dr Beattie also records that the respondent's presentation and behaviour was 'very bizarre', and that her presentation was for chest trauma with 'no clinical signs relating to severity of her symptoms'.
In the appellant's submission the appellant refers to the alleged 2 January 2007 offence in the following terms:
Joan would become abusive attacking me and breaking up the house. At times I had to hold her and restrain her.
She would then become frustrated and fight back. These would always occur late in the evening.
Jo would then call the police, a friend and/or one of my family members to come over. I think Jo would cause a scene as her way of getting attention and pity from people. When Jo didn't get the appropriate response from the people that turned up she would become aggressive and then tell everyone to get out using various colourful language. On most occasions I left to.
On one occasion my sister made me leave the house and go and stay with her. This was the evening when Jo was intoxicated attacked me scratching my face drawing blood with her nails. Incident Report 02010721305365.
This is one of the many police incident reports showing Jo of [sic] threatening abusive behaviour towards police and on one occasion hospital staff whilst drunk and under the influence of drugs she got a S 45SA adult CRO for six months.
In the first affidavit the appellant makes reference to the alleged 2 July 2007 offence in the following terms:
Jo will become very drunk and begin her downward spiral taking her anger out on me.
I am not a violent person, I always walk away and avoid confrontations with Jo, knowing that there is always the possibility of things escalating and her becoming abusive and sometime violent.
This is not domestic violence as Jo states. I have in the past had to defend myself and stop Jo breaking up the house and throwing things at me or hitting me with something. I avoid Jo to the point where I have to leave the house and come back when Jo has become sober or approachable.
I try to avoid escalating problems with Jo, but she will constantly keep coming in and resuming the argument, if I am asleep Jo will wake me up. Sometimes to the point of not getting any sleep. No matter what I say or do Jo will just keep the argument going.
Jo will continue to come at me until she gets me to fight back at which time I know it is time to leave the house. I usually leave for a day or two, until Jo has calmed down and is approachable again.
There have been many incidents where the police have become involved in our relationship.
Police Incident Reports
02010721305365 … Jo assaulted me. The police took photos of my scratched face after she used her nails to scratch me. I asked the police for the photos, but they are not available to me. That night the police said that it would be best for me to leave the house as Jo wouldn't. I went and stayed with my sister for a few days.
The appellant also refers to the alleged 2 January 2007 in the second affidavit. In the second affidavit the appellant deposes to the following:
Jo has reported me to the police on many occasions and made complaints that I have been violent toward her. The police will turn up at the house in the midst of the argument. To find that Jo is under the influence of alcohol. Jo then becomes aggressive towards everybody. Jo tells everybody to get out. The police leave and I usually leave to. I come back the next day.
These are the Police Incident Reports where Jo has called the police to come to my house.
2.1.2007 … 02010721305365 I was video interviewed regarding an assault on me by Jo when she left scratches from her fingernails across my face. They have photos of my face. I have asked for the video and photos on four occasions from Armadale Police but they are not available to me …
I was assaulted by Jo on the 2 January 2007.
I attended Armadale Police Station and gave a video interview, photographs were taken of the scratches down my face that Jo had done on the 2nd January 2007.
I have asked for this information and photographs on 4 occasions from Armadale Police but they will not give them to me to use as evidence …
I wasn't charged with any offence, when I went to the police station and gave a video interview regarding that night, they also took photos of my face that had been scratched by Jo that night, as evidence. I was not charged with anything as Jo states.

Does the evidence prove that the appellant committed the alleged 2 January 2007 offence?

In my view there are a number of matters revealed by the evidence to which I have referred which cast doubt on the honesty and reliability, or in other words credibility, of the respondent's version of events as provided in her statement dated 6 January 2007 and upon which the Assessor made his finding that the appellant committed the alleged 2 January 2007.
First, in my view a significant aspect of the respondent's account of the alleged unlawful assault, namely the assertion that the appellant pulled her hands towards his face and used them to gouge his face, lacks plausibility. There is no readily apparent reason why the appellant would, in the midst of an assault on the respondent, engage in this type of behaviour. Further, I find it difficult to accept that the appellant could have successfully managed to force the respondent to gouge his face while holding onto her wrists if the respondent was genuinely attempting to 'curl her fingers downwards' so as to prevent this from occurring.
Second, it is clear that the respondent was at the time of the relevant incident significantly under the influence of alcohol.
Third, it was the appellant who called the police following the incident. This conduct, while not completely inconsistent with the appellant having assaulted the respondent in the way alleged by the respondent, does not sit comfortably with the respondent's version of events. It is not the conduct that one would ordinarily expect of a person who has just violently and without provocation assaulted his de facto wife.
Fourth, the respondent's conduct in refusing to provide any details to the police, including any details relating to the alleged offence, even taking into account the fact that she was under the influence of alcohol and perhaps in a state of shock, does not sit comfortably with her allegation that she was assaulted by the appellant in the way she describes in her statement.

Fifth, the respondent's assertion that when the police told her that they had to remove the appellant from the house she said 'no' because she was scared does not make sense. It is also inconsistent with her allegation that she had been assaulted by the appellant in the way she describes in her statement.
Sixth, as is revealed by the above referred to WAPS Incident Report the respondent did not, contrary to what she asserts in her statement, tell the attending police about what had 'happened with [her] hands'.
Seventh, the behaviour which the respondent exhibited on attendance at the Armadale Health Service reveals that she was in a significantly disturbed and emotionally unstable state.
Eighth, the appellant's account of the alleged assault given to Dr Beattie was in some respects inconsistent with the account she provided in her statement.
Ninth, as is revealed by the medical evidence the respondent did not, contrary to the assertion made in her statement, have a scratch on her face or a black eye.
The matters that I have identified would not, individually, lead me to conclude that the respondent had failed to prove on the balance of probabilities the commission by the appellant of the alleged 2 January 2007 offence. However, when I view the matters collectively I am left with a significant doubt as to the credibility of the respondent's version of events. In addition, I also have before me the appellant's version of events which he has deposed to in two separate affidavits and which is in conflict with the respondent's version in a number of material respects.
In all the circumstances, I am simply not satisfied on the balance of probabilities that the appellant did on 2 January 2007 unlawfully assault the respondent in the manner and circumstances described by the respondent and found by the Assessor. Nor am I satisfied on the balance of probabilities that any assault which the appellant on his own admission did commit against the respondent, namely by pushing the respondent into a wall as part of getting the respondent off him, was not committed in self-defence within the meaning of s 248 of the Code or in response to provocation within the meaning of s 246 of the Code. In other words, I am not satisfied on the balance of probabilities that any assault which the appellant did on his own admission inflict on the respondent was unlawful and therefore constituted an offence.
In arriving at my above expressed conclusion I have not overlooked the medical evidence. However, in my view the injuries suffered by the respondent as disclosed by the medical evidence are equally consistent with the appellant having pushed the respondent off him with force and into a wall.
In summary, I am not on all the available evidence satisfied on the balance of probabilities that the appellant committed the alleged 2 January 2007 offence. I would therefore uphold ground 1 of the appeal.

Ground 2

It necessarily follows from my decision in relation to ground 1 of the appeal that I am satisfied that the Assessor made an error in finding that the respondent suffered injury as a consequence of the commission of the alleged 2 January 2007 offence.
The Assessor apportioned $3,000 of the total award to the alleged 2 January 2007 offence. Accordingly, given that I have upheld grounds 1 and 2 of the appellant's grounds of appeal I would vary the award made by the Assessor by reducing the award by the amount of $3,000.

Ground 3

In light of my decision in relation to grounds 1 and 2 it is not strictly necessary for me to deal with ground 3. Nonetheless, I will for the sake of completeness deal with the ground briefly.
Ground 3 is based on s 38 of the Act. Section 38 provides, so far as is relevant, as follows:
An assessor must not make a compensation award in favour of a victim, …, if the assessor is of the opinion that the victim…did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
Thus s 38 focusses on what the applicant for compensation ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. The test is therefore objective, the relevant question being what was objectively reasonable in all the circumstances.
Although the test is objective this does not mean that the applicant for compensation's lack of action must be judged by reference to what a hypothetical reasonable person would have done. Rather it is appropriate, in deciding what was objectively reasonable in all the circumstances, to take account of what could reasonably be expected of the particular applicant: Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240, 242 ‑ 244.
The appellant's contention so far as this ground of appeal is concerned is, in essence, that the evidence reveals that the respondent failed to cooperate to any extent with the police when they arrived at the house on the evening of 2 January 2007, and that this failure on her part, having regard to her particular circumstances, amounted to a failure by her to do what was objectively reasonable in all the circumstances to assist in the identification, apprehension or prosecution of the person who she alleged committed the offence, namely the appellant.
In my view it is abundantly clear from the evidence to which I have already referred, specifically the Incident Report, that on the night of the 2 January 2007 incident the respondent did fail to assist in the identification, apprehension or prosecution of the person who she subsequently alleged committed the offence, namely the appellant. However, if one assumes, contrary to my above expressed finding and as one must in dealing with this ground of appeal, that the appellant had, shortly before the arrival of the police, unlawfully assaulted the respondent in the way that she subsequently described in her statement dated 6 January 2007, it cannot, in my view, be said that the respondent's failure to co-operate with the police at the time of their attendance amounted to a failure by her to do what was objectively reasonable in all the circumstances to assist in the identification, apprehension or prosecution of the appellant. On the respondent's version she had just been subjected to a violent unprovoked assault by her defacto partner, was in a 'bad way' and was in a state of shock. In addition, she was under the influence of alcohol. In these circumstances, and again assuming for the sake of the argument contrary to my above expressed finding that the appellant had unlawfully assaulted her as she alleged, the respondent's conduct in refusing to say anything to the police or assist them in any way when they arrived at the house was not particularly surprising or unreasonable. In addition, the fact remains that within four days of the alleged incident she did report the matter to the police and provide a detailed statement. Accordingly, for these reasons I would not, if I had come to a different conclusion on ground 1, have upheld the appellant's appeal on this ground.

Ground 4

By this ground the appellant asserts that the Assessor made an error in finding on the evidence that the appellant committed the alleged 12 January 2007 offence.
The principles relating to the burden and standard of proof which I have stated above in dealing with ground 1 are obviously equally applicable to this ground.

The Assessor's reasons

In finding that the appellant committed the alleged 12 January 2007 offence and that the respondent suffered injury as a consequence of the commission of the offence, the Assessor said the following in his written reasons for decision [5]:
I obtained a police brief in relation to an incident which occurred on 12 January 2007 at Camillo. On this occasion an argument occurred whilst the applicant was attempting to remove her clothing and other items from a property at Camillo. The Incident Report records that in the course of so doing, the applicant had called police to allege that she had been assaulted by the offender. Upon attending the premises the police found no evidence of assault. The applicant subsequently provided a statement to police dated 12 January 2007 which recorded that the applicant had been threatened by the offender and that the offender had squeezed the applicant's head and pushed her hard against the wall and then grabbed her around the neck with one hand and raised a fist close up against her face. Again, the offender threatened that he would kill the applicant. He then grabbed the applicant around the shoulders and pushed her into the wall. I am satisfied that these events occurred and on balance of probability that an alleged offence was committed by the offender.

The evidence relating to the alleged 12 January 2007 offence

The evidence relating to the alleged 12 January 2007 offence which was before the Assessor and is before the court consists of the following:
1.WAPS Incident Report and Running Sheet number 120107 0320 11404;
2.A signed statement made by the respondent to the police on 12 January 2007;
3.Notes made by the police of what the appellant said during a video record of interview that was conducted with him by the police at the Armadale Police Station on 7 February 2007; and
4.The second affidavit.
The Incident Report is in the following terms:
DVI incident. 2 x previous DVI's for this couple.
POI's Martin and Fuller have been involved in a domestic relationship for some time. Fuller called police on this occasion stating she had been assaulted by Martin. Police attended and found Fuller in the front yard. She had been packing clothing and other items. Police entered the premises and found Martin asleep in the bedroom.
Martin was happy to let Fuller remove her property from the house and remained calm throughout police attendance. Fuller called a friend to help her and together they removed her property.
Once Fuller had removed her items she left the house, again stating she would not return. Nil evidence of assault to Fuller. Both parties happy with result (Fuller leaving). Fuller advised again to seek a VRO if she felt threatened by Martin.
In her statement to the police the respondent describes the alleged 12 January 2007 offence as follows:
On Friday the 12^th of January 2007 at about 2.30 am my defacto Christopher Martin and myself were arguing and we were talking about me leaving him if he were not to change his ways of being violent that I was going to leave him [sic].
I was then in the process of packing myself some things to leave and needed some money so I asked Christopher for some money and he left money on the bed inside where he was laying.
I did not want to grab out for this money in case he went for me.
I went to the side dresser and said to Christopher, 'You can't keep doing this to me'.
I also said, 'I've got some stuff on you that I put into an envelope, and if you hurt me Irene has the envelope and will go to the police'.
Christopher has then gotten out of bed so angry and ran at me and with both of his hands has squeezed my head so hard.
He has then pushed me hard up against the wall with his hands still firmly squeezing my head.
He has then let go of his hands now and has grabbed me around the neck with one hand and raised his fist close up against my face.
All during this time he was shaking me and saying he was going to kill me.
He has then grabbed me around my shoulder area and slammed me into the wall.
He said, 'Next time I am going to plan this better'.
I can't remember exactly how I got away from him but I managed to grab the phone and go outside into the backyard.
I then called Irene and I then called the police to come and help me.
This has been going on for a long time and I genuinely fear for my life as the threats and violence against me have become worst [sic] over the last year.
I declare this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if this is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or that I do not believe to be true.
The notes made by the police officer of the interview conducted with the appellant record that during the interview the appellant said the following:
1. On the morning of 12 January 2007 the respondent was 'throwing a big wobbly'. He stuck a computer against a door to stop the respondent 'getting in'.
2.He left the house and returned home at 6.30.
3.When he returned home the respondent had been drinking. She started yelling and screaming. She was yelling abuse at him.
4.He had something to eat and wanted to watch the television. He 'shut down' and went to watch the television; and
5.He did not assault the respondent as the respondent alleged.
The notes made by the police officer also contain the notations 'explain relationship', 'explain her actions', 'explain his reactions'. These notations presumably refer to the appellant having provided his account of the relevant incident during the interview.
In the second affidavit the appellant says the following about the alleged 12 January 2007 offence:
These are the Police Incident reports where Jo has called the police to come to the house …
12.1.2007 … 120107 0320 11404 Jo and I had been arguing that evening. I went to sleep. I was woken by the police. Jo had called the police to come to the house. They filed no offence. Nil evidence of assault …
I did not assault Jo on the 12 January 2007 …
I was asleep in bed when the police [sic]. They woke me up to speak to me.
The court file indicates nil evidence of assault. No charges laid.

Does the evidence prove that the appellant committed the alleged 12 January 2007 offence?

It is apparent from the Assessor's reasons that in finding that the appellant committed the 12 January 2007 offence he relied solely upon the fact that the respondent had called police to report the alleged assault and the written statement of the respondent. The Assessor did not, in his reasons, make any reference to the evidence provided to him by the appellant. Nor, it would seem, did the Assessor place any significance on the fact that the respondent was not at the time that the police arrived at the house exhibiting any injuries consistent with the assault that she described as having been inflicted upon her.
The position is that there are before the court two competing versions of events. One version is the version provided by the respondent as set out in her signed statement to the police. The other version (a denial of the alleged assault) is the version of the appellant as apparently told to the police when he was interviewed and as set out by him in the second affidavit. Further, despite the fairly violent nature of the assault described by the respondent which included, on her account, being pushed up against a wall, having her head squeezed, being grabbed around the neck, being shaken, and being grabbed by the shoulder and slammed into a wall, the respondent was not, according to the police, suffering from any injuries, such as bruising or redness which might be considered consistent with such an assault. The respondent's version also includes a somewhat surprising inability on her part to remember how she 'got away' from the appellant despite her apparently detailed recollection of the nature of the assault.
In all the circumstances, and bearing in mind the serious nature of the respondent's allegation, I am not on the available evidence satisfied on the balance of probabilities that the appellant did commit the alleged 12 January 2007 offence or any assault offence against the respondent on that night. In my respectful opinion the Assessor made an error in arriving at the contrary conclusion. I therefore uphold this ground of appeal.

Ground 5

It follows from my decision in relation to ground 4 that I am satisfied that the Assessor made an error in finding that the respondent suffered injury as a consequence of the commission of the alleged 12 January 2007 offence. I will, however, make some brief additional observations with respect to this ground.
It is apparent from my above reference to the Assessor's reasons for decision that the Assessor did not make any express finding that the respondent suffered any injury of any sort as a consequence of the alleged 12 January 2007 offence. However, given that the Assessor made an award of compensation in the amount of $4,000 in respect of the alleged 12 January 2007 offence, the Assessor must have concluded that the respondent did suffer injury as a consequence of the commission of the alleged offence.
As is revealed by what I have already said in dealing with ground 4, there was simply no evidence before the Assessor, and there is no evidence before the court, that the respondent did suffer any injury as a consequence of the offence which the Assessor found that the appellant had committed on 12 January 2007. It follows, that even if I had been satisfied on the balance of probabilities that the appellant did commit the alleged 12 January 2007 offence, I would have concluded, contrary to the finding of the Assessor, that the respondent did not suffer any injury as a consequence of the commission of the offence and was therefore not entitled to any award of compensation. To put it another way, even if I had come to a contrary view so far as ground 4 is concerned, I would have upheld the appellant's appeal on this ground.

Ground 6

I turn to ground 6 of the appellant's grounds of appeal which, as I have stated the ground, asserts that the Assessor made an error in finding on the evidence before him that the respondent suffered injury in the form of mental and nervous shock as a consequence of the commission of the 4 September 2012 offences. The Assessor awarded compensation to the respondent in respect of the 4 September 2012 offences pursuant to s 12(1), s 12(3)(a) and s 35(2)(b) of the Act.

Relevant legal principles

The burden is on the respondent to establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury and loss for which compensation is sought: the Act, s 3 (definition of 'satisfied'); S v Neumann (1995) 14 WAR 452, 463 ‑ 464.
It is not necessary for the respondent to establish that the offence was the sole cause of any injury or loss. It is sufficient for the respondent to establish that the offence 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).
If the evidence establishes that a non-compensable event contributed to the respondent's alleged injury or loss the award of compensation must be reduced to take account of that contribution: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; MJN v MAJS [2003] WACC 9; (2003) 35 SR (WA) 219 [52]; TAW v NJS [2011] WADC 187 [83]. If it is not possible to disentangle the consequences of a non-compensable event from the consequences of the offence the respondent is entitled to compensation for the full injury and loss suffered provided that she can establish that the offence materially contributed to the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164; MJN v MAJS [51]; CKM [2008] WADC 79 [136] ‑ [145]; TAW v NJS [84].
The phrase 'mental and nervous shock' used in the Act includes distress, horror, disgust and other similar adverse mental reactions but excludes fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which impacts on the mind or the nervous system and which may, in both the legal sense and in common parlance, be described as injury: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J); B v S (Unreported, WASC, Library No 950223, 10 May 1995) (Murray J); S v Neumann (461).

Emotional reactions such as stress, humiliation or anguish which result from court proceedings associated with the offence which has caused the injury for which compensation is sought do not constitute injury suffered as a consequence of the offence. They are reactions which have arisen subsequently and are therefore not part of the compensable injury: Garton v McCormack [2002] WADC 111; (2002) 30 SR (WA) 307 [15]; McDavitt v McDavitt [No 2] [2013] WADC 198 [141]; Dunne [2014] WADC 131 [26].

The Assessor's reasons

The Assessor expressed his reasons for finding that the respondent had suffered injury as a consequence of the commission of the 4 September 2012 offences as follows [3], [7], [8]:
Following receipt of the application I undertook investigations in relation to the incidents specified by the applicant. I obtained a police brief in relation to the incident which occurred on 4 September 2012 whereby the offender was charged with aggravated common assault and making threats to harm the applicant. He was convicted in the Magistrates Court at Perth on 2 October 2013 of those offences. The circumstances of that incident are related in the Statement of Material Facts and the statement provided by the applicant to police dated 13 February 2013. The applicant and the offender had an argument about various internet banking transactions. Both parties became very upset and during the course of that argument the offender pushed the applicant's chair with considerable force. She was sent "flying" across the room and struck her head against the wall and fell off the chair. The applicant and offender continued yelling at each other at which point the offender threatened to kill the applicant. Subsequently the offender pinned the applicant against the wall, pushed her head back and twisted her nose and mouth. The offender put both his hands around her neck and started to squeeze, again threatening the applicant with words to the effect that he was going to kill her. Eventually the applicant was able to escape and locked herself in her bedroom.
…
I was provided with a report from Ms Shirley Davies, a Registered Psychologist, dated 10 May 2014. The applicant attended Ms Davies on 11 occasions seeking assistance in relation to matters concerning her relationship with the offender. Ms Davies diagnosed the applicant as suffering from post-traumatic stress response as a result of what Ms Davies regarded as the major assault incident on 4 September 2012. She opined that the applicant would require ongoing regular medical review by her General Practitioner and further counselling assistance. Ms Davies' diagnosis was based upon the applicant providing a history of panic attacks, sleep disturbance with nightmares, hypervigilance, a degree of agoraphobia and a reduced sense of liberty due to fear of being followed and intimidated by the persons unknown. These symptoms were having a negative impact on her physical health. Ms Davies noted that the applicant was currently unfit for work, although I note in passing that there was no claim by the applicant for loss of earnings and no submission made in that respect. I have also been provided with a similar report from Ms Davies to the applicant's General Practitioner, Dr S Qureshi, dated 13 September 2013. A report from Dr Eva Dobromirska dated 12 July 2013 indicates that the applicant has been on Disability Support Pension due to problems with her hip making her unfit to work. It was also observed by Dr Dobromirska that the applicant was suffering from depression with anxiety disorder and frequent panic attacks which I was satisfied were consequent upon the offences described above. Copies of the applicant's General Practitioner's treatment notes had also been provided which in general terms confirmed the symptoms described by Ms Davies.
… I noted that the offender alleged that the applicant's medical condition arose prior to the commencement of their relationship. Notwithstanding the allegations by the offender, I was satisfied that having regard for the nature of the incidents referred to above, the applicant did suffer a post‑traumatic stress response and [sic] as described by Ms Davies and that even if the applicant had pre-existing conditions, the events referred to above significantly aggravated those pre-existing conditions. I am satisfied that the applicant suffered mental and nervous shock as a result of the assaults described above.
The Assessor's references to 'the incidents referred to above' in the last of the above quoted pars of his reasons is clearly a reference to the November 2012 offences to which the Assessor makes specific reference in par [6] of his judgment and to which I will refer in dealing with ground 7.

The facts of the 4 September 2012 offence

It is apparent from the above cited portion of the Assessor's reasons that the Assessor, in stating the facts of the 4 September 2012 offences, took into account not only the WAPS statement of material facts but also the respondent's statement to the police dated 13 February 2013. In my respectful view the Assessor should not have adopted such an approach. There was nothing before the Assessor to indicate that the facts of the 4 September 2012 offences which were read to the Magistrates Court pursuant to s 129(3) of the Criminal Procedure Act 2004 (WA) (the CPA), and upon which the appellant entered his pleas of guilty and was sentenced, were in any way different to the facts as set out in the statement of material facts. This being the case the Assessor should, in my respectful view, have approached the matter on the basis that the facts of the 4 September 2012 offences were as set out in the statement of material facts.
The fact that the Assessor took into account the respondent's statement to the police in stating what the facts of the 4 September 2012 offences were would not be of any moment if the statement of material facts substantially mirrored the respondent's statement. However, in this case the statement of material facts did not substantially mirror the respondent's statement. The statement of material facts, which it is apparent from an internal memorandum (included in the OCIC file) sent by a prosecutor from the Director of Public Prosecutions for Western Australia (the DPP) to Police Prosecutions dated 12 September 2013 was amended by the DPP prior to being presented to the Magistrates Court, read as follows:
In this instance the offender and the complainant have been married for nine years.
Over this time there have been eight recorded incidents of family and domestic violence.
The offender is approximately 6 foot 2 inches tall and about 120 kilograms.
The complainant is approximately 5 foot 10 inches tall and about 90 kilograms.
At about 12.15 am on Tuesday 4 September 2012 the offender and the complainant were at their home address of 44 Excalibur Circle, Camillo.
The complainant was sitting at a computer in the study and was questioning the offending in regards to a number of irregular transactions from their bank account.
The offender became angry at the complainant over the line of questioning and pulled her up from the computer chair by her arms.
The offender pushed the complainant up against a wall and held her by her throat with his right hand. The offender also placed his left hand over her mouth in an attempt to keep her quiet. The offender shouted at the complainant 'I want to kill you, you fucking bitch'.
This caused the complainant to have breathing difficulties and the offender let her go.
The incident was recorded by the offender on a personal recording device as he was trying to record what the complainant was saying to him when they had an argument.
The recording device was later located by the complainant and provided to Police.
On Wednesday 13 March 2013 the offender was interviewed at Armadale Detectives Office. The offender made full admissions to the assault but stated that he had no recollection of the threat.
The offender's explanation: 'I just snapped. She pushed me to breaking point. I don't usually lose control'.
The offender stated he was a trained special operations soldier and that he was also trained in a kickboxing.
Thus the principal differences between the statement of material facts and the respondent's account of the commission of the 4 September 2012 offences are as follows:
1.In the statement of material facts there is no reference to the appellant pushing the respondent's chair with considerable force with the result that the respondent was sent 'flying across' the room, struck her head against the wall and fell off the chair;
2.In the statement of material facts there is no reference to the appellant twisting the respondent's nose and mouth; and
3.In the statement of material facts there is no reference to the appellant putting his hands around the respondent's neck and starting to squeeze.
For the reasons I have stated, it was in my view incorrect for the Assessor to proceed on the basis that the appellant, during the commission of the 4 September 2012 offences, engaged in the above three identified forms of conduct as part of the commission of the aggravated unlawful assault offence. I therefore propose to proceed on the basis that the facts of the 4 September 2012 offences were as set out in the statement of material facts.
I note in this context that the facts as set out in the statement of material facts are consistent with the appellant's version of events of the incident as stated by him in the first affidavit and the second affidavit.

The evidence relating to the injury suffered by the respondent as a consequence of the commission of the 4 September 2012 offences

The evidence that was before the Assessor and is before the court which relates to the issue of the injury suffered by the respondent as a consequence of the commission of the 4 September 2012 offences consists of the following:
1.The respondent's victim impact statement (VIS) provided to the Magistrates Court dated 9 September 2013;
2.A complete set of the Champion Drive Medical Centre's medical records for the respondent;
3.A report provided by the respondent's general practitioner Dr Eva Dobromirska, dated 12 July 2013 addressed to 'To whom it may concern';
4.A report provided by Ms Shirley Davies, registered psychologist, to Dr S Qureshi of the Champion Drive Medical Centre dated 13 September 2013; and
5.A report provided by Ms Davies to the respondent's solicitor dated 10 May 2014.
I note that in the appellant's submission he does make statements in relation to the above identified medical evidence. However, the statements themselves do not constitute evidence. They are more in the form of submissions to the Assessor as to why the Assessor should not find on the basis of the medical evidence that the appellant did suffer injury as a consequence of the commission of the 4 September 2012 offences.
In her VIS the respondent speaks about the impact she alleges the commission of the 4 September 2012 offences have had on her. She also makes reference to other physically abusive conduct which she alleges that the appellant engaged in towards her during the course of their relationship. As to the impact which the respondent asserts in her VIS that the 4 September 2012 offences have had on her, the general tenor of her comments is reflected by the following paragraphs of the VIS:
Although I appreciate the opportunity to write this Victim Impact Statement, the process of writing this Victim Impact Statement was long and extremely traumatic as I have been trying to bury all the haunting feelings, fear and degradation from Chris' final physical assault in September 2012.
Not only am I reliving and re-suffering that night in September 2012 through writing this but through all the years of abuse which has so affected every day of my existence. I was a person full of love and trust for you Chris and you stole that part of me and turned me into a person who only knows fears. Your actions have greatly affected my life. I am always scared. I live in constant fear, more so existing not living.
I live with the vision of that night where once again you had me pinned against the wall with all of your physical force strangling me to the extent where I lost my breath and felt my knees giving in on me. I knew I would die if you did not stop. The look in your eyes and the half smile grimace on your face, as you yelled you wanted to kill me, as if you got enjoyment from what you were doing, is what haunts me the most and knowing your actions meant imminent death to me …
The assault affects the very way I exist from day to day, even though I have tried to change the house around to forget all the abuses there are marks and damage to the property which are ongoing reminders, in particular I have not since been able to go into the room of this assault. I live in one room which I have set up as my safe house and even there I am always on high alert and the slightest noise sends my heart racing, this is the very way I am all of the time. Running basic errands to the shop, going to doctors, counsellor and psychologist appointments drain me and often bring on severe anxiety and panic attacks. The attacks are so debilitating I often cannot leave my room to go to the kitchen. I am frightened to drive my car to my medical and counselling appointments due to this anxiety and panic attacks and I fear being anywhere where I feel people might be close to me which exacerbates my depression and fears. I have been diagnosed with chronic post-traumatic stress syndrome and I am undergoing treatment for this, but it does not stop the full scope of what this condition does to me every day. I don't think I will ever feel safe again and can't see a future for me.
The physical effects on me have been devastating and frightening as my ability to function as I once did has diminished exponentially. I suffer from extreme insomnia and even though I have been given medication to assist me sleep I am fearful to take it as I fear the ongoing recurring nightmares and should I fall asleep, I may be violently assaulted and killed. I go for days without sleeping at all. I may be so scared of any repercussions to me of the charges against Chris. My hands constantly shake from fear and this is frightening and embarrassing as I can't see a way forward of ever functioning against as I once did.
In her report dated 12 July 2013 Dr Dobromirska says the following:
Ms Fuller has been my patient for about 6 years.
…
Her medical history includes also major Depression with Anxiety disorder and frequent Panic Attacks.
She informed me that she has been in violent relationship and suffered from the hands of an aggressive ex partner.
The relationship ended a few months ago after she was allegedly brutally attack [sic] by her ex partner.
That incident has been reported to the police and she has an restraining order since then in place.
Her anxiety increased significantly since then, she suffers from frequent panic attacks, insomnia and is living in constant fear for her life.
Her other physical complaints including irritable bowel syndrome and Hypertension have worsen as well. Her Hypertension required change of medication last week to control her blood pressure which increased to the level of 190/105 due to severe prolonged anxiety.
Ms Joan Fuller was referred for psychotherapy treatment with psychologist during her last consultation and may require Psychiatrist being involved later on.
In her report dated 13 September 2013 Ms Davies records that the respondent has advised her that although she has suffered assaults at the hand of the appellant over several years she has managed to function but that the commission of the 4 September 2012 offences and subsequent intimidation by the appellant has resulted in her experiencing panic attacks, sleep disturbance with nightmares, hypervigilance, a degree of agoraphobia and a reduced sense of liberty due to fear of being followed and intimidated by persons unknown. Ms Davies states that the respondent has also discussed the negative impact of the 4 September 2012 offences on her physical health. Ms Davies states that the respondent reports that having previously been a self‑assured and confident person she is currently unable to work.
Under the heading 'Diagnosis' Ms Davies says the following:
·A DASS42 was administered at Joan's initial appointment on 30/07/2013. Results indicated Joan experiencing severe – extremely severe levels of depression, anxiety and stress. This was reflected by low mood, significant emotional fragility, fatigue, insomnia, inability to concentrate, poor motivation and memory.
·A further DASS42 was administered during Joan's final appointment on 09/09/2013. In comparison to initial testing, results were very similar on each scale. My consideration is that her continuing distress is in some part, likely to be related to as yet unsettled court action.
·Although formal testing was not undertaken, I consider that Joan is suffering a significant Post Traumatic Stress response as the result of the major assault incident and subsequent intimidation. My opinion is founded on her report of frequent panic attacks, hypervigilance, consistent ruminations and sleep disturbance with nightmares relevant to the incident.
Under the heading 'Strengths & Vulnerabilities' Ms Davies says the following:
·Although Joan is currently experiencing significant psychological distress, she presents with an internal locus of control and personal resilience. Joan has consequently acted on all suggested strategies that we have discussed as a means of assisting her to take steps forward both psychological and in relation to her physical health.
·Joan has been proactive in seeking appropriate support from her family where possible and with attending regular counselling.
·At this point she continues to attend to legal requirements (attendances at court and in accessing documentation), this requirement is currently impacting on her ability to move forward and achieve a sense of liberty.
In her report dated 10 May 2014 Ms Davies repeats much of what she said in her earlier report. She points out that the respondent attended appointments for psychological counselling with her on 30 July 2013, 1 August 2013, 5 August 2013, 12 August 2013, 19 August 2013, 9 September 2013, 1 October 2013, 11 February 2014, 18 February 2014, 17 March 2014 and 15 April 2015. In response to a question asking her to provide 'full details of the injuries (including psychological and any other problems) suffered by the client and your diagnosis' Ms Davies states:
I consider that Ms Martin is suffering Post Traumatic Stress response as the result of the major assault incident and subsequent intimidation. My opinion is founded on her report of frequent panic attacks, hypervigilance, consistent ruminations and sleep disturbance with nightmares relevant to the incident. This symptomatology is consistent with diagnostic criterion as described in section 309.81 of the DSM-5.
In answer to the question 'whether on the balance of probabilities (which means more likely than not) you believe the offence caused our client injuries wholly or in part' Ms Davies states:
Considering Ms Martin's reported experience and subsequent symptomatology, it is probable that the offences had a major impact on Ms Martin's psychological well-being (as reported).
Later in her report Ms Davies identifies the treatment that she has provided to the respondent. She states that in her opinion the respondent will continue to require ongoing regular medical review by her General Practitioner and professional counselling by a registered psychologist who specialises in post-traumatic mental health. She states that she considers it will be likely that the respondent will require counselling services on a weekly/fortnightly basis for a minimum of 6 ‑ 12 months.

Has the respondent proved that she suffered injury in the form of mental and nervous shock as a consequence of the commission of the 4 September 2012 offences?

Ms Davies' opinion as expressed in her reports is, in effect, that the respondent was during the course of her treatment of the respondent suffering from a post-traumatic stress response as a consequence of the commission of the 4 September 2012 offences. There is no question that a post‑traumatic stress response as diagnosed by Ms Davies does amount to an adverse mental reaction sufficient to constitute mental or nervous shock within the meaning of the Act. The real question, it seems to me, is whether the opinion as expressed by Ms Davies, when read in light of Dr Dobromirska's report and the respondent's VIS, is sufficient to prove that the respondent did suffer a post‑traumatic stress response as a consequence of the commission of the 4 September 2012 offences.
It is abundantly clear from the reports of Ms Davies that her diagnosis is based substantially, if not entirely, on the respondent's reported symptoms. It might therefore be argued that the opinion of Ms Davies is of little weight. Indeed, this is in essence the argument advanced by the appellant in the appellant's submission. However, against this one must bear in mind the expertise of Ms Davies as a registered psychologist. It can properly be assumed, in my view, that Ms Davies would, during the course of her treatment of the respondent, make some assessment of the credibility of the respondent's account of her symptoms and condition generally and would not, if she had any doubts about the respondent's credibility in this regard, base a significant diagnosis on the respondent's account. To put it simply the court (and also the Assessor) must place some faith in the training and expertise of Ms Davies as a registered psychologist in deciding whether to accept her opinion, based as it is on the respondent's reported symptoms.
On the basis of the expert evidence before me, and taking into account the nature of the conduct that the respondent was subjected to by the appellant's commission of the 4 September 2012 offences, I am satisfied on the balance of probabilities that the respondent did, as a consequence of the commission of the offences, suffer from mental and nervous shock in the form of a post‑traumatic stress response during the period between the date of the commission of the offences and 10 May 2014 being the date of Ms Davies' second report. I am satisfied that the commission of the 4 September 2012 offences, if not the sole cause of the respondent's post‑traumatic stress response, materially contributed to the development of that condition. In arriving at this conclusion I have not overlooked the evidence as to the respondent's pre-existing mental health issues identified by Dr Dobromirska in her report.
In summary, I am satisfied, consistently with the decision of the Assessor, that the respondent did suffer injury in the form of mental and nervous shock as a consequence of the commission of the 4 September 2012 offences.

Ground 7

By ground 7 the appellant contends that the Assessor made an error in awarding $13,000 for the mental and nervous shock suffered by the appellant as a consequence of the commission of the 4 September 2012 offences.

Jurisdictional limit and general principles of assessment

Under s 30(1) of the Act I may, subject to s 31(1) of the Act, award to the appellant such compensation that I am satisfied is just for the injury suffered.
Section 31(1) of the Act provides that the maximum amount of compensation that may be awarded in favour of a person for a single offence is $75,000. The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (463).
Section 36 to s 40 of the Act set out a range of circumstances in which the court must not make a compensation award. None of the specified circumstances apply to the award for the 4 September 2012 offences.
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, Library No 1365, 31 May 1974) 3 (Burt J); M v J and J v J; A v D (1994) 11 WAR 481, 486 ‑ 487. In assessing the appropriate amount of compensation the focus must be solely upon the injury suffered by the appellant as a consequence of the commission of the offence. Considerations of sympathy for the appellant are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.

Decision as to amount of award

There are cases in which it has been suggested that in determining an appropriate award of criminal injuries compensation it is not appropriate for the court to take into account awards made in other cases because it is not possible for the court to know if it is comparing like with like: Asjes v Assessor of Criminal Injuries Compensation(1994) 11 SR (WA) 226; De Florenca v Hayden [2007] WADC 54 [16]. However, in other cases a contrary view has been expressed: TAW v NJS; Re Faengsungnoen [2012] WADC 59 [13].
In my view there is no reason why a court, in determining an appropriate award of criminal injuries compensation, should not have regard to awards made in other similar cases provided, of course, that it is kept firmly in mind that no two cases are the same and that the award made in the case in question must be appropriate to the particular facts and circumstances of the case. To this end I have reviewed some of the more recent decisions of criminal injuries compensation assessors and judges of this court in which awards of compensation have been made for mental and nervous shock. I consider it appropriate to have regard to the decisions of assessors given that they are specialists in the field of criminal injuries compensation.
In my view, applying ordinary tortious principles for the assessment of damages, and taking into account to a limited extent awards made in other cases, for mental and nervous shock, I am satisfied that the award of $13,000 made by the Assessor in respect of the injury suffered by the respondent as a consequence of the commission of the 4 September 2012 offences was in all the circumstances appropriate. I would not interfere with the award. I dismiss ground 7 of the appellant's grounds of appeal.

Ground 8

By this ground the appellant asserts that the Assessor made an error in finding on the evidence before him that the respondent suffered injury in the form of mental and nervous shock as a consequence of the commission of the November 2012 offences. As was the case with the 4 September 2012 offences, the Assessor awarded compensation to the respondent in respect of the November 2012 offence pursuant to s 12(1), s 12(3)(a) and s 35(2)(b) of the Act. Accordingly, the legal principles that are to be applied in determining this ground of appeal are those that I have set out above in dealing with ground 6.

The Assessor's reasons

In his reasons the Assessor dealt with the facts of the November 2012 offences in the following terms [6]:
I obtained a police brief in relation to the incident which took place between 1 and 2 November 2012 at Camillo. In relation to this incident the offender was charged with 3 counts of breaching a violence restraining order and was convicted of those offences in the Magistrates Court at Armadale on 2 November 2012. Those offences were committed when the offender, who was subject to a violence restraining order which prevented him from attending the applicant's address at Camillo, did so on three occasions during the evening and early morning. It is also alleged that the offender threw several items at the house, although there were no charges of unlawful damage.
The Assessor's reasons for finding that the commission of the November 2012 offences caused the respondent to suffer mental and nervous shock are set out in the previously cited paragraphs of the Assessor's judgment [7], [8].

The facts of the November 2012 offences

The facts of the November 2012 offences as revealed by the WAPS statement of material facts which was one of the documents before the Assessor, were as follows:
[Offence 1]
The accused and the victim are married but have been separated for two months. The victim is protected by Violence Restraining Order 2012/00644, which was issued by the Armadale Magistrate's Court on the 12 September 2012, and served on the accused on the 15 September 2012.
Terms of the order include that the person bound by it shall not:
*Enter, remain upon or loiter near 44 Excalibur Circle, Camillo or be within 100 metres of the nearest external boundaries of those premises.
*Approach within 20 metres of the person protected.
At about 8.00 pm on Thursday the 1^st November 2012 the accused attended 44 Excalibur Circle, Camillo.
The accused entered through the front door, therefore breaching that order.
The accused had dinner with the victim inside the premises and left the address shortly after.
[Offence 2]
At about 10.30 pm the accused returned to 44 Excalibur Circle, Camillo.
The accused used his house keys and entered through the locked front door therefore breaching that order.
The accused went to sleep and was woken by the victim.
An altercation between the victim and the accused occurred and the accused left the address.
[Offence 3]
On Friday the 2^nd of November 2012 at about 3.10 am the accused returned to 44 Excalibur Circle, Camillo.
The accused was arrested by police while standing in the driveway of the address and was conveyed back to Armadale Police Station
The accused participated in a Video Record of Interview where full admissions were made.
Explanation: 'She invited me around', 'I was returning the vehicle'.

The evidence relating to the injury suffered by the respondent as a consequence of the commission of the November 2012 offences

The evidence that was before the Assessor and is before the court in relation to the issue of the injury suffered by the respondent as a consequence of the commission of the November 2012 offences is the evidence that I have identified in dealing with appeal ground 6.

Has the respondent proved that she suffered injury in the form of mental and nervous shock as a consequence of the commission of the November 2012 offences?

As is clear from my above references to the content of the reports of Ms Davies in dealing with ground 6, Ms Davies opinion and diagnosis was that the respondent was suffering from a significant post-traumatic stress response as a result of the 4 September 2012 offences 'and subsequent intimidation'. I am satisfied that Ms Davies' reference to subsequent intimidation was a reference to, at least in part, the November 2012 offences. This being the case, and for substantially the same reasons as I expressed in dealing with ground 6, I am satisfied on the balance of probabilities that the appellant's commission of the November 2012 offences did materially contribute to the respondent's post‑traumatic stress response and that accordingly the respondent did suffer injury in the form of mental and nervous shock as a consequence of the commission of the November 2012 offences.

Ground 10

For reasons that will become apparent it is convenient to deal with ground 10 (and ground 11) before returning to deal with ground 9.

The statutory basis for the ground of appeal and the relevant legal principles

Ground 10 of the appellant's grounds of appeal, which relates to the November 2012 offences, is based on s 39(1) of the Act. Section 39(1) provides as follows:
(1)If an assessor is satisfied –
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
There is no requirement in s 39 of the Act that the disentitling offence be causally connected to the offence that causes the applicant's injuries. The only relationship that needs to exist between the disentitling offence and the offence that caused the applicant's injuries is a temporal one: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [32] ‑ [44]. Whether there is a sufficient temporal connection is a question of fact and degree: Attorney General for Western Australia v Her Honour Judge Schoombee [31]. As Martin CJ stated in Attorney General for Western Australia v Her Honour Judge Schoombee [31]:
As the District Court judge correctly noted in the passage which I have set out above [18], one of the well-established rules of statutory construction requires primary regard to be given to the natural and ordinary meaning of the words used in the statute. As she correctly noted, the natural and ordinary meaning of the word 'when' read in its context in s 39(1)(b) of the Act is 'at the time that': see The Macquarie Dictionary (1981). The focus of the word is temporal. In its natural and ordinary meaning it can be used to identify a period of time measured in hours or minutes or seconds. However, it can also be used to describe a period of time reckoned more generally such as, by reference to an incident or occasion, as the District Court judge noted. So, while the word 'when' is capable of referring to a precise instant in time at which two separate events are occurring, it is also capable of referring more generally to a period of time more loosely defined - as in 'when I was a child', or 'when I was on holiday'.

The appellant's contention

The appellant's argument is that on the evidence that was before the Assessor, the Assessor should have been satisfied that the relevant injury, namely the mental and nervous shock in the form of a post-traumatic stress response, was suffered when the respondent was committing a separate offence, namely an offence of possessing cannabis contrary to s 6(2) of the Misuse of Drugs Act 1981 (WA) (the MDA) or an offence of cultivating cannabis contrary to s 7(2) of the MDA.

The evidence relied upon by the appellant

The evidence upon which the appellant relies in support of this ground is comprised in essence of certain evidence that was referred to by the magistrate exercising federal jurisdiction under the FLA in her reasons for decision in dealing with the competing property settlement claims of the appellant and the respondent: M and M [2014] FCWAM 75. In her reasons for decision the magistrate dealt in considerable detail with the issue of the credibility of the evidence given before her by the appellant and the respondent. In the course of dealing with this issue the magistrate said the following [36]:
The evidence regarding Joan's drug use was also unsatisfactory. Joan conceded after questioning that she used marijuana for pain relief. She also conceded that from early November 2012 Christopher had not been at Excalibur Circle. Both parties agreed that they had marijuana growing in a hydroponic set up in the garden shed. Christopher says that he set this up for Joan. Joan does not accept this and would have the Court suggest that Christopher was dealing in marijuana.
What strikes the court as strange is that the fact of cultivating marijuana was not reported by Joan until 13 February 2013. She says she was concerned about being in trouble with the police and avoiding the suggestion that what was in the shed was actually hers. She reports the matter to the police some three months after Christopher has left the premises. She states to the police that the marijuana was not hers even though she concedes in cross-examination that she used marijuana. She suggests the circumstances should lead to police charging Christopher with cultivating of marijuana, with no responsibility at all to attach to her. The police report was tendered as Exhibit 3 in the trial. The statement of material facts records the following 'during the search police located a hydroponic set up in a small room inside the rear shed. The room was set up with lights, water pipes, fans, timers, transformers, pumps, a plastic net to help the plants when they are matured and a large drum full of nutrient. Police located five large cannabis plants approximately 130 cm tall which had recently died due to the power being turned off. The system was set up so it had minimal daily maintenance including self-watering'. In his interview with police Christopher acknowledges that he set the system up in about October/November 2012. Joan submits to the court that when Christopher left in November 2012 she turned off the power. Such a statement by Joan, however, is not consistent with the evidence that the plants had recently died due to the power being turned off. It is difficult to accept that if the power was turned off in November and the set up endured summer the police would have used the term 'recently' in their description. I consider that it is more likely that Joan turned the power off shortly before she reported the event in February 2013 but maintained a campaign to set up Christopher as much as she could whilst promoting that she was relatively clean in the endeavour when the opposite was indeed the case. I consider it likely that Joan continued to maintain the set up and likely continued to use the marijuana.
As I have already said, I do not consider that it is appropriate for me in determining the appeal to treat as evidence either the statements made by the magistrate in relation to her assessment of the respondent's credibility or the magistrate's conclusions drawn from the evidence that was before her. However, I do not consider that there is any reason why I should not take into account the undisputed evidence that the magistrate's reasons reveal was before her in deciding for myself whether the respondent was, at the time of the appellant's commission of the November 2012 offences, committing an offence of possessing or cultivating cannabis contrary to the MDA. That evidence so far as is relevant and as is revealed by the magistrate's reasons, was to the following effect:
1.In November 2012 the respondent smoked cannabis for pain relief;
2.Cannabis was being grown hydroponically in the garden shed at the appellant's and the respondent's house at 44 Excalibur Circle from late October 2012 or early November 2012 through to around February 2013;
3.The appellant set up the hydroponic growing system before he moved out of the house in Excalibur Circle;
4.The appellant moved out of the house in Excalibur Circle in early November 2012; and
5.As at the date of the attendance of the police at the house in Excalibur Circle (in February 2013), the power supply to the hydroponic set up, as described in the police statement of material facts referred to by the magistrate, had only recently been turned off.

Did the appellant suffer injury as a consequence of the commission of the November 2012 offences when she was committing the separate offence of possessing or cultivating cannabis?

In my view the only inference that is reasonably available to be drawn from the evidence that I have referred to above is that the appellant from late October 2012 through to sometime in February 2013 was involved in, and was at least a party to, the cultivation of cannabis at the Excalibur Circle house. I am therefore satisfied on the balance of probabilities that she did commit an offence of cultivating cannabis contrary to s 7(2) of the MDA.
The question which remains is whether I am satisfied that the mental and nervous shock suffered by the respondent as a consequence of the commission of the November 2012 offences was suffered by her 'when' she was committing the offence of cultivating cannabis.

The November 2012 offences were committed on 1 and 2 November 2012. The respondent, I have found, was committing the offence of cultivating cannabis from late October 2012 through to sometime in February 2013. In these circumstances I am satisfied the respondent did suffer the relevant injury as a consequence of the commission of the November 2012 offences 'when she was committing a separate offence', namely cultivating cannabis contrary to s 7(2) of the MDA.
As I have already pointed out, s 39(1) provides that if the Assessor is satisfied that a person was injured as a consequence of the commission of an offence and that the injury was suffered when the person was committing a separate offence he or she must not make a compensation award in favour of the person. It follows, in my opinion, that the Assessor was prohibited by s 39(1) from making a compensation award to the respondent in respect of any injury caused to her by the November 2012 offences. I therefore uphold this ground of appeal.

Ground 11

In light of my decision on ground 10 of the appellant's grounds of appeal it is not essential for me to deal with ground 11. However, for the sake of completeness I will do so.

The statutory basis for the ground of appeal

Ground 11 is based on s 41 of the Act. Section 41 relevantly provides as follows:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, …, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.

The appellant's contention

The appellant's argument is that on the evidence that was before the Assessor, the Assessor should have been satisfied that the appellant was in effect induced to commit the November 2012 offences by the conduct of the respondent, that the behaviour of the respondent therefore contributed, at least indirectly, to any injury that the respondent suffered as a consequence of the commission of the November 2012 offences, and that in these circumstances it was not just to make a compensation award to the respondent.

The evidence relied upon by the appellant

The evidence relied upon by the appellant in support of this ground of appeal consists in the main of statements made by him in the first affidavit and the second affidavit, as well as evidence referred to by the magistrate in M and M.
In the first affidavit the appellant deposes to the fact that in the days leading up to 20 October 2013, which was when the VRO was in force, he was staying at his sister's house. He states that on 20 October 2013 he received a phone call from the respondent during which she 'again' said that she wanted him home. He states, in effect, that he went back to Excalibur Circle that evening and that he remained living with the respondent from that evening until 30 October 2013. He states that he and the respondent attended a business function together on 28 October 2013. The appellant then, under the heading '1^st November' states the following:
After dinner with Jo (at Excalibur Circle) I visited my three sons. I was with them between 8.00 pm and midnight. During this time Jo phoned me at 9.41 pm and 9.53 pm to ask when I was coming home. Jo was annoyed that I had gone to visit my sons and was not staying at home with her. Jo then phoned Jason my eldest son he is 30 years old, at 11.18 pm and talked to him. I don't know about what or what reason Jo would have to ring him … I went back to Excalibur Circle around midnight. I let myself in and went to bed and fell asleep. Jo woke me up shortly after and became argumentative wanting to know why I was going to the wedding when Jo hadn't been invited. Jo would not let me sleep but insisted on arguing over why I was going to the wedding with my sons. I told Jo I wouldn't and wasn't going to the wedding. Jo would not let it go and continued to argue. Jo had been drinking excessively that night. It was time for me to leave I could see Jo wasn't going to give this up until I fought back.
I packed up my stuff knowing I was not coming back. I took Jo's car, I needed the car to take all of the belongings I had packed. I drove to Malu unloaded the car and returned to drop the car back at Excalibur for Jo. Jo said she was going to ring the police and tell them the car had been stolen. So I needed to return it right away. I would then walk the 1.5 kilometres back to Malu Court.
After I dropped the car back I put the keys near the front door. I did not go in the house. As I was walking up the driveway the police turned up and arrested me. I spent the night in the lock up and have been charged with breaking the VRO.
I believe if Jo hadn't constantly phoned me after the VRO telling me how sad and depressed she was, I wouldn't have gone back. I was concerned for Jo [sic] safety as I know how suicidal Jo can get. Jo has made it quite clear to all her counsellors that she is severally depressed and suicidal. I believe Jo needs help, but Jo will not get the appropriate help …
Although the appellant does not expressly state in the first affidavit that he was living with the appellant in the Excalibur Circle house on 31 October 2012 and 1 November 2012, it is clear from his account of what occurred on the night of 1 and 2 November 2012 that his position is that he was living in the house up until that point in time.
In the second affidavit the appellant in essence provides the same account of events as he provides in the first affidavit.
I note by reference to the appellant's above referred to account of events, that it was the appellant's attendance at the Excalibur Circle house for dinner on the Thursday night which constituted the first of his breach of violence restraining order offences, that it was his conduct in returning to the house and going to sleep after having visited his sons that constituted the second of his breach of violence restraining order offences, and that it was his conduct in returning to the house for the purpose of returning the car which constituted the third of his breach of violence restraining order offences.
With respect to the appellant's assertions that he resumed cohabitation with the respondent during the period 20 October 2012 until 1 November 2012, the magistrate in her reasons for decision in M and M [34] states that although the respondent did not concede that after her initial separation from the appellant in 2012 she and the appellant reconciled because she consistently contacted the appellant asking him to return to the relationship, the respondent 'finally conceded' that the parties had resumed cohabitation between September 2012 and November 2012. The magistrate also noted that the respondent had not taken any steps to discharge the violence restraining order.
In the same paragraph of her judgment the magistrate referred to evidence adduced by the appellant as to phone contact between himself and the respondent during the relevant period. In this regard the magistrate said the following [34]:
… In support of [the claim that they reconciled because Joan consistently contacted him asking him to return to the relationship] Christopher presented to the Court copies of his Optus bill for the home phone at Excalibur Circle and Joan's mobile phone account. During this time it is accepted that Joan resided at the former matrimonial home and used the phones in question. On 5 September there are six telephone calls to Christopher commencing at 5.21 am and ending at 8.29 pm. The evidence shows constant telephone calls throughout September including on 20 September seven calls to Christopher's mobile commencing at 8.58 am and ending at 11.37 pm. Further on 23 September there are six calls commencing at 5.51 am the last call being at 7.19 pm. Again on 18 October there were 39 phone calls made to Christopher's mobile commencing at 9.23 pm and ending at 11.10 pm and on 19 October there were 23 calls made commencing at 1.55 am with the last call being at 6.44 pm. These calls were made in the context of Joan's evidence that she had separated from Christopher and she is resistant to the suggestion that they reconciled in this period and in the circumstances where she had obtained a VRO against Christopher. When this evidence was presented to Joan in cross-examination she suggested the reason for the telephone calls was because she could not find her keys.
The magistrate then proceeds in her judgment to express the opinion that the respondent's explanation for the phone contact is 'incredible'.
For reasons which I have already stated, I will not rely on the magistrate's view of the respondent's explanation for the phone calls as evidence relevant to my determination of the appeal. Nevertheless, the undisputed evidence referred to by the magistrate does reveal significant phone contact by the respondent to the appellant in the period leading up to 20 October 2012, which is of course when on the appellant's version he resumed cohabitation with the respondent at the respondent's request. Further, the respondent's evidence before the magistrate, even if apparently given somewhat reluctantly, was that she did resume cohabitation with the appellant between September 2012 and November 2012.
On the basis of the evidence to which I have referred, I am satisfied of the following matters. First, that on 20 October 2012 the appellant did resume cohabitation with the respondent at the Excalibur Circle house, and that this came about by reason of the respondent requesting the appellant to return to the matrimonial home. Second, that the appellant remained living in the house with the respondent up until the night of 1 and 2 November 2012. Third, that the circumstances of the appellant's presence at the house on the evening of 1 November 2012 and in the early morning hours of 2 November 2012 were as set out by the appellant. His account in this regard is entirely consistent with the facts of the November 2012 offences as set out in the previously referred to statement of material facts relating to the offences.

Did the respondent's behaviour contribute, directly or indirectly, to her injury suffered as consequence of the November 2012 offences?

On the basis of the above evidence and my stated findings of fact, I am satisfied that the conduct of the respondent to which I have referred contributed, if not directly then indirectly, to the appellant's commission of the November 2012 offences and consequently to the injury suffered by the respondent as a consequence of the commission of those offences. To put it simply, the whole reason why the appellant had dinner in the house with the respondent on the evening of 1 November 2012, returned to the house later that night and went to sleep, and subsequently left the house in the car before returning to the house with the car, was that he had, for a number of days, and at the request and with the agreement of the respondent, been living at the house with the respondent. In these circumstances I would, had I not upheld ground 10 of the grounds of appeal, have decided under s 41 of the Act that it was just to refuse to make a compensation award to the respondent for the injury she suffered as a consequence of the commission of the November 2012 offences because of the contribution that she made by her conduct to that injury. In short, I would have upheld this ground of appeal.

Ground 9

I return to ground 9.
Given the conclusions I have arrived at in relation to grounds 10 and 11, it is not strictly necessary for me to deal with this ground. However, once again for the sake of completeness I will deal with the ground briefly.
The Assessor awarded $5,000 for the mental and nervous shock caused to the respondent as a consequence of the commission of the November 2012 offences.
The appellant's conduct in committing the November 2012 offences did not, as is revealed by the statement of material facts, involve the appellant engaging in any violent or threatening behaviour. Further, as is clear from what I have already said in dealing with ground 11, the offences were committed against a background of communication and cohabitation between the appellant and the respondent. In these circumstances, applying ordinary tortious principles for the assessment of damages, and taking into account to a limited extent awards made in other cases, for mental and nervous shock, I would, had I not upheld grounds 10 and 11, have concluded that the award made by the Assessor was more than what was required to adequately compensate the respondent for her injury. In these circumstances I would have awarded compensation in the amount of $2,500.

The barring order

During the hearing of the appeal I asked counsel for the CEO whether, if I ultimately came to the decision that the compensation award made by the Assessor should be reduced, I could also proportionately reduce the maximum amount ($5,000) that the Assessor had ordered under s 45(1)(b) of the Act could be recovered from the appellant under pt 6 of the Act. Counsel for the CEO requested, in effect, to be given some further time to consider my question and offered to file supplementary written submissions on the issue. I consequently made orders granting leave to the CEO, the appellant and the defendant to file supplementary written submissions in response to the question I had raised.
Subsequently, I received supplementary written submissions from the CEO and the respondent. I did not receive any further submissions from the appellant.
In their supplementary submissions both the CEO and the respondent refer to the case of Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173. In Tidmarsh Bowden DCJ held that on an appeal against a decision of an assessor lodged pursuant to s 55(1) of the Act, the court does not have the jurisdiction to vary an order made by an assessor under s 45(1)(b) of the Act because an order made under s 45(1)(b) is not a decision to make or refuse to make a compensation award or a decision as to the amount of a compensation award within the meaning of s 55(1) [8]. In arriving at this decision Bowden DCJ made the point that until a compensation reimbursement order is made under s 52 of the Act the person who is the subject of an order made under s 45(1)(b) is not liable to pay the maximum amount specified or any amount, and that if a compensation reimbursement order is made the person then has the right to appeal to the court under s 55(2) of the Act against the amount of the compensation reimbursement order [9] ‑ [21].
At least two other judges of this court have also held that there is no right of appeal against an order made under s 45(1)(b) for essentially the same reasons as expressed by Bowden DCJ in Tidmarsh: Curran v Champion [2012] WADC 9 [78] ‑ [79]; BT v BT [2014] WADC 166 [24] ‑ [25]. In Curran v Champion the court expressly followed Tidmarsh.
I respectfully agree with the decision of Bowden DCJ in Tidmarsh and the reasons given by his Honour for that decision.
I note further, in order to avoid any doubt on the issue, that I accept the submission made by the CEO in his supplementary submissions that in an appeal made pursuant to s 55(1) of the Act, s 56(1)(f) does not empower the court to make an order varying a barring order made by an assessor under s 45(1)(b) even if the appeal results in the compensation award the subject of the appeal being varied. The making of an order varying a barring order in these circumstances could not be said to be a ‘necessary consequential order’, that is, an order which follows logically or of necessity from the substantive order on the appeal: Rayney v AW [2009] WASCA 203 [33].
In short, in my opinion and despite the fact that I will, in accordance with my rulings on the grounds of appeal, make an order reducing the amount of compensation payable to the respondent, I do not have the power to reduce by a proportionate amount the maximum amount that can, by reason of the Assessor’s order made under s 45(1)(b), be the subject of recovery proceedings under pt 6 of the Act.

Conclusion

For the reasons that I have stated I propose, subject to hearing from the parties, to make the following orders:
1.The appeal is allowed.
2.The decision of Mr R Guthrie, Assessor of Criminal Injuries Compensation, made on 21 May 2015, awarding compensation to the respondent in the amount of $25,348 is varied.
3.The respondent is awarded compensation in the amount of $13,348 comprised of:
(1)$13,000 for injuries suffered by her as a consequence of proved offences committed by the appellant against the respondent on 4 September 2012; and
(2)$348 for loss suffered by the respondent as a consequence of the commission of the proved offences.