MAYFIELD
[2023] WADC 127
•8 NOVEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MAYFIELD [2023] WADC 127
CORAM: EGAN DCJ
HEARD: 29 AUGUST 2023
DELIVERED : 8 NOVEMBER 2023
FILE NO/S: APP 17 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: ANNA LOUISE MAYFIELD
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 2576/2022
Catchwords:
Criminal injuries compensation - Appeal from assessor's award - Alleged offences - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Restraining Orders Act 1997 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Mr J A Kirke appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87
Briginshaw v Briginshaw (1938) 60 CLR 336
Christianos v The Queen (Unreported, WACCA, Library No 9217, 17 December 1991)
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Green v Lee (1996) 17 SR (WA) 93
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Martin v Martin [2015] WADC 138
MES v KG (1995) 12 SR (WA) 330
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
R v Davies (1974) 7 SASR 375
R v Pangalinan [1999] QCA 528
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
Re Carter (1984) 4 SR (WA) 219
Re Collard [2018] WADC 1
Re Robinson [2017] WADC 18
Re RW [2018] WADC 116
Re; Hojetzki [2009] WADC 77
S v Neumann (1995) 14 WAR 452
Smart v Prisoner Review Board (WA) [2012] WASC 48
Tobin v Dodd [2004] WASCA 288
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Underwood v Underwood [2018] WADC 13; (2018) 94 SR (WA) 57
Webb v Tang [2023] WASCA 119
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
EGAN DCJ:
Overview
By Notice of Appeal dated 29 March 2023 (Notice), Anna Louise Mayfield (the Appellant) appealed against the decision by a criminal injuries assessor (Assessor) under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) to refuse an application for compensation which was made out of time.
The Assessor refused the application on the basis that the application did not have sufficient merit to grant an extension of time.
The Appellant appeals on the basis that the Assessor failed to give sufficient weight to the psychological trauma suffered by her.
On 25 July 2023, a registrar of this court ordered that the Appellant's application for leave to apply for compensation out of time be referred to a judge. That hearing took place before me on 29 August 2023.
During the hearing the Appellant indicated, in effect, that she had applied for compensation under the CIC Act in 2017 (2017 Application) under a different name, but in 2022 was told by the Office of Criminal Injuries Compensation (OCIC) that she would need to reapply. The Appellant subsequently reapplied on 16 September 2022 (2022 Application), and did so without reference to the 2017 Application. The bases of both the 2017 Application and the 2022 Application were, for all intents and purposes, the same, and the Assessor, seemingly unaware of the 2017 Application, refused the 2022 Application on the basis set out in [2].
Subsequent to the hearing, the amicus curiae (Amicus) provided the court with a copy of the 2017 Application, together with other material on the Assessor's file in relation to that application including, in particular, a letter dated 5 October 2017 from the Assessor to the Appellant (under her different name). In that letter, the Assessor stated, amongst other things, that he did 'not intend to take the matter any further unless [the Appellant was] able to supply additional information to satisfy me that offences have occurred'. No additional information was supplied by the Appellant in response to that letter, and no further steps were taken by her in relation to the 2017 Application.
The court was also provided with both supplementary and further supplementary submissions from the Amicus submitting, in effect, and amongst other things, that the Assessor's letter dated 5 October 2017 did not amount to a refusal by the Assessor of the 2017 Application, and that therefore the 2017 Application remained undetermined.
The Amicus submitted further that, as a result, the court could treat the 2022 Application as being:
(a)additional material provided to the Assessor pursuant to the 2017 Application; or
(b)a reactivation of the unresolved 2017 Application; or
(c)both.
The Amicus also submitted, in effect, that the Assessor's refusal of the 2022 Application could be treated by the court as a refusal of the 2017 Application.
By email dated 24 October 2023, the Appellant stated, in effect, and amongst other things, that the court should treat the 2017 Application as having been refused by the Assessor when he refused the 2022 Application.
I agree with the submissions of the Appellant and the Amicus referred to above. Accordingly, for reasons set out below, the materials comprising the 2022 Application will be treated by the court as supplementary materials to the 2017 Application. It follows that the 2022 Application could not be said to have been made out of time, and so it is unnecessary to consider, as part of this appeal, whether to grant an extension of time for the filing of that application.
Moreover, the Assessor's decision to refuse the 2022 Application on the basis that 'it did not have sufficient merit to grant an extension out of time' will be treated as a refusal of the 2017 Application (supplemented, as I have said, by the materials comprising the 2022 Application).
It follows that this appeal deals with the merits of the 2017 Application for compensation, supplemented by the materials comprising the 2022 Application.
Having considered the merits of the 2017 Application, and for the reasons that follow, I dismiss the appeal.
Background
By way of background, and in summary, the Appellant is the estranged biological mother of Reanan Olsen (Alleged Offender).
On 24 November 2016, the Alleged Offender was at her grandmother's residence in Medina, Western Australia, 6167. The Alleged Offender, together with her aunt, heard a noise coming from the front of the residence and they both went outside to investigate.
Upon exiting the residence, both the Alleged Offender and her aunt observed a red Mitsubishi Magna with a grey bumper driving slowly towards the grandmother's residence.
The Alleged Offender was standing in the driveway of the residence when the vehicle accelerated heavily and swerved towards her, which caused the Alleged Offender's aunt to pull the Alleged Offender out of the way, after which the car left the vicinity (Car Incident).
A few days later, on 28 November 2016, the Alleged Offender received a threatening message (Threatening Message) from a person whom she believed to be the Appellant.
Also on 28 November 2016, the Alleged Offender swore an affidavit in support for a family violence restraining order (FVRO). In that affidavit the Alleged Offender stated, amongst other things, and in effect, that the Appellant 'tried to run her over in a red car', and that threats were made against her by the Appellant. Other bases for the FVRO were also set out and contained in the affidavit, however they are not materially relevant for the purposes of determining this matter.
Also on 28 November 2016, the Alleged Offender reported both the Car Incident and the Threatening Message to the Western Australia Police. That report resulted in the Western Australia Police generating an incident report (Incident Report) and also conducting investigations (and the results of those investigations were recorded and captured within the Incident Report). Amongst other things, the Incident Report states, in effect, that the Alleged Offender reported that she believed that the Appellant was driving the car, although importantly, the Alleged Offender did not say that the Appellant was, in fact, driving the car.
On 5 December 2016, the Alleged Offender obtained an interim family violence restraining order (Interim FVRO) against the Appellant.
On 25 December 2016, the Appellant was arrested by Western Australia Police and interviewed in relation to the Car Incident and the Threatening Message. During her police record of interview, the Appellant denied that she was driving the car the subject of the Car Incident, and she also denied sending the Threatening Message.
On 26 December 2016, as is apparent from the Incident Report, Western Australia Police formed the view that 'no charges were recommended at this time' due to 'insufficient evidence'. On 10 January 2017, that view was the subject of review and confirmation by a senior police officer.
On 27 March 2017, the Alleged Offender's application for a restraining order against the Appellant was withdrawn due to a failure by the Alleged Offender to appear in court.
Some years later, on 14 September 2022, the Appellant submitted the 2022 Application for criminal injuries compensation on the basis that the Alleged Offender had made a false report, that being that the Alleged Offender had falsely reported in the affidavit in support of the FVRO that the Appellant had run her over.
By letter dated 28 September 2022 in support of the 2022 Application, the Appellant stated, in effect, that she was seeking compensation in relation to her false arrest 'due to [the Alleged Offender] filing false police reports stating that [the Appellant] commonly assaulted [the Appellant] by attempting to run her over', and that '[the Alleged Offender] further alleged that [the Appellant] sent threatening texts to her phone'.
By emailed letter dated 4 October 2022, the Assessor wrote to the Appellant advising, in effect, and amongst other things, that no reasons had been provided by the Appellant for the late lodgement of the 2022 Application, nor had medical evidence been provided in support of the assertion that she had suffered mental and psychological harm. The Assessor further advised the Appellant that before making a final determination in relation to the 2022 Application, he would allow a further 28 days for the Appellant to make submissions concerning those matters or to provide additional information.
By letter dated 4 October 2022, and seemingly in response to the aforementioned letter from the Assessor, and in further support of the 2022 Application, the Appellant stated, amongst other things, that:
(a)she has 'suffered ongoing psychological and emotional abuse for the last 6 [years] due to [the Alleged Offender's] actions';
(b)she was 'aware that [she] should have applied sooner which [she] did back in 2017 however [her] claim was rejected'; and
(c)she 'politely request[ed] leave to apply for permission to apply for compensation due to [her] declining health plus [she] did back in 2017 but have been unable to apply in recent years due to [her] declining health as [her] doctor says [she] cannot be under stress'.
Meanwhile, on 15 September 2022 and 16 September 2022, the Alleged Offender and the Appellant obtained family violence restraining orders against each other. Those orders were finalised on 11 October 2022 when both the Alleged Offender and the Appellant entered into conduct agreement orders by consent.
By letter dated 27 March 2023, the Assessor wrote to the Appellant advising her that following a review of the 2022 Application and the material provided in support, he was not satisfied that her application had sufficient merit to allow an extension of time, and so the application was refused (Assessor's Decision).
Notice of Appeal
On 29 March 2023, and as stated above, the Appellant appealed against the Assessor's Decision, on the basis that the Assessor failed to give sufficient weight to the psychological trauma suffered by her.
Also as stated above, the hearing in relation to the Appellant's application for leave to apply for compensation out of time took place on 29 August 2023.
At the hearing:
(a)the Appellant was self‑represented, and relied on both the Notice and her oral submissions; and
(b)the Chief Executive Officer of the Department of Justice (CEO) was ably represented by Mr Kirke of the State Solicitor's Office, who appeared as Amicus.
Pursuant to s 56(1) of the CIC Act, in hearing an appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision'. The appeal is therefore a hearing de novo (see Underwood v Underwood;[1] Re Collard[2]) and all issues relating to the claim must be reconsidered.
[1] Underwood v Underwood [2018] WADC 13; (2018) 94 SR (WA) 57 [19] (Gething DCJ).
[2] Re Collard [2018] WADC 1 [30] (Goetze DCJ).
For completeness I note that prior to the information referred to at [5] ‑ [6] becoming known, and the submissions referred to at [7] ‑ [10] being provided, there was a threshold issue concerning whether an extension of time should be granted to the Appellant to bring an application for compensation out of time. However, in light of both the discovery of the 2017 Application and also the matters discussed at [11] ‑ [12], that threshold issue now falls away.
In any event, also pursuant to s 56(1) of the CIC Act, the court may determine the appeal 'solely on the evidence and information that was in the possession of the Assessor, or on any further evidence and information received'. At the hearing, the Appellant indicated that she possessed a variety of materials which could support her claim that were not then before the court, and so I granted leave to her until 12 September 2023 to file any additional materials upon which she wanted to rely. Those materials were said by the Appellant to include a copy of an earlier application for compensation which she said was submitted in 2017 for the same alleged offence or offences, albeit under another name, namely, Vanessa Olsen, or alternatively, Vanessa Olsen‑Enad. At this point, I also note that, at the hearing, counsel for the Amicus agreed to explore with the Assessor whether an application was made in 2017 by the Appellant under one or other of the aforementioned names.
During the period between the hearing and 12 September 2023, the Appellant provided further information in support of her application, including, but not limited to:
(a)a copy of an affidavit sworn 28 November 2016 by the Alleged Offender in support of the FVRO referred to at [20] above;
(b)two transcripts of proceedings from the Magistrates Court of Western Australia dated, respectively, 5 December 2016, and 27 March 2017;
(c)a series of documents and messages from both 2022 and 2023 (including email communications between the Appellant and the Alleged Offender); and
(d)a number of documents which suggested that some Telehealth sessions had been undertaken and paid for (although it is unclear from the materials who precisely undertook the sessions and who paid for them).
In addition, in the email dated 24 October 2023 referred to at [10], the Appellant provided some further narrative concerning that which had occurred to her as a consequence of the Alleged Offender's actions, and how she had suffered as a result. I will refer to these materials, that is, the same referred to in both [38] and this paragraph, compendiously, as the 'Supplementary Papers'.
The Appellant did not subsequently provide any details of any prior application for compensation, however on 14 September 2023 Counsel for the Amicus wrote to the court advising, in effect, that:
(a)the Appellant's 2017 Application had been located by the OCIC; and
(b)the OCIC had advised that the 2017 Application file had been closed due to no further contact having been received from the Appellant subsequent to a letter dated 5 October 2017.
Counsel for the Amicus also provided a number of further documents, namely:
(a)the 2017 Application dated 1 February 2017;
(b)a statement dated 9 May 2017 from the Appellant (albeit under another name); and
(c)a letter dated 5 October 2017 from the Assessor to the Appellant.
(Collectively, the 2017 Application Papers.)
On 27 September 2023, counsel for the Amicus provided yet further materials to the court which had been provided by the OCIC in relation to the Appellant's 2017 Application (and I will refer to those further materials as the 2017 Application Police Documents). The 2017 Application Police Documents were documents that had been produced to the OCIC by the Commissioner of Police in response to three requests by OCIC for information, and for all intents and purposes, those documents comprise copies of documents that were also on the Assessor's 2022 Application file.
In light of that which is discussed at [37] - [42], the papers before the court are:
(a)the papers that were before the Assessor for the 2022 Application (Assessor's Papers);
(b)the Supplementary Papers;
(c)the 2017 Application Papers; and
(d)the 2017 Application Police Documents.
I have therefore determined the appeal on the basis of the material set out at [43] and, of course, the Notice and oral submissions from the Appellant, as well as the written and oral submissions from counsel for the Amicus.
Alleged offences
I turn then to consider the alleged offences on which the Appellant relies to ground her application for compensation.
By virtue of s 16(2) of the CIC Act, a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss suffered.
The alleged offences on which the Appellant relies (and the alleged offences are something which are discussed further in due course) are said to have been committed on or about 28 November 2016, being the date when the Alleged Offender filed a report with the Western Australia Police concerning the Car Incident and Threatening Message, and the date when the Alleged Offender swore the affidavit in support of the FVRO.
Where no conviction has been entered, the applicant for compensation bears the onus of proving the offence: Re Carter;[3] MES v KG;[4] Re ATS.[5]
[3] Re Carter (1984) 4 SR (WA) 219 (Hammond J).
[4] MES v KG (1995) 12 SR (WA) 330, 331 - 332 (Commissioner Clyne).
[5] Re ATS [2017] WADC 92 [28] (Herron DCJ) (Re ATS [2017]).
That includes establishing to the requisite standard that the alleged offender had no defence to the allegation that he or she committed the offence: Green v Lee;[6] Re ATS;[7] Re Robinson.[8]
[6] Green v Lee (1996) 17 SR (WA) 93, 97 (Wisbey DCJ).
[7] Re ATS [2019] WADC 76 [28] (Davis DCJ).
[8] Re Robinson [2017] WADC 18 [22] (Troy DCJ).
What is necessary to establish a matter on the balance of probabilities will vary according to the nature of what is sought to be established. In cases where criminal conduct is alleged, clear and cogent evidence will be required: Turnbull v New South Wales Medical Board.[9]
[9] Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 ‑ 298 (Glass JA).
Section 17(4)(a) of the CIC Act provides, in effect, that the court must not make a compensation award in respect of a s 17 application unless it is satisfied that the claimed injury and any claimed loss has occurred, and did so as a consequence of the commission of the alleged offence.
Section 3 of the CIC Act defines the term 'satisfied' as meaning 'satisfied on the balance of probabilities'. The applicant bears the onus of proving, to the civil standard, that an alleged offence has occurred: See Re Robinson;[10] Martin v Martin;[11] Re Jackamarra;[12] Re RW.[13]
[10] Re Robinson [10].
[11] Martin v Martin [2015] WADC 138 [29] (Derrick DCJ).
[12] Re Jackamarra [13].
[13] Re RW [2018] WADC 116 [17] (Vernon DCJ).
Having regard to the definition of 'alleged offence' in s 3 of the CIC Act, this means that the applicant must satisfy the court, on the balance of probabilities 'that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it': Re Jackamarra.[14]
[14] Re Jackamarra [13].
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd;[15] Briginshaw v Briginshaw.[16]
[15] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ).
[16] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
In the context of criminal injuries compensation, the Briginshaw approach has been applied regularly: Martin v Martin;[17] Re Jackamarra;[18] Re ATS [2017].[19]
[17] Martin v Martin [30].
[18] Re Jackamarra [73] - [74].
[19] Re ATS [2017] [29], [141] (Herron DCJ).
It is a serious matter to find that an alleged offender has committed an act in the nature of an offence, particularly where the alleged offender is not given the opportunity to refute those allegations: Re Jackamarra.[20]
[20] Re Jackamarra [71], [75].
The court must feel an actual persuasion that the offence occurred, and 'such a conclusion should not be reached without the exercise of caution, and unless the evidence survives careful scrutiny and appears precise and not loose and inexact': Re ATS;[21] Re RW.[22]
[21] Re ATS [2017] [29], [114].
[22] Re RW [17].
To discharge the burden, the evidence adduced by the applicant must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture: Martin v Martin.[23]
[23] Martin v Martin [30].
Before continuing, I am mindful of the principles which apply in relation to dealing with litigants in person, noting again that the Appellant was self-represented. Such litigants are entitled to some leniency in terms of compliance with court rules (Glew v Frank Jasper Pty Ltd[24]), and the court should approach the documents in which a litigant in person articulates his or her claim with some flexibility: Wentworth v Rogers(No 5);[25] Smart v Prisoner Review Board (WA).[26]
[24] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[25] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed).
[26] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
Indeed, the court needs to be astute to ensure that, in a poorly expressed or unstructured document in which a litigant in person sets out their case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could put it into proper form: Ibrahim v The Honourable Justice Carolyn Martin;[27] Tobin v Dodd.[28]
[27] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J).
[28] Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
Furthermore, a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. In Re Attorney‑General (Cth);Ex parte Skyring, Kirby J stated it this way:[29]
[I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.
[29] Re Attorney‑General (Cth);Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321 [323].
Nonetheless, I note that the court was assisted by the provision of both written and oral submissions from counsel for the Amicus.
As stated at [47] above, the Appellant's application for compensation is founded on the bases of two alleged offences, namely that the Alleged Offender filed a false police report, and also that the Alleged Offender swore an affidavit in support of a restraining order in circumstances where the Alleged Offender knew the affidavit to be untrue.
The Appellant did not identify by reference to provisions of any legislation what offences the Alleged Offender had committed, however based on discussions with the Appellant at the hearing, it seems clear that she is relying on:
(a)a charge of creating a false belief contrary to s 171(2) of the Criminal Code (WA); and/or
(b)a charge of making a false statement under oath contrary to s 169(1) of the Criminal Code.
As neither this court nor counsel for the Amicus identified any other potential offences, I will turn my attention to the above two offences and deal with in turn.
Creating a false belief
Section 171(2) of the Criminal Code provides as follows:
A person who does or omits to do any act with the intention of creating a false belief is guilty of a crime and is liable to imprisonment for 2 years.
Further, s 171(1) of the Criminal Code provides that:
Belief means a belief or suspicion that -
(a)An offence has been or is about to be committed;
…
and that [it] is of such a nature as would reasonably call for action by the Police Force or by emergency services.
As such, the elements which the Appellant would need to prove to establish this offence are as follows:
(a)that the Alleged Offender was the offender - that is, the person who did the things that the Appellant asserts constitutes the offence;
(b)that the Alleged Offender did or omitted to do an act; and
(c)the act or omission was done by the Alleged Offender with the intention of creating a false belief or suspicion that the offence had been committed was of such a nature as would reasonably call for action by police.
As far as these elements are concerned and based on the material before me, the facts could readily establish to the requisite standard that the Alleged Offender did an act, that act being reporting the Car Incident and Threatening Message to the Western Australia Police. Whilst that deals with the first two elements, there remains the third element.
The word 'intention' is a familiar word and carries its ordinary meaning. In this regard, the New Shorter Oxford Dictionary defines intention, relevantly, as 'the action or fact of intending to do a thing; what one intends to do, one's aim or design'.
It follows that the Appellant would need to be in a position to satisfy the court to the requisite standard that the Alleged Offender reported the Car Incident and the Threatening Message to the police with the intention, or aim, or design, of creating a false belief or suspicion, such that it would reasonably call for investigation by police.
The state of mind of the Alleged Offender would ordinarily need to be ascertained by inference from other facts and circumstances that are established by the available evidence: R v Pangalinan;[30] Webb v Tang.[31]
[30] R v Pangalinan [1999] QCA 528.
[31] Webb v Tang [2023] WASCA 119 (Buss P & Vaughan JA).
In a criminal case, where circumstantial evidence is relied upon to establish guilt, it must not only be a reasonable and rational inference, but it must be the only reasonable and rational inference that can be drawn from the circumstances: Webb v Tang.[32] Arguably this principle needs to be tempered somewhat given the differing standards of proof that are to applied as between criminal cases and cases for compensation arising from alleged offences under the CIC Act.
[32] Webb v Tang [120].
Nonetheless, circumstantial evidence must not be considered on a piecemeal basis but instead must be evaluated in its entirety: Webb v Tang.[33]
[33] Webb [121].
The Appellant says that the Alleged Offender's intention to create a false belief or suspicion can be proved by or inferred from material which is in the possession of the Western Australia Police. According to the Appellant, that material supports a finding that the Alleged Offender knew that the Appellant was not driving the vehicle the subject of the Car Incident and/or knew that the Appellant was not the author of the Threatening Message.
Importantly however, there is no material before the court to substantiate such an allegation, and I note that the Western Australia Police have not taken steps to charge the Alleged Offender with an offence under s 171(2) of the Criminal Code.
In any event, and as discussed at [49] above, the Appellant would also need to establish to the requisite standard that the Alleged Offender had no defence to any such charge.
In this regard s 24 of the Criminal Code is of course relevant, and it provides as follows:
24.Mistake of fact
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
In Aubertin v The State of Western Australia, McLure JA considered the nature of the test to be applied under s 24 and said:[34]
41The wholly objective hypothetical ordinary or reasonable person test clearly has no application to s 24 of the Code. ...
42For there to be an operative mistake under s 24, an accused must have acted under an actual belief in the existence of a state of things (subjective element) and the accused's belief must be reasonable (mixed element). The focus in this case is on the mixed element. The mixed element is not wholly objective; reasonableness is not to be adjudged by the standard of the hypothetical ordinary or reasonable person. The mixed element is a combination of subjective and objective aspects. The requirement that the belief be reasonable imports an objective standard. The subjective aspect is that the reasonableness is to be judged by reference to the personal attributes and characteristics of the accused that are capable of affecting his or her appreciation or perception of the circumstances in which he or she found himself or herself. However, the ambit of what constitutes the personal attributes and circumstances of a particular accused has not to my knowledge been identified or exhaustively enumerated. It covers matters over which an accused has no control such as age (maturity), gender, ethnicity, as well as physical, intellectual and other disabilities. This list does not purport to be exhaustive.
[34] Aubertin v The State of Western Australia [2006] WASCA 229; (2006) 33 WAR 87 [42] - [43].
The Appellant submits that the Alleged Offender could not avail herself of this defence because, again, there is material in the possession of the Western Australia Police to substantiate that the Alleged Offender did not have the required belief at the time she reported the Car Incident and Threating Message to the police.
As I have stated at [75] above, there is no evidence before the court to substantiate such an allegation.
Taking these matters into account, and upon considering the relevant materials within those referred to at [43], I am not satisfied to the requisite standard that the Alleged Offender committed an offence contrary to s 171(2) of the Criminal Code, which could be an alleged offence for the purposes of the CIC Act.
Of course, I note that at the hearing the Appellant stated that if leave to apply for compensation was granted out of time, that at any hearing for compensation, she would, in effect, want to issue subpoenas to appear to various individuals, including police officers, as well as subpoenas to produce to police officers for the production of police files, all for the purpose of seeking to establish the alleged offence and/or to establish that the Alleged Offender's belief was not reasonable. However, there is nothing on the 2017 Application Police Documents which would assist or materially assist the Appellant and I do not consider it would be appropriate for the court to allow the cross‑examination of police officers or others in this matter.
Swearing a false affidavit
I turn then to s 169(1) of the Criminal Code which provides as follows:
Any person who, when under oath or any sanction that may be lawfully substituted for an oath, knowingly makes a statement, whether orally or in writing, that is false in a material particular is guilty of a crime and is liable to imprisonment for 7 years.
The elements which the Appellant would need to prove to establish this offence are as follows:
(a)that the Alleged Offender was the offender - that is, the person who did the things that the Appellant asserts constitutes the offence;
(b)that the Alleged Offender swore an oath;
(c)the Alleged Offender knowingly made a statement that was false; and
(d)that the statement was false in a material particular.
Again, as far as these elements are concerned, based on the material before me the facts could readily establish to the requisite standard that the Alleged Offender swore an oath, that oath being the one she made in support of the Interim FVRO, and in this regard see [20] above. Again, however, whilst that deals with the first two elements, the third and fourth elements remain.
In order to establish the third element, it is necessary for the Appellant to prove the Alleged Offender knew that the statement was false at the time that she made it, and this would be established by showing that the Alleged Offender knew facts which would falsify the statement, as distinct from an enquiry as to whether she was aware of evidence subsequently obtained regarding those facts: Christianos v The Queen.[35]
[35] Christianos v The Queen (Unreported, WACCA, Library No 9217, 17 December 1991) [47] (Malcolm CJ).
The Appellant says that the statements set out and contained in the affidavit sworn by the Alleged Offender in support of the Interim FVRO are false.
In seeking to establish this element, the principles set out at [71] ‑ [73] concerning circumstantial evidence would apply.
The Appellant again says that the Alleged Offender's knowledge that the statement was false can be proved by, or inferred from, material which is in the possession of the Western Australia Police. Again, according to the Appellant that material supports a finding that the Alleged Offender knew that the information in the affidavit was false at the time she swore it. However, there is nothing within the 2017 Application Police Documents referred to at [42] that the Alleged Offender knowingly swore a false affidavit.
In order to establish the fourth element, it is necessary for the Appellant to prove that the statements referred to at [20] above (or any one of them) is material in a particular respect.
In R v Davies, Wells J stated that:[36]
A fact … is material for the purposes of a charge of perjury when it is of such significance and importance, having regard to the whole of the evidence, that it is capable of affecting the decision of the appropriate tribunal of fact on the factual issue or issues, and materiality should be given a corresponding meaning; plainly, then, a fact will be material, not only when it is a fact in issue or a fact relevant to a fact in issue, but also when it fairly goes to the credit of some witness who is giving or has given evidence on the issues.
[36] R v Davies (1974) 7 SASR 375, 391.
The Appellant says, in effect, that had the Alleged Offender not made the statements which she did, then the Interim FVRO would not have been granted.
In any event, and again as discussed at [49] above, the Appellant would also need to establish to the requisite standard that the Alleged Offender had no defence to any charge under s 169(1) of the Criminal Code, and so again, s 24 of the Criminal Code is relevant.
The Appellant says that the Alleged Offender could not avail herself of this defence because of the reasons referred to at [89] above, however there is no evidence before the court to substantiate such an allegation.
Taking these matters into account, and upon considering the relevant materials within those referred to at [43], I am not satisfied to the requisite standard that the Alleged Offender committed an offence contrary to s 169(1) of the Criminal Code, which could be an alleged offence for the purposes of the CIC Act. And I refer to and repeat the observations I have made at [82] above.
Injury
In light of my views set out at [81] and [95] there is no need to consider the question of whether the Appellant has suffered an injury; whether the Appellant assisted in the identification, apprehension and prosecution of the Alleged Offender as required by s 38 of the CIC Act; the jurisdictional limit of the claim for compensation; or indeed, assess any such claim.
Nonetheless, I will turn briefly to discuss the Appellant's alleged injury, again noting that she states in her Notice that the Assessor failed to give it adequate weight.
Compensation is payable for injury and loss as a consequence of the commission of an offence, or alleged offence as the case may be. No compensation award is to be made unless the assessor, or the court in the case of an appeal, is satisfied that the claimed injury and any claimed loss has occurred and did so 'as a consequence of the commission of a proved offence or an alleged offence': s 12 - s 17 of the CIC Act.
The onus is on an applicant to establish on the balance of probabilities that the claimed injury or loss occurred as a consequence of the offence or alleged offence: Re Carter. That is, the applicant must 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, although it is not necessary that the injuries for which compensation may be awarded are solely caused by criminal offences: Fagan v The Crimes CompensationTribunal;[37] S v Neumann.[38]
[37] Fagan v The Crimes CompensationTribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ, with Murphy J agreeing).
[38] S v Neumann (1995) 14 WAR 452, 463 - 464 (Murray J).
Section 3 of the CIC Act defines 'injury' to include bodily harm and 'mental and nervous shock'. The expression 'mental and nervous shock' encompasses any malfunction of the victim which can be seen to be a consequence of the impact of the events constituting the offence, or associated with the commission of the offence as they impact on the mind or the nervous system. Furthermore, mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but does not encompass mere fright, humiliation and anguish: M v J.[39] What is required is something of a more enduring character which can be described as an injury: S v Neumann.[40]
[39] M v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J).
[40] S v Neumann (461).
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists or was caused by the offence or alleged offence. The court will not generally rely on conclusions made by unqualified persons on the basis of medical records without such supporting evidence: Re; Hojetzki.[41]
[41] Re; Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
There is a paucity of material within the materials referred to at [43] which could support a finding, on the balance of probabilities, that the Appellant suffered an injury as a consequence of the proposed alleged offences, as opposed to other interactions, or combinations of interactions which may have occurred between the Appellant and the Alleged Offender over a number of years. That is not to diminish in any way how the Appellant felt, or continues to feel, as a consequence of any actions undertaken by the Alleged Offender or indeed by the Western Australia Police as a consequence of the Alleged Offender filing a report; rather, it is simply to acknowledge that even if I was satisfied to the requisite standard that the Alleged Offender committed an alleged offence, there is insufficient material before me to establish that the Appellant has sustained an injury from the alleged offences.
Furthermore, it would seem that any injury which may have been sustained by the Appellant is a consequence of issues which she has had with the Alleged Offender post-dating the events of November 2016, including, but not necessarily limited to, the seeking of further violence restraining orders; the breaching of any such orders; the breaching of agreed orders; and, importantly, the publishing of material on social media which it seems is ongoing, and about which the Appellant has complained. Indeed, as far as the publishing of material on social medical is concerned, the Appellant has threatened defamation action against the Alleged Offender concerning particular matters but has chosen for financial and possibly other reasons, all of which are understandable, not to pursue the matter.
Conclusion
In the circumstances, and for all the reasons stated above, I dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to the Judge
8 NOVEMBER 2023
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