McKinnon v Marinacci
[2015] WADC 112
•24 SEPTEMBER 2015
MCKINNON -v- MARINACCI [2015] WADC 112
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 112 | |
| Case No: | APP:82/2014 | 24 APRIL 2015 | |
| Coram: | FENBURY DCJ | 24/09/15 | |
| PERTH | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | ELLY JOYCE MCKINNON ZAC OGRAM BENJAMIN CAMPBELL MARINACCI |
Catchwords: | Criminal injuries compensation Appeal against award Offenders pleaded guilty Dispute over causation of injuries Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- First Appellant
ZAC OGRAM
Second Appellant
AND
BENJAMIN CAMPBELL MARINACCI
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : H L PORTER
Citation : [2014] WACIC 13
Catchwords:
Criminal injuries compensation - Appeal against award - Offenders pleaded guilty - Dispute over causation of injuries - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
First Appellant : Mr P G Clifford
Second Appellant : Mr P G Clifford
Respondent : No appearance
Amicus Curiae : Mr W A Fitt appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
First Appellant : Alan Rumsley
Second Appellant : Alan Rumsley
Respondent : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
1 FENBURY DCJ: This is an appeal by two appellants against a decision made by H L Porter, the Chief Assessor of Criminal Injuries Compensation. The chief assessor made the award on 3 July 2014. The reasons for doing so were delivered on 3 October 2014.
2 As usual, the chief executive officer as amicus curiae has filed submissions which conveniently refer to legal aspects and making reference thereto I note that an appeal under the Criminal Injuries Compensation Act 2003 is a hearing de novo. I understand that the court may confirm, vary or reverse the assessor's decision, either in whole or in part. I also appreciate that notwithstanding the application is to be determined 'without being fettered by the assessor's decision' that nonetheless it is appropriate to have regard to the assessment made by the learned assessor as a specialist tribunal in the field of criminal injuries compensation.
3 Especially, I understand that the court has a general discretion to receive and admit further evidence and that such evidence should be admitted unless it would be unjust to do so.
4 There is a preliminary issue raised by the chief executive officer relating to the service of the appeal notice upon the respondent, Benjamin Marinacci, who currently resides in the United States of America. Lengthy submissions are advanced by the chief executive officer to the effect that there has not been personal service upon the respondent as is required by the District Court Rules 2005 and in particular r 51(4). The point is made that there has been no attempt by the appellants to effect personal service out of the jurisdiction in according with O 10 of the Rules of the Supreme Court 1971, nor has an order for substituted service been sought under O 72 r 4 on the basis that such service is impracticable.
5 Submissions are then made that the proceedings cannot be regularised and that they should be wholly set aside.
6 On behalf of the appellant it is put that affidavits filed establish service to have been affected on 'Marinacci by pre-paid international post with tracking receipt numbers'. The appellants' further submissions assert:
12. When this issue was raised in front of the learned registrar he quite rightly pointed out the service process being agitated by the SSO was likely to cost as much as the reimbursement amount being appealed.
13. The service issue arises because of the way in which the compensation application was made and the fact it was six weeks out of time.
14. That is to say the compensation application is six weeks out of time and was made from the home country of Marinacci being the United States. The orders made by the assessor and the assessor's reasons unusually do not disclose an address for Marinacci.
15. This meant the appellants were left to their own endeavours in finding addresses to serve and post the appeal material to. As is shown in the Kiel affidavits, this the appellants have done.
16. If an application for substituted service is necessary, it ought be so ordered in terms that service has been affected by the process described in the Kiel affidavits and a finding ought to be made that this is effective service.
17. One can see why Marinacci has not responded. He returned to live in the United States, he has the compensation money paid to him, his application was six weeks late and made from offshore and the assessment was made on an incorrect basis as described above. All Marinacci could get out of entering the jurisdiction to contest the appeal is to be examined upon the true cause of the wound with a serious risk of having to pay the compensation or a substantial part of it back.
7 I have some sympathy for the predicament outlined on behalf of the appellants and would be minded to accept the invitation, perhaps retrospectively, to order that there be substituted service and that the process that occurred should be regarded as effective service. However I do not finally decide that and put it aside for the moment for reasons which will probably become apparent.
8 There is also a preliminary issue concerning the appeal being out of time. In the circumstances here, the appeal was filed the day after the expiration of the required period. Quite clearly, it would be just to allow the appeal to be commenced one day late. I accept an oral application for an extension of time and I give leave to the appellants to appeal out of time.
9 I now turn to the merits of the appeal.
10 The assessor awarded the victim $15,620 compensation for injuries and losses he suffered at the hands of the appellants. In making the award an order was made pursuant to s 45(1)(b) of the Criminal Injuries Compensation Act,the effect of which was that the sums that could be sought from each appellant were specified on the basis of 80% from the appellant McKinnon and 20% from the appellant Ogram.
11 This formula reflected a view the assessor reached about the comparative culpability of the appellants and is not a decision that is the subject of this appeal.
12 In short form it is put on behalf of the appellants that no award of compensation should have been made by the chief assessor at all. It is put there was no or insufficient evidence that either appellant caused the injury and loss suffered by the victim.
13 On 21 September 2011 in the Magistrates Court at Busselton, McKinnon was convicted on her own plea of assaulting the victim on 23 October 2010 and causing him bodily harm. Ogram was convicted on 24 January 2011 of a common assault of the victim on the same evening and at the same place as McKinnon.
14 The offences arose out of a drunken disturbance at a party, at the heart of which was the conduct of McKinnon and Ogram aggressively pursuing the victim who, at all times, sought to avoid the confrontation. The 'Statement of Agreed Facts', a document apparently prepared on behalf of the appellants and submitted to the magistrate, states at par 7 that:
Zak and Elly located Ben [the victim] and a verbal altercation took place between Zak and Ben. The verbal altercation escalated into a physical confrontation whereby Ben was assaulted by Zak.
15 At par 9:
Elly approached Ben from behind, grabbing him by the hair and tried to pull him backwards to the ground. Ben attempted to break Elly's grip from his hair when Elly struck him to the top of his head with the bottle. Elly does not dispute being in possession of a bottle at the time of the assault but does not recall it being a part of the assault.
16 At par 10:
Ben was conveyed to the Busselton Hospital by friends where he received treatment for a cut to the top of his head requiring 3 stitches.
17 There was other material available to the sentencing magistrate and of course the chief assessor, in the form of the police brief which included a number of witness statements taken by police at the time. There appeared to be issue raised during submissions that, somehow, because the appellants had pleaded guilty and a statement of material facts had been submitted and utilised, this prevented any reference being made to and reliance being placed by the assessor upon witness statements contained in the police brief.
18 By s 18 and s 19 of the Criminal Injuries Compensation Act the assessor has power to inform herself in any manner she sees fit. There is no substance in the suggestion that the assessor's observations expressed in [6] of the reasons are in error or unwarranted. The assessor in [6] said:
Having perused the statements of the applicant and the other witnesses from whom statements were taken by the police, it was clear that the applicant had not provoked or incited the assault against him and that on a number of occasions during the confrontation he had attempted to get away from both offenders. Witnesses described McKinnon as 'going psycho' and that she 'came flying through the crowd' before swinging the bottle in an overhead style action to hit the applicant on the head. Another witness described McKinnon as pulling the applicant's hair 'quite fiercely. She was all over him just attacking him'.
19 It is clear from the material that McKinnon caused the victim's right temporal laceration when she hit him on the head with the bottle of vodka out of which she was drinking.
20 It is equally clear that McKinnon was the main instigator or protagonist.
21 It is also clear that McKinnon got her companion Ogram involved and that Ogram assaulted the victim.
22 In my view there is no substance in the assertion that McKinnon should not be fixed with responsibility for the laceration to the victim's head because she was convicted of assault occasioning bodily harm rather than the charge she originally faced which was unlawful wounding. The definition of bodily harm in the Criminal Code can cover and include injuries that cause bleeding.
23 Ogram was convicted of assault. This was accepted by the prosecution. It seems the prosecution view was that when McKinnon hit the victim over the head, she went outside the joint enterprise in which the two offenders were engaging. Be that as it may, the two offenders were assaulting Marinacci, but McKinnon more seriously than Ogram.
24 I have no difficulty in saying each of the appellants unlawfully caused injury to Marinacci. The assessor's view about proportional responsibility seems to me, to be fair and reasonable.
25 Quite frankly, it seems to me that the quantum of the award for the injuries and nervous shock indicated was generous but, of course, as I mentioned earlier in these reasons, the tribunal specialises in the field and the assessor is experienced and I would make no further comment. In my view, the appeal should be dismissed.
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