McNeil v Burton
[2015] WADC 90
•6 AUGUST 2015
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: McNEIL -v- BURTON [2015] WADC 90
CORAM: DERRICK DCJ
HEARD: 18 MARCH, 30 APRIL & 26 JUNE 2015
DELIVERED : 6 AUGUST 2015
FILE NO/S: APP 93 of 2014
MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER OF an appeal by
BETWEEN: DESMOND BRIAN McNEIL
Appellant
AND
MICHAEL RUSSELL BURTON
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :R GUTHRIE
File No :CI 88 of 2014
Catchwords:
Appeals - Criminal injuries compensation - Proved offence - Assessor deciding appellant not a person against whose property offence was committed - Mental and nervous shock - Assessment of award
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
District Court Rules 2005 (WA)
Health and Other Services (Compensation) Act 1995 (Cth)
Interpretation Act 1984 (WA)
Trustees Act 1962 (WA)
Result:
Appeal allowed
Compensation order made
Representation:
Counsel:
Appellant: Mr A G Elliott
Respondent: No appearance
Amicus Curiae : Ms M Georgiou on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: N R Barber Legal
Respondent: Not applicable
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 23 September 1994)
B v S (Unreported, WASC, Library No 950223, 10 May 1995)
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CKM [2008] WADC 79
Commissioner of State Revenue v Serana Pty Ltd [2008] WASCA 251
De Florenca v Hayden [2007] WADC 54
DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510
Dunne [2014] WADC 131
Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallelo v Halloran [2008] WADC 145
Garton v McCormack [2002] WADC 111; (2002) 30 SR (WA) 307
Girardi [2005] WACIC 9
HH by his next friend MH [2012] WADC 71
Hinchcliffe v Hinchcliffe [2010] WADC 78
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
McDavitt v McDavitt [No 2] [2013] WADC 198
MJN v MAJS [2003] WACC 9; (2003) 35 SR (WA) 219
Parsons v McWilliam [2002] WADC 62
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
R v Forsythe [1972] 2 NSWLR 951
RBF v OSD-S [2004] WADC 97; (2004) 36 SR (WA) 61
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
TAW v NJS; Re Faengsungnoen [2012] WADC 59
WHW v Commissioner of Police [2014] WASCA 153 (S)
DERRICK DCJ:
Introduction
The appellant appeals against the decision of an Assessor of Criminal Injuries Compensation (the Assessor) refusing his claim for criminal injuries compensation made under the Criminal Injuries Compensation Act 2003 (WA) (the Act).
The respondent did not prior to the hearing of the appeal file a notice of intention to appear under r 53 of the District Court Rules 2005 (WA) (the DCR). The respondent was therefore not entitled to, and did not attempt to, take part or be heard in the appeal.
Nature of the appeal and powers on appeal
The appeal is a hearing de novo: the Act, s 56(1); Gallelo 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). I should admit further evidence unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
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).
Evidence on the appeal
I have before me copies of documents from the Office of Criminal Injuries Compensation (the OCIC) file relating to the appellant's compensation application. The documents comprise all of the material that was before the Assessor at the time that he made his decision to refuse an award of compensation to the appellant. The documents have been provided to the court by the OCIC under r 52(3) of the DCR.
During the hearing of the appeal (which took place over three days) the appellant made two separate applications to adduce on the appeal further evidence in the form of:
1.Copies of the medical records of Dr Victoria Buntine, general practitioner, relating to the appellant which Dr Buntine had produced to the court in response to a notice issued to her by the court pursuant to s 19(2)(c) and s 56(2)(a) of the Act;
2.Copies of the medical records of Dr Chandi Senaratne, consultant psychiatrist, relating to the appellant which Dr Senaratne had produced to the court in response to a notice issued to him by the court pursuant to s 19(2)(c) and s 56(2)(a) of the Act;
3.Copies of handwritten notes made by Ms Helen Fowler, clinical psychologist, of two consultations that she had with the appellant on 8 June 2012 and 20 June 2012 produced to the court in response to a notice issued to her by the court pursuant to s 19(2)(c) and s 56(2)(a) of the Act;
4.A copy of the Deed of Settlement creating the McNeil Family Trust (the Trust) dated 22 July 1997 (the Deed);
5.An affidavit sworn by the appellant on 8 April 2015;
6.An affidavit sworn by the appellant on 9 April 2015;
7.A Medicare and Pharmaceutical Benefits Scheme Claims History Report for the appellant for the period 6 December 2012 to 21 January 2015;
8.A tax invoice for St Francis Pharmacy dated 31 March 2015 for the period 2 August 2012 to 18 March 2015;
9.A patient activity report relating to the provision of services by Dr Senaratne to the appellant for the period 4 May 2012 to 28 March 2013; and
10.Invoice number 417523 issued by Dr Senaratne dated 1 April 2015 in respect of the cost of preparing a psychiatric report relating to the appellant.
The applications to adduce the further evidence were not opposed by the Chief Executive Officer of the Department of the Attorney General (the CEO).
On the making of the applications to adduce the further evidence I did not consider that there was any reason why it would be unjust to admit the evidence. I therefore made orders under s 56(1) admitting the above specified further evidence as evidence on the appeal.
In addition, during the hearing of the appeal the appellant also made an application for an order permitting him to give a small amount of oral evidence to supplement the evidence contained in his affidavits. The application to adduce the supplementary oral evidence was not opposed by the CEO. I did not consider that there was any reason why it would be unjust to permit the appellant to give the supplementary oral evidence. I therefore, pursuant to s 56(1), allowed the appellant to give the supplementary oral evidence.
Background to the appeal
It is necessary, before turning to the individual grounds of appeal and in order to place the grounds in context, to say something about the criminal conduct of the respondent which formed the basis of the appellant's application for criminal injuries compensation, the making and progression of the application, and the Assessor's decision.
Offence giving rise to the compensation application
The appellant is one of two trustees of the McNeil Family Trust (the Trust). The second trustee is the appellant's wife, Mrs Maree Elizabeth McNeil.
In 2010 the appellant and Mrs McNeil owned and operated a business called the Fire and Ice Bar (Fire and Ice). They operated Fire and Ice through the Trust. The Trust was established by the appellant and Mrs McNeil for, among other reasons, taxation purposes. The appellant, Mrs McNeil and their children were and are beneficiaries of the trust.
In October 2010 the appellant and Mrs McNeil employed the respondent as an assistant manager of Fire and Ice. In or around December 2010 the appellant and Mrs McNeil promoted the respondent to the position of manager of Fire and Ice.
During the period 30 June 2011 to 6 June 2012 the respondent stole sums of money from Fire and Ice while he was working as the manager. It took some time for the appellant and Mrs McNeil to discover the respondent's criminal conduct. Ultimately they terminated the respondent's employment on 6 June 2012.
On 9 August 2012 the appellant and Mrs McNeil reported the respondent's conduct to the police.
On or about 10 September 2012 the respondent was charged by the police with stealing as a servant contrary to s 378(7) of the Criminal Code (WA) (the Code).
On 12 April 2013 the respondent appeared in the District Court and pleaded guilty to, and was convicted of, an offence against s 378(7) of the Code (the offence). The offence was pleaded in the indictment (No 1366 of 2012) in the following terms:
Between 30 June 2011 and 6 June 2012 at Subiaco Michael Russell Burton, being a servant of ME McNeil and D McNeil, ATFT McNeil Family Trust trading as Fire and Ice Bar, stole the sum of $40,000 in money, the property of ME McNeil and D McNeil ATFT McNeil Family Trust trading as Fire and Ice Bar and being the amount of general deficiency.
The facts of the offence as read to the court by the State prosecutor were, so far as is relevant, as follows (ts 9 ‑ 10):
The offender was employed as a bar venue manager for a period of approximately 15 months at the Fire and Ice Bar, which is situated at 550 Subiaco Square in Subiaco. His role at the bar included the day‑to‑day management of the bar, including dealing with customers and handling cash.
Some months into his employment the offender began stealing cash from the business. On numerous occasions the offender took the opportunity to steal money when conducting transactions with customers who were paying for food and drinks. The offender took payment from customers and then entered a much smaller amount into the cash register. Prior to ceasing duty for the day and before the cash register was reconciled, the offender moved the excess cash, which he kept for himself.
Over several months the owners of the business attempted to ascertain why there was [sic] apparent shortfalls in takings when the number of customers and transactions suggested profits should be much higher. The owners eventually became suspicious of the offender and, as a result, used closed-circuit television security cameras to monitor his behaviour while he was on duty in the bar.
The closed-circuit television showed the offender conducting numerous transactions which, when reviewed against till receipts, revealed his fraudulent behaviour … On 6 June 2012 the owner of the bar confronted the offender and terminated his employment.
On 10 September last year the offender attended the Western Suburbs Detectives Office where he participated in a video record of interview. He admitted stealing the money from the business, claiming that he had used it for day-to-day expenses. He estimated that the total amount stolen over several months to be somewhere in the vicinity of 35 to 40 thousand dollars. He further stated that it was his intention to repay the full amount once he had secured employment.
The offender denied the amount stolen being between 80 and a hundred thousand, as believed by the victims. The offender explained that he stole each week, being several times a night on the busier nights, being Friday, Saturday and Sunday; however the amount varied each time and it was dependent on how busy it was.
He explained in the video record of interview that he commenced taking money six to eight months after he started work at the Fire and Ice Bar. He said that he had repaid between four and five hundred dollars; however, he stopped making repayments because he was terminated from his new employment. …
The facts as read by the State prosecutor were not disputed by the respondent. The sentencing judge, Curthoys DCJ, sentenced the respondent to 12 months' imprisonment with eligibility for parole. During the course of his sentencing remarks Curthoys DCJ said the following (ts 15):
In this case it's very clear from the victim impact statement that you had a very, very significant impact on the owner of the business. Your conduct led to the dismissal of the full-time chef, as they thought it was his product costing them too much money, according to the victim impact statement. The victim impact statement says that one of the ultimate owners was starting to do a ridiculous amount of hours as something wasn't right with the business. It was hard to pinpoint.
One of the owners drank himself into oblivion and attempted suicide and self‑harm. On 3 May he was rushed to Sir Charles Gairdner Hospital with a suspected heart attack and after many tests it was confirmed to be a severe anxiety attack. So I've had regard to the victim impact statement by Mr McNeil and also I've had regard to the report of Dr Senaratne, which is dated 14 February 2013.
It's plain that your conduct has had a very serious impact, both on the ultimate owners of the business and also on at least one other person employed by the business. I do regard your conduct as serious because of the severe impact on the McNeils, because of your persistent conduct, which was over a very extended period, because of the absence of any real reason for your conduct, to which I can only ascribe that it was greed.
The State made an application under s 117 of the Sentencing Act 1995 (WA) for compensation to be paid by the respondent to ME McNeil and D McNeil as trustees for the McNeil Family Trust, trading as the Fire and Ice Bar, in the amount of $39,600. Curthoys DCJ made the requested order.
Application for compensation
On 20 November 2013 the appellant made an application pursuant to s 12 of the Act for an award of compensation for injury (specifically mental and nervous shock) and loss allegedly suffered by him as a consequence of the commission of the offence. The application was sent to the OCIC under cover of a letter written by the appellant's solicitor dated 20 November 2013.
In support of the application the appellant provided to the OCIC, among other things:
1.The three-page victim impact statement signed by the appellant dated 11 November 2013 that had been provided to Curthoys DCJ and in which the appellant and Mrs McNeil referred to the respondent's offending conduct and the impact which the conduct had had on them and their business; and
2.A letter from Dr Senaratne to the Australian Taxation Office dated 14 February 2013 in which Dr Senaratne reported on his treatment and management of the appellant for depression and anxiety since May 2012.
On or about 1 April 2014 the Assessor sent a letter to the appellant's solicitor bearing that date. In his letter the Assessor noted that the appellant had made his application under s 12 of the Act by reason of the conviction of the respondent for the offence of stealing as a servant. The Assessor said that it 'is noted in the indictment that the property, the subject of the theft, was the property of the McNeil Family Trust'. The Assessor went on to state:
In the circumstances it would appear that your client personally did not suffer any theft. My preliminary view is that this may give rise to some issues with your client's application. First there is the issue of causation in that your client must establish that his injury arises by reason of the offences committed against the Family Trust. In addition, given that your client's claim is for mental and nervous shock it is necessary for your client to establish that he falls under the provisions of section 35. I would have thought section 35(2)(c) was applicable, however my understanding is that the offence was discovered only after your client installed CCTV cameras where they were able to establish that the offender had conducted numerous transactions in a dishonour [sic] manner. I seek your views as to whether this satisfies the requirements of section 35.
I pause here to note that contrary to the statements made by the Assessor in his letter, the charge on the indictment to which the respondent pleaded guilty did not allege that the property the subject of the theft was the property of the Trust. The charge alleged that the money was the property of the appellant and Mrs McNeil as trustees for the Trust. In other words, the respondent was not convicted of stealing the property of the Trust.
By letter dated 7 April 2014 the appellant's solicitor responded to the Assessor's letter dated 1 April 2014. Unfortunately, the appellant's solicitor did not in his letter point out to the Assessor the erroneous view that the Assessor had expressed about the owner of the property stolen by the respondent. Rather, in his letter the appellant's solicitor stated that the appellant established the Trust 'for the benefit of him and his family' and that the Trust was a legal structure which 'can in some instances have certain taxation advantages'. He stated that it was 'important to note' that the only beneficiaries of the Trust are the appellant, his wife and the appellant's three children.
The appellant's solicitor then went on his letter to, in effect, re-assert the contention advanced in his letter dated 20 November 2013 that the appellant had suffered mental and nervous shock as a direct result of the respondent's offence, and to provide, among other things, information about when the closed‑circuit television (CCTV) cameras were installed at Fire and Ice's premises and when the appellant had spent time reviewing the footage in order to discover and further observe the respondent's criminal conduct. I note, in light of one of the appellant's grounds of appeal, that the appellant's solicitor did not in his letter expressly attempt to dissuade the Assessor from his view that s 35(2)(c) of the Act, as opposed to s 35(2)(b), was applicable to the appellant's claim.
During the period following 7 April 2014 and up until the date that the Assessor delivered his decision, the Assessor and the appellant's solicitor engaged in further correspondence which was, in substance, directed at the issue of whether or not the appellant could make out his claim under s 35(2)(c) of the Act. The appellant's solicitor did not in making submissions to the Assessor on this issue suggest to the Assessor that the claim could or should be treated as being made under any section other than s 35(2)(c) of the Act. Rather, he asserted in his letters that on the basis of the material provided to the Assessor in support of the appellant's claim the appellant had satisfied the requirements of s 35(2)(c).
Assessor's decision
On or about 29 August 2014 the Assessor sent a letter to the appellant's solicitor bearing that date in which he advised the appellant's solicitor that he had formally refused the appellant's application for compensation. In his letter, and by way of explanation for his decision, the Assessor said, in substance, the following:
1.The offence was not committed against the appellant but the Trust 'which was established for taxation reasons among other things';
2.Given that the offence was committed against the Trust the appellant's claim had to be made under s 12 and s 35(2)(c) of the Act. Therefore, the issue for consideration was whether the appellant was personally present when or immediately after the offence was committed;
3.Having regard to all of the material available to him, he had reached the conclusion that the appellant was not personally present when or immediately after the offence was committed. He had come to this conclusion notwithstanding the appellant's solicitor's comments in relation to the appellant viewing the CCTV footage in real time and the appellant being present when the various transactions were completed by the offender;
4.He had formed the view that the appellant was not personally present when or immediately after the offence was committed because notwithstanding that the appellant may have been physically present at the time that the transactions occurred, he was not satisfied that the appellant 'was aware that any offence was being committed at the time that he was either present physically in the vicinity where the transactions were taking place or when he was watching the CCTV footage';
5.In his view, having regard to the information that had been supplied, the appellant at best had only a suspicion that there was something 'amiss' at the time that he viewed the CCTV footage and/or when he was present when transactions were completed;
6.He was not satisfied that the appellant could determine from viewing the CCTV footage 'that an offence had occurred because he would not have been able to determine the precise nature and quantum of those transactions and to determine from that CCTV footage that the offender had at that time committed an offence'. The CCTV footage did not establish that an offence had been committed. It only showed the offender in the process of making transactions;
7.The appellant's suspicions were confirmed by the offender who confessed to the offences and but for the offender's confession the appellant would have had only his ongoing suspicions in relation to the offender's behaviour;
8.The Act requires him to compensate for direct impact damages and specifically s 35(2)(c) requires that the impact of the offences be contemporaneous with the appellant being personally present when or immediately after the offence was committed;
9.On the available evidence he did not consider that the appellant suffered any impact as a consequence of being in the vicinity when the transactions were completed nor when he was viewing the CCTV footage. Rather, the appellant's mental and nervous shock occurred later when the impact of the offences became clear. In other words, the appellant did not know that the particular operational functions being performed by the offender at that time were in fact fraudulent; and
10.The gradual dawning of the realisation of the fraudulent nature of the transactions gave rise to the appellant's mental and nervous shock, however those circumstances are not compensable. Section 35(2)(c) of the Act requires that the appellant 'was present when or immediately after the offence occurred and that he was then aware of the offence which gave rise to his injury'. This was not the case in the appellant's situation.
Given his decision that the appellant did not fall within the terms of s 35(2)(c) the Assessor did not expressly address the issues of causation or the amount of any compensation payable.
The appeal
Against the above background I turn to the appellant's grounds of appeal. There are four grounds of appeal. They are as follows:
1.The Assessor erred in determining that the appellant was not a person against whom, or against whose property, the offence was committed;
2.The Assessor erred in determining that in order to fall within the provisions of s 35 the appellant had to be personally present when or immediately after the offence was committed and had not satisfied that requirement;
3.The Assessor erred in determining that in order to fall within the provisions of s 35 the appellant had to be aware that an offence was being committed at the time that he was 'either present physically in the vicinity where the transactions were taking place or where he was watching the CCTV footage'; and
4.The Assessor erred in determining that the gradual dawning of the realisation of the fraudulent nature of the criminal transactions which gave rise to mental and nervous shock were not compensable.
Ground 1
By this ground the appellant contends that the Assessor made an error in deciding that the appellant was not 'a person … against whose property, the offence was committed' within the meaning of s 35(2)(b) of the Act.
The Assessor did not, in his letter dated 29 August 2014, expressly state that he did not consider s 35(2)(b) to be applicable to the appellant's claim. However, it is obvious from his expressed view that the offence was committed against the Trust and not the appellant, and his ultimate decision that the appellant's claim should be refused because the appellant had failed to satisfy the requirements of s 35(2)(c) of the Act, that the Assessor did not consider s 35(2)(b) to be applicable. As I have already pointed out, in arriving at this conclusion the Assessor did not have the benefit of submissions from the appellant's solicitor addressing the issue of the applicability of s 35(2)(b) to the appellant's claim for compensation.
The starting point, in dealing with this ground of appeal, is s 12 of the Act, the section pursuant to which the appellant made his application for compensation. Section 12, so far as is presently relevant, provides as follows:
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
(2)…
(3)An Assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied –
(a)if the application is made under subsection (1) – that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence; …
The appellant's application was for mental and nervous shock allegedly suffered as a consequence of the commission of the offence. Mental and nervous shock is an 'injury' for the purposes of s 12: the Act, s 3. Further, the offence is a crime of which the respondent has been convicted and is therefore a 'proved offence' within the meaning of the section: the Act, s 3. Accordingly, the appellant's application was properly brought under s 12 of the Act.
Section 12, however, must be read in light of s 35(2) of the Act. Section 35(2), so far as is relevant in the present context, provides as follows:
(2)An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied —
…
(b)that the victim was the person against whom, or against whose property, the offence was committed; [or]
(c)that a person other than the victim died or suffered injury as a consequence of the offence and the victim was personally present when or immediately after the offence was committed; …
The word 'victim' is defined in s 3 of the Act to mean 'a person who suffers injury, or who dies, as a consequence of the commission of an offence'. The word offence is defined in s 3 to mean 'an alleged offence or a proved offence'. The word 'property' is not defined in the Act. It should therefore be given its plain and ordinary meaning of 'something owned; a possession': Australian Concise Oxford English Dictionary, 4th ed, 1128.
The effect of s 35(2) is that even if an Assessor is satisfied that a person has suffered injury in the form of mental and nervous shock as a consequence of the commission of a proved offence, the Assessor must not make a compensation award for the mental and nervous shock suffered by that person, or for any loss suffered in respect of such shock, unless the Assessor is satisfied that the person falls within the terms of one of the section's subparagraphs.
What clearly follows from the opening words of s 35(2), and for that matter from the wording of the section's individual subparagraphs, is that the 'victim' referred to in each of the subparagraphs is the person who has suffered mental and nervous shock as a consequence of the commission of the offence. This is, of course, consistent with the definition of 'victim' in the Act which, by reason of the use of the word 'injury', includes a person who has suffered mental and nervous shock as a consequence of the commission of an offence. It follows that in the present case the 'victim' for the purposes of s 35(2)(b) is the appellant.
The question which therefore arises is whether the Assessor did make the alleged error, that is, did err in deciding that the appellant was not the person against whose property the offence was committed within the meaning of s 35(2)(b). In my opinion the Assessor did make the asserted error.
Contrary to the decision of the Assessor, the Trust was not a separate legal entity capable of owning property. Rather, the Trust was a relationship which arose by reason of the trustees holding the 'Trust Fund' (a term defined in cl 1.20 of the Deed) on trust for the benefit of the nominated beneficiaries in accordance with the terms of the Deed: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties (NSW) [1980] 1 NSWLR 510, 518 – 520; Commissioner of State Revenue v Serana Pty Ltd [2008] WASCA 251 [136]. Thus if the Trust was not 'the person against whose property the offence was committed', who was that person?
Section 10(1) of the Trustees Act 1962 (WA) provides:
Where a new trustee is appointed, the execution of the instrument of appointment vests, subject to the provisions of this section, the trust property for which the new trustee is appointed in the persons who become and are the trustees, as joint tenants for the purposes of the trust, without any conveyance.
Clause 32 of the Deed provides that the Trust 'is governed by the laws of Western Australia'. Clause 2 of the Deed provides:
IN consideration of the premises the Settlor as Settlor HEREBY DECLARES that the Trustee shall and the Trustee HEREBY DECLARES that the Trustee will henceforth stand possessed of the Trust Fund and of the income thereof upon the trusts and with and subject to the powers and provisions hereinafter expressed concerning the same.
It follows from s 10 of the Trustees Act and the terms of the Deed that the joint legal owners of the 'Trust Fund' were the appellant and Mrs McNeil.
It is not in dispute that the property the subject of the Trust, that is, the Trust Fund, included the earnings of Fire and Ice. Nor, quite obviously, is it in dispute that the earnings were 'property' within the meaning of s 35(2)(b). Therefore the appellant, as one of the trustees of the Trust, was the legal owner of the earnings of Fire and Ice and consequently was the person 'against whose property the offence was committed' within the meaning of s 35(2)(b). This conclusion is, of course, entirely consistent with the terms of the offence as pleaded in the indictment presented against the respondent.
For the reasons I have stated I allow the appeal on this ground.
Grounds 2 - 4
Grounds 2 to 4 are all concerned with the Assessor's decision that the appellant did not fall within the terms of s 35(2)(c) because he was not 'personally present when or immediately after the offence was committed'. However, and as was recognised by the appellant and the CEO, these grounds of appeal are all premised upon an acceptance of the proposition that the section was potentially applicable to the appellant as the 'victim' because a 'person' other than the appellant 'suffered injury as a consequence of the offence'.
It is clear from the Assessor's decision that he did consider that a person other than the appellant, namely the Trust, suffered injury as a consequence of the offence within the meaning of s 35(2)(c). With respect to the Assessor, his reasoning in this regard was flawed.
The word 'person' is not defined in the Act. There is therefore no reason to think that the word should not, where it appears in the Act and where the context allows, be interpreted as including a corporate entity: Interpretation Act 1984 (WA), s 5. The difficulty, however, as I have already pointed out, is that the Trust is not a corporate entity or for that matter a legal entity of any sort. The Trust is not a 'person' for the purposes of the Act, or more specifically s 35(2)(c).
Furthermore, even if one overlooks the fact that the Trust is not a person within the meaning of s 35(2)(c) there is a further difficulty with the Assessor's reasoning. Under s 35(2)(c) the person other than the victim must have 'died or suffered injury as a consequence of the offence'. As I have already indicated, 'injury' is defined to mean 'bodily harm, mental and nervous shock or pregnancy'. Loss of the property of a person by, for example, theft is not an 'injury' for the purposes of s 35(2)(c). Therefore the Trust, even if it is assumed (incorrectly) to be a person for the purposes of s 35(2)(c) did not suffer 'injury' as a consequence of the offence.
For the reasons I have stated the Assessor erred in deciding that s 35(2)(c) was potentially applicable to the appellant subject to the appellant being able to establish that he was personally present when or immediately after the offence was committed. The section was not one that the appellant could bring himself within. It follows that grounds 2, 3 and 4 of the appellant's appeal fall away and need not be dealt with.
I note that both the appellant and the CEO accepted, for the reasons that I have stated, that s 35(2)(c) was not applicable to the appellant's claim.
Causation and assessment of compensation
Given that I have upheld ground 1 of the appeal, it is now necessary for me to deal with two further questions which were not addressed by the Assessor. First, did the appellant suffer injury, namely mental and nervous shock, as a consequence of the commission of the offence? Second, if the appellant did suffer injury as a consequence of the commission of the offence, what is the amount of compensation that should be awarded to him for the injury and any loss also suffered? I will deal with each of these questions in turn.
The causation question
Applicable legal principles
The onus is on the appellant 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 appellant to establish that the offence was the sole cause of any injury or loss. It is sufficient for the appellant to establish that the offence materially contributed to any injury or loss: Fagan v Crimes Commission 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 appellant'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 appellant is entitled to compensation for the full injury and loss suffered provided that he 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 (Scott J), Library No 920598, 19 November 1992); B v S (Unreported, WASC (Murray J), Library No 950223, 10 May 1995); S v Neumann (461).
'Loss' is defined in s 6(2) of the Act to mean, so far as is presently relevant, expenses actually incurred by or on behalf of the victim that arise directly from the injury suffered by the victim, and loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim: the Act, s 6(2)(a) and s 6(2)(c). Loss of earnings include loss of earning capacity: A v D (1994) 11 WAR 481, 495, 496.
The evidence as to causation
Appellant's evidence
The appellant's evidence as to the impact which the commission of the offence has had on him is set out in his affidavit sworn on 8 April 2015. The CEO did not seek to cross‑examine the appellant on, or otherwise challenge, the appellant's evidence in this regard. The appellant's relevant evidence as set out in his affidavit is, in substance, as follows.
In October 2011 he discovered that for the financial year ending 30 June 2011 Fire and Ice had a gross turnover of $1.016 million with a beverage purchase percentage of 33%. He noticed that these figures, which did not become available to him until October 2011, were unusual in that they were about 10% higher than industry norms. He therefore immediately began to try and establish the cause of the high beverage purchase percentage by reviewing standard issues such as product pricing and theft. Ultimately he began to examine the issue of theft more closely, commencing a written ledger of business in an attempt to pinpoint the reason for the inflated ratio of the purchase price to gross sales. Eventually, 'by untold hours of observation and after hugely increasing stress and anxiety' he discovered that the respondent was the cause of very significant losses to Fire and Ice.
On 1 May 2012 and 2 May 2012 he drank 'copious' amounts of alcohol and attempted to commit suicide. He attempted suicide 'due to pressures [he] was then facing …'.
On 3 May 2012 he was rushed to Sir Charles Gardiner Hospital with a suspected heart attack. After tests it was confirmed that he had suffered a severe anxiety attack.
On 4 May 2012 he met with Dr Senaratne. Dr Senaratne diagnosed him with severe depression and anxiety. He was admitted to Perth Clinic where he was treated as an inpatient until 18 May 2012.
He was prescribed the anti‑depressive medication Cymbalta. Prior to being prescribed Cymbalta he rarely took any type of medication.
The medication has eased his anxiety. It relaxes him to 'a point that it is "safe" for [his] mental health'. He believes that the medication is 'very necessary' because if he is not medicated he 'may make a positive decision for self‑harm'. However, he also believes that the medication reduces his vitality and hinders his positive outlook.
He believes that while the medication has eased his anxiety, it will never completely mask the effects that depression has on his life. He believes the effects of his depression to be significant and that they would not be present but for the respondent's actions.
He sees Dr Senaratne regularly for his depression and anxiety. He believes that if he did not see Dr Senaratne frequently he would increasingly find himself in 'troublesome situations'.
He has been in the hospitality industry for 20 years. He has always thrived on being outgoing 'in the front of the house and at the heart and soul' of the business. However, as a result of his depression and anxiety he can no longer maintain his passion for his business for long periods of time. He believes that this has had a significant and detrimental effect on Fire and Ice.
He believes that his condition has had a significant impact on his ability to make decisions in the workplace. He believes that his condition now dictates how he approaches his decision-making which involves a lot of 'second guessing' and reliance on others (such as his son and his wife) to make decisions.
Since May 2012 his presence in his family's life 'has deteriorated to the point of almost not being a part of it at all'. He believes that this is 'the product of a sense of worthlessness because [he] failed at providing a steady income to share with his family'.
He does not have a relationship with his siblings. He has not seen them for approximately three years. He believes it is a lack of self‑confidence and a sense of shame that prevents him from mending this relationship.
He finds conversations with his family to be the most difficult because he believes that they pass judgment 'on who I am today'.
He believes that his condition has had a significant effect on his relationship with his wife. He believes that a 'once passionate and vibrant relationship … has become one which lacks intimacy'. He believes that the decision‑making and selflessness that relationships require are things that are beyond his capabilities as a result of his condition.
He believes that the most important relationships in his life have been affected by his condition which resulted from the respondent's conduct. He was previously a gregarious and confident person. He now finds himself wanting to spend more time by himself than with his family. He feels an enormous burden of shame at what he has become. He believes that he would not have his condition, nor be affected in the way that he has been affected, if it had not been for the respondent's actions.
From his review of the accounting records of Fire and Ice he estimates that the respondent stole in excess of $200,000. He believes that if it had not been for the dishonesty of the respondent the Australian Taxation Office (ATO) debt that accumulated during 2012 would have been manageable and would not have become the problem that it ultimately became.
In his affidavit sworn on 9 April 2015 the appellant states that from his review of CCTV footage 'and witnessing first hand' he believes that the respondent was stealing from Fire and Ice from around December 2010 to 5 June 2012.
Medical evidence – appellant's condition and course of treatment
The medical evidence before me, which is not in dispute and which consists in the main but not exclusively of medical notes and reports of Dr Buntine and Dr Senaratne, and the handwritten consultation notes written by Ms Fowler, reveals the following about the development and extent of the appellant's depressive condition, and the course of treatment he has undertaken for his condition.
In 2006 the appellant was treated for depression. At the time he was living in Bunbury. He made a complete recovery.
On 2 May 2012 the appellant attended on his general practitioner, Dr Buntine. The appellant presented as extremely distressed and was not saying very much. He admitted being suicidal. Dr Buntine 'worked out' that the appellant had been 'profoundly depressed' for 'about a few months'. She arranged for the appellant to be admitted as an inpatient to the Perth Clinic.
On 3 May 2012 the appellant attended Sir Charles Gardiner Hospital Emergency Department complaining of chest heaviness, diaphoresis, palpitations and dyspnoea. He reported having felt unwell for about two weeks with three to four episodes of palpitations and chest heaviness occurring at rest and at work. He also complained of having suffered for about one week from bilateral pins and needles in his hand. He reported that the pins and needles were relieved by him shaking his hand and that they occurred several times a day but were not accompanied by power loss.
The appellant was diagnosed by staff at Sir Charles Gairdner Hospital with atypical chest pain, palpitations and carpal tunnel syndrome symptoms. He was discharged at 3.25 pm to the care of his general practitioner.
On 4 May 2012 the appellant was admitted to the Perth Clinic as an inpatient. He came under the care of Dr Senaratne.
The appellant presented to the Perth Clinic with a history of increasing distress, depression and anxiety. He reported having unsuccessfully attempted to electrocute himself five days prior to his admission. He reported that this had occurred in the context of increasing stress due to him having to pay about $250,000 in outstanding taxes to the ATO. He described himself as suffering from low mood, loss of appetite, poor sleep, loss of energy and motivation, loss of interests, feelings of hopelessness and increasing suicidal thoughts.
On his admission to the Perth Clinic the appellant was treated with Lexapro, Lorazepam three times a day and Temazepam at night. In addition he attended group therapy for depression and anxiety. He was also given instruction in using abdominal breathing to reduce his anxiety and distress.
The appellant made a good recovery and was discharged from the Perth Clinic on 18 May 2012. At the time of discharge he had a few residual symptoms of depression. His wife had employed a lawyer to deal with the ATO over the outstanding taxes. This gave him considerable relief. He was no longer suicidal and felt quite 'safe in himself'.
After the appellant's discharge from the Perth Clinic Dr Senaratne saw him as an outpatient regularly for review and follow up.
On either 5 June 2012 or 8 June 2012 the appellant attended a consultation with Ms Fowler. Ms Fowler's notes are not sufficiently clear to enable me to say on which of these two dates the consultation occurred. At the consultation the appellant told Ms Fowler that he had concerns about his manager at Fire and Ice stealing from the business, and that he was having difficulties making a move to dismiss the manager. The appellant told Ms Fowler that he was suffering from poor sleep and increased anxiety. The appellant also told Ms Fowler about his recent admission to the Perth Clinic. Ms Fowler provided some advice to the appellant about distraction and self‑soothing techniques. She also recommended that he increase his walking.
On 20 June 2012 the appellant attended a further consultation with Ms Fowler. At this consultation the appellant reported to Ms Fowler that he was getting through the days confidently, that he was sleeping 'funny' but was able to get to sleep, and that he had dismissed his manager.
On 4 July 2012 the appellant attended a consultation with Dr Senaratne. At this consultation the appellant reported to Dr Senaratne that one of his employees, who had gained his trust over time, had stolen a significant amount of money from Fire and Ice. The appellant reported that he felt distressed as a result of the theft and that he had started to question his ability to judge the honesty and sincerity of other people. He reported doubting his ability to make judgments about people and judgments about business matters. He reported 'beating himself up' for letting down his family and himself. He reported that his family was very important to him and that he prided himself on being a good father, husband and provider. He said that his employee's actions had shattered his confidence in himself and the world and that he had come to doubt his ability to judge the honesty and sincerity of people he employed in his business and his worth as a good provider for his family. He said that he had been seeing psychologist Ms Fowler and that this had helped him to some extent in coming to terms with the shattering experience that he had had with his employee.
After 4 July 2012 the appellant continued to have residual symptoms of depression. He had a fluctuating course, despite being on the antidepressant medication Escitalopram. Although he had no anxiety symptoms, his motivation and level of energy was low. He reported to Dr Senaratne constant negative ruminations. He reported that it was difficult for him to regain a sense of self‑worth, enthusiasm and drive.
On 1 August 2012 the appellant attended a consultation with Dr Senaratne. At this consultation, Dr Senaratne changed the appellant's medication from Escitalopram to Cymbalta because the appellant was still having residual depressive symptoms while on Escitalopram. Cymbalta is a more potent antidepressant.
On 22 August 2012 the appellant attended another consultation with Dr Senaratne. By the time of this consultation the change in the appellant's medication had resulted in an improvement in his mood and drive. He was continuing to work quite hard at Fire and Ice and found it difficult to wind down at night. He was having six to seven hours sleep but was waking up feeling tense. Dr Senaratne instructed the appellant on breathing techniques to use when he awoke in the morning to ease tension. He asked the appellant to use these exercises several times a day to reduce the build‑up of tension during the day.
The appellant attended further follow up and review consultations with Dr Senaratne on 20 September 2012, 8 November 2012 and 13 December 2012.
In early February 2013 the appellant suffered a moderately severe relapse as a result of seeing the respondent in court.
On 7 February 2013 the appellant attended on Dr Senaratne. The appellant was at this time suffering from his relapse. Dr Senaratne did some relaxation and emotion attunement techniques with the appellant and asked the appellant to practice them at home. At this consultation the appellant denied suicidal feelings. The appellant was still taking Cymbalta at this time.
On 20 February 2013, 2 May 2013, 29 May 2013, 19 June 2013, 28 June 2013, 17 July 2013, 28 August 2013, 5 December 2013, 6 February 2014, 21 May 2014 and 23 June 2014 the appellant attended on Dr Senaratne for follow up and review.
On 23 July 2014 the appellant attended a further consultation with Dr Senaratne. At this consultation the appellant reported feeling very well and settled. He reported that the problems that he had had with the ATO had been 'more or less' sorted out. The appellant told Dr Senaratne that he was using relaxation techniques and breathing techniques to help him when he felt stressed and had been able to cope well with the use of them. He was continuing to use Cymbalta.
Dr Senaratne did not give the appellant another appointment to see him. Dr Senaratne left matters on the basis that the appellant would call his rooms for an appointment if he felt the need to see Dr Senaratne.
On 18 November 2014, 21 January 2015 and 25 March 2015 the appellant attended further consultations with Dr Senaratne.
Medical evidence – opinion as to cause of appellant's condition
In a report to the appellant's solicitors dated 30 March 2015 which is annexed to the appellant's affidavit sworn on 8 April 2015, Dr Senaratne confirms that the appellant suffers from 'Major, Recurrent, Depression with Anxiety' and expresses his opinion as to the causes of the appellant's condition. Thus at page 3 of his report Dr Senaratne says the following:
[The appellant's] depressive symptoms were initially precipitated by his outstanding taxes and related issues with the ATO. The problems he was having with the ATO had resolved to a large extent due to their obtaining legal help and with the ATO indicating, in meetings with them, that a satisfactory resolution of outstanding tax was possible. The theft by his employee, who had, gained his trust over a period of time, had a shattering effect on his self-esteem and has made him question his ability to make judgments about other people and his ability to make decisions in general. The relapse he experienced following this incident is due to the psychological injury to his self-worth and self-confidence resulting from this incident. This resulted in doubting his ability to make good business decisions and his value as a father, husband and provider and had a serious impact on his sense of self, and made him seriously doubt his value as a human being. He shies away from making decisions fearing that he would make another serious error in judgment.
Also on page 3 of his report, and in response to the question whether in his opinion the appellant's condition amounts to 'mental and nervous shock' within the meaning of the Act, Dr Senaratne says the following:
The incident of the theft by his employee resulted in a relapse of his condition and has contributed to the maintenance of residual symptoms of depression and anxiety and would satisfy the criteria for an injury both in a legal sense and in common parlance as there has been an injury to his sense of self and his self-worth and sense confidence [sic].
On page 4 of his report Dr Senaratne states that the appellant does not have a biological predisposition to depression and has no family history of depression. He states that the appellant is, however, very sensitive to issues around his ability to make a good judgment about other people, his ability to provide for his family and his ability to be friendly and supportive towards others. He states that the appellant's past depressions have all been precipitated by stressors which had impinged on one or more of these issues. He states that the 'relapse in July/August 2012, was significantly contributed to by the incident of the theft which undermined his sense of self-worth and sense of self'.
Also on page 4 of his report Dr Senaratne expresses the opinion that the appellant is likely to make a complete recovery once the stressors around the ATO outstanding tax issues and his compensation case against the respondent are resolved. He states that given that the appellant has suffered more than two relapses of his condition it would be advisable for him to be on medication for at least five years. He states that until the ATO and compensation claim issues are resolved it is unlikely that the appellant will make a full recovery from his depressive symptoms.
Analysis and findings
It is convenient to state at the outset that on the basis of the appellant's evidence and the medical evidence to which I have referred I am satisfied on the balance of probabilities of the following:
1.From around February 2012 the appellant commenced to suffer from significant depression and anxiety;
2.The appellant's depression and anxiety was at its most severe in and around late April and early May 2012;
3.By 18 May 2012, the date of the appellant's discharge from the Perth Clinic, his depression and anxiety had largely resolved. He had only a few residual symptoms of depression;
4.In or around late June 2012 (at some point after his consultation with Ms Fowler on 20 June 2012 and in any event by no later than 4 July 2012), the appellant suffered a relapse of his depression and anxiety;
5.From in or around late June 2012 until February 2013 the appellant continued to suffer from residual symptoms of depression and anxiety. His condition fluctuated, although over time and with a change in medication his condition gradually improved;
6.In early February 2013 the appellant suffered a moderately severe relapse of his depression and anxiety as a consequence of seeing the respondent in court;
7.Following the relapse in February 2013 the appellant's depression and anxiety settled to the extent that he suffered from symptoms of depression and anxiety to the same extent as he had been suffering from such symptoms prior to the relapse;
8.Since February 2013 and up until the present date the appellant has continued to suffer from residual symptoms of depression and anxiety. He has major recurrent depression with anxiety;
9.The appellant's depression and anxiety during the period late June 2012 to the present has impacted adversely to a significant extent on his ability to manage and operate Fire and Ice, on the enjoyment he derives from operating and managing Fire and Ice, on his relationships with his wife and children, and on his ability to trust and interact with others;
10.The appellant's depression and anxiety suffered during the period February 2012 to the present amounts to an enduring mental reaction, that is, mental and nervous shock. The appellant's depression and anxiety is therefore an injury for the purposes of the Act; and
11.The appellant's depression and anxiety will substantially resolve once his difficulties with the ATO and his compensation application are finally dealt with.
With respect to my finding that the appellant suffered his relapse sometime after his consultation with Ms Fowler on 20 June 2012, it is my view that the appellant's statement to Ms Fowler that he was getting through the days 'confidently' is inconsistent with him at that point suffering from anxiety and depression to the extent that he reported to Dr Senaratne on 4 July 2012 and which resulted in Dr Senaratne concluding that the appellant had suffered a relapse.
In arriving at my finding that the appellant's depression and anxiety will substantially resolve once his difficulties with the ATO and his compensation application are finally dealt with, I have not overlooked Dr Senaratne's statement in his report dated 30 May 2015 that given that the appellant has suffered more than two relapses of his condition it would be advisable for him to be on medication for at least five years. However, in my view when this statement is read in the context of Dr Senaratne's report as a whole it is clear that Dr Senaratne makes this recommendation to cover the possibility of the appellant relapsing even though his opinion is that it is likely that the appellant will make a complete recovery once the stressors arising from his tax issues and his compensation claim are resolved.
As is apparent from my above summary of the content of the appellant's affidavits, the appellant does not state in his affidavits precisely or even approximately when he formed the definite view that the respondent had been stealing from Fire and Ice. However, when the appellant gave his supplementary oral evidence he testified, in substance, that it was probably four days after he was discharged from the Perth Clinic that he found out that the respondent had been stealing from him. He explained how he discovered the respondent's conduct. He said that after his initial discovery of the respondent's conduct he spent another two or three 'sessions' confirming what he had discovered.
Although not a great deal turns on the issue I am not, bearing in mind that the appellant did not dismiss the respondent until 6 June 2012, satisfied that the appellant did positively ascertain that the respondent was stealing from him as early as around four days after he was discharged from the Perth Clinic (that is, by on or about 22 May 2012). Rather, my finding is that although the appellant may have had strong suspicions about the respondent's conduct from a short time after he was discharged from the Perth Clinic, he did not arrive at a definite conclusion that the respondent had been stealing from Fire and Ice until very shortly before 6 June 2012. I note that this finding is consistent with not only what the appellant said to Ms Fowler during his first consultation with her (assuming the first consultation took place on 5 June 2012), but also the terms of an email that was attached to a letter sent by the appellant's solicitor to the Assessor dated 24 June 2014 as part of the correspondence engaged in by the appellant's solicitor with the assessor in relation to the issue whether the appellant could make out his claim under s 35(2)(c) of the Act. The email which was from Police Officer Robert Scantlebury to the appellant and which was dated 23 June 2014 was in the following terms:
G'Day Des
I can confirm when I came to your office in 2012 you were reviewing CCTV footage as you were concerned one of your staff may have been helping themselves to cash from the till. You had identified the perpetrator and possibly the method in which he was stealing the money (entering no or reduced sale), though you were concerned that you did not have sufficient evidence to dismiss him or have him charged with stealing which may leave you open to unlawful dismissal allegations. At that stage you were unsure of the amount of money stolen and very cautious about making allegations about one of your senior staff.
I concurred there was insufficient evidence at that stage and advised of a number of options available to you:
· Identify if an offence had occurred;
· Identify the amount of money stolen (general deficiency);
· Report the matter to police for investigation; or
· Dismiss the employee
When I spoke with you next (a number of weeks later) you had gathered sufficient evidence to approach the perpetrator who had made admissions and was willing to enter into restitution. I know it was then that you expressed a relative 'comfort' in dismissing him and wished to report the matter to Police and due to our relationship, I advised you that I could not assist as it may be viewed as a conflict of interest. As such the matter was reported and investigated by Western Suburbs Detectives. I had no other dealings or knowledge of this matter.
Regards
Rob
The question which obviously remains in light of my above stated findings of fact is to what extent, if any, the appellant has suffered from his depression and anxiety as a consequence of the commission of the offence. That is, to what extent, if any, did the offence materially contribute to the appellant's depression and anxiety?
As I have already indicated, the opinion of Dr Senaratne is that the appellant's difficulties with the ATO were the initiating or precipitating cause of the appellant's depression, and that the appellant's discovery of the respondent's conduct constituting the offence resulted in a relapse of the appellant's condition and contributed to the maintenance of residual symptoms of depression. Nonetheless, despite the opinion of Dr Senaratne the appellant submits that I should find that the initiating cause of the appellant's depression and anxiety was in fact the offence and not the appellant's problems with the ATO. The appellant's argument in this regard is that the money stolen by the respondent was money which would otherwise have been used by Fire and Ice to pay ongoing expenses of Fire and Ice including taxation, that the appellant's difficulties with the ATO were therefore the direct result of the respondent's conduct in committing the offence, and that therefore the offence was the cause, or at least a substantial cause, of the onset of the appellant's depression and anxiety in around February 2012. In par 12 of the appellant's written Further Submissions on Quantum and Costs dated 15 May 2015 (the Further Submissions) the argument is expressed in this way:
A sensible review of all the circumstances demands the conclusion that the respondent's conduct, which the appellant suggests led to losses in the order of $200,000, was a substantial root cause of the ATO debt, and therefore of his condition.
There is one important point that needs to be made in immediate response to the above submission and which appears to have been overlooked by the appellant. Despite the appellant's expressed belief as to both the period of time during which the respondent was stealing from Fire and Ice (December 2010 to 5 June 2012) and the total amount stolen I must, given the pleaded terms of the offence (which is the proved offence for the purposes of the appellant's compensation application), approach the matter on the basis that the individual acts of stealing the subject of the offence were committed between 30 June 2011 and 6 June 2012 and resulted in the loss of a total amount of $40,000, not $200,000 as asserted by the appellant. In other words, in dealing with both the appellant's contention that the offence was the substantial cause of the tax debt, and the appellant's claim for compensation generally, I must, despite the beliefs deposed to by the appellant, approach the matter on the basis that the respondent did not commence stealing from Fire and Ice until 1 July 2011 and stole a total of $40,000.
Section 42(4) of the Act provides, in effect, that if a victim will receive an amount by way of compensation or damages for the injury or loss, the court may deduct the amount from a compensation award in relation to that injury or loss.
I have already referred to the compensation order made by Curthoys DCJ under s 117 of the Sentencing Act in the amount of $39,600. The order made by Curthoys DCJ is of no relevance to the award of criminal injuries compensation which I have found should be made to the appellant. The order made by Curthoys DCJ required the respondent to repay to the appellant the money he had stolen less the amount of $400 which his Honour was informed had already been repaid. The order made by Curthoys DCJ was not to compensate the appellant for the mental and nervous shock and consequential financial loss which I have found he has suffered as a consequence of the commission of the offence. Accordingly, there is no reason for me to order under s 42(4) that the amount ordered by Curthoys DCJ to be paid by the respondent to the appellant should be deducted from the award that I have found should be made under the Act.
Costs
The appellant claims his legal costs not against the respondent but rather the CEO.
The respondent did not appear on the hearing of the appeal, did not contribute to the costs of the appeal and is not responsible for the costs that have been incurred by the appellant. It would therefore not be appropriate, as is recognised by the appellant, to make an order for costs against the respondent: Parsons v McWilliam [2002] WADC 62 [42].
The appellant claims an award of costs against the CEO on the basis that the appeal has been made necessary by reason of the error made by the Assessor who is an employee of the CEO. It is submitted by the appellant that it would be unjust for him, being the victim of the respondent's crime, to be left to shoulder the costs of correcting an erroneous decision of the Assessor.
The appellant's submission that the CEO should pay his costs of the appeal is in my view surprising given, as I have already pointed out, that the appellant's solicitor did nothing during his communications with the Assessor to dissuade the Assessor from his erroneous view that the appellant's claim needed to be dealt with under s 35(2)(c) of the Act. In any event I reject the submission. The Assessor is not an employee of the CEO. He is a statutory office holder appointed by the governor under sch 1 to the Act. Further, the CEO is not an unsuccessful party to the appeal: the Act, s 56(2)(d). Finally, to award costs against the CEO would be to in effect penalise the CEO for performing a role which assists the court and which would otherwise not be performed: WHW v Commissioner of Police [2014] WASCA 153 (S) [13]. Accordingly, I refuse the appellant's claim for his costs of the appeal.
Conclusion
For the reasons I have stated I make the following orders:
1.The appeal is allowed.
2.The decision of Mr R Guthrie, Assessor of Criminal Injuries Compensation, made on 29 August 2014 refusing the appellant's application for criminal injuries compensation is set aside.
3.The appellant's application for criminal injuries compensation is allowed.
4.The appellant is awarded compensation in the amount of:
(1)$18,000 for injury suffered by him as a consequence of the offence committed by the respondent the subject of District Court indictment number 1366 of 2012; and
(2)$5,954.50 less any Medicare or other relevant rebates for loss suffered by the appellant as a consequence of the offence committed by the respondent the subject of District Court indictment number 1366 of 2012.
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