Miniter v Bolton
[2014] WADC 135
•9 OCTOBER 2014
MINITER -v- BOLTON [2014] WADC 135
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 135 | |
| Case No: | APP:67/2013 | 11 MARCH 2014 | |
| Coram: | STAUDE DCJ | 9/10/14 | |
| ALBANY | |||
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time granted Appeal allowed Compensation awarded | ||
| PDF Version |
| Parties: | GRANTLEY JOHN MINITER WAYNE BOLTON SHARNA SMITH |
Catchwords: | Criminal injuries compensation Appeal Extension of time to appeal Whether applicant was committing a separate offence at time of injury Whether conduct of applicant contributed to injury Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 s 39, s 41 |
Case References: | Attorney General of Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 Briginshaw v Briginshaw (1938) 60 CLR 336 Esther Investments Pty Ltd v Markalinger Pty Ltd (1989) 2 WAR 96 G v H (1994) 181 CLR 387 Gallo v Dawson (1990) 93 ALR 479 Gullelo v Halloran [2008] WADC 145 Neat Holdings Pty Ltd v Krajan Holdings Pty Ltd (1992) 110 ALR 449 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
IN THE MATTER of an Appeal by
- Appellant
AND
WAYNE BOLTON
SHARNA SMITH
Respondents
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : R GUTHRIE
File No : CI 000372 of 2012
Catchwords:
Criminal injuries compensation - Appeal - Extension of time to appeal - Whether applicant was committing a separate offence at time of injury - Whether conduct of applicant contributed to injury - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 s 39, s 41
Result:
Extension of time granted
Appeal allowed
Compensation awarded
Representation:
Counsel:
Appellant : Mr R Hickson
Respondents : No appearance
Amicus Curiae : Mr J Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Family Violence Prevention Legal Service
Respondents : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General of Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Briginshaw v Briginshaw (1938) 60 CLR 336
Esther Investments Pty Ltd v Markalinger Pty Ltd (1989) 2 WAR 96
G v H (1994) 181 CLR 387
Gallo v Dawson (1990) 93 ALR 479
Gullelo v Halloran [2008] WADC 145
Neat Holdings Pty Ltd v Krajan Holdings Pty Ltd (1992) 110 ALR 449
- STAUDE DCJ:
Introduction
1 Mr Miniter was injured in an affray at Gnowangerup on 2 January 2010. The injuries were principally to his face and head.
2 The respondents were charged with and convicted of offences in relation to Mr Miniter's injuries. Sharna Smith was convicted of assault occasioning bodily harm and Wayne Bolton of common assault.
3 Mr Miniter applied for criminal injuries compensation. His application was refused on the grounds that the learned assessor was satisfied for the purposes of s 39 of the Criminal Injuries Compensation Act 2003 (the Act) that he was committing the offence of disorderly conduct in public at the time he was injured. The learned assessor's decision was communicated by letter dated 19 June 2012. The letter contains the assessor's reasons for decision (the reasons).
4 Mr Miniter has applied for an extension of time within which to bring an appeal from that decision. The respondents have been served. The respondent Smith has lodged a notice of respondent's intention (Form 8) indicating that she intends to not to take part in the appeal. The respondent Bolton has not lodged a notice. Accordingly, by operation of r 53(6) of the District Court Rules 2005 he is unable to take part in the appeal.
5 On 11 March 2014 at Albany I heard submissions with respect to the application to extend time and the substantive issues of whether Mr Miniter's claim is barred by operation of s 39 on the grounds that he was committing a separate offence when he suffered the injury in question and, if not, whether he contributed to his injuries in a manner that would warrant a disallowance or reduction of compensation pursuant to s 41.
6 At the hearing I granted leave to appeal out of time and ordered an interim payment pursuant to s 23 for the purposes of obtaining a psychological report.
7 Subsequently, an affidavit of Mr Miniter sworn 23 June 2014 was filed. It attaches relevant Health Department records, a letter from Mr Rod Mitchell, counsellor, dated 26 October 2011 and a report from Ms Stephanie Morrigan, clinical psychologist dated 28 May 2014.
8 With the appellant's consent and in consultation with the Chief Executive Officer as amicus curiae I directed that the appeal be determined on the basis of written submissions which I have now received.
9 These are my reasons for allowing the application for leave to appeal out of time and allowing the appeal.
Relevant legislative provisions
10 Section 55(1) confers a right of appeal to this court against an assessor's decision to refuse to make a compensation award. Section 55(3) provides that it must be commenced within 21 days after the date of the decision. Section 55(4) provides that if it is just to do so this court may allow an appeal to be commenced after the 21 days even if the period has expired. Section 55(5) provides that the appeal is to be conducted in accordance with the rules of the court.
11 Section 56(1) provides that on an appeal this court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in possession of the assessor or may receive further evidence and information. Section 56(2) provides that the court may exercise any power of an assessor under the Act and may make any order that an assessor could make under the Act.
12 Section 39 provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and the injury was suffered when the person was committing a separate offence the assessor must not make a compensation award in favour of the person.
13 Section 39 operates to deny compensation to who a person injured in consequence of the commission of an offence if at the time of the injury suffered the person was engaged in criminal conduct: Attorney General of Western Australia v Her Honour Judge Schoombee [2012] WASCA 29, [32]. No causal connection between the injuries suffered and the separate offence is required. The only relationship specified by s 39(1) is a temporal one. Whether a separate offence was committed by the injured person and whether there was the requisite temporal connection is a matter of fact.
14 An offence means an alleged or a proved offence. An alleged offence is defined to mean a crime, misdemeanour or simple offence of which no person has been convicted: s 3.
15 Section 39 is enlivened if an assessor is satisfied of certain facts. Section 3 defines 'satisfied' to mean satisfied on the balance of probabilities.
16 Section 41 provides that in deciding whether or not to make a compensation award, or the amount of a compensation award, an assessor must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury and may, if it is just to do so, refuse to make a compensation award because of that contribution, or reduce the amount of compensation that would otherwise be awarded.
Leave to appeal out of time
17 The applicant's notice of appeal was lodged on 12 August 2013, 14 months after the decision appealed from.
18 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 96 is authority for the proposition that in exercising its discretion whether to extend the time within which to appeal, the court should consider the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondent (Kennedy J at 198).
19 Schoombee DCJ observed in B v T [2011] WADC 98 that the factors listed by McHugh J in Gallo v Dawson (1990) 93 ALR 479 were more pertinent to a s 55(4) application as the criterion 'if it is just to do so' is similar to that prescribed by O 60 r 6 of the High Court Rules, namely, 'as the justice of the case may require'. I respectfully agree.
20 McHugh J held that the discretion to extend time was given for the sole purpose of enabling the court to do justice between the parties. The relevant factors were:
1. the history of the proceedings;
2. the conduct of the parties;
3. the nature of the litigation;
4. the consequences for the parties of the grant or refusal of an extension of time;
5. the prospects of the appellant succeeding; and
6. the fact that upon the expiry of the time for appealing the respondent had a vested right to retain the judgment.
21 These factors have been addressed by the applicant.
22 The application for compensation was made without legal assistance and without the assistance of a victim support service. The original application was lodged on 22 February 2012. It was incomplete and returned to Mr Miniter on 8 March 2012. The complete application was lodged on 15 March 2012 (not 2011 as stated in the learned assessor's letter).
23 As appears from the reasons, the information available to the learned assessor raised an issue as to whether the applicant was committing a separate offence when his injuries were suffered so as to enliven s 39(1).
24 In the reasons the learned assessor stated that Mr Miniter had been charged with and convicted of committing disorderly behaviour in public. The reasons also cited parts of Mr Miniter's police statement and the statements of other witnesses in which reference was made to Mr Miniter taking his shirt off and saying words which indicated a willingness on his part to fight others.
25 The learned assessor concluded that the offence of disorderly behaviour in public was a separate offence committed by Mr Miniter at the time he was injured. He also found that by his conduct he had consented to the assaults by which he was injured.
26 Mr Miniter was not given an opportunity prior to the learned assessor making his decision to be heard in relation to whether compensation should be refused pursuant to s 39(1) or s 41.
27 Upon receipt of the learned assessor's letter informing him of the decision not to grant compensation the appellant sought advice from the officer-in-charge of the Gnowangerup Police Station, Sgt David Murphy who made enquiries on his behalf and later sent a letter (undated) to Mr Miniter informing him that the charge of disorderly conduct in public to which reference was made by the learned assessor was in fact discontinued: annexure JGM1 to Mr Miniter's affidavit sworn 12 February 2014. No conviction was recorded.
28 In his affidavit Mr Miniter deposes to the fact that there are no solicitors in Gnowangerup and that the Aboriginal Legal Service declined to assist him as it had represented the respondents. He said there was no Legal Aid office in Gnowangerup. Legal Aid Albany had advised that he did not qualify for assistance. He also stated in his affidavit that the only solicitor in Katanning did not do personal injury work.
29 When he moved to Albany in mid-2013 he became a member of the Southern Aboriginal Corporation. He subsequently obtained advice from the Family Violence Prevention Legal Service as a result of which this application was commenced.
30 It is submitted that Mr Miniter has not had the financial resources required to engage private legal advice and representation. Whilst there is no evidence of that, I am satisfied that Mr Miniter did take appropriate steps following the receipt of the learned assessor's letter to ascertain that a fundamental factual premise cited by the learned assessor, mainly, that he was charged with and pleaded guilty to disorderly behaviour in public, was not correct.
31 I am also satisfied that by reason of him living in Gnowangerup until mid-2013 his opportunity to obtain legal advice and representation was limited. It is understandable that Mr Miniter would not have considered himself competent to bring the appeal in person.
32 As to the nature of the proceedings, I note that the Act has a benevolent purpose in that it creates a scheme for the payment of compensation to victims of criminal offences from the Consolidated Account: s 46. Compensation may be recovered from offenders pursuant to pt 6 of the Act. That is a separate process. The determination of an application for criminal injuries compensation does not, therefore, determine the liability of the offender.
33 It follows that the consequence for the respondents in this matter is not the same as for a respondent who has the benefit of an adjudication which is final, but for a right of appeal which may arise if an extension of time is granted. As I pointed out in Gullelo v Halloran [2008] WADC 145 [6] in relation to a quantum appeal:
The Act creates a scheme of compensation in which applications are determined by an assessor who was required by s 18 to determine them 'expeditiously and informally', not being 'bound by rules or practice as to evidence or procedure' and able to 'inform himself or herself in any manner he or she sees fit'. The provision of a right of appeal by way of a hearing de novo at which further evidence information may be received affords an applicant dissatisfied by an assessor's compensation award, an opportunity to prove, relevantly, that a higher award should be made.
34 In this case the effect of a successful appeal would be an award of compensation payable from the Consolidated Account. It is a salient feature of this type of appeal that if it is allowed the interests of the respondents will not be directly affected and may not necessarily be affected at all. I have noted that neither respondent has sought to be heard in relation to this matter.
35 On the other hand, if no extension of time is granted, Mr Miniter will have been disentitled to compensation by reason of an error of fact which he had no opportunity to dispel and which has clearly borne upon the learned assessor's finding that s 39 applied.
36 As the decision below can be seen to have been vitiated by factual error, a reasonable prospect of obtaining an award of compensation has been demonstrated. For these reasons I concluded that it would be just to allow the applicant to appeal out of time.
The section 39 issue
37 In deciding a compensation application an assessor is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit: s 18(2). Further evidence and information can be received in the course of an appeal: s 56 (1).
38 At the hearing on 11 March 2014 I received copies of court documents relating to the prosecution of Mr Miniter and the respondents' four offences arising out of the incident in which Mr Miniter was injured.
39 Exhibit 1 includes a prosecution notice charging Mr Miniter with disorderly behaviour in public in terms that he, being in a public place, behaved in a disorderly manner by fighting and using threatening language. Endorsements on the prosecution notice indicate that on 16 August 2010 the prosecution was discontinued pursuant to s 25 of the Criminal Procedure Act 2004 and dismissed.
40 Exhibit 2 shows that the respondent Sharna Smith was convicted in Katanning Magistrates Court on 21 September 2011 of assault occasioning bodily harm committed on 2 January 2010. Exhibit 3 indicates that the respondent Wayne Bolton was convicted on 21 September 2011 at the Katanning Magistrates Court of common assault committed on 2 January 2010 and also of carrying an article with intent to cause fear contrary to s 81D of the Weapons Act 1999.
41 The court histories of the respondents were to be produced in evidence by Sgt Murphy, but the court did not require that he be called. An affidavit of Sgt Murphy sworn 27 February 2014 was filed in the appeal. In it he expressed his opinion on certain matters of fact to which he was not a witness. His opinion is not probative and I have paid no regard to it.
42 The material before the learned assessor and before me included the police incident report and running sheet and the statements obtained by the police from the witnesses and participants from which the court can draw its own findings.
43 An incident report prepared by the Great Southern Incident Management Unit described the incident in which Mr Miniter was injured as a disturbance between feuding families. It occurred on 2 January 2010 at about 10.00am at House Street, Gnowangerup. Police attended afterwards and ascertained that there had been a fight between Melita Hayward and Francine Bolton over unresolved issues. Family members on both sides had become involved.
44 Mr Miniter had, according to the police report, entered the fray with the intention of keeping the peace between the two family groups. He was approached by a number of persons. He was struck to the face and knocked to the ground where he was kicked and punched.
45 The incident was investigated. Numerous statements were obtained. In the statements the names Ward and Hayward appear to be used interchangeably.
46 In the statement of Mr Miniter, to which I will refer again in greater detail, he states at par 10:
I took my shirt off put my arms in the air and told them that I was not frightened of any of them and if they wanted to, I would do it fairly. By this I mean if they wanted to fight because of the ongoing tensions, then I'd do it fairly with fists.
47 There are other references in the witness statements to Mr Miniter taking off his shirt and uttering words which are consistent with those he admits using. On the evidence, the assaults by which Mr Miniter was injured occurred within a short time of the conduct he has admitted. An issue does arise therefore as to whether his conduct amounts to the commission of a separate offence for the purposes of s 31, or should otherwise be taken into account the purposes of s 41.
Disorderly conduct
48 Section 74A of the Code provides:
(1) In this section –
'behave in a disorderly manner' includes –
(a) to use insulting, offensive or threatening language; and
(b) to behave in an insulting, offensive or threatening manner.
(2) A person who behaves in a disorderly manner –
(a) in a public place or in the sight or hearing of any person who is in a public place; or
(b) in a police station or lockup,
is guilty of an offence …
Grantley John Miniter
49 According to his statement, Mr Miniter was in his residence at 30 Hughes Street when he heard his mother-in-law Maureen Woods calling to her son Owen Woods junior somewhere up the road. He was aware of tensions between the Bolton and Hayward families and decided to speak to Woods junior. He went up the street and spoke to Woods junior and then walked him back to his home.
50 As he was doing so he heard someone up the street say something about his deceased father. He then approached Craig Bolton junior and Craig Bolton senior. He told them to leave him out of it. He took his shirt off, put his arms in the air and told them that he was not frightened of them and that he would fight them fairly if they wanted to. Bolton junior had a brick or piece of concrete in his right hand. Bolton junior grabbed him around the throat with his left hand for about 10 seconds. Mr Miniter did not resist as he believed he would be hit with what Bolton junior had in his hand. He told Bolton junior to 'fuck off' and Bolton released him. He then heard Bolton senior use offensive words towards Maureen Woods. He told Bolton senior not to speak in that way. Bolton senior then hit him with a left clenched fist to the right side of his face in the lower jaw region. He then struck Bolton senior in the face to defend himself.
51 According to his statement, Mr Miniter then lost consciousness. When he regained consciousness he was being treated by an ambulance officer. He was taken to Gnowangerup hospital and later to Albany hospital for treatment of his injuries. He said he suffered a cut to his eye which required four stitches and a graze on his knee. He suffered pain, soreness and swelling to his face, cheek and skull.
Owen Woods Senior
52 Owen Woods senior said in his statement that he had driven with his wife Maureen to Mr Miniter's house and parked in the driveway. When he got out he heard shouting. He and his wife walked towards the home of Melita and Aaron Ward on House Street. (He used the name Ward, rather than Hayward.) He said:
The night before, the Haywards told me that there would most probably be a fight because of what happened to Bill on Thursday night.
53 When he got to Melita Ward's house he saw James Bolton, Craig Bolton junior, Craig Bolton senior, Sharna Smith and others. He said that when they saw his son Owen Woods junior about four of them took to him with bricks, stones and irons. He identified Dwayne Morrish Junior, Dwayne Morrish senior, Wayne Bolton and others.
54 He said that his son ran towards Tambellup Road. Melita Hayward and Francine Bolton were fighting each other. When James Bolton saw him he started yelling at him. He started fighting with James Bolton. The fight lasted for two or three minutes. He then said:
That's when they all got to Grantley.
That was, old Craig Bolton, young Craig, his son, Sharna Smith, his wife, Wayne Bolton, old James Bolton, Dwayne Morrish, his son, Dwayne, young Regan and Trent Morphett.
Old Dwayne Morrish was carrying a big piece of cement that was blue in colour.
I don't remember old Craig Bolton carrying anything.
I don't remember young Craig Bolton carrying anything.
Wayne Bolton had the iron and knife.
Old James Bolton just came down to fight me. He didn't have any weapons.
Young Dwayne Morrish was carrying bricks and stones.
Old Dwayne Morrish was carrying a lump of cement.
Regan was carrying stones.
Sharna was carrying half a brick.
Trent Morphett was carrying stones.
Pacman, that's Wayne Bolton, hit Grantley Miniter in the left-hand side of his head with an iron, plus he had a knife and he was going to stab him.
This happened on the verge outside Melita and Aaron's house near the laneway.
After Mr Miniter fell over, Jason Phillips got them away from him because they were all still trying to hit him. An ambulance then came.
Nancy Livinia Wheatley
55 Nancy Livinia Wheatley lived with Wade Hayward. At about 9.20 am on 2 January 2010 she had a call from a person she thought was Rosie Hayward saying that there was something going on at the top end of town. About five minutes later she received another call from Marion Hayward saying that something was happening at the top end. She and Wade Hayward went by car to Melita Ward's house on House Street. There she saw Melita Ward with Dwayne Morrish senior, Dwayne Morrish junior, Craig Bolton junior, Jamie Bolton, Wayne Bolton and Trina Bolton. She heard a lot of abusive language. Florence and James Bolton arrived by car. Words were exchanged.
56 She then saw Pacman whom she identified as Wayne Bolton, Dwayne Morrish senior, Dwayne Morrish junior, Jamie Bolton, Craig Bolton senior and Regan Morrish. She was related to the Boltons. She identified a number of other people in the vicinity of Melita Ward's front yard. She said the Boltons walked towards them and began to verbally abuse Owen Woods junior. They were carrying pieces of cement and wooden bed legs. Wayne Bolton (Pacman) had a knife in his right hand. Owen Woods junior grabbed a softball bat from someone's ute. She then heard Regan Morrish call out towards Owen Woods junior 'let's get him'. Woods junior then dropped the bat and ran towards Hughes Street. The Boltons and Morrishs ran after him.
57 She then saw James Bolton approach Owen Woods senior and hit him in the face. They began to fight. She saw Regan Morrish, Dwayne Morrish senior and Craig Bolton junior come running back from Hughes Street. She then saw Grantley Miniter approach Owen Woods junior and say 'Come on, don't worry about fighting'. As they started walking away Jamie Bolton yelled out 'Grantley, Owen Woods said you killed your own kids'. He said that Grantley Miniter told him to shut his mouth. Jamie Bolton kept yelling out. She saw Craig Bolton junior approach Mr Miniter, yelling at him. She heard him say something about his deceased children. She then stated:
Grantley took his shirt off and said 'Come on then'.
Craig Bolton junior king-hit Grantley to the face, by that I mean punching him to the face.
The force shocked Grantley a bit, but I'm not sure what arm he used.
I saw Grantley about to punch Craig Bolton junior but my eyes were on Craig Bolton senior.
Craig Bolton Senior approached Grantley then punched him.
I'm not sure what arm was used to punch him.
Grantley turned to Craig senior and punched him three times knocking him to the ground.
Sharna Smith ran in and hit Grantley on the head from behind with an object, I'm not sure what object was used.
Grantley fell to the ground and while he laid there Craig Bolton junior walked in and using both hands hit Grantley with a piece of cement connecting on the back of his head.
58 She then called triple zero.
Shaun Michael Hodgson
59 Hodgson was staying with his brother Robert Miniter on Hughes Street. He heard a lot of yelling coming from House Street and walked towards where it was coming from. He saw a group which he described as the Bolton family yelling at another mob near Melita Hayward's house. The other mob included Jason Phillips, Owen Woods senior, Owen Woods junior, Maureen Woods, Grantley Miniter, Hilma Miniter, Murray Hayward, Sheridan Hayward, Wade Flowers, Marion Hodgson and Aaron Ward. He said there were other people but he could not remember who they were. He watched them from a distance.
60 He saw Craig Bolton senior approach Grantley Miniter, who is his first cousin, and punch him to the head with his right fist. Grantley punched Bolton senior back. Bolton senior fell to the ground. He then saw Grantley Miniter fall to the ground but he did not see what happened to him. He said that Miniter was surrounded by Sharna Smith and Wayne Bolton. He did not see any weapons. He then saw the Bolton family get into their cars and drive away.
Maureen Woods
61 Maureen Woods, the mother-in-law of Mr Miniter, was having a cup of tea with her daughter Hilma Miniter at her home when she heard a lot of yelling coming from House Street. She and Hilma walked towards House Street. She could see a big mob gathering. She identified members of the Bolton family. She stated that Sharna Smith was her sister and Florence Bolton, her sister-in-law. She also saw a big mob of people at Melita Hayward's house. She heard a lot of yelling and abusive language from both sides. She saw Grantley Miniter come into Hughes Street. She saw Dwayne Morrish senior, Trent Morphett, Regan Morrish and Dwayne Morrish junior trying to rush her son Owen Woods junior. She could see bricks being thrown at him.
62 She saw Craig Bolton senior walk towards Grantley Miniter. Bolton senior turned to her and used offensive language towards her. She said:
Grantley said to Craig 'Why are you swearing at her for'.
Craig said 'What you going to do about it'.
Craig said to Sharna 'Why don't you get stuck into her'.
Craig was talking about me. I did [not] want to get involved.
Craig then hit Grantley.
I'm not sure what arm he used but I saw him take a swing at Grantley.
Once Craig hit Grantley, Wayne Bolton, Craig Bolton junior and Sharna Smith got around Grantley.
63 Later she saw Grantley Miniter lying face down on the ground.
Craig Bolton Senior
64 Craig Bolton senior made a statement in which he stated that he was at home when he was visited by his son Craig Bolton junior who told him that there were a number of people standing in the front of Melita Hayward and Aaron Ward's house on the corner of Beard Street and House Street, Gnowangerup. He then went with Wayne Bolton, Francine Bolton, James Bolton, Florence Bolton and Craig Bolton junior to Trina and Dwayne Morrish's house.
65 When he got out of the car he heard Melita Hayward screaming at Trina Morrish, challenging her to a fight. A fight then started between Melita Hayward and Francine Bolton. He walked down House Street towards where Owen Woods junior was standing near Melita Hayward's house. He challenged Woods junior to come onto the road. Woods junior then ran towards the end of House Street. He saw James Bolton senior and Owen Woods senior have a fight.
66 He then saw Grantley Miniter come and take Owen Woods junior away. He then said:
Craig junior sung out to Grantley that Owen was talking about him.
Craig said 'Owen junior was talking about Grantley's father'.
He said 'Well that was a long time ago'.
Grantley said 'I wasn't worried about it. It happened a long time ago'.
I saw Grantley take his shirt off and walk towards Craig and myself.
He said 'I'll take on anyone'.
He was about 25 metres away from me and Craig.
He walked towards us and I thought he was going to hit Craig, so I pushed him back with my left arm.
67 He said he was then struck twice by Miniter and knocked to the ground. When he got up he saw Miniter lying on the ground. He said he did not see who hit him.
Hilma Miniter
68 Hilma Miniter, Mr Miniter's spouse, said that she saw Mr Miniter approach Owen Woods junior and walk back towards their house. She then saw Craig Bolton junior yelling at him. Craig Bolton junior is her first cousin. Miniter said 'This has got nothing to do with me, leave me out of it'. She saw her husband walk towards him with his hands up in the air. Bolton junior grabbed him by the throat. He had an object in his other hand which looked like a brick. Miniter pushed Bolton junior away with one arm. She then saw Sharna Smith, Craig Bolton senior and Dwayne Morrish surround Mr Miniter. She saw Miniter take his shirt off and throw it on the ground. Craig Bolton senior hit Miniter with a left arm connecting to his jaw. Craig Bolton junior then hit Miniter from the side, striking him in the neck. She saw Miniter swing his arms twice at Craig Bolton senior who fell to the ground. Wayne Bolton appeared from behind with a metal object. Wayne Bolton is her nephew. He came between Craig Bolton junior and Sharna Smith and hit Miniter across the face. Miniter fell. As Miniter fell Dwayne Morrish hit him with a piece of slab to the side of his head. She saw Sharna Smith punch Miniter twice to the side of his face with her right hand. She saw Craig Bolton junior hit Miniter to the left of his head with the brick in his right hand.
69 Mr Miniter was admitted to Gnowangerup Hospital. He could remember events leading up to the assault, but not the assault itself. He had a laceration below the left eye and swelling, grazing and small lacerations about the eye. There was bruising behind the left ear. He was transferred to Albany Regional Hospital.
70 The emergency department notes indicate that a full thickness laceration of the left cheek was sutured. There were bruises and abrasions about the left eye, contusions to both sides of the head and an abrasion over the right knee.
Findings
71 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: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences following from a particular finding, are considerations which must affect the answer to the question of whether the issue has been proved: Briginshaw v Briginshaw (1938) 60 CLR 336, 360 (Dixon J). Due regard must be had to the importance and gravity of the issue. Caution is required if there is an allegation of fraud or an allegation of criminal or moral wrongdoing: G v H (1994) 181 CLR 387, 399.
72 The findings of fact as to what occurred on 2 January 2010 are to be made on the basis of the statements which were obtained by the police in the investigation of the incident from which the assaults arose. The court has not seen or heard from the witnesses. There has been no cross-examination. It is possible, nevertheless, to make findings of fact on the basis of this evidence. Certain relationships between the witnesses can be discerned from their statements. It is possible to recognise family allegiances as well as self-interest as matters which colour at least some of the statements.
73 On the basis of the first named respondent's conviction of assault occasioning bodily harm and the second named respondent's conviction of common assault and on the evidence as a whole, which includes the evidence of the actual injuries suffered by Mr Miniter, the court can be satisfied that he was unlawfully assaulted by the respondents and suffered injury. I am satisfied that each of the respondents struck Mr Miniter on the face or head with objects they were carrying.
74 The issues are whether Mr Miniter was committing an offence at the time of the assaults upon him and, if not, whether any behaviour, condition, attitude or disposition on his part contributed to his injuries.
75 I am satisfied that Mr Miniter had no interest in the affray which started with the fight between Melita Hayward and Francine Bolton. Mr Miniter's concern was to extricate Owen Woods junior from that situation. In doing so he encountered Craig Bolton junior who grabbed him around the neck. Craig Bolton senior then approached Mr Miniter and punched him in the head. Mr Miniter responded by punching Bolton senior who fell to the ground. This act was done in self-defence.
76 Mr Miniter was then set upon by others, including the respondents. It is admitted by Mr Miniter that when he approached Craig Bolton junior and his father he took his shirt off, put his arms in the air and told them that he was not frightened of them and would fight them fairly if they wanted. I do not find that this was a challenge to a fight but a means of deterring them from entering into an altercation with him.
77 I am not satisfied that it amounted to disorderly conduct as defined by s 74A. Specifically, I find that Mr Miniter did not act in an offensive or threatening manner towards the Boltons. They were the aggressors. In any event, his actions in relation to them were committed prior to and were not contemporaneous with the assaults by the respondents which occurred after physical altercations between Mr Miniter and each of the Boltons.
78 I am not satisfied that any offence was committed contrary to s 71 of the Criminal Code which makes it a crime to take part in a fight with another person in a public place in circumstances that are likely to cause fear. The facts of this incident do not indicate that Mr Miniter took part in a fight. He was assaulted by Bolton junior who grabbed him around the throat. He was also assaulted by Bolton senior who punched him in the head. He did not consent to those assaults. Nor did he consent to the assaults committed by the respondents.
79 The evidence does not demonstrate that Mr Miniter was committing an offence when he suffered the assaults which caused his injuries.
80 Turning to s 41, on the question of whether his conduct or attitude contributed to his injuries, I find that Mr Miniter's intentions in approaching those who were involved in the affray were related to removing Owen Woods junior from a situation in which he was at risk of injury from the actions of the Boltons and the Morrishs. He did not involve himself in the incident with the intention of fighting any of them, but saw fit to indicate to them his willingness to do so if it could not be avoided. In my view the evidence does not support a finding that Mr Miniter challenged or threatened those other persons.
81 It has been argued on Mr Miniter's behalf that if his actions were seen as disorderly conduct in public then he had available to him the defences of provocation and prevention of repetition of insult. This argument is based on a view taken of the event by Sergeant Murphy. Those defences are only available with respect to offences of which assault is an element (s 246, s 247 Criminal Code). In my view they are not defences as such to a charge of disorderly conduct in public, although evidence of those matters may be relevant to the issue of whether the conduct complained of fell within the definition of disorderly conduct.
82 My findings are based on the evidence which has been adduced in this matter. It is a serious imputation to suggest that a person was committing a criminal offence when they were the victim of an unlawful assault, as is a suggestion that the victim contributed directly or indirectly to his injuries by his conduct. Because of the seriousness of those matters clear evidence is required to support findings of fact which may result in a denial of or reduction in compensation. On my review of the evidence there is no basis for an application of either s 39 or s 41.
Assessment
83 I have referred to the hospital records of Mr Miniter's presentation for medical treatment following the incident in which he was injured. I am satisfied that the injuries which are recorded in the records of Gnowangerup Hospital and Albany Regional Hospital relate to injuries caused in the assaults committed by the respondents.
84 Regarding the physical injuries, Mr Miniter stated:
I suffered with permanent scarring to the left side of my face beneath my eye and it still feels very peculiar when I have to shave resulting in me not shaving as often as I would due to the odd sensation and possible nerve damage and cutting of soft and uneven skin. (Application for criminal injuries compensation, 2 December 2011)
85 I have not been provided with any evidence of the residual scarring to Mr Miniter's left cheek, but accept on the basis of his statement that he does have a scar from the sutured laceration. No measurement of the scar is noted in the medical records. There is nothing to suggest that the scar is particularly disfiguring. It is nevertheless a constant reminder to him of the trauma of the assaults.
86 A more serious consequence of the injuries appears to have been a psychological reaction. The letter of Mr Mitchell dated 26 October 2011 indicates that he provided counselling services to Mr Miniter in his role as a risk consultant and counsellor with LGIS Risk Management, services which were available to Mr Miniter as a local government employee. Mr Mitchell states in his letter:
I was contacted by Mr Miniter's CEO on 16 March 2010 who requested that I provide him support as soon as possible. I met with Mr Miniter and his wife the next day.
He described the events of 2 January 2010 and how he was attacked and badly injured by several men in a street in Gnowangerup. He was clearly deeply distressed by the incident and had been suffering after effects from the trauma including stress related chest pains, sleep disturbance, trance like moods, withdrawal and isolation. These symptoms were exacerbated a few days before by the discovery that two of his assailants had been convicted of disorderly conduct and therefore couldn't be charged with assault. They were re-triggered further when he was told he too would be charged for the disorderly conduct and would appear in court on the same day as his assailants.
I provided counselling support over the next two months, three times in person and twice by phone. Fortunately he was able to use the counselling well, made a good recovery from the trauma and was able to cope with the court proceedings when they occurred.
87 As I have observed, the charge of disorderly conduct against Mr Miniter was discontinued and the respondents pleaded guilty to assault occasioning bodily harm and common assault respectively.
88 The involvement of Mr Mitchell at the behest of Mr Miniter's employer indicates that the assaults did have a profound effect on Mr Miniter in that they affected him in his work causing his employer to take steps to obtain counselling for him. Although Mr Mitchell in his letter does not profess any expertise, the early observation by him of symptoms consistent with those later documented by the clinical psychologist, lends weight to the evidence of Mr Miniter and Ms Morrigan.
89 In his affidavit dated 23 June 2014 Mr Miniter states that he did not make a good recovery from the trauma as Mr Mitchell stated, but was able to cope with the criminal proceedings. He states that he was very relieved that he did not have to testify against the respondents.
90 Mr Miniter also states that his counselling with Mr Mitchell stopped because his entitlement pursuant to his employment was exhausted. He did, however, continue to suffer psychological symptoms.
91 These symptoms are detailed in the report of Ms Morrigan who took a detailed history of Mr Miniter's background and personal circumstances. It is unnecessary for the purposes of these reasons to go into great detail about matters personal to Mr Miniter, but it is noteworthy that notwithstanding considerable deprivation as a child and educational difficulties, he has since age 18 worked as a plant operator for the Shire of Gnowangerup. He has a serious heart condition. He avoids conflict and violence and experiences feelings of anxiety in circumstances involving anger or confrontation.
92 Since the incident in which the assaults were committed he has tried to avoid the respondents and their families. If he does encounter any of them he experiences physical symptoms of anxiety. As a result he avoids going out and has ceased attending local football matches despite a long and active association with the Gnowangerup Football Club. He has disturbing dreams of the assault and experiences flashbacks when he is going to sleep. He relocated to Albany by reason of his psychological disturbance. He and his family have not returned to Gnowangerup. Mr Miniter told Ms Morrigan that he only felt safe when he was at work.
93 He described a loss of self-worth with feelings of inferiority and of being useless, no longer seeing himself as able to defend himself or his family. This has affected his parenting. He suffered a loss of confidence in this regard and the loss of self-worth in terms of his family and the community.
94 He also suffered a reaction to being charged with disorderly conduct, notwithstanding that the charge was discontinued. Ms Morrigan described Mr Miniter as having experienced significant distress and complex loss as a result of the incident.
95 Ms Morrigan administered the Trauma Symptom Inventory-2. The responses revealed a pattern of post-traumatic stress disorder featuring a heightened anxiety level, a high level of intrusive experience in the form of nightmares, flashbacks and repetitive thoughts of the assault and a high level of defensive avoidance to manage his emotions. The responses also identified a significant depression with suicidal ideation and loss of self-worth.
96 Ms Morrigan recommended psychological counselling to assist with management of depression and ongoing PTSD. Recommended future treatment would be 20 sessions at $228 per session. Medical review is also suggested but I am not able to make any findings in relation to any medical condition Mr Miniter may have without medical evidence.
97 Ms Morrigan's report describes a significant loss of enjoyment of life associated with diminished self-worth and feelings of anxiety, humiliation and helplessness. His work role however provides a sense of achievement and identity. In terms of prognosis Ms Morrigan opined:
Mr Miniter is likely to have persistent problems arising from his loss of self-worth, the disturbance to his family relational network and underlying feelings of belonging and security, and the loss of confidence in the belief that he can look after his family and himself and effectively manage complex situations. His underlying resilience and capacity to maintain employment and daily commitments suggests further improvement is likely over time.
98 Section 12(1) of the Act provides that 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. 'Injury' is defined by s 3 to include bodily harm and mental and nervous shock.
99 The phrase 'mental or nervous shock' comprehends any malfunction of the person that can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction: Hatfield v Under Secretary for Law (Unreported, WASC, Burt CJ, 15 December 1980); S v Neumann (1995) 14 WAR 452, 561; M v J& J v J (Unreported, WASC, Scott J, 19 November 1992).
100 The evidence of the clinical psychologist is not evidence upon which the court can find as a medical fact that the Mr Miniter meets the diagnostic criteria for major depression or post-traumatic stress disorder, however I am satisfied by that evidence that the psychological symptoms that have been described constitute mental and nervous shock for the purposes of the Act. Mr Miniter is entitled to compensation for his bodily injuries and mental shock. In assessing his compensation I take into account that he has not sought or obtained medical treatment and that in the opinion of Ms Morrigan his mental symptoms are likely to improve. I expect that appropriate counselling will speed and enhance that improvement.
101 I assess his compensation for injury in the amount of $25,000.
102 The court has no evidence of compensable financial loss apart from a St John Ambulance invoice for $319.00. I allow that amount. Mr Miniter's only treatment appears to have been that provided by way of counselling through his employer at no cost to him.
103 An interim payment was ordered in respect of the cost of the psychological assessment and report. The fee paid was $1,397. As the interim payment must be deducted from the award of compensation I will allow that amount.
104 I accept that there is a reasonable need for psychological counselling in order to ameliorate the adverse effect of the assaults. Based on Ms Morrigan's report I would allow 20 sessions at $228, a total of $4,560. This component of the award is subject to s 48 of the Act.
105 Accordingly, further to the orders made on 11 March 2014, I would order that:
1. The appeal be allowed.
2. The decision of the learned assessor refusing compensation be set aside.
3. The applicant be awarded compensation in the amount of $29,879, net of the interim payment, and inclusive of $4,560 by way of future treatment expenses.
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