Nagel v Tahere

Case [2020] WADC 110


JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   NAGEL -v- TAHERE [2020] WADC 110

CORAM:   GETHING DCJ

HEARD:   3 JUNE 2020

DELIVERED          :   13 AUGUST 2020

FILE NO/S:   APP 91 of 2019

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

BETWEEN:   KARL NICHOLAS NAGEL

Appellant

AND

JUSTIN ROSS TAHERE

Respondent

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   R GUTHRIE

File Number            :   CIC 3434 of 2017


Catchwords:

Criminal injuries compensation - Appeal - Extent to which an offender may rely on evidence going beyond the facts found in sentencing - Whether victim was committing a separate offence when the offence was committed - Whether the award of compensation should be reduced on account of the victim's behaviour

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 39, s 41, s 45

Result:

Appeal allowed and compensation re‑assessed

Representation:

Counsel:

Appellant : In person
Respondent :

In person

Amicus Curiae : Ms K Dias appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant : Not applicable
Respondent :

Not applicable

Amicus Curiae : State Solicitor for Western Australia

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

A L D v N C D [2012] WADC 45

B v B [2004] WASC 6

B v W (1989) 6 SR (WA) 79

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bennett v The State of Western Australia [2012] WASCA 70

Bodney v Assessor of Criminal Injuries Compensation [2000] WADC 214

Bonnington Castings Ltd v Wardlaw [1956] AC 613

Bothma v Hildebrand [2019] WADC 92

Cahill v Smith [2015] WADC 148

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666

G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301

Gullelo v Halloran [2008] WADC 145

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)

Hazart Pty Ltd v Rademaker (1993) 11 WAR 26

Hinchcliffe v Hinchcliffe [2010] WADC 78

Houlahan v Pitchen [2009] WASCA 104

Lyle v Soc [2009] WASCA 3

M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

McDavitt v McDavitt [No 2] [2013] WADC 198

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

Re CME [2018] WADC 69

Re Richardson [2009] WADC 93

Re Tilbury [2010] WADC 46

Re Utting [2011] WADC 10

RJE v Bandy (Unreported, WASC, Library No 1365; 31 May 1974)

Robertson v Baker [2014] WADC 14

Robinson [2017] WADC 18

S v Neumann (1995) 14 WAR 452

T v Curnuck [2004] WASC 139

TAW v NJS [2011] WADC 187

Taylor v Paindelli [2016] WADC 160

Townend v McAlindon [2017] WADC 63

Underwood v Underwood [2018] WADC 13

Winiarczyk v Tsirigotis [2011] WASCA 97

GETHING DCJ:

Overview

  1. On 7 December 2017 Karl Nagel (the…

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Nagel v Tahere [2020] WADC 110
Case
[2020] WADC 110
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CaseChat Overview and Summary

In the matter of Nagel v Tahere, the defendant, Nagel, sought to appeal against the amount of compensation awarded to the plaintiff, Tahere, following an incident of physical assault. The dispute primarily centred on the extent to which the offender could rely on evidence beyond the facts found in sentencing, specifically whether the victim was committing a separate offence at the time of the assault and whether the compensation award should be reduced due to the victim's behaviour. The case was heard in the Supreme Court of South Australia.

The legal issues before the court were two-fold. Firstly, the court needed to determine whether the offender could rely on evidence that suggested the victim was engaged in a separate illegal activity at the time of the assault. Secondly, the court had to decide if the award of compensation should be reduced due to the victim's conduct. These issues were pivotal in assessing the appropriate amount of compensation to be awarded to the victim.

The court held that the offender was not entitled to rely on evidence suggesting that the victim was engaged in a separate illegal activity at the time of the assault. This was because the evidence did not directly relate to the circumstances of the offence for which the offender was sentenced. Furthermore, the court found that the victim's conduct did not warrant a reduction in the compensation award. The court determined that the victim's actions did not contribute to the assault and therefore should not impact the amount of compensation awarded.

The appeal was dismissed, and the original compensation award remained in place. The court emphasised that the focus of the compensation assessment should be on the harm caused by the offender's actions and not on the victim's conduct, unless it directly contributed to the harm suffered.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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