NBS v MAC - [2013] WADC 83

NBS -v- MAC [2013] WADC 83

Last Update: 05/06/2013

NBS -v- MAC [2013] WADC 83
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 83
Case No:	APP:91/2012	Heard:	18 MARCH 2013
Coram:	STEVENSON DCJ	Delivered:	30/05/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	20	Judgment Part:	1 of 1
Result:	Appeal allowed Extension of time to appeal granted The criminal injuries compensation award of $77,273.30 dated 4 September 2012 be wholly set aside
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram: R GUTHRIE Citation: [2012] CI 485
Parties:	NBS MAC
Catchwords:	Criminal injuries compensation Appeal Leave to appeal out of time Consensual adult incest Whether alleged victim engaged in same criminal conduct or committing a separate offence at the same time as the commission of the offence said to give rise to injury Section 39(1) of Criminal Injuries Compensation Act 2003 - No award if victim did not assist in identification and apprehension of offender Behaviour and attitude of the victim to be considered in making award
Legislation:	Criminal Code s 319(1), s 329(7), s 329(8) Criminal Injuries Compensation Act 2003 (WA) pt 6, s 12, s 16, s 23, s 38, s 39(1), s 41, s 45(1)(b), s 47, s 55(3), s 55(4) Evidence Act 1906 s 36BD
Case References:	B v T [2011] WADC 98 Bentham v Wass [2004] WADC 47 Easterday v The State of Western Australia (2005) 30 WAR 122 Gallo v Dawson (1990) 93 ALR 479 Lucas v Assessor of Criminal Injuries Compensation (1998) 21 SR (WA) 40 McGowan v Colvin [2008] WADC 93 Re Hondros [1973] WAR 1 Scott v Kevill (2002) 28 SR (WA) 226 Smith v The State of Western Australia [2012] WASCA 239

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NBS -v- MAC [2013] WADC 83 CORAM : STEVENSON DCJ HEARD : 18 MARCH 2013 DELIVERED : 30 MAY 2013 FILE NO/S : APP 91 of 2012 MATTER : IN THE MATTER of Part VI of the Criminal Injuries Compensation Act 2003

and

IN THE MATTER of an Appeal by

BETWEEN : NBS

Appellant

AND

MAC

Respondent

ON APPEAL FROM:

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram : R GUTHRIE

Citation : [2012] CI 485

(Page 2)

Catchwords:

Criminal injuries compensation - Appeal - Leave to appeal out of time - Consensual adult incest - Whether alleged victim engaged in same criminal conduct or committing a separate offence at the same time as the commission of the offence said to give rise to injury - Section 39(1) of Criminal Injuries Compensation Act 2003 - - No award if victim did not assist in identification and apprehension of offender - Behaviour and attitude of the victim to be considered in making award

Legislation:

Criminal Code s 319(1), s 329(7), s 329(8)
Criminal Injuries Compensation Act 2003 (WA) pt 6, s 12, s 16, s 23, s 38,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NBS v MAC

Details

AGLC: NBS -v- MAC [2013] WADC 83
Case: [2013] WADC 83
Decision Date: 30 MAY 2013

CaseChat Overview and Summary

In the case of NBS v MAC, the appellant sought compensation for criminal injuries sustained during an incident involving incestuous conduct with the respondent. The dispute centred on whether the appellant, who was also engaged in criminal activity, was eligible for compensation under the Criminal Injuries Compensation Act 2003. The primary legal issue before the court was whether the appellant's concurrent criminal conduct disqualifies her from receiving compensation. The court also needed to consider the appellant's conduct and attitude in relation to the crime and her role in the identification and apprehension of the offender.

The court examined the provisions of section 39(1) of the Act, which stipulates that compensation will not be awarded if the victim did not assist in the identification and apprehension of the offender. The court further needed to evaluate the appellant's behaviour and attitude in the context of her criminal conduct. In assessing these factors, the court considered the appellant's active participation in the criminal act and the implications of her conduct on her eligibility for compensation. The court held that the appellant's concurrent involvement in criminal activity, which included consensual adult incest, significantly impacted her standing for compensation. The appellant's failure to assist in the identification and apprehension of the offender, coupled with her criminal conduct, led the court to conclude that she did not meet the criteria for compensation under the Act.

Consequently, the court allowed the appeal and granted an extension of time to appeal. The criminal injuries compensation award of $77,273.30, dated 4 September 2012, was wholly set aside. The court's decision underscores the importance of the victim's conduct and attitude in determining eligibility for compensation, particularly in cases involving concurrent criminal activity.

Orders

Orders of the court

Appeal allowed

Extension of time to appeal granted

The criminal injuries compensation award of $77,273.30 dated 4 September 2012 be wholly set aside

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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