Phillips v Mettam - [2022] WADC 49

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   PHILLIPS -v- METTAM [2022] WADC 49
CORAM:   PRIOR DCJ
HEARD:   21 JANUARY 2022
DELIVERED          :   27 MAY 2022
FILE NO/S:   APP 37 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   DAVID ROBERT PHILLIPS
Appellant
AND
KARLEE JAYDE METTAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R CAPARARO
File Number            :   CIC 2052 of 2019

Catchwords:

Criminal injuries compensation - Proved offences - Separate offences allegedly committed by the appellant at the time appellant injured as consequence of proved offence - Assessment of compensation

Legislation:

Criminal Code (WA), s 222, s 223, s 244, s 254

Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 12, s 39, s 41, s 48, s 55, s 56

Dangerous Goods Safety (Explosives) Regulations 2007 (WA), r 38, r 137, r 139(2)
Dangerous Goods Safety Act 2004 (WA), s 12
Firearms Act 1973 (WA), s 23(5)(c), s 23(9)(a), s 23(9)(d)(i)

Result:

Appeal allowed
Compensation award $31,750

Representation:

Counsel:

Appellant	:	Mr M G Devlin
Respondent	:	No appearance
Amicus Curiae	:	Ms E F Archer appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Young & Young
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Briginshaw v Briginshaw (1938) 60 CLR 336
Chase v Francis [2020] WADC 34
Curnow v Garnant [2012] WADC 72
Garton v McCormack [2002] WADC 111
Gullelo v Halloran [2008] WADC 145
GW v JW [2019] WADC 15
Hill v Clarke [2015] WADC 93
Hutchings v Lachlan [2012] WADC 89
JY [2013] WADC 187
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Perris v Riley [2009] WADC 39
Phillips [2021] WACIC 23
PK v KDK [2006] WADC 183
Re Richardson [2009] WADC 93
Robinson [2017] WADC 18
Underwood v Underwood [2018] WADC 13

PRIOR DCJ:

Introduction

The application for compensation was made pursuant to s 12 of the Criminal Injury Compensation Act 2003 (WA) (CICA) on the basis that if the assessor of Criminal Injuries Compensation (the Assessor) was satisfied that there was a proved offence, then the appellant was entitled to compensation pursuant to that legislation ‑ save for the exceptions set out in the CICA.
The appellant had applied for compensation for losses suffered by him as a result of receiving multiple stab wounds inflicted by Ms Karlee Mettam (the respondent) during the course of an unlawful entry onto the appellant's property at 11 McMahon Court, Uduc by the respondent and others on 23 September 2017. The appellant's property is a 30 acre rural property.[1]
[1] Letter from appellant's solicitors dated 13 November 2020.
The respondent entered her plea of guilty on 15 January 2018 in Harvey Magistrates Court to an offence of unlawful wounding in circumstances of aggravation (the Wounding Offence) and was convicted. As a result a proved offence as required by the CICA has occurred.[2]
[2] CICA s 3.
The appellant filed an application dated 7 January 2019 for criminal injuries compensation at the Assessor's office on 9 January 2019 (the application).
In a letter dated 27 October 2020 to the appellant, the Assessor expressed the preliminary view that she had concerns with regards to the appellant's eligibility for compensation due to s 39 of the CICA due to the appellant having committed separate offences. The offences identified were:
(a)the appellant grabbing the respondent by the shirt and throat (an assault); and
(b)possessing and letting off fireworks on his property in contravention of the Dangerous Goods Safety (Explosives) Regulations 2007 (WA) r 38 (Regulations).
The Assessor invited the appellant to make submissions in response to her letter within 28 days, failing which she would proceed to make a determination on the basis of the information that was currently before her.
The Assessor then received a letter from the appellant's solicitors in response to her preliminary views which outlined that:
(a)the appellant had legal authority to use reasonable force to prevent the respondent from entering his property, or to cause the respondent, who was wrongfully at his property, to leave his property; and
(b)there was no temporal connection between the setting off of the fireworks and the incident where the appellant was injured, as a result of the unlawful act by the respondent in stabbing the appellant.
Following the response from the appellant's solicitors, the Assessor directed the case manager to request an incident report trawl from Western Australian Police in relation to both the respondent and the appellant. The request showed an incident involving the appellant on 10 October 2017, involving the possession of dangerous goods amongst other offences. The offences included possession of an unlawfully altered firearm, inadequate storage of a firearm/ammunition and unlicensed possession of dangerous goods. The Assessor also obtained the police brief for these offences.
The assessor relied on statements dated 25 September 2017 and 7 January 2019 made by the appellant as to the facts of the Wounding Offence committed by the respondent. The first statement was made to the police officers investigating the Wounding Offence and the second statement was made in support of the appellant's application.
There is no transcript of the respondent's sentencing facts. The police statement of material facts and incident report relating to the Wounding Offence was referred to in the Assessor's reasons.
In a letter dated 25 May 2021, the Assessor declined the appellant's application on the basis that at the time the injury was suffered the appellant was committing a separate offence and consequently, pursuant to s 39(1)(b) of the CICA the appellant was not entitled to compensation. The Assessor published reasons for her decision on 12 November 2021 (the Assessor's reasons).
The appellant by appeal notice dated 11 June 2021 appealed the decision to this court pursuant to s 55(3) of the CICA.
For the reasons which follow, the Assessor's decision should be reversed and compensation in the sum of $31,750 should be awarded to the appellant.

The appeal to the District Court

The appellant filed an appeal notice in the District Court on 11 June 2021. The sole ground asserted was that:
a.[W]ith consideration of all the facts and circumstances of the case, s 39(1) of the Criminal Injuries Compensation Act 2003 cannot properly be enlivened to disentitle the Appellant from compensation under the Criminal Injuries Compensation Act 2003.
The appellant has filed submissions, as did the State Solicitor's Office acting on behalf of the Chief Executive Officer of the Department of Justice, appearing as amicus curiae.
In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision'.[3] The appeal is a hearing de novo.[4] I am to treat the appellant's applications as if each came before the court for the first time, save that the appellant has the right as well as the obligation to open the appeal. The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.[5]
[3] CICA s 56(1).
[4] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ); Robinson [2017] WADC 18 [7] (Troy DCJ); Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
[5] Underwood v Underwood [19]; Gullelo v Halloran [5].
The court must determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.[6]
[6] CICA s 56(1).
It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part.[7]
[7] CICA s 56(2)(b).

Issues arising for determination

The issues which arise for consideration in this appeal are:
1.Whether the appellant was committing a separate offence such that a compensation award is precluded by s 39(1) of the CICA.
2.If the court considers that s 39(1) does not preclude an award, what is an appropriate amount to award by way of compensation.
3.Whether the appellant's behaviour, condition, attitude or disposition contributed, directly or indirectly to his injury such that the court may refuse to make an award or reduce the amount it otherwise would have awarded under s 41 of the CICA.

Criminal Injuries Compensation Act s 39(1) issue

Section 39(1) of the CICA provides:
If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that 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.
The term 'offence' is defined in s 3 of the CICA to mean 'an alleged offence or a proved offence'. 'Proved offence means a crime, misdemeanour or simple offence of which a person has been convicted'. 'Alleged offence means a crime, misdemeanour or simple offence of which no person has been convicted'. It follows that it is not necessary for the appellant to have been convicted of an offence for it to be a 'separate offence' for the purposes of s 39(1) of the CICA.[8]
[8] Chase v Francis [2020] WADC 34 [37].
The leading authorities on s 39(1) of CICA are Attorney General for Western Australia v Her Honour Judge Schoombee[9] and Hutchings v Lachlan[10] where Commissioner Gething summarised the principles.
[9] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 (AG v Schoombee).
[10] Hutchings v Lachlan [2012] WADC 89 [32].
In AG v Schoombee, the Court of Appeal followed Re Richardson[11] and said that:
I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case. Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant's injury and the applicant's offence are part of the one incident, that would be sufficient to show a temporal connection.
[11] Re Richardson[2009] WADC 93 [31].
The legal principles relating to the application of s 39(1) may be summarised as follows:
1.In respect of the question whether the appellant was committing a separate offence, the civil standard of proof applies and there is no onus of proof on either party.[12]
2.The gravity of the imputation of a criminal offence and the significance of its consequences, warrant the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[13] following Briginshaw v Briginshaw.[14]
3.There is no need for any causal connection between the injury for which the claim is made and any separate offence committed by the appellant. The only necessary connection between the injury and the separate offence is a temporal connection.[15]
4.The temporal connection does not require the appellant's offence to be committed at the same instant in time as the offence giving rise to the appellant's injuries.
5.Whether there is a temporal connection requires judgement of all the facts and circumstances of the case to determine whether at the time the appellant was injured the appellant was committing a separate offence. This will include consideration of whether the appellant's separate offence and the appellant's injuries are part of the one incident.
[12] Hill v Clarke [2015] WADC 93 [13] (Staude DCJ).
[13] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Dean & Gaudron JJ).
[14] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[15] AG v Schoombee [33] - [34] (Martin CJ, Newnes & Murphy JJA agreeing).
Several potential separate offences committed by the appellant arise on the materials before the court.
The most obvious of those are the use of fireworks outdoors,[16] the unlicensed possession of dangerous goods (fireworks),[17] an assault on the respondent,[18] and possessing an unlawfully altered firearm.[19]
[16] Contrary to reg 137 or 139(2) of the Regulations.
[17] Contrary to s 12 of the Dangerous Goods Safety Act 2004 (WA) (the Act).
[18] Contrary to s 222 and s 223 of the Criminal Code (WA).
[19] Contrary to s 23(5)(c) of the Firearms Act 1973 (WA).
In his statement to the police dated 25 September 2015, the appellant admitted that he 'left (sic) off a few small firecrackers' at his property on the date of the Wounding Offence as he and his family were 'having a celebration'.
In relation to the appellant's admitted behaviour referred to in [27], the appellant has not been convicted of any offence under the Act or Regulations.
The evidence before me indicates that any type of offence the appellant committed under the Act or Regulations I have referred to in [28] had occurred before the Wounding Offence was committed. There is also no evidence before me to indicate that any offence of this type occurred at the same location on the appellant's rural property as the Wounding Offence. The respondent was not present when the firecrackers were let off by the appellant. On the evidence there was some significant time difference between when the appellant let off firecrackers and when the respondent committed the Wounding Offence.
On the evidence before me I am not satisfied there is a sufficient temporal connection between the appellant's admitted behaviour involving fireworks and the Wounding Offence. I find the admitted activity involving fireworks is separate and distinct from the Wounding Offence. There is no material before me to indicate the appellant was letting off or possessed fireworks at the time and place when he was stabbed by the respondent.
The appellant was not charged with any assault type offence in relation to this interaction with the respondent before she stabbed him twice in the shoulder.
On the evidence before me, there is an admission by the appellant that he pushed the respondent and she fell on her back. The respondent does not refer to this activity in her interview with the police but states the appellant grabbed her by her shirt and by the throat. She said to the appellant 'let go or I'll stab you'. The appellant did not let go of the respondent and then she stabbed him.
If the appellant did assault the respondent in either way I have described in [32], I am satisfied he would have been excused by law pursuant to s 244 or s 254 of the Criminal Code by using force to prevent a home invasion or remove a person from his place who was wrongfully remaining there or behaving in a disorderly manner.
There is no evidence to suggest the respondent and others with her were lawfully on the appellant's property. Further, the respondent was armed with a knife at the time she attended the property.
In the appellant's statement dated 25 September 2017, he stated he was fearful for his safety and that the respondent would get closer to his family, particularly the younger children.
I am satisfied on the evidence if the appellant pushed or grabbed the respondent, what he did was reasonably necessary in the circumstances to remove the respondent from his property.
The force described in the evidence could not have been intended by the appellant to cause death or grievous bodily harm to the respondent.
The appellant was therefore acting lawfully immediately before he was wounded and the respondent was acting unlawfully.
The issue in relation to whether the appellant was committing an offence at the time he was wounded by the respondent on 23 September 2017 also arises from a police search of his property on 10 October 2017. The police found fireworks. The police also found that various firearms and ammunition inside a firearms cabinet were not adequately stored in compliance with the Firearms Act. One firearm in the cabinet was a sawn-off shotgun.[20]
[20] Statement of material facts and audiovisual log of appellant's record of interview.
As a result of the police search of the appellant's property on 10 October 2017, he was charged with the following offences:
1.Inadequate storage facility for firearms pursuant to s 23(9)(d)(i) of the Firearms Act.
2.Unlicenced possession of dangerous goods pursuant to s 12 of the Act.
3.Failure to ensure safe-keeping of firearm/ammunition pursuant to s 23(9)(a) of the Firearms Act.
On 20 June 2018 at the Harvey Magistrates Court the appellant upon his plea of guilty, was convicted of the first two offences described in [40] and the third offence was dismissed for want of prosecution. The appellant has provided certified copies of the prosecution notices for these three charged offences.
All three offences described in [40] were not charged as continuing offences. It was alleged all three offences occurred on 10 October 2017.
The material the assessor received from Western Australia Police indicates that a prosecution notice and statement of material facts were prepared for a prosecution of the appellant's possession of the sawn-off shotgun pursuant to s 23(5)(c) of the Firearms Act as an offence which occurred on 10 October 2017. There is no evidence before me to indicate the appellant was convicted of this offence.
The appellant in an interview with police officers on 8 November 2017 made admissions that he had possession of the sawn-off shotgun and fireworks for some time. He also agreed he had set the fireworks off at parties at his property. Where he stored them during that time period in my view, on the evidence would be speculation. In any event, there is no evidence to suggest he possessed the sawn-off shotgun at the location on his property where the Wounding Offence was committed by the respondent on 23 September 2017.
I am not satisfied there was a temporal connection between offences arising from items found in the police search of the appellant's property on 10 October 2017 and the injuries he sustained in the Wounding Offence committed by the respondent on 23 September 2017.
Having considered all the evidence of possible separate offences referred to in [26], that the appellant may have committed around the time and location of when the Wounding Offence was committed by the respondent, I am not satisfied there is a temporal connection.
I am not satisfied on the evidence before me the appellant was committing a separate offence when he was injured by the respondent. The provisions of s 39(1) of the CICA do not preclude the appellant from a compensation award being made in his favour.

Assessment of quantum of compensation award

The evidence before me which is relevant to the court's assessment of the injury suffered by the appellant includes:
(a)the statement of material facts extracted from the Assessor's reasons which refers to the appellant being stabbed twice to the shoulder;[21]
(b)the appellant's statement to police;[22]
(c)the appellant's statement in support of the application for compensation;[23]
(d)the appellant's victim impact statement, in which he describes five knife wounds - two cuts to his forearm, one stab hole to his shoulder blade, and two deep stab wounds to the left upper arm requiring internal stitches and staples. He also refers to shoulder pain from being struck by a metal bar;[24]
(e)the Harvey Hospital Emergency Department notes, which refer to two apparent stab wounds of the left upper arm and upper left shoulder. The appellant's wounds were sutured, stapled and dressed and his upper arm reinforced before he was discharged with paracetamol;[25]
(f)a report prepared by Dr Jagdev Singh, confirming the appellant was stabbed and his injuries attended to at Harvey Hospital.[26] Dr Singh reports that the appellant presented to Harvey Medical Group several days after the Wounding Offence with neck pain radiating to his right shoulder and arm as a result of being belted by a metal bar;
(g)a psychiatric report of Dr Stephen Proud, which indicates that the appellant had chronic pain in his left arm a year after the Wounding Offence;[27]
(h)photographs of injuries to the appellant's left shoulder and left arm;[28] and
(i)the Harvey medical record. Consistent with Dr Singh's report, these are notes of the appellant presenting several days after the Wounding Offence with neck pain radiating to his shoulder and arm. At subsequent consultations the appellant reported pain over the stab area and itching over the scar.[29]
[21] Phillips [2021] WACIC 23 [26] (R Capararo).
[22] Statement of appellant dated 25 September 2017, pars 29 and 38 (Assessor's papers, pages 12 - 13).
[23] Statement of appellant dated 7 January 2019, par 31 (Assessor's papers, page 20).
[24] Victim impact statement dated 13 November 2017 (Assessor's papers, page 14).
[25] Harvey Hospital Emergency Department notes dated 23 September 2017 (Assessor's papers, page 61).
[26] Report of Dr Jagdev Singh dated 15 May 2018 (Assessor's papers, page 68).
[27] Report of Dr Stephen Proud dated 18 October 2018 (Assessor's papers, page 73).
[28] Assessor's papers, pages 27 - 36.
[29] See consultation records dated 27 September 2017, 6 October 2017 and 30 April 2018.

The above materials are generally consistent so far as they pertain to the appellant's stab wounds and associated symptoms, save for the number of stab wounds reported.
In relation to the bruising and pain to the appellant's shoulders, it appears this resulted from him being struck by the fencing strainers wielded by the respondent's associate and not by the knife held by the respondent.
Dr Proud reports that the appellant developed post-traumatic stress disorder of moderate severity as a result of the Wounding Offence. Amongst other things, the condition has made the appellant anxious, sad and angry; has affected his concentration and short‑term memory; and has impacted his personal and work life. Dr Proud indicates that the appellant's condition will improve with treatment and time, but that he will have permanent residual symptoms.
Compensation is payable where a person has suffered 'loss', which is defined to mean medical expenses, future treatment expenses, loss of earnings, loss arising from damage to personal items.[30]
[30] CICA s 6(1), s 6(2); A v D (1994) 11 WAR 481, 489 (Pidgeon J).
In the application for compensation, the appellant claimed expenses incurred in obtaining medical reports, travel expenses and future treatment expenses.[31]
[31] Criminal Injuries Compensation Application - Form 1 (Assessor's papers, pages 3 - 8).
The definition of 'loss' includes expenses actually and reasonably incurred by or on behalf of an applicant that arise in obtaining any report from a health professional in relation to the injury suffered by the appellant.[32]
[32] CICA s 6(2)(a)(ii).
The appellant's lawyers paid $2,500 for the report of Dr Proud and $250 for the report of Dr Singh. Those expenses are evidenced by tax invoices.[33]
[33] Tax invoice issued by Harvey Medical Group dated 22 May 2018; Tax invoice issued by Dr Jagdev Singh dated 16 July 2018; Tax invoice issued by Blackwood Mental Health dated 18 October 2018 (Assessor's papers, pages 264 - 266).
'Loss' includes expenses actually and reasonably incurred by or on behalf of an appellant that arise directly from the injury.[34]
[34] CICA s 6(2)(a)(i).
The appellant claims the expenses of travelling 110 km to attend a counselling session with Liz Pekrides of 'Because You Can Psychology'.[35]
[35] Criminal Injuries Compensation Application - Form 1 (Assessor's papers, page 6).
It appears that the appellant attended subsequent counselling sessions,[36] but the expenses of travelling to them have not been claimed. The fees for those counselling sessions, if any, have not been claimed.
[36] Statement of appellant dated 7 January 2019, par 48 (Assessor's papers, page 23).
'Loss' includes expenses that are likely to be reasonably incurred by an appellant for treatment that he is likely to need in the future as a direct consequence of the injury.[37]
[37] CICA s 6(2)(b).
Dr Proud recommended that the appellant attend 20 sessions with a psychiatrist at a cost of $300 per session and 30 sessions with a clinical psychologist at a cost of $200 per session. Dr Proud noted that thereafter the appellant would require ongoing review and treatment from his general practitioner at a cost of $1,000 per annum for three years.[38] The appellant has claimed these amounts in his application.
[38] Report of Dr Stephen Proud dated 18 October 2018 (Assessor's papers, page 74).
Under s 48(1) of the CICA, future medical expenses[39] should be included in an award but must not be paid out to an applicant until he or she provides evidence that the expenses have actually been incurred.
[39] As defined in the CICA s 6(2)(b).
Although there are references in the evidence referred to in [48] to the appellant having difficulties working and operating his business due to his injuries, the application did not include a claim for loss of earnings and there is no evidence as to the amount of any such loss.
I am satisfied on the evidence the appellant's physical and psychological injuries were incurred as a result of the Wounding Offence. I exclude the injuries incurred by the appellant by way of bruising to his left arm.
In making an assessment as to the appropriate compensation to be awarded to the appellant I have had some regard to the following assessments:
•GW v JW[2019] WADC 15
•Hill v Clarke [2015] WADC 93
•JY [2013] WADC 187
•Curnow v Garnant [2012] WADC 72
•Perris v Riley [2009] WADC 39
•Gullelo v Halloran [2008] WADC 145
•PK v KDK [2006] WADC 183
•Garton v McCormack [2002] WADC 111
I consider an appropriate award for general damages to the appellant is $14,000 for the injuries he suffered in the Wounding Offence.

Should the appellant be refused an award or should the award be reduced pursuant to s 41 of the CICA?

On the evidence before me I am satisfied s 41 of the CICA has no application to the appellant's application.
There is no evidence the appellant's behaviour or condition, contributed directly or indirectly to the appellant's injury sustained in the Wounding Offence.

Conclusion

I would allow the appeal and set aside the assessor's decision of 25 May 2021.
Compensation is awarded to the appellant in the following amounts:
(a)Non-pecuniary loss                $14,000
(b)Medical Report Dr S Proud     $2,500
(c)Medical Report Dr D J Singh $250
(d)Future medical treatment:
(i)Psychiatrist                $6,000
(ii)Psychologist              $6,000
(iii)General medical practitioner $3,000
Total$31,750
In relation to the award of the $15,000 for future medical treatment the provisions of s 48 of the CICA should be applied.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
26 MAY 2022