Pym v Richardson
[2018] WADC 156
•22 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PYM -v- RICHARDSON [2018] WADC 156
CORAM: SCOTT DCJ
HEARD: 8 OCTOBER 2018
DELIVERED : 22 NOVEMBER 2018
FILE NO/S: APP 23 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: ANTHONY JOHN PYM
Appellant
AND
SHANE MICHAEL RICHARDSON
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION OF WESTERN AUSTRALIA
Coram: R GUTHRIE
File Number : CIC 1404 of 2015
Catchwords:
Appeal - Criminal injuries compensation - Whether victim committed a separate offence - Plea of guilty to proven offence - Incontrovertibility of magistrate's findings of fact on sentencing offender - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003, s 12, s 39, s 41
Result:
Appeal allowed
Order for compensation set aside
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J N Trigg |
| Amicus Curiae | : | Ms Z J Bush appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Stephen Browne Lawyers |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennett v The State of Western Australia (2012) 223 A Crim R 419
Gullelo v Halloran [2008] WADC 145
Hinchliffe v Hinchliffe [2012] WADC 78
Hogben v Darcy [2009] WADC 63
Hutchings v Lachlan [2012] WADC 89
McDavitt v McDavitt [2013] WADC 22
Selimoski [2012] WADC 30
Underwood v Underwood [2018] WADC 13
SCOTT DCJ:
Introduction
On 6 November 2013 the appellant was convicted on his plea of guilty to the offence that on 26 June 2012 at Middle Swan he unlawfully assaulted the respondent and thereby did him bodily harm.
By an application dated 14 April 2015 the appellant claimed compensation pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (Act). The Assessor conducted a hearing of the application on 14 February 2018 and on that day gave detailed extempore reasons and handed down his determination by which he awarded the respondent the sum of $53,679.15 made up as follows:
Injuries $30,000.00 Reports $3,432.00 Treatment expenses $97.15 Loss of earnings $20,000.00 Travel $150.00 Total $53,679.16
This is an appeal pursuant to s 55 of the Act against that award.
Evidence on the Appeal before this court
The materials before the Assessor comprised:
(a)Respondent's CIC application form 14.4.15.
(b)Respondent's schedules of special damages, past loss of earnings and superannuation, future medical expenses and travel costs.
(c)Impact statement of respondent 27.4.15.
(d)Medical reports:
•Dr Eboney Staker with clinical records 8.10.14
•Dr Ross Goodheart 14.10.14
•Dr Frederick Ng 14.10.14
(e)Tax invoices – medical reports
•Dr Eboney Staker 18.9.14
•Dr Ross Goodheart 15.10.14
•Dr Frederick Ng 8.12.14
(f)Email from Mt Gibson Iron to respondent's solicitors with enclosures 19.1.14.
(g)Letter ATO to respondent's solicitors 22.6.15.
(h)2010 – 2014 taxation returns of respondent.
(i)Payment summaries (various) 30.6.10 – 30.6.14.
(j)Letter Medicare to respondent's solicitors with claims history statement 4.3.15.
(k)Freedom of Information files.
•Royal Perth Hospital records containing Admission Registration – Record for the respondent 5.7.12
•Swan-Kalamunda Health Service and records containing Emergency Registration Records for the appellant 23.6.12 and for the respondent 23.6.12 and 25.6.12
(l)Correspondence:
Appellant's submissions 28.8.15
Letter respondent's solicitors to CIC 2.12.15
Appellant's submissions 17.1.16
Letter respondent's solicitors to CIC 14.3.16
(m)Transcript of the sentencing of the appellant on 6 November 2013 (sentencing)
The further materials in this appeal comprised:
(a)Appeal notice.
(b)Appellant's submissions 10.4.18.
(c)Respondent's submissions 2.10.18.
(d)Department of Justice submissions 27.9.18.
(e)Transcript of hearing before the Assessor on 14.2.18.
(f)Photograph of house tendered by appellant at the appeal hearing (photograph).
Appeal notice
The grounds of appeal in the appeal notice are expressed as follows:
The Assessor failed to give sufficient weight to my evidence of mitigating circumstances under sect CIC 2003, s 39, s 41, 55.
In the appellant's submissions dated 10 April 2018 the appellant also raised the complaint that the Assessor awarded compensation to the respondent in an amount which was in all the circumstances excessive. Although that was not a matter raised in the appeal notice it was a matter dealt with by the respondent in his solicitor's outline of submissions. As a consequence no prejudice has been suffered by the respondent in that matter being determined by me on this appeal if necessary.
Appellant's conviction and sentencing facts
The relevant transcript excerpts of the sentencing in the Magistrates Court on 6 November 2013 were as follows:
PROSECUTOR: The facts are as at 7.30 pm on Saturday 23 June last year the victim was at his home at 24 Patterson Drive in Middle Swan when the accused who is known to the victim arrived in a vehicle to discuss issues relating to his son. The victim has walked out into the front garden area where the accused has told the victim to get into his car by saying several times, 'Get into the car'.
The victim has refused and the accused has then walked up to the victim and started prodding him repeatedly in the chest. The victim has struck out at the accused. The accused then punched the victim twice to the face and the victim has fallen backwards to the ground, landing on his back.
Specialist medical examination revealed that the victim suffered a depressed fracture to the left nasomaxillary complex which required surgery.
TUDORI, MR: The facts are obviously admitted because – because they are by agreement now amended. The offender, 43 years of age, in a de facto relationship and what this issue was over was the shared – their shared son. And the shared son has health and medical and mental conditions ‑ ‑ ‑
So he has gone around there to confront – or not to confront, but discuss this with the victim, the complainant. When he arrived the complainant was intoxicated, heavily intoxicated and that is noted in the brief. There was also another person present who had an axe handle. So the offender said, 'Get in the car. We will discuss it away from everybody else'.
What happened then was he refused to get in the car. Next thing the victim, Richardson, has got a bottle and clocked him over the head. Now, he has reacted, one punch.
Now, it's self‑defence, but it's disproportionate to what he received versus to what the victim received.
HIS HONOUR: And did the other bloke get charged with ‑ ‑ ‑
TUDORI, MR: No.
HIS HONOUR: Those facts as I have been told and under the circumstances outlined Mr Tudori I think it's appropriate for there to be a fine of $750, costs of $68 and a spent conviction order under those unique circumstances.
Provisions of Act
This appeal was commenced pursuant to s 55 of the Act. By s 56(1) on an appeal under s 55 against an assessor's decision 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 the possession of the assessor or may receive further evidence and information'.
On an appeal this court may confirm, vary or reverse the Assessor's decision either in whole or in part (s 56(2)(b)).
Consequently the appeal is a hearing de novo. However it is nonetheless appropriate to have regard to the assessment made by the Assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13]. The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo v Halloran [2008] WADC 145 [5].
If a party wishes to rely on any evidence and information which was not in the possession of the Assessor then leave is required to adduce that information or evidence, on the appeal. Additional evidence should be admitted on the appeal 'unless there is some reason why it would be unjust to do so': Hinchliffe v Hinchliffe [2010] WADC 78; Selimoski [2010] WADC 30. In this case the additional information or evidence comprised a transcript of the hearing before the Assessor including his determination and, from the appellant's standpoint, a photograph of the house premises in respect to which he gave short evidence. I granted leave for that evidence to be received.
Other provisions of the Act which are relevant in considering the matters raised in this appeal are s 39 and s 41.
39.No award if victim was engaged in criminal conduct
(1)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.
41.Behaviour etc, of victim to be considered
In deciding whether or not to make a compensation award or the amount of a compensation award, in favour of a victim, … an assessor —
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury …; and
(b)may, if he or she thinks it is just to do so —
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
In this appeal the matters which fall for my determination can be conveniently summarised as follows:
1.The facts upon which the appellant was convicted of the proved offence.
2.The extent to which the respondent is permitted to adduce evidence in his claim for compensation pursuant to s 12(1) of the Act which goes beyond or is inconsistent with the facts upon which the appellant was convicted of the proved offence.
3.Whether the respondent suffered his injuries when he was committing a separate offence (s 39).
4.If the respondent's injuries were suffered when he was not committing a separate offence, whether his behaviour, condition, attitude or disposition contributed directly or indirectly to his injury and if so whether it is just to refuse to make a compensation award because of that contribution or reduce the amount which would otherwise have been awarded (s 41).
5.The amount of compensation which ought to be awarded to the respondent.
Evidence before the Assessor and this court
There is no dispute that:
(a)The appellant was the boyfriend of the respondent's ex‑partner, Ms Edney.
(b)The respondent telephoned Ms Edney about the appellant allegedly manhandling his son of whom Ms Edney was the mother and during the telephone conversation the respondent and the appellant also spoke.
(c)The appellant then attended the respondent's property at which time the respondent had a beer bottle in his left hand.
(d)Ms Brooker and Mr Dale were at the front door of the property a short time after, if not when, the appellant arrived.
(e)The respondent had been drinking James Boag light beer since around midday and admitted having eight or nine beers. There is disputed evidence about the extent to which the respondent was intoxicated.
(f)When the appellant arrived in his car at the respondent's property he told the respondent to get in his car so that they could talk. There is dispute as to the language and tone of the appellant however the conversation was animated.
(g)The respondent refused to get into the appellant's car.
(h)The appellant invited himself into the respondent's house to talk with him and the respondent refused entry to the appellant. The respondent did not then endeavour to enter the house.
(i)The appellant punched the respondent to the left hand side of his face once.
(j)The punch resulted in a depressed fracture of the respondent's nose and maxillary complex that required surgery.
(k)The respondent swung his left hand holding the beer bottle which impacted to the right hand side of the back of the appellant's head resulting in a large lump.
As to whether the respondent invited the appellant to his property or the appellant attended on his own initiative, there is evidentiary dispute. In his submissions by letter dated 28 August 2015 and in the hearing before the Assessor the appellant said that he attended the property at the request of the respondent. However in his interview with police in July 2012 he said he attended on his own initiative, which was consistent with the respondent's version of events at the hearing before the assessor. In my view nothing turns on the resolution of this evidentiary issue.
In the hearing before the Assessor he correctly identified the primary evidentiary issue which he had to consider to be whether, in all the circumstances, he was satisfied that the appellant punched the respondent to the face before or after he was struck to the back of the head by the bottle in the respondent's left hand.
The Assessor observed that if his finding was that the respondent struck the appellant with the bottle before he was punched, then the respondent would have committed a separate offence for the purposes of s 39.
Relevantly the evidence before the Assessor, and this court was as follows.
The Appellant
In the hearing before the Assessor the appellant said that when he got to the respondent's house the respondent came towards the car and the appellant said to the respondent 'Jump in, man, and we will have a yarn about it'. The respondent said 'No. I'm not getting in the car. Did you manhandle my son?' and the appellant said he told him 'No, I didn't'.
He said he asked the respondent about three times to get into the car before he got out of the driver's seat. He said the respondent said 'No I'm not getting in the fucking car'. The appellant conceded that he said 'Come on man. Get in the fucking car' but the respondent still refused.
In his interview with police he told police that when he arrived at the respondent's house, the respondent's girlfriend (Ms Brooker) and a male were standing in the doorway and Ms Brooker was holding an axe handle. He said that the respondent kept on asking him whether he had manhandled his son which he continually denied.
At the hearing he said the respondent sort of rushed towards him, looked up at him and said 'Don't you fucking stand over the top of me' to which the appellant said, 'You walked up to me. I didn't walk up to you'. The appellant said he was then asked by the respondent again 'Did you manhandle my son?' to which he responded 'No. I probably love your son more than you do'.
The respondent then said 'don't you fucking poke me' and from a distance of about a metre or two the appellant said, 'if I was poking you I would be doing this' and made the gestures but said his finger or hands never touched the respondent at all.
He said as that happened the front door burst open or kicked open, and he looked to the side and was then hit in the head with the beer bottle. He did not remember hitting the respondent because of the hit to himself. He accepted that he threw one punch to the face of the respondent.
He said he didn't remember getting from where he and the respondent were down to his car when he ended up on the bonnet with the respondent. He saw the axe handle being held by Ms Brooker, grabbed it and threw it down the road. He then jumped in the car and went to the police station and when he was asked if he wanted to make a report he said that he did not and if he (the respondent) wanted to make a report then that was up to him. He then went to the Swan Districts Hospital.
He said that the lump from being hit with the bottle was at the base of the back of his head on the right hand side.
This account is largely consistent with his submissions in his letters of 28 August 2015 and 17 January 2016.
As to the agreed material facts which were read to the learned magistrate when he entered his plea of guilty and was sentenced to the effect that he started prodding the respondent repeatedly in the chest, he said that did not happen.
He said that the beer bottle held by the respondent broke when he was struck with it because he had pieces of bottle in his hair and he was still picking them out. He agreed that the medical report stated that there was no glass.
The respondent
On that day he said he, his fiancé Janet Brooker, his nephew Robert Dale and his niece Amanda Dale were watching football whilst having a barbeque out the back of the house. He had been drinking James Boags light beer and until the evening when the appellant arrived he had consumed eight or nine stubbies which he was drinking in a stubby holder. This would have been over a period of about seven hours. He and Ms Edney had a child together who was then 21 and who suffered from grand mal epilepsy.
The respondent said he had been told by his son that the appellant had thrown him in the shower and hurt his back. As a consequence the respondent said he telephoned Ms Edney and she handed the telephone to the appellant, they had a discussion and the appellant said that he would come over and hung up the phone.
He said when he heard the vehicle arrive he went out the front door and the appellant told him to get in the fucking car. He said that the appellant said that several times and on each occasion, he responded that he would not get into the car. His fiancé Janet Brooker was at the front door and she said 'Don't get in the car'.
When the appellant and he were having this conversation the respondent said that he was about 4 m from the front door of his house near the driveway and he and the appellant were facing each other.
The appellant said, 'Right. We will go in and sort it out' and started to proceed to the front door and the respondent said that he was not going into his house. In his statement to police the respondent said that the appellant then raised his hands and was doing finger poking gestures towards his head. The respondent said that he told the appellant 'don't poke me' and the appellant said 'If I was poking at you I would be doing this' and proceeded to poke his chest with both hands and it felt hard, threatening and uncomfortable. The appellant then punched him in the face without any indication. He said that as he was falling backwards, he grabbed the appellant's shirt and swung his left hand, which still had the beer bottle in it. He said he could not recall whether the beer bottle made contact with the appellant.
At the hearing before the Assessor (ts 15) the respondent said:
I've just gone to try and grab him, and I've just swung, and I had stubby in my hand at the time. And I've just swung … didn't realise I had it in my hand. I just didn't think. Just swung. Just grabbed at him and swung the stubby. I swung my hand and had my stubby in it, which was in a stubby holder at the time.
It was put to him in the hearing before the Assessor that the appellant had said in his interview with police that it was as a consequence of the blow to his (the appellant's) head that he (the appellant) swung and struck the respondent which the respondent said was incorrect.
At the hearing before the Assessor the respondent said when he swung (the bottle) the appellant was facing him and he could not explain how it was that the appellant was hit in the back of the head. He said the stubby was not broken.
Janet Brooker
She gave a statement to police that evening. In that statement she said that the appellant asked the respondent to go for a drive so they could talk about the respondent's son. The respondent refused. She heard the appellant start to raise his voice and saw him poke the respondent in the chest repeatedly with his finger. She said she saw the appellant punch the respondent to the face once, and then saw the two of them struggling together still fighting on the bonnet of the appellant's car.
She said Mr Dale went out and separated them. She said she was holding an axe handle as she walked towards them and the appellant tried to grab it but she reefed it away.
She made no mention in her statement of the respondent hitting the appellant with the beer bottle.
At the hearing before the Assessor she said she was at the front door. The respondent had his back to her or on the diagonal and the appellant was facing in her direction. She said that she was looking out and looking back inside the house as well. She remembered seeing the appellant hit the respondent and she turned and said to Mr Dale, who was inside, 'He's just fucking hit him'.
She said that during the conversation between the appellant and the respondent she did remember the respondent saying, 'Don't poke me' and even though in her statement to police she said she saw the appellant poke the respondent in the chest repeatedly with his finger she said that she could no longer recall that.
Robert Dale
He made a statement to police on 21 August 2012 and gave evidence at the hearing before the Assessor. He was at the respondent's home and said the respondent would have had a couple of beers as they watched the football out the back.
He heard a car pull up outside the front of the house at which time he was in the lounge.
He said the respondent went out the front and he could hear that the appellant and the respondent were having a conversation so he went to the front door and stood with Janet Brooker.
He said that when they were talking the appellant was facing in a slight angle towards the front door and the respondent was just off to the right of the door looking at an angle back towards the appellant.
He said that the appellant asked to come in the house. At that point Mr Dale said he turned around walked back in towards his daughter and his son and sat on the couch. He then heard Ms Brooker say 'Rob, Shane has been hit' and so he went out the front door and saw the respondent out cold on the grass with the appellant on top of him and he was pretty sure that the respondent had his stubby holder with a Boags light beer in it. He did not see the appellant strike the respondent.
Hospital notes
The appellant and the respondent separately attended Swan District Health Services Emergency Department after the incident. The records relating to the respondent note there to have been a small cut and some swelling on the bridge of his nose, numbness on the left side of his face and bruising around his left eye. There was a note that the respondent had consumed 'some alcohol'.
The appellant's Emergency Registration Record notes the appellant complained of having been hit on the head with a glass bottle, which smashed. The appellant was recorded as having a large lump on the back right hand side of his head with 'nil redness or lac [no doubt short for laceration] associated [with] lump'. He also had a scratch to the forehead. There was 'nil obvious broken glass' and while there was blood 'to head and through hair' there was 'nil obvious site'.
In his extempore decision the Assessor found that the appellant struck the first blow to the respondent. That blow being a very sharp forceful blow to the left side of the respondent's cheek/face/nose.
The Assessor said that in the shock of the instance he was also satisfied that the respondent attempted to reach out to make a grab at the appellant but, in also trying to do so and defend himself, he swung his arm with his left hand in which he was holding a stubby … and in doing so he struck the appellant to the head.
The material facts upon which the appellant was convicted of and sentenced for the proved offence
In his written outline of submissions in this appeal (pars 24 and 25) counsel for the respondent said that the issues in dispute, which were a matter to be determined by the Assessor at the hearing, were whether or not the respondent struck the appellant prior to the appellant punching the respondent. He submitted that those issues were not resolved by the learned magistrate who, he contended, made no finding of fact in that regard.
I do not agree that the learned magistrate failed to make a finding of fact. From the relevant extracts from the sentencing transcript there can be no other conclusion which can reasonably be reached than the learned magistrate accepted the agreed amended statement of material facts admitted by defence counsel on behalf of the appellant coupled with the submissions made by defence counsel as to the circumstances underpinning the offence to which the appellant pleaded guilty, was convicted and fell to be sentenced.
That is clear from his Honour's finding: 'Those facts as I have been told and under the circumstances outlined by Mr Tudori …'. Fortifying that view is the sentence imposed by his Honour in which he referred to the 'unique circumstances' persuading him to fine the appellant and grant him a spent conviction order.
Those material facts were the essential facts necessary to constitute the proven offence for the purposes of s 12(1) because they were the facts underpinning the unlawful assault occasioning bodily harm to the respondent and negating the defence of self‑defence.
Whether the respondent is permitted to adduce evidence in his claim for compensation pursuant to s 12(1) which goes beyond or is inconsistent with the facts upon which the appellant was convicted of the proved offence
This is a pivotal question which needs to be addressed with respect to s 39 of the Act.
As I have said, critical to the determination made by the Assessor, was the question as to whether the appellant punched the respondent to the face before or after he was struck to the back of the head with the bottle which was in the respondent's left hand.
It is important to note that in this case the respondent's application for compensation was made pursuant to s 12(1) of the Act. As a result the respondent must prove that he suffered injury as a consequence of the commission of a 'proved offence'.
Any compensation awarded to an applicant is payable by the State to the applicant (s 43). The State is entitled pursuant to pt 6 of the Act to seek reimbursement from the offender subject to any restriction on the amount of reimbursement which may be made pursuant to s 45.
By s 12(1) the statutory scheme is to make available compensation to an injured applicant to a maximum amount in the event that the injury is caused by the commission of a proved offence.
The Act does not contemplate that the assessment process will involve a re-litigation of the facts which underpinned the proved offence.
In Underwood v Underwood [2018] WADC 13 Gething DCJ considered the question of the extent to which an applicant can rely on evidence inconsistent with or which goes beyond the facts underpinning the identified proven offence. In that case his Honour cited Bennett v The State of Western Australia (2012) 223 A Crim R 419 in which the Court of Appeal gave valuable guidance as to the manner in which the evidence of and underpinning prior convictions is to be admitted. To that end Martin CJ said [49]:
… that if the conviction is obtained on a plea of guilty, the plea can be taken to be an admission of the facts constituting the elements of the offence.
And at [67]:
In some cases, issues may arise as to the precise identification of the facts evidenced by the conviction. In such cases, the record of the trial will provide the only reliable guide to that issue which will usually be established by the facts admitted for the purposes of sentence (in the case of a guilty plea), or the facts found by the trial judge for the purposes of sentence (in the case of a conviction after trial).
At [109] – [110], Buss JA observed as follows:
Similarly, a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. … The plea also negatives all defences. … A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements … '
In Underwood his Honour Gething DCJ summarised the principles drawn from Bennett. To that end his Honour said:
55For the purposes of the present appeal, I draw seven principles from the decision in Bennett which are relevant by analogy to the context of the CICA. The principles only address a plea of guilty as that is all I need to determine. The principles take the position as set out at [54] above as being well settled law.
56First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
57Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
58Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
59Fourth, a claimant for criminal injuries compensation cannot re litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1). The evidence of a 'proved offence' must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.
60Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence: Bennett [67]. This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
61Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.
62Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
63The consequences of these principles in the present case are twofold. The first is that, within the limits of the second and third principles, the appellant may introduce evidence and other material to support the contention that any award of compensation be reduced pursuant to CICA s 41. As quoted above, this is long established. The second is that in deciding the respondent's application 'afresh' as directed by CICA s 56(1), I must be conscious to ensure that the decision is not based on factual material which is inconsistent with the material facts comprising the elements of the offence.
With respect I concur with those conclusions. A proven offence is made up of all of the essential facts which constitute the elements of the offence to which an offender may plead guilty and which are accepted by the court sentencing the offender.
On a plea of guilty it is true that a complainant will play no active role in the agreed facts upon which the offender enters his plea and is sentenced and in the acceptance by the sentencing court of those facts. It is however those material facts which comprise and underpin the elements of the proven offence.
In this case it is clear that the learned magistrate sentenced the appellant on the basis of the agreed amended statement of material facts and the remarks of the offender's counsel which the learned magistrate accepted and adopted. The essential facts necessarily constituting the proved offence for which the appellant pleaded guilty and was convicted and sentenced were:
(a)During the exchange between them the appellant walked up to the respondent and started prodding him repeatedly in the chest.
(b)The respondent has struck out at the accused. To this end counsel for the respondent during the hearing of this appeal properly accepted that that related to the respondent striking the appellant to the back of the head with the bottle.
(c)The appellant then punched the respondent twice to the face causing him injury (which appears to be an error given that both the appellant and the respondent agree that the respondent was only punched once).
(d)Self‑defence was not available to the appellant because the punch was disproportionate to the blow with the bottle and so that defence was negatived.
They are the facts which cannot be controverted in this claim for compensation. With respect, it was not open to the Assessor to find as a fact, that the appellant punched the respondent before the respondent struck him to the head with the bottle. That finding would be inconsistent with the abovementioned material facts. The respondent's claim for compensation falls to be determined on the basis of the facts to which I have referred.
Section 39: Did the respondent suffer injury when he was committing a separate offence
To this end no causal nexus is required between the injury for which the claim is made and any offence committed by the victim. A temporal connection is all that is required: Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.
In that case at [33], [41] and [42] Martin CJ said:
33In my respectful view, the proper approach to the construction of s 39 of the Act was put well by Yeats DCJ in Richardson:
'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' [31].
41The District Court judge was also encouraged in her conclusions by her characterisation of the legislation as remedial, with the result that it should be construed beneficially. However, with respect, that approach is not appropriate to the construction of a provision such as s 39 which is plainly intended to exclude the availability of compensation in the cases to which it refers. In a similar legislative context, Spigelman CJ observed in Victims Compensation Fund v Brown [2002] NSWCA 155; (2002) 54 NSWLR 668:
'With respect to a clause intended to be limiting, it is not appropriate to apply the principle of statutory construction that beneficial legislation should be construed liberally…
In the present proceedings, the Respondent submitted that the purpose was to compensate victims. Even if I were to accept a legislative purpose stated at that level of generality, that would not entail that any ambiguity must be construed in such a way as to maximise compensation… In any event, the very specificity of the provisions of the legislation indicate that the legislative purpose is to provide compensation in accordance with the Act and not otherwise [8] ‑ [10]'.
(Although Spigelman CJ was in dissent, his reasoning was endorsed by the High Court in Victims Compensation Fund Corp v Brown [2003] HCA 54; (2003) 201 ALR 260.)
42Put another way, it is clear from the Act as a whole that it reflects a legislative intention to provide compensation to victims of crime in some but not all circumstances. There are a number of provisions of the Act which limit the circumstances in which compensation is available. In addition to the exclusion of compensation by s 39 of the Act, s 36 provides that compensation must not be awarded if there is a relationship or connection between the offender and victim and that by reason of that relationship, money paid under the award is likely to benefit or advantage the offender. Section 37 of the Act excludes compensation for injuries arising as a consequence of the commission of an offence caused by the use of a motor vehicle in other than limited circumstances. Section 38 of the Act precludes the award of compensation if the claimant did not do what ought reasonably to have been done to assist in the identification, apprehension or prosecution of the offender. In light of these (and other) provisions of the Act, it would be wrong to approach the construction of the Act on the basis that it reflects a legislative intention that every victim of crime should receive compensation under the Act. As it is clear that the legislature has endeavoured to exclude the availability of compensation in some cases, the task of the court is to identify the range of cases in which compensation is not available by reference to the words used by the legislature in the limiting provisions of the Act, without predisposition toward either expanding or restricting the ambit of the exclusionary provision.
To be satisfied that the respondent was injured when he committed a separate offence, the civil standard of proof applies. Having said that where criminal conduct is alleged, as is the case with s 39(1)(b), clear and cogent evidence is required: Hutchings v Lachlan [2012] WADC 89 [37]; McDavitt v McDavitt [2013] WADC 22 [30].
To this end there is no doubt that by striking the back of the appellant's head with the bottle causing the injury to the appellant, the respondent has committed, at least, an assault on the appellant. That assault is unlawful unless it was authorised, justified or excused by law.
To that end I would need to be satisfied on the balance of probabilities that the defences to an assault in the Criminal Code, namely defence against home invasion (s 244) self‑defence (s 248) and/or provocation (s 245) were not open to the respondent.
Given the incontrovertible material facts in this case the respondent cannot contend in this appeal that striking the appellant with the bottle was a response to the appellant punching him to the face. On the incontrovertible material facts of the proved offence the respondent has struck the appellant to the head with the bottle before he was punched.
There was no evidence before the Assessor or before me in respect to which the respondent asserted that he struck the appellant to the head with the bottle in response to any other threat or act by the appellant such as, relevantly, being prodded in the chest by the appellant. A finding that he did so was not open to me.
Before this appeal was heard it was made clear, not only from the evidence before the Assessor but also from the submissions on the part of the Department of Justice, what the issues in this appeal were. It was open to the respondent to seek leave to give further evidence viva voce or otherwise in this appeal but he has not chosen to do so. That choice was understandable, given his assertion that his action in striking the appellant with the bottle was in response to being punched to the face with which he suffered.
There was no evidence before me from which I could make any finding that the act by the respondent in striking the appellant to the head with the bottle was in response to being prodded to the chest by the appellant. As a consequence I am satisfied that none of the defences to which I have referred are open to the respondent. Theassault by the respondent is therefore unlawful.
The result is that I am satisfied on the balance of probabilities that the respondent suffered injury the subject of his claim for compensation when he was committing a separate offence which was at least an unlawful common assault against the appellant.
Having regard to that finding there is no need for me to give consideration to any of the remaining matters referred to in [14].
Conclusion
Pursuant to the provisions of s 39 of the Act, the respondent is not entitled to compensation, and the order for compensation must be set aside. In the premises the appeal is allowed.
I will hear the parties on costs given that there may be some disbursements incurred by the appellant in this appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KM
ASSOCIATE TO JUDGE SCOTT22 NOVEMBER 2018
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