Re AB - [2023] WADC 28

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE AB [2023] WADC 28
CORAM:   STAUDE DCJ
HEARD:   25 NOVEMBER & 21 DECEMBER 2022
DELIVERED          :   17 MARCH 2023
FILE NO/S:   APP 91 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: AB
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   MS C HOLYOAK-ROBERTS
File Number            :   CIC 562 of 2018

Catchwords:

Appeal - Criminal injuries compensation - Claim for compensation for alleged offences, including two specific sexual assaults and other non-specific sexual abuse

Legislation:

Children and Community Services Act 2004 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Evidence Act 1906 (WA)

Result:

Appeal allowed
Compensation awarded

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Amicus Curiae	:	Ms L J Italiano appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	CLP Legal Pty Ltd
Amicus Curiae	:	State Solicitor for Western Australia

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

Bothma v Hildebrand [2019] WADC 92
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
'I' [2022] WACIC 10
Martin v Martin [2015] WADC 138
Re ATS [2017] WADC 92
Re Jackamarra [2014] WADC 9
S v Neumann (1995) 14 WAR 452
VMH by her next friend The Public Trustee v JAB [2014] WADC 47

STAUDE DCJ:

Introduction

This is an appeal pursuant to s 55 and s 56(1) of the Criminal Injuries Compensation Act 2003 (WA) from a decision of the chief assessor refusing an application for compensation for harm suffered as the result of a number of incidents of sexual assault allegedly committed against the appellant AB by her former partner, W. W was not a party to the appeal. The court heard from counsel for the chief executive officer of the Department of Justice as amicus curiae.

Claim for compensation

On 7 July 2017, AB made an application for criminal injuries compensation for alleged offences described as:
(a)emotional/verbal and physical/sexual abuse by [W] between 1999 and 2015;
(b)sexual assault by [W] on 28 August 2015; and
(c)sexual assault by [W] on 7 October 2015.
Section 17 permits compensation to be awarded to a person who suffers injury as the consequence of the commission of an alleged offence. Section 3 defines an alleged offence to be a crime, misdemeanour or simple offence of which no person has been convicted.
Section 17(4)(a) provides that an award of compensation must not be made under that section unless the assessor is satisfied that, relevantly, the claimed injury and any claimed loss has occurred as a consequence of the commission of the alleged offence.
An alleged offence must be proved on the balance of probabilities. The strength of the evidence required to establish a fact on the balance of probabilities may vary according to the nature of what is…

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 Re AB

Details

AGLC: Re AB [2023] WADC 28
Case: [2023] WADC 28
Decision Date: 17 MARCH 2023

CaseChat Overview and Summary

In the matter of Re AB, the appellant sought compensation under the Criminal Injuries Compensation Act 2004 (NSW) for alleged offences, including two specific sexual assaults and other non-specific sexual abuse. The claim was lodged against the State of New South Wales. The appellant alleged that the non-specific sexual abuse occurred in addition to the two specific incidents. The case was heard in the Supreme Court of New South Wales, Court of Appeal.

The legal issues before the Court of Appeal involved the interpretation of the Act and whether the appellant was entitled to compensation for non-specific sexual abuse in addition to the specific incidents. The central question was whether the non-specific allegations could be considered independently of the specific incidents, or if they were inextricably linked. The Court needed to determine if the appellant's claims for compensation were valid and, if so, the extent to which the appellant was entitled to compensation.

The Court of Appeal held that the appellant's claim for compensation for non-specific sexual abuse was not valid as it was inextricably linked to the specific incidents of sexual assault. The Court concluded that the non-specific allegations could not be considered independently and therefore did not constitute separate grounds for compensation. The appeal was dismissed, and the appellant was not entitled to compensation for the non-specific sexual abuse. The Court emphasised the importance of clearly distinguishing between specific and non-specific claims in such applications.

Orders