Re AW

Case [2022] WADC 96 11 November 2022

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE AW [2022] WADC 96
CORAM:   WHITBY DCJ
HEARD:   12 OCTOBER 2022
DELIVERED          :   11 NOVEMBER 2022
FILE NO/S:   APP 21 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: AW
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C F HOLYOAK-ROBERTS
File Number            :   CIC 84/2022

Catchwords:

Criminal injuries compensation - Whether appellant committing separate offences when she suffered her injuries - Whether appellant disentitled to an award of compensation pursuant to s 39 Criminal Injuries Compensation Act2003 (WA) - Turns on its own facts

Legislation:

Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr C D Tan on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	In person
Amicus Curiae	:	State Solicitor for Western Australia

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

Atholwood v The Queen [2000] WASCA 76
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Guy v Hampson [2019] WADC 19
Hamilton v The State of Western Australia [2010] WASCA 7
Hinchcliffe v Hinchcliffe [2010] WADC 78
Jones v The State of Western Australia [2006] WASCA 192
Kennedy v The State of Western Australia [2021] WASCA 55
Lau v The State of Western Australia [2017] WASCA 16
McDavitt v McDavitt [2013] WADC 22
Re Richardson [2009] WADC 93
Re Tilbury [2010] WADC 46
Sweetman v Lilley [2021] WADC 74
Underwood v Underwood [2018] WADC 13

WHITBY DCJ:

In 2020, AW was 26 years old and was in a relationship with CD. AW continues to be in a relationship with CD.
In March 2020, due to financial difficulties, AW was working as an escort. AW would meet her clients in a spare room of her apartment in East Perth. AW would see clients during the day and the night. When AW saw clients at night, CD would be at the apartment in their bedroom. AW's clients were not aware that CD was there.
In the early morning of 25 March 2020, AW agreed to meet with her first client at her apartment at 2.30 am (Client 1). The appointment was for one hour. AW also agreed to meet the respondent for one hour at 4.00 am.
Client 1 arrived late at 2.45 am. AW had a few 'tokes' of methylamphetamine before Client 1 arrived to make her stay awake and feel more confident. AW met with Client 1 and then had a shower after he left. It is not clear how long Client 1 stayed for.
AW received a text message from the respondent at 3.59 am and sent him her address. AW quickly had a few more 'tokes' of methylamphetamine before the respondent arrived.
AW showed the respondent into the spare…

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 AW

Details

AGLC: Re AW [2022] WADC 96
Case: [2022] WADC 96
Decision Date

CaseChat Overview and Summary

This appeal concerns a claim for compensation by AW who was injured when the respondent assaulted her. The respondent was subsequently convicted of an offence of assault and the appeal concerns whether AW is entitled to compensation under Part 7 of the Criminal Injuries Compensation Act 2003 (WA). Whitby DCJ found that AW was committing a separate offence when she was injured and therefore she was not entitled to compensation. Whitby DCJ considered that it was not necessary to determine whether AW was committing an offence of assault or whether her behaviour, condition, attitude or disposition contributed directly or indirectly to her injuries.

Whitby DCJ found that at the time AW was injured she was committing the separate offences of being in possession of a prohibited drug and/or being in possession of drug paraphernalia in or on which there was a prohibited drug. The requisite temporal connection between an offence of using a prohibited drug and the injuries being suffered was not present. However, Whitby DCJ found that AW continued to be in 'possession' of methylamphetamine and/or drug paraphernalia on which there was residue of a prohibited drug when she was injured. Whitby DCJ found that the requisite temporal connection between these separate offences and AW's injuries was present. Therefore, pursuant to s 39 of the Act, Whitby DCJ was precluded from making a compensation award in favour of AW.

Orders