Re Bolton - [2015] WADC 77

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: RE BOLTON [2015] WADC 77

CORAM: FENBURY DCJ

HEARD: 16 FEBRUARY 2015

DELIVERED : 26 JUNE 2015

FILE NO/S: APP 50 of 2014

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: DOUGLAS VERNON BOLTON
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 00465 of 2015

Catchwords:

Criminal injuries compensation - Application for extension of time - Application made 11 years out of time - Father suffering mental and nervous shock arising from death of son - Prosecution of offender for manslaughter discontinued before trial - Nolle prosequi

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Application for extension of time refused

Representation:

Counsel:

Appellant: Ms C E Tysoe
Amicus Curiae : Ms C M Rice appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Family Violence Prevention Legal Service
Amicus Curiae : State Solicitor for Western Australia

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

Re McHenry [2014] WADC 92

FENBURY DCJ: This is an appeal, notice of which was filed within the time prescribed by the Criminal Injuries Compensation Act 2003 s 55(3) (the Act).
On 28 March 2014 Mr Bolton made an application to the Assessor of Criminal Injuries Compensation for injuries pursuant to s 16(3) of the Act. The application was made in respect of an incident that occurred on 7 April 2000. On that date the appellant's son was killed by a train following an incident that occurred at a railway station.
It can be seen that the application was brought about 14 years after the incident.
On 12 May 2014, noting the application should be brought within three years, and that it was therefore about 11 years out of time the assessor concluded that the explanation for the delay was insufficient. As a consequence the assessor refused to extend time within which the application for compensation could be brought, reaching the view that it would not have been 'just to do so'.
The notice of appeal commencing these proceedings was filed on 21 May 2014 and, put shortly, the appellant asserts that the assessor wrongly applied her discretion pursuant to s 9(2) of the Act. Obviously, in not allowing the appellant's application for an extension of time, the effect of the assessor's decision was that she refused to make a compensation award.
The threshold question in this matter, as it was before the assessor, is whether an application should be permitted because the time limit for making the application has expired. In Re McHenry [2014] WADC 92, Herron DCJ was confronted with a case where the applicant was some six years or so out of time. His Honour's helpful survey of relevant authorities does not need to be repeated in these reasons. Suffice it to say there were five factors identified as being relevant to the discretion to grant an extension of time in favour of the applicant, bearing in mind of course that the Act is remedial in character and should be construed beneficially.

The length of the delay

As I have already mentioned the application was filed 14 years after the incident, and 11 years after the expiration of the time period allowed of making an application under the Act in respect of it. On any view of it, the delay is extensive if not inordinate.

The reason for the delay

In par 9 of submission dated 28 January 2015 it was put on behalf of the applicant that:
… an extension of time is just in all the circumstances based on the appellants lack of knowledge of the criminal injuries compensation scheme, his severe mental health issues and his difficulty engaging with systems of institutionalised justice stemming from the death of the deceased.
It was put at par 13 of those submissions that the appellants lack of knowledge of the system, when looked at in conjunction with the severe mental and nervous shock suffered by him, should create circumstances in which it would be just to extend the time limit for a claim to be made.
It seems to me that, ordinarily, lack of knowledge of the scheme would not be sufficient especially given the length of time over which it has been operating in this State. However the issue needs to be viewed, I would agree, in light of the fact that the applicant had mental health issues and trauma following the death of his son. The reports provided on behalf of the applicant which are detailed in the submissions of par 16, support the assertion that he suffered from post-traumatic stress disorder at relevant times and since and that the PTSD, untreated, became severe clinical depression.
The view of clinical psychologist Lynette Mutton in her report of 25 July 2014, summarises this aspect of the claim as follows:
In every aspect of his functioning – emotional, mental and social, Mr Douglas Bolton was traumatised and rendered dysfunctional…
Mr Bolton struggled increasingly with such feelings (that is, emotional distresses and suicidal ideation) and further isolated himself trying to support him …
It is not difficult to understand why Mr Bolton was in no way sufficiently emotionally functional to seek out even medical help let alone challenge and confront those involve with the way his son's death was handled or the subsequent events which were also so distressing …
Again, it is not difficult to understand how mentally dysfunctional Mr Bolton had become and how incapable he was of cognitively processing the tragic events let alone initiating any active pursuit of legal matters.
Then at par 20 of the submissions above referred to it is put:
The Appellant's capacity to claim was further diminished by the conduct of the police in the investigation into the deceased's death. No one was charged over the deceased's death and no witnesses were identified. A close friend of the Appellant was charged with assaulting a police officer who was overheard to say 'Just another dead nigger'. The police did not contact the appellant to inform him of the deceased's death. This caused the Appellant, already alienated from authority after a lifetime of racism, to distrust authority figures. With no support from Victim's Services or the police, the Appellant was not informed of compensation programs at the time of the deceased's death, and the manner in which the deceased's death was dealt with by authority created an atmosphere in which the Appellant was distrustful of authority.
As to these submissions the amicus curiae took some issue pointing out a number of inaccuracies and misconceptions. As to the insertion 'no one was ever charged over the deceased death' it was submitted that this was inconsistent with the papers before the assessor including a victim impact statement from the appellant where he states that a person 'was charged with unlawful killing but the case did not proceed'.
Further, the police investigation did indeed identify and obtain statements from witnesses including the deceased's three friends, the alleged culprit and at least two independent witnesses.
It was also submitted that the assertions made on behalf of the appellant in par 20 about an offensive and racist remark rely on hearsay evidence and is therefore difficult to factor into the case.

The extent of prejudice to the respondent

As was the case in McHenry there was no respondent to this application. Although a person was charged, relevantly, the prosecuting authority decided not to proceed with the prosecution. Thus there is no factor of prejudice to any potential respondent.

The prospects of the compensation application succeeding

As to this issue the submissions of the amicus curiae of 15 April 2015 are helpful and worthy of citation.
The appellant's application was made in respect of an incident which occurred on 7 April 2000 which resulted in the death of the appellant's son. A person (the accused) was charged with manslaughter in relation to the incident however, a nolle prosequi was subsequently entered with respect to that charge and the accused was not otherwise charged.
Section 16(1) relevantly provides that s16 of the Act applies if a person is charged with an alleged offence and nolle prosequi is entered in respect of it, and the person is not otherwise charged with the alleged offence or tried for it, and s 15 of the Act does not apply.
The appellant's application was made under s 16(3) of the Act on the basis that his son died as a consequence of the commission of an alleged offence and that he, as a close relative of his, suffered loss as a result of his son's death.
Therefore, in bringing his application under s16(3) of the Act, the alleged offence which the appellant appears to be relying on in claiming criminal injuries compensation is the alleged of manslaughter under s 280 of the Criminal Code, with which the accused was charged and a nolle prosequi subsequently entered.
Pursuant to s 16(4) of the Act in order to award the appellant compensation the court must be satisfied that the death of the appellant's son occurred 'as a consequence of the commission of the alleged offence' and that the loss claimed by the appellant has occurred.
However, s 16(5) of the Act provides:
If an assessor is satisfied that the person who committed the Act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purpose of subsection 4 unless the person was not criminally responsible for it by reason of the Criminal Code s 27 (insanity) …
Therefore, if the court is satisfied on the balance of probabilities that the accused was not criminally responsible for the act constituting the alleged offence, then the alleged offence is taken not to have occurred for the purpose of s 16(4) such that the court cannot be satisfied of the matters in that section and on that basis must not make a compensation award to the appellant.
Pursuant to s 16(5) of the Act, the question of whether the accused was criminally reasonable for the death of the appellant's son is therefore determinative of whether the appellant may be awarded criminal injuries compensation.
The term 'criminally responsible' is defined in the Criminal Code s 1 as meaning 'liable to punishment as for an offence'.
Section 270 of the Code at the relevant time provided:
Any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.
Section 280 stated:
A person who unlawfully kills another person under such circumstances as not to constitute wilful murder or murder is guilty of manslaughter.
At the time of the investigation following the incident a considerable number of differing accounts were obtained from a variety of witnesses. This evidence has been accurately summarised by the amicus curiae in the submissions of 15 April 2015 and set out in par 13. As counsel pointed out there is additional evidence contained in the record of interview of the accused and also the post-mortem report.
There are three issues namely:
1.whether the accused caused the death of the appellant's son;
2.if so, whether the death of the appellant's son occurred by accident within the meaning of s 23 of the Code; or
3.whether the accused was acting in self-defence when he pushed or punched the appellant's son within the meaning of s 248 of the Criminal Code.
On the question of causation there are two evidential aspects. The cause of death was decapitation and this occurred when the deceased fell onto the train tracks such that he was decapitated by the train. How the deceased came to be on the train tracks is a critical question. The issue needs to be reviewed bearing in mind the finding of an extremely high alcohol level in the deceased's blood of .4%.
As the amicus curiae notes the witness Kovack suggested that the accused punched the deceased which 'drove him back one or two little steps' and that the deceased then caught his foot which caused him to lose balance and he fell under the train. The witness Pomery suggested the deceased may have lost his balance and fallen onto the track.
On that view of the evidence it could not really be said the accused caused the death of the deceased even indirectly. He would therefore not be criminally responsible for manslaughter.
The other evidence however is suggestive of an assertion that the deceased was either pushed or punched which caused him to fall into the path of the oncoming train (witnesses Ryder, Drage, Cruikshank and Versluis).
On this view it could be said that the accused did cause the death of the deceased indirectly.
It is not sufficient of course for the death to be caused by the accused. It must be caused unlawfully which, relevantly, means that it was not an accident nor was it something that occurred by way of an assault carried out in self-defence.
In relation to accident, 'for the purposes of s 16(5) of the Act the question is whether the court is satisfied, on the balance of probabilities, that the death of the appellant's son did not occur by accident within the meaning of s 23 of the Criminal Code such that the accused was criminally responsible for the death'.
In my view having regard to the evidence that has been highlighted in the submissions there is no way that the court could be satisfied, on the balance of probabilities that the deceased's death did not occur by accident. Given his state of intoxication and the evidence of witnesses as to how he came to fall it seems to me that the unfortunate deceased's death probably did occur by accident.
The relevant requirements for a defence of self-defence to be arguable are dealt with by the amicus curiae and references made to the witness statements of Ryder, Drage, Cruikshank and Kovack. These are to the effect that the deceased was pushed or punched by the accused. Again the question is accurately put being whether the court is satisfied on the balance of probabilities that the accused was not acting in self‑defence.
I have a similar view having regard to all of the evidence available that far from reaching the view on the balance of probabilities the accused did not act in self-defence, he was being pestered by the deceased and perhaps three others, on the station platform. It seems to me to be probable in pushing or punching the deceased that the accused was acting in self-defence at the time.
It follows from those views that if, for the sake of the argument, it could be said that the accused caused the deceased's death it could not be said that what he did was unlawful.
It follows that in my view the prospects of the application for compensation succeeding if time were to be extended are negligible. I am therefore of the view, regrettably, that the application for an extension of time in which to make the compensation application must be dismissed.