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…

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 Bolton

Details

AGLC: Re Bolton [2015] WADC 77
Case: [2015] WADC 77
Decision Date: 26 JUNE 2015

CaseChat Overview and Summary

In the case of Re Bolton, the application for criminal injuries compensation was made in the Supreme Court of Queensland. The applicant, the father of a deceased son, sought compensation for the mental and nervous shock he experienced due to his son's death. The offender, who was charged with manslaughter, had their prosecution discontinued before trial through a nolle prosequi, leaving the applicant without a conviction to base their compensation claim on. The primary issue before the court was whether the application for compensation, made 11 years after the incident, was within the appropriate timeframe, given the unique circumstances of the case.

The court considered whether the late application could be justified due to the exceptional circumstances. The applicant argued that the discontinuation of the prosecution before trial, due to the nolle prosequi, constituted a significant obstacle to obtaining compensation. The court acknowledged the distress experienced by the applicant but ultimately held that the late application was not justified. The court reasoned that the applicant's failure to apply within the statutory time limit, despite knowing the circumstances of their son's death and the identity of the offender, constituted a significant factor in the decision. The applicant's mental and nervous shock was recognised, but the court determined that the application was too late and therefore dismissed the application for compensation.

The court's decision emphasised the importance of adhering to statutory time limits for compensation applications, even in cases with exceptional circumstances. The court found that the applicant's knowledge of the circumstances and the identity of the offender did not excuse the late application. The application for criminal injuries compensation was dismissed, and the applicant was not granted an extension of time to apply. This decision highlights the need for applicants to be aware of the strict time limits for such applications and the importance of seeking legal advice promptly.

Orders