Re CJR - [2023] WADC 111

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE CJR [2023] WADC 111
CORAM:   PALMER DCJ
HEARD:   14 SEPTEMBER 2023
DELIVERED          :   29 SEPTEMBER 2023
FILE NO/S:   APP 5 of 2023
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: CJR
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   ASSESSOR R A CAPARARO
File Number            :   CIC 1480/2022

Catchwords:

Criminal injuries compensation - Appeal from assessor's refusal to award compensation by reason of delay in making application - Whether extension of time for bringing application should be allowed

Legislation:

Criminal Injuries Compensation Act 2003 (WA), s 9(2)

Result:

Appeal dismissed
Decision confirmed

Representation:

Counsel:

Appellant	:	Mr J N Trigg
Amicus Curiae	:	Ms J G Kasbergen appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Stephen Browne Lawyers (South Perth)
Amicus Curiae	:	State Solicitor for Western Australia

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

DR v CD [2018] WADC 148
EB v Ramljak [2021] WADC 134
ELK v CFB [2009] WADC 90
EM v CL [2021] WADC 127
Goodwin v Baker [2020] WADC 43
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hansen v Bolton [2017] WADC 25
Harris v Sycamore [2022] WADC 4
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Nagel v Tahere [2020] WADC 110
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Coad [2023] WADC 9
Re HCM [2018] WADC 20
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re Richards [2022] WADC 100
Re Swinford [2021] WADC 82
Re Tilbury [2010] WADC 46
Re Warrek [2019] WADC 50
Underwood v Underwood [2018] WADC 13

PALMER DCJ:

Introduction

This is an appeal under s 55(1)(a) of the Criminal Injuries Compensation Act 2003 (WA) (the Act). By way of a Notice of Appeal dated 30 January 2023, the Appellant appeals against a decision of Assessor Capararo made on 22 December 2022 to refuse the Appellant criminal injuries compensation (Decision).
On 27 May 2022 the Appellant submitted a claim for criminal injuries compensation (Application).[1] The Application was made pursuant to s 17 of the Act in respect of injuries that the Appellant alleged she suffered as on 22 December 2011.[2]
[1] Assessor's Papers (AP), pages 4 - 7.
[2] AP, page 5.
The Application was made seven years, five months late. Pursuant to s 9(1) of the Act, the Application was required to be made within three years from the date of the alleged offence. As the Appellant alleged the offence had been committed on 22 December 2011, the Application needed to be made by 21 December 2014.
Section 9(2) of the Act provides that an assessor may allow a compensation application to be made after three years if the assessor thinks it is just to do so and may do so on any conditions that they think just to impose.
The Assessor made the Decision after considering various explanations that the Appellant provided for the delay. Ultimately, the Assessor was not satisfied that the late Application should be allowed given the explanations provided by the Appellant and made the Decision.

Additional documents

At the hearing of the appeal, the Appellant sought to rely on a bundle of documents that were not before the Assessor (Appellant's Book of Documents dated 11 September 2023 (Appellant's Book)). The Appellant's Book included medical records from Royal Perth Hospital (RPH Records) concerning a hospital visit made by the Appellant on 23 December 2011. The Appellant's Book also included correspondence with the office of criminal injuries compensation.
Section 56(1) of the Act permits me to receive further evidence and information not before the Assessor. The discretion to admit further evidence on an appeal ought to be exercised without undue restriction particularly given the beneficial purpose of the Act.[3]
[3] ELK v CFB [2009] WADC 90 [28]; Re Tilbury [2010] WADC 46 [3].
At the hearing of the appeal, I indicated that I would receive the Appellant's Book. It seemed to me that the documents were relevant to the matters to be decided on the appeal and should form part of my consideration.

Factual background

The Application

The Application was lodged on 27 May 2022.[4]
[4] AP, page 4.
The Application identified the alleged offender (Offender 1).[5] As a suppression order has been made, I will avoid naming persons associated with the Appellant to avoid her identification.
[5] AP, page 5.
The second page of the Application gave the date of the incident as being 22 December 2011. It described the nature of the incident as being physical and verbal assault. It stated that the incident had occurred at various locations in Perth.[6]
[6] AP, page 5.
The Application attached, amongst other things, the following:
(a)Statement of Reasons for Late Application dated 27 May 2022 (Delay Statement);[7]
(b)Appellant's police statement dated 22 December 2011 (Police Statement);[8]
(c)Victim Impact Statement dated 14 April 2022 (Impact Statement);[9]
(d)Western Australia Police incident report (Police Incident Report);[10]
(e)Statement by the Appellant's son dated 27 April 2022;[11]
(f)Psychiatrist's report from Dr Caroline Crabb dated 11 April 2022 (Crabb Report);[12]
(g)Illawarra Medical Centre patient health summary as at 8 February 2022 (Illawarra Medical Centre Records);[13]
(h)Ashton Avenue Medical Centre patient health summary dated 17 February 2022 (Ashton Avenue Medical Centre Records);[14] and
(i)Joondalup Health Campus Hospital records (JHC Records).[15]
[7] AP, page 17.
[8] AP, pages 8 - 11.
[9] AP, pages 12 - 16.
[10] AP, pages 29 - 33.
[11] AP, pages 36 - 37.
[12] AP, pages 70 - 88.
[13] AP, pages 89 - 113.
[14] AP, pages 114 - 170.
[15] AP, pages 171 - 216.
The Application indicated that the Appellant wished to claim for the provision of future treatment expenses and referred to the Crabb Report.[16]

The Police Incident Report

[16] AP, page 6.

Offender 1 is the father of the Appellant's son. The Appellant alleges that Offender 1 assaulted her on 22 December 2011 when she was attempting to collect their son from Offender 1's custody.[17] The police were called.
[17] Appellant's Submissions dated 11 September 2023 (Appellant's Submissions), par 28.
The Police Incident Report appears to have been prepared contemporaneously. It contained the following account of the incident in which the Appellant alleged the offence occurred:[18]
ITI Police have been called for a custody dispute. The victim and POI have a 4 year old child together and they share care. There is a family court order in place. The couple [separated] 3 years ago and this is their first recorded DV. The victim went to collect her son on Saturday as per the family court order and the POI refused to hand the child over. The victim then attended the JMC on the Monday to apply for a recovery order. The court advised her to go through her family court lawyer. The victim then spoke with her legal aid family court lawyer and he advised her that she could apply for a recovery order [herself] but it would not be listed until after the new year. The [victim's] father is a retired Police officer … and he advised his daughter to go to the POIs house today to visit her son and ask that he hand him back to her without going through the courts. On arrival the POI let the victim in the house and whilst inside the house an [argument occurred]. This was [recorded] by the victim. The child is clearly distressed and asks to go with his mother. The victim states that the POI pushed her head into the wall and she has a bump on her head.
[18] AP, page 29, par 6.
The Police Incident Report also noted 'risk factors' being alleged drug use by both victim and POI.[19]
[19] AP, page 29, par 7.
Later, the Police Incident Report recorded the following:[20]
Witnesses - The complainant has provided a statement and the assault has been particularised. Her mother was at the house but did not see the assault. The [POI's] family were also inside the house but stated they did not see anything and would not provide statements.
Physical Material - The primary scene has been examined and there is no physical material (signs of violence) to corroborate the assault. The complainant has a lump on her head but it was not visible.
[20] AP, page 30.
The police did not charge Offender 1 with any offence and he has never been convicted of any relevant offence.
The Police Statement included the following explanation of the assault:[21]
[21] AP, pages 9 - 10.
10.[Offender 1] then said he was going to smash me in minute [sic] and stood to take [my son] into the bathroom.
11.I also stood up and was still holding [my son's] hand when [Offender 1] grabbed my right thumb and pulled it back to hurt me to make me let go of [my son].
…
13.[Offender 1] still had hold of [my son] and went into the rear bedroom of the house and wanted to shut himself and [my son] in there.
14.[Offender 1] walked out of that room and tried to barge past me and went into his bedroom and tried to shut the door on me.
15.I was standing in the doorway and said to wait until Police got there.
16.He told me to fucking move and to fucking leave else he was going to smash me.
17.[Offender 1] then with his right hand pushed the right side of my head into the door frame.
…
19.At no time did I provoke an assault or allow it.
20.This behaviour of [Offender 1] in front of our son … is having an ill affect on his wellbeing and needs to stop.
21.My head is still currently hurting from the push.
22.I signed a medical release form at Joondalup Police Station and will be attending my doctors tonight about the hit to my head from [Offender 1].
The Application was not the first application for criminal injuries compensation filed by the Appellant. On or about 24 February 2021, the Appellant filed an earlier application for criminal injuries compensation in relation to an alleged assault by a different person (Offender 2) (the Earlier Application).
The assault the subject of the Earlier Application was alleged to have taken place on 14 April 2017. Therefore, like the Application, the Earlier Application was lodged more than three years after the date of the commission of the alleged offence.

The RPH Records

The Appellant appears to have attended Royal Perth Hospital early on the morning of 23 December 2011. The RPH Records include a Triage Nursing Assessment. That assessment includes an entry made at 00:10 that reads as follows:[22]
Alleged blow to head. Nil laceration seen/ Nil obvious bruising. Nil visual changes. Orientated to person/place & time. Nil weakness to upper/lower limbs.
[22] Appellant's Book, page 7.
Underneath this entry appears 'mild headache'.[23]
[23] Appellant's Book, page 7.
The Hospital Records also include Integrated Notes. An entry was made by the Resident Medical Officer in these notes at 00:50. That entry records the 'PC' as 'Head injury'. Next the entry records 'HPC' as: 'Alleged assault this eve from ex-partner. Head forcibly hit against wall/door'.[24]
[24] Appellant's Book, page 3.
The Integrated Notes record that the Appellant was not suffering from any visual disturbances, nausea, vomiting, weakness or paraesthesia, was mobilising independently and was otherwise well. The Resident Medical Officer recorded an impression that the Appellant had received a head contusion. The notes record that the Appellant was sent home with instructions to return if she was concerned and she was advised to take analgesia. The notes record that the Appellant indicated that she had her own analgesics.[25]
[25] Appellant's Book, page 3.
In the statement provided by the Appellant's son, he said:[26]
I have witnessed a couple of assaults against my mother. I remember seeing him hit her head against a metal doorframe when I was about 5 years old.

The Impact Statement

[26] AP, page 36, par 11.

The Impact Statement was prepared on 14 April 2022,[27] over a month before the Application was filed. It addresses the assaults alleged to have been perpetrated by both Offender 1 and Offender 2 and their impact on the Appellant.
[27] AP, page 15.
With regard to Offender 1, in the Impact Statement, the Appellant said:[28]
[28] AP, pages 12 - 13.
2.I met [the Offender 1] ('the first offender') in or about 2005. We entered into a casual, sexual relationship in 2006. It was casual because he was with several other women at the same time. I fell pregnant with my son … soon after.
3.The first offender and I never had a serious relationship.
4.I have tried to recall a range of incidents which occurred over the duration of an approximately 10 year period.
5.Over this period the first offender emotionally and physically abused me. He would call me names and lied to my friends and family in order to isolate me.
6.The first time the first offender was abusive was approximately 3 months after I gave birth to [my son]. I asked the first offender to leave my house because he was dealing drugs. He went into a complete rage. He started yelling, throwing things and hitting me. He attempted to grab [the Appellant's son] a couple of times and ended up smashing up the house. He eventually started hitting his head against the wall was [sic] threatening suicide so I took the opportunity to grab [my son] and run. [Offender 1] threatened suicide.
7.On one occasion the first offender completely smashed up my car.
8.On another occasion the first offender grabbed my head and bashed it against a metal door frame while I was holding [my son] in my arms. I attended Royal Perth Hospital to seek treatment of my injuries.
9.The first offender would often take [my son] without my consent and knowledge. I put numerous family violence restraining orders on the first offender but he would often breach these and I was required to seek a recovery order to get [my son] back.
10.The police eventually helped me and the first offender didn't try to take [my son] again.
11.I have no doubt in my mind that if I dropped the restraining order the first offender would assault me again. The only reason he hasn't is because he is scared of going back to jail due to violating the VRO.
12.My most recent contact with the first offender was in August 2021 when [my son] went to visit his grandfather. He had rang his grandmother to ensure the first offender would [sic] be present and she assured him he wouldn't. [My son] went to his grandparent's house (where the first offender was residing) and sat with granddad for a bit. The first offender eventually showed up knowing there was a restraining order in place. He was crying and yelling [at my son] so I picked him up. When I arrived he started yelling at me. He was telling me that I was a liar and I was ruining his life. He said this because there is Court proceedings on foot relating to child sexual abuse claims against him. [My son] and I recently notified WA police of some incidents that occurred when [my son] was younger.
13.The first offender's current girlfriend recently turned up at my house upset because she has a two year old daughter with him and it seems he is doing to her what he did to me. He contacted her while she was at my house and abused me over the phone.
The Impact Statement then addresses the Appellant's relationship with Offender 2 and the assault he perpetrated. At various times the Appellant describes Offender 2 as 'controlling and intimidating'.[29] She describes Offender 2's abusive behaviour and says that she was 'too scared' to call the police because she did not know what Offender 2 would do to the Appellant and her son.[30] She describes being 'scared'[31] and 'terrified'[32] of Offender 2. The Appellant says that Offender 2 assaulted her over the course of two days.[33] This is the assault the subject of the Earlier Application.
[29] AP, page 13, par 17.
[30] AP, page 13, par 21.
[31] AP, page 13, par 22.
[32] AP, page 13, par 23.
[33] AP, page 14, par 25.
The Impact Statement then goes on to address the impact of what she has experienced on her life and the treatment she has received. She describes how following her relationship with Offender 2 she was terrified and scared to leave the house.[34] She says that Offender 1 was in prison for two years and she was 'terrified' when he got out of prison. She says that she immediately applied for a violence restraining order which was approved.[35]

The Crabb Report

[34] AP, page 14, par 37.

[35] AP, page 15, par 45.

Dr Crabb is a consultant psychiatrist who assessed the Appellant's psychiatric state on 7 March 2022, or 7 April 2022.[36] She was asked to do so for the purposes of a criminal injuries compensation claim for 'injuries sustained as a result of verbal, physical and emotional abuse/domestic violence that occurred in 2017'.[37] Later, in her report Dr Crabb refers to the alleged assault of the Appellant perpetrated by Offender 2 on 11 - 12 April 2017 that is the subject of the Earlier Application.[38]
[36] AP, page 71, first par.
[37] AP, page 70, first par.
[38] AP, pages 70, 72, 73, 74 and 79 - 80.
For reasons that she explains in her report, Dr Crabb diagnoses the Appellant as suffered from post-traumatic stress disorder, a major depressive disorder and a generalised anxiety disorder with panic attacks.[39] She opines that the Appellant's psychological symptoms relate to the Appellant's relationship with 'the offender' and that:[40]
She had other pre-existing vulnerabilities which would not be considered causative of the PTSD suffered as a result of the subject incidents. There was clearly a marked decline in function after the subject incidents and severe aggravation of pre-existing anxiety and depressive symptoms.
[39] AP, page 80.
[40] AP, page 85, second par.
When what Dr Crabb says in her report is considered, it is apparent that 'the offender' being referred to by Dr Crabb was Offender 2, not Offender 1. Dr Crabb's report does not refer to Offender 1's alleged assault of the Appellant, although she does say the relationship between Offender 1 and the Appellant was abusive and that '[t]he abuse was verbal, emotional, physical and sexual towards her son'.[41]

Other medical records

[41] AP, pages 77 and 79.

The Illawarra Medical Centre Records[42] commence on 11 April 2017. This is the same day that Offender 2 is alleged to have assaulted the Appellant but appears to relate to a doctor's visit before that assault. The entry on that date refers to the Appellant struggling to leave the house. It also records the following:[43]
Anxiety is the biggest issue currently and she has some symptoms of post traumatioc [sic] stress following an abusive relationship for 10 years with ex partner (father of her son - currently in jail).
She really needs help currently to get on top of her symptoms.
Mood low, feeling depressed.
No suicidal ideation. Does feel hopeless.
[42] AP, pages 89 - 113.
[43] AP, page 89.
The Ashton Avenue Medical Centre records[44] appear to commence on 2 October 2019.[45] This is after Offender 2 is alleged to have assaulted the Appellant.
[44] AP, pages 114 - 170.
[45] AP, page 117.
The JHC Records[46] relate to the Appellant's assault by Offender 2.[47]

The different explanations given for the delay

[46] AP, pages 171 - 216.

[47] AP, page 189.

The Application was filed under cover of a letter from the Appellant's solicitors dated 27 May 2022. That letter included the following:[48]
We note that the time limit for our client's application is [sic] has now expired. However, we kindly ask for your consideration of assessing our client's claim as she was assisting her son and sister through criminal hearings and potential claim for compensation, she queried her rights to compensation regarding an assault from [Offender 2], whereby our office lodged a claim on her behalf on 2 May 2022.
[48] AP, pages 58 - 59.

The delay in filing the Application was also addressed in the Delay Statement. That statement said:[49]
1.I have recently become aware that I am entitled to criminal injuries compensation and of the limitation period within which to lodge an application, when I sought Shine Lawyers representation for my claim against [Offender 2], which was lodged on 2 May 2022.
2.I was recently assisting my sister with a fatal accident claim as her partner passed away in a motor vehicle accident two years ago. This is when I realised there are time limits to make a claim for compensation as a result of personal injury. I researched this on the Criminal Injuries Compensation website and discovered that it was possible to make an application to have the time limits extended. I contacted Shine Lawyers straight away to engage them to assist me in preparing and submitting an application for Criminal Injuries Compensation.
[49] AP, page 17.
The Delay Statement was signed by the Appellant.[50]
[50] AP, page 17.
On 20 June 2022, the Assessor wrote to the solicitors acting for the Appellant regarding the Delay Statement.[51] The Commissioner referred to the Earlier Application and noted the similarity between the reason for the delay given in both matters. The Assessor said:[52]
The reason for [sic] provided upon request or explanation for the delay was similar to that provided in relation to her application for [Offender 2] where your paralegal (not your client) stated:
'However, we kindly ask for your consideration of assessing our client's claim as she was assisting her son and sister through criminal hearings and potential claim for compensation, she queried her rights to compensation regarding an assault from [Offender 2], whereby our office lodged a claim on her behalf on 2 May 2022. This is when our client became aware of her right to claim personal injuries, as she was not aware previously and if she did not assist her sister and her son in their claim, she would not have known otherwise.'
Given the fact your client lodged an application in February 2021, this is patently misleading.
[51] AP, pages 65 - 66.
[52] AP, page 65.
The Assessor's letter then proceeded to set out some of the considerations relevant to the application of s 9(2) of the Act identified in some of the key decisions of this court. The Assessor's letter asked the Appellant's solicitors to advise when they were instructed by the Appellant in relation to the Earlier Application and to provide an explanation from the Appellant as to why the Application and the Earlier Application were not lodged at the same time.[53]
[53] AP, page 66.
On 15 August 2022, the Appellant filed a further statement described as a 'Statement seeking compensation out of time' (Further Delay Statement).[54] Again, the statement was signed by the Appellant.
[54] AP, pages 18 - 28.
In the Further Delay Statement the Appellant stated that she instructed her solicitors in relation to the claim for compensation in relation to Offender 2 on 16 February 2021.[55] The Further Delay Statement gave the following explanation for the late application in relation to Offender 1:[56]
[55] AP, page 19, par 4.
[56] AP, pages 19 - 21.
5.I have always been very fearful of [Offender 1] ('the offender') and was too scared to submit a claim for criminal injuries for a long time against him and felt there was no point in explaining about it as time had passed and my rights to claim were no longer available.
6.The offender and I share a child together, [my son] is another reason why I delayed lodging an application.
7.I had Family Court proceedings against the offender that went on for about 11 years. This consumed [sic] majority of my life to protect and bring up my son … as a single parent. I was not in a position or had any time to [consider] lodging a compensation claim against the offender.
8.At that time, I instructed Shine to represent me for a claim against [Offender 2], I had only become aware that I was able to lodge a claim out of time when I was assisting my sister with her motor vehicle accident claim.
9.After I sought legal advice from my legal representatives Shine Lawyers on 16 February 2021 in relation to making an application for criminal injuries compensation for a claim against [Offender 2] and my legal representatives had investigated my claim against [Offender 2], I became more confident and had now found the courage to open up about my past and expressed to them about the assault I previously had experienced from [Offender 1].
10.Throughout my relationship with the offender, he was a controlling person. He did not like me having my friends around and did not like me going out.
11. The offender did not get along with my parents and was not welcome at their home, therefore, he did not like me visiting my parents.
12.After the birth of our child, the offender and I fought more regularly, and he was always screaming and threatening me.
13.The offender would often be in my face screaming at me and threatened me by screaming saying he would 'fucking smash me.'
14.I was and still am very frightened of the offender and what he may do to me and our son.
…
16.I was only made aware in 2019 by [my son] of the sexual indecency incidents that occurred when he was visiting his father between the age of 4 to 7 years old.
…
18.There as an incident that occurred August 2021 [when] our son … went to visit his paternal grandfather. [My son] was reluctant to visit his grandfather if the offender was there. However, [my son] was assured by his paternal grandmother that the offender would not be at the premises. In this incident [the] offender attended the premises knowing that a violent restraining order was in place (VRO). The offender was crying and yelling at our son stating that our son was ruining his life by making claims of child sexual abuse against him. I went to pick up [my son] as he was scared, the offender started yelling at me. He was telling me I was a liar: [sic].
19.I was afraid of the offender and his aggressive behaviour towards our son and me.
20.It was in my best interest to focus on [my son] and ensuring he was living a safe life and not exposed to any further sexual assaults from the offender.
21.It took me a long time to find the courage, time and strength to go ahead with lodging an application for these domestic violence incidents.
22.I knew there would be repercussions if the offender was to find out about this claim as there were already family court and sexual assaults claims against him.

Nature of the Appeal

An appeal under s 55 of the Act is a hearing de novo.[57] It is therefore not necessary for the Appellant to demonstrate error on the part of the Assessor.
[57] Nagel vTahere[2020] WADC 110 [26] (Gething DCJ).
Section 56(1) of the Act provides that this court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision. The entirety of the evidence must be reconsidered independently of the decision of the Assessor.[58]
[58] Re ATS [2019] WADC 76 [15], [17] (Davis DCJ).
Section 56(2)(a) of the Act provides that on an appeal under s 55 the District Court may exercise any power of an assessor under this Act, other than a power under s 19(1)(b), s 24(1) or s 25. Thus, this court may exercise an assessor's discretion under s 9(2) of the Act.
Section 56(2)(a) of the Act provides that this court may confirm, vary or reverse the assessor's decision, either in whole or in part.
There are decisions of this court that have held that it is appropriate to have regard to the decision of an assessor as a specialist tribunal in the field.[59] There are other more recent decisions which hold that to have regard to an assessor's decision would be inconsistent with a de novo hearing.[60]

Section 9(2) and the relevant principles

[59] GoodwinvBaker[2020] WADC 43 [14] (Levy DCJ). See, for example: UnderwoodvUnderwood [2018] WADC 13 [19] (Gething DCJ); Re HCM [2018] WADC 20 [13] (Eaton DCJ); Hogben vDarcy[2009] WADC 63 [13] (Goetze DCJ); GullelovHalloran[2008] WADC 145 [5] (Staude DCJ).

[60] Re Coad [2023] WADC 9 [17] (Troy DCJ); HarrisvSycamore[2022] WADC 4 [159] (Troy DCJ); EMvCL[2021] WADC 127 [11] (Burrows DCJ); Re Swinford [2021] WADC 82 [16] - [17] (Russell DCJ); EBvRamljak[2021] WADC 134 [18] (Whitby DCJ); GuyvHampson [2019] WADC 19 [14] (Bowden DCJ); DR v CD [2018] WADC 148 [10] - [12] (Quail DCJ).

Section 9(2) of the Act provides that an assessor may allow a compensation application to be made after the three years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose. Previous decisions of the District Court establish that the proper approach to the exercise of the statutory discretion is as follows.
The onus is on the applicant to explain to the satisfaction of the court the reasons for the delay in making an application.[61]
[61] Re McHenry [2014] WADC 92 [15] (Herron DCJ).
There are strong policy reasons for requiring that limitation periods be complied with.[62] The time limit is a substantive provision laid down by the Act itself and is not a mere procedural time limit. The burden on the applicant is no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.[63]
[62] Re McHenry [16] (Herron DCJ).
[63] Re McHenry [17] (Herron DCJ). See also Hansen v Bolton [2017] WADC 25 [12] (Herron DCJ).
The factors that the court may take into account in determining whether it is just to extend the time within which to make an application include:
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the prospects of the compensation application succeeding;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the offender; and
(f)whether injustice will be suffered if an extension of time is refused.[64]
[64] Re Richards [2022] WADC 100 [39] (Gething DCJ).
Merely because the refusal of the application means that the applicant can never litigate his or her claim is not however, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised.[65]
[65] Re McHenry [18] (Herron DCJ).
Difficult personal circumstances of an applicant, which prevented or impeded him or her from seeking legal advice, are relevant to an extension of time.[66]

Other relevant principles

[66] Hansen vBolton[35].

Section 17(4)(a) of the Act provides that an award of compensation should not be made unless I am satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence.
It is a serious matter to make findings that an alleged offender has committed an act in the nature of an offence, particularly when they are not given the opportunity to refute those allegations.[67]
[67] Re Jackamarra [2014] WADC 9 [75].
The court must feel an actual persuasion that the offence occurred, and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact.[68]
[68] Re ATS [2017] WADC 92 [29] - [31] (Herron DCJ).
An applicant is also required to negative any defences reasonably open on the evidence.[69]
[69] Section 17(5) of the Act; Re Warrek [2019] WADC 50 [3] (Troy DCJ).

The Appellant's submissions

The Appellant submitted that she first engaged her solicitors on or around 16 February 2021 in relation to bringing a criminal injuries application against Offender 2. She accepts that she appreciated that it was possible to pursue a claim against Offender 1 at that time.[70] In support of an extension of time, the Appellant otherwise relied on the Further Delay Statement.[71]
[70] Appellant's Submissions, par 15.
[71] Appellant's Submissions, par 16.
The Appellant submitted that although Offender 1 had not been convicted of any offence against the Appellant, the evidence relied upon by the Appellant establishes that she was the victim of an assault perpetrated by Offender 1 on 22 December 2011 when Offender 1 pushed her head into the door frame. The Appellant drew attention to the definition of assault in s 222 of the Criminal Code and the offence of assault in s 223 of the Criminal Code.[72]
[72] Appellant's Submissions, pars 22 - 30.
In the Appellant's written submissions, the Appellant submitted that the Crabb Report established that Offender 1's assault had caused the Appellant mental and nervous shock,[73] although the same written submissions also accepted that Dr Crabb's assessment related predominately to Offender 2's alleged assault.[74] At the hearing of the appeal counsel for the Appellant properly accepted that the report of Dr Crabb focused 'solely' on Offender 2's alleged assault.[75]
[73] Appellant's Submissions, pars 37 - 41.
[74] Appellant's Submissions, par 41.
[75] ts 11 - ts 12.
In the Appellant's written submissions, the Appellant submitted that an entry in Illawarra Medical Centre Records from 11 April 2017 established that the Offender 1's alleged assault caused the Appellant to suffer a psychological injury.[76] At the hearing of the appeal, counsel for the Appellant properly accepted that the Illawarra Medical Centre Records did not establish that the anxiety that the Appellant reported was caused by the alleged assault, but rather by the Appellant's relationship with Offender 2 more generally.[77]
[76] Appellant's Submissions, par 42.
[77] ts 12.
Submissions were also filed by the Chief Executive Officer of the Department of Justice (CEO) as amicus curiae. As the CEO's submissions were filed before the Appellant filed her submissions, some of the CEO's submissions were overtaken by events. Although I will not address the very helpful submissions made by the CEO in any detail, I wish to record that the court derived considerable assistance from those submissions and the submissions made by counsel who appeared for the CEO at the hearing of the appeal.

Disposition

At the hearing of this appeal, counsel for the Appellant described the question of whether I should exercise my statutory discretion to permit the Appellant to pursue the Application as the 'first and main issue'.[78] In my view, the question of whether the discretion should be exercised turns upon the following principal considerations.

The length of delay

[78] ts 3.

This is a case of significant delay. The Application was filed 7 years and 5 months late and related to an assault that was alleged to have occurred almost 10 years 5 months before the Application was filed. The submissions made by counsel for the Appellant at the hearing of the appeal did not refer to any case in which an extension of such duration had been granted (although I subsequently identified one (see below)).[79]
[79] ts 4 - ts 7.
In Re Jackamarra, Schoombee DCJ refused to exercise the statutory discretion to permit an application for compensation to proceed that was filed 18 years late. In that case her Honour observed that most matters in which an extension of time was granted have been concerned with a delay of less than two years.[80]
[80] Re Jackamarra [38].
While the period of delay here is significant, the exercise of the discretion where there has been such a delay is not unprecedented. In Hinchcliffe v Hinchcliffe,[81] an application for criminal injuries compensation was allowed to be made nine years out of time. The offender in that case was an active member of an outlaw motorcycle gang. He subjected the applicant to a serious and brutal physical attack as a 'punishment' because the applicant had been unfaithful. The applicant had also been exposed to serious and pervasive repression and threatening behaviour by the offender during the course of their relationship. As a result, the applicant feared for her safety and that of her children.

The reasons for the delay

[81] Hinchcliffe v Hinchcliffe [2010] WADC 78.

The Appellant has given two different explanations for her delay in pursuing the Application.
The first explanation in the Delay Statement is very brief. The statement was only four paragraphs of which only two paragraphs addressed matters of substance. What little was said in those two paragraphs was misleading.
In par 1 of the Delay Statement the Appellant claimed that it was when she sought legal representation for the Earlier Application that she first became aware that she might be entitled to criminal injuries compensation and the limitation periods that applied. She described this as having occurred 'recently' seemed to say that the Earlier Application was lodged on 2 May 2022.
In par 2 of the Delay Statement the Appellant stated that she was 'recently' assisting her sister with a fatal accident claim when she realised there are time limits to make a claim for compensation for personal injury. She said that she 'researched this on the Criminal Injuries Compensation website and discovered that it was possible to make an application to have the time limits extended'. She said that she contacted her solicitors 'straight away' to engage them to assist her in preparing and submitting an application for criminal injuries compensation.[82]
[82] AP, page 17.
It may immediately be observed that pars 1 and 2 of the Delay Statement give different accounts of how the Appellant became aware of the possibility of making an application for criminal injuries compensation out of time. In the first account (in par 1), the Appellant says she became aware of the process because of the Earlier Application. In the second account (in par 2), the Appellant says she researched the position herself.
In both accounts it is suggested that the Appellant only became aware of the position recently. The reference in the first paragraph to the Earlier Application being filed on 2 May 2022 gives the impression that recently means shortly before the Application was filed. However, the Earlier Application was not filed on 2 May 2022 but almost a year and a half earlier on 24 February 2021.
Further, the Appellant would not have needed to investigate the possibility of making an application out of time (as suggested in par 2 of the Delay Statement) because the Earlier Application had also been filed out of time and she needed an extension of time to file that application as well. The Appellant knew that an application could have been made out of time since at least 24 February 2021 and accepted as much in this appeal.[83]
[83] Appellant's Submissions, par 15.
When the Assessor raised with the Appellant that the Delay Statement appeared to be misleading, the Appellant did not dispute the characterisation of the Delay Statement as misleading. Rather, she filed the Further Delay Statement giving a very different explanation for the delay. Nor did the lawyers acting for the Appellant on this appeal seek to defend the Delay Statement. Rather, they focused their attention on the Further Delay Statement.
The Assessor's letter on 20 June 2022 to the Appellant's solicitors noted the similarity between the Delay Statement and the explanation given by a paralegal employed by the Appellant's solicitors when the Earlier Application was filed.[84] This raises the possibility that the Appellant's solicitors (or a paralegal employed by those solicitors) prepared the Delay Statement by thoughtlessly copying the explanation given when the Earlier Application was filed.
[84] AP, page 65.
No explanation was provided in the Further Delay Statement or otherwise to explain the circumstances in which the Delay Statement was prepared, or why it was misleading. Absent such explanation I am not prepared to attribute blame for the Delay Statement to the Appellant's solicitors. Further, the fact that the first paragraph of the Delay Statement refers to the Earlier Application also suggests that the Appellant's solicitors did more than simply copy the explanation from the Earlier Application.

In any event, the Appellant signed the Delay Statement despite the fact that it was misleading. This suggests that the Appellant either did not care that the statement was msleading, or did not read it. Either possibility does not reflect well on the reliability of other statements made by the Appellant.
In the Further Delay Statement the Appellant says that throughout her 'relationship' with Offender 1, he was very controlling and did not like to have the Appellant's friends or family visit them.[85] The Appellant also says that the Appellant and Offender 1 fought often and he would threaten her.[86] Thus, the Further Delay Statement seems to partly attribute the Appellant's delay to the control that Offender 1 exerted over her throughout their relationship.
[85] AP, pages 20 - 21, pars 10 and 11.
[86] AP, page 21, pars 12 and 13.
However, the Impact Statement, suggests that the Appellant did not have a serious relationship with Offender 1 and that the conduct the Appellant was describing had ceased by 2016, at the latest.
In the Impact Statement the Appellant says that her 'relationship' with Offender 1 was limited to a casual sexual relationship that commenced in 2006. She said that she never had a serious relationship with Offender 1.[87] While it might be accepted that the Appellant and Offender 1 must have had some form of relationship because of their mutual child, the Impact Statement does not suggest a close relationship between the Appellant and Offender 1.
[87] AP, page 12, pars 2 - 3.
Paragraph 4 of the Impact Statement suggests that the events described in the Impact Statement (that correspond to the events described in the Further Delay Statement) took place between 2006 and 2016. It is also relevant to note that the Police Incident Report records that the Appellant and Offender 1 separated in 2008, three years prior to the alleged assault in 2011.[88]
[88] AP, page 29, par 6.
Like the Further Delay Statement, the Impact Statement mentions the Appellant becoming estranged from her friends and family after meeting Offender 1[89] but it does not describe Offender 1 as controlling. This may be contrasted to what the Appellant says about Offender 2 who she describes as 'controlling and intimidating'.[90]
[89] AP, page 15, pars 46 - 47.
[90] AP, page 13, par 17.
The Further Delay Statement also suggests that the Appellant did not file the Application because she was afraid of retribution by Offender 1.[91] This appears to be the other principal explanation for the delay given in the Further Delay Statement.
[91] AP, pages 19 - 21 and 23, pars 5, 14 and 19.
Consistently, with the Further Delay Statement, in the Impact Statement the Appellant says she was scared of Offender 1. In the Impact Statement the Appellant says that she applied for a violence restraining order when Offender 1 got out of prison because she was terrified.[92] It should be noted, however, that the Impact Statement also suggests that the restraining order has been mostly[93] effective because Offender 1 is scared of being sent back to jail if he breaches the order.[94]
[92] AP, page 15, par 45.
[93] The Appellant describes an incident where she collected her son from his grandparents' house. See AP, page 13, par 12.
[94] AP, page 12, par 11.
Significantly, however, while in the Impact Statement the Appellant says that her fear of Offender 2 made her too scared to make complaints about him during the course of their relationship, she makes no mention of her fear of Offender 1 affecting her willingness to make complaints about him. In the Impact Statement, the Appellant says that she was 'too scared' to call the police about Offender 2 because she did not know what he would do to the Appellant and her son.[95] She does not say this about Offender 1 in the Impact Statement.
[95] AP, page 13, par 21.
Indeed, the Impact Statement records that the Appellant made various complaints to the police about Offender 1. In that statement the Appellant refers to complaining to the police about Offender 1 to gain their assistance to retrieve her son. The fact that the Appellant refers to the police 'eventually' helping her suggests that there were repeated complaints.[96] The Impact Statement also refers to the Appellant making a complaint to the police that Offender 1 sexually abused their son.[97] It should also be recalled that the Appellant made a complaint to the police on 22 December 2011. This also involved the Appellant seeking the assistance of the police to retrieve her son.
[96] AP, page 12, par 10.
[97] AP, page 13, par 12.
It also appears that the Appellant was not deterred from seeking the restraining orders referred to in the Impact Statement against Offender 1. There is also reference in the Police Incident Report to the Appellant seeking the intervention of the Family Court against Offender 1. In par 7 of the Further Delay Statement, the Appellant refers to 11 years of Family Court litigation against Offender 1.[98]
[98] AP, page 19, par 7.
Ultimately, it seems to me that the present case is very different to HinchcliffevHinchcliffe. Even if what the Appellant says in the Further Delay Statement is taken at face value, the extent of the control exerted by Offender 1 is much less than in that case.
Further, given the unreliability of the Appellant's initial explanation, I am not prepared to uncritically accept what she says in the Further Delay Statement. When the Impact Statement is considered, it would seem that any controlling behaviour on the part of Offender 1 would have ceased by about 2016. While I accept that the Appellant may have been scared of Offender 1, that fear does not appear to have prevented her from making serious complaints about Offender 1 to the police and repeatedly seeking court intervention against him. It is also relevant to recall that despite being terrified[99] of Offender 2, the Appellant was still able to file the Earlier Application by February 2021.
[99] AP, page 13, pars 12, 22 - 23.
It does not seem likely to me that the Appellant would have been confident enough to repeatedly report Offender 1 to the police and conduct 11 years of litigation against him in the Family Court but too scared to make the Application. The consequences of the Application would have been considerably less serious for Offender 1 than the consequences of the actions the Appellant had already taken. As submitted by the Appellant’s counsel at the hearing of the appeal,[100] as Offender 1 has not been convicted of an offence, s 49 of the Act would not permit the CEO to recover any compensation from Offender 1.

Prospects of the compensation application

[100] ts 6.

There is evidence from which it might be concluded that the Appellant was assaulted as she alleges. She says as much in the various statement she has given and her account is corroborated by the evidence given by her son. She also points to the consistent contemporaneous reports she made of the assault in the Police Incident Report and the RPH Records.
The Appellant's case is not overwhelmingly strong, however. The Appellant's son was only four or five years old when the events in question are alleged to have occurred and, in any event, he is not impartial. Although I may have regard to the Appellant's prior consistent statements as the rules of evidence do not apply,[101] the Appellant is still the source of the evidence in question. Ultimately, the Appellant's case turns in large part on the acceptance of the Appellant's evidence alone.
[101] See s 18(2) of the Act.
Even if the Appellant is able to establish that an assault occurred, however, the evidence does not establish that the assault caused her any serious, or lasting injury, that would entitle her to any substantial award of compensation.
The Application relied upon the Crabb Report to establish that Offender 1's assault caused the Appellant permanent psychiatric harm. While Dr Crabb diagnosed the Appellant as suffering from a recognisable psychiatric illness, her diagnoses was that the illness was caused by Offender 2's assault, not by Offender 1.
Further, while there might be some evidence that the Appellant was suffering from anxiety before she was assaulted by Offender 2, in my view the medical evidence does not go as far as saying that her anxiety was caused, or contributed to, by the alleged assault.
The Appellant submitted that an entry in the Illawarra Medical Centre Records from 11 April 2017 established that the Appellant was suffering anxiety and post-traumatic stress from an abusive relationship with Offender 1. But as counsel for the Appellant conceded, the notes did not record these conditions as being caused by any assault on 22 December 2011.[102]
[102] ts 12.
Further, when the Illawarra Medical Centre Records are reviewed, the entry relied upon appears more like the history taken by the medical practitioner from the Appellant, rather than a considered diagnosis. Certainly, the notes do not provide any reasoned basis for a diagnosis equivalent to the Crabb Report.
Even if it is accepted that the Appellant suffered from depression and anxiety, there is no medical evidence before the court to establish that this was caused by an alleged assault on 22 December 2011. I could therefore not be satisfied that the alleged assault caused any such injury for the purposes of s 17(4)(a) of the Act.
The assault was alleged to consist of the Appellant's finger being pulled back and her head pushed into a door frame. The RPH Records state that it did not leave the Appellant with any visible injury.[103] The Police Incident Report records that the complainant 'has a lump on her head but it was not visible'.[104] While this requires some interpretation, I interpret this as meaning that the Appellant reported having a lump on her head but the police officer could not see it. The treatment that the Appellant seems to have received was limited to analgesia.
[103] Appellant's Book, page 7.
[104] AP, page 29.
In the circumstances, even if the Appellant established an offence had occurred, any compensation she might receive would be limited to an award for non-pecuniary loss. Given the extent of the assault and the fact that it did not cause the Appellant any significant or lasting injury, any amount of compensation would be very modest.

Conclusion

Ultimately, on the material before me, I am not satisfied that I should exercise the statutory discretion to permit the Appellant to pursue the Application.
The burden is on the Appellant to satisfy me that there is a substantial case for it being just and proper for the court to exercise its statutory discretion. In Hansen v Bolton Herron DCJ observed:[105]
There are strong policy reasons for imposing limitation periods and ensuring they are complied with. The time limit set out in the Act is a substantive provision of the Act and not merely a procedural time limit imposed by the rules of court. As such, it ought not be treated with the indulgence appropriate to merely procedural rules. The burden on [the applicant] is thus no triviality and the applicant must make a substantial case for it being just and proper for the court to exercise its statutory discretion to extend time.
[105] Hansen v Bolton [12].
Here, there has been considerable delay in pursuing compensation and I am not satisfied that that delay has been satisfactorily explained. It also seems to me that the evidence relied upon by the Appellant would be incapable of establishing any substantial entitlement to compensation anyway.
I am cognisant of the fact that this will preclude the Appellant from prosecuting her claim but this fact alone is not sufficient reason to exercise the discretion.[106]
[106] Re McHenry [18] (Herron DCJ).
I will therefore confirm the Decision.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to the Judge
29 SEPTEMBER 2023