Re Collard
[2018] WADC 1
•8 JANUARY 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE COLLARD [2018] WADC 1
CORAM: GOETZE DCJ
HEARD: 1 DECEMBER 2017
DELIVERED : 8 JANUARY 2018
FILE NO/S: APP 76 of 2016
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: GREGORY ALLAN COLLARD
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 1955 of 2015
Catchwords:
Criminal injuries compensation appeal - Claimant asked prosecutors to not proceed with the prosecution of assault occasioning bodily harm - Claim for criminal injuries compensation rejected for failing to have reasonably done all the applicant could do to assist the prosecution - Criminal Injuries Compensation Act 2003 s 38 - Police had own reasons to discontinue prosecution -Turns on own facts
Legislation:
Criminal Code Act Compilation Act 191
Criminal Injuries Compensation Act 2003
Criminal Procedure Act 2004
District Court of Western Australia Act 1969
Result:
Appeal allowed
Compensation awarded to appellant in the sum of $40,000
Representation:
Counsel:
Appellant: Mr M J Joubert
Amicus Curiae : Ms R Davey appeared on behalf of the Chief Executive Officer of the Department of Justice
Solicitors:
Appellant: Emeris Lawyers Pty Ltd
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AJC v Lewis (2003) 35 SR (WA) 94
Anderson v The Assessor of Criminal Injuries Compensation [1999] WADC 120
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gullelo v Halloran [2008] WADC 145
Harding [2004] WACIC 66
Jansen (1996) 15 SR (WA) 216
KCR [2009] WACIC 6
Kirkham [2008] WACIC 27
Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200
Pargovski [2015] WACIC 19
Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240
Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245
Re Bastow (2011) 77 SR (WA) 109
Sullivan [2017] WADC 17
Woodruff v Northern Territory of Australia [2000] NTCA 8
GOETZE DCJ:
Introduction
On 20 July 2010, the appellant, Gregory Allan Collard (also known as Staveley) was involved in a physical altercation with two other men at a home in Usher, near Bunbury. These men were charged with assaulting Mr Collard and thereby occasioning him bodily harm, contrary to s 317(1) of the Criminal Code 1913.
On 12 April 2011, the prosecutor informed the Magistrates Court at Bunbury that he was discontinuing the prosecution of the charge against the accused men in consequence of which the charge was dismissed for want of prosecution.
On 10 June 2013, Mr Collard applied under s 16(1)(a) and s 16(2) of the Criminal Injuries Compensation Act 2003 (the Act) for criminal injuries compensation in respect of the injuries he sustained from the alleged assault.
On 12 September 2016, the Chief Assessor of Criminal Injuries Compensation refused Mr Collard's application by reason that, having withdrawn his complaint prior to trial, Mr Collard did not do everything reasonably required of him to assist in the prosecution of the two men as required by s 38 of the Act.
Mr Collard now seeks to appeal the refusal of the Chief Assessor.
Leave to appeal
On 27 September 2016, Mr Collard's solicitor attended at the Perth registry of this court seeking to file a notice of appeal against the decision of the Chief Assessor. The solicitor requested a waiver of the requisite filing fee. He did not appreciate that the notice of appeal was not then filed on the lodging date. The last day to file the appeal notice was 3 October 2016.
It was only on 18 October 2016 that the notice of appeal was accepted by the court and the appeal instituted. It was then out of time.
In Re Bastow (2011) 77 SR (WA) 109, Wisbey DCJ dealt with an application for an extension of time within which to bring an appeal referring to the reasons of Kennedy J in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, (198) as follows:
In relation to an application for an extension of time for appealing, there are four major factors to be considered in the exercise of the discretion which is conferred upon the court. They are, first, the length of the delay, secondly, the reasons for the delay, thirdly, whether there is an arguable case and, fourthly, the extent of any prejudice to the respondent. There may in a particular case be additional factors … .
The merits of the appeal will be dealt with below, but leave should be granted if the appeal has a reasonable prospect of success.
In this case, the notice of appeal was lodged with the court within the time limited for an appeal and it was the processes of the court which, for a short time, delayed the appeal from being accepted for the purpose of commencing the appeal. There is, in this appeal, no respondent but, even if there were, it cannot be said that there is any prejudice to such a respondent.
The assault
Mr Collard was born on 1 October 1980. He was therefore 29 years of age when the alleged assault occurred on 20 July 2010. Such alleged assault is said to have occurred at a home belonging to Mr Collard's aunty in Usher, near Bunbury, where a gathering was held, mainly of family, but also of some friends. A 'mob' of people attended from Pinjarra. Mr Collard saw one of the mob kick his aunty to the right side of her jaw while she was sitting on a chair in the dining area. She was knocked to the ground. According to Mr Collard, he went to her aid and fought with this alleged offender. Mr Collard was then 'mobbed' by him and another alleged offender, who is 'family'. The first alleged offender struck Mr Collard with a bottle and the second alleged offender lifted a brick over Mr Collard's head as he lay on the floor. Mr Collard does not remember anything else.
Mr Collard was injured, as detailed below and taken to hospital.
In his interview with the police, the first alleged offender claimed that he was in the kitchen with his cousin laughing, talking and cutting meat in preparation for a barbeque. He said Mr Collard came in and 'grabbed him' and 'king hit' him in the face, cutting his eyebrow and face. He understood Mr Collard did this because he 'got the wrong idea' about why he had been laughing. This alleged offender said he simply defended himself, in consequence of which, one of his uncles broke off the fight. He claimed that he then walked to the front of the house to wash blood from his face. He believed Mr Collard went to do the same and that when he returned, Mr Collard was lying in the passageway of the house. This offender denied the accusations of Mr Collard as outlined above, including that a second alleged offender was involved.
Mr Collard's partner, Ms Natasha Winmar, corroborated Mr Collard's claims in her statement to the police. She however, saw the second alleged offender throw the brick at Mr Collard striking him in the head.
Mr Collard's aunty, whom he sought to protect, declined to provide police with a statement for fear of retribution.
Another man, who was the uncle of both Mr Collard and the first alleged offender and who is referred to above, informed police it was a fair fight in the back yard without the use of weapons. He said both the men went inside the house and later he saw Mr Collard lying in the hallway. The police apparently thought him to be an unreliable witness.
There were potentially other witnesses to the incident.
It does not appear that the Chief Assessor had any difficulty in accepting that Mr Collard was assaulted. Her only issue with his application for compensation appears to have been s 38 of the Act.
The Chief Assessor's reasons
On 1 July 2013, the Chief Assessor wrote to Mr Collard's solicitor as follows:
Your client's application for compensation in respect of an alleged offence on 20 July 2010 has been referred to me for directions. Enquiries have been made with the WA Police and I have been provided with a copy of the police brief together with a statement apparently signed by your client asking that prosecution of the alleged offence be withdrawn.
I mention this because of the provisions of s 38 of the Criminal Injuries Compensation Act 2003 (the Act) which provide that I must not make an award of compensation to your client if I am satisfied that he did not do everything which he ought reasonably to have done to assist in the identification, apprehension and prosecution of the alleged offender. By withdrawing his complaint prior to trial, I am satisfied that your client did not do everything reasonably required of him in accordance with s 38 of the Act and I must refuse his application.
I write to give you notice of this provisional determination and to give you the opportunity to make any submissions you see fit to make in respect to it.
…
There were further communications between the Chief Assessor and Mr Collard through his solicitor culminating in correspondence from the Chief Assessor to the solicitor dated 12 September 2016, including the following:
…
I am not satisfied your client has demonstrated that he withdrew his co‑operation with the prosecution under duress. Nothing in the material available supports the assertion your client's partner was assaulted, and I do not accept that her somewhat early delivery was caused by an event which is alleged to have happened four months earlier, in the absence of any medical or other evidence to support the assertion. The hospital notes record only delivery following rupture of membranes at 36.3 weeks gestation in the context of gestational diabetes, pre‑eclampsia and limited antenatal care. There is no reference to any trauma in the context of the pregnancy or the delivery.
…
Section 38 of the Act
Section 38 of the Criminal Injuries Compensation Act provides that an award must not be made if the assessor is of the opinion that the victim
… did not do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. (emphasis added)
This requires a factual determination as to whether a failure to do any act or thing occurred and if so, whether that failure was reasonable in the circumstances.
In AJC v Lewis (2003) 35 SR (WA) 94 [33], the position was put as follows: Was there a failure by the appellant and if so, was the failure reasonable taking into account the particular circumstances of the appellant to determine what was reasonable for him to do?
In Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240; Blaxell DCJ said at [15]:
As a matter of construction, I do not consider that this provision requires that an applicant's lack of action be judged by reference to what a hypothetical reasonable person would have done. The section focuses on the applicant and what 'he' ought reasonably to have done. Accordingly, although the ultimate test is what was objectively reasonable in all the circumstances, that test is to be applied by reference to what could reasonably be expected of the particular applicant.
Section 38 calls for an examination of the relevant circumstances relating to Mr Collard when considering why he requested police to discontinue the assault charge.
Authorities
Generally, fear of an offender is not sufficient on its own to justify a failure to assist in the identification, apprehension and prosecution of an alleged offender: Sullivan [2017] WADC 17 [130].
However, where the applicant has a legitimate fear of reprisal, especially where the threat of harm to the applicant is real and immediate, any failure of the applicant to not assist in the investigation of the alleged offence may be justified: Pargovski [2015] WACIC 19 [21].
Section 38 has been held to operate to preclude a person from claiming compensation in the following circumstances:
1.Where an applicant refused to sign a police witness statement ostensibly because he did not wish to be seen by his acquaintances to be co‑operating with the police: KCR [2009] WACIC 6.
2.Where an applicant refused to provide police with details of the whereabouts of a witness known to the applicant. This failure was held to be unreasonable as it led to the cessation of the investigation: Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245 [27] – [30].
3.Where the applicant refused to co‑operate with police by refusing to give a statement, indicating that he wanted no further action taken and that he would not attend court to assist in any prosecution: Kirkham [2008] WACIC 27.
4.Where, on application for compensation under s 16 and s 17, the applicant failed to provide police with information to identify or assist in the investigation of an alleged offender whose assault upon the applicant may have caused the injuries which had been the subject of other proceedings and which had been discontinued against other offenders: Harding [2004] WACIC 66.
By contrast, failure to do an act or thing has been held to be reasonable in the following circumstances:
1.Where the applicant and the alleged offender were in prison together and the applicant withdrew his complaint against the alleged offender by reason of fear of violence being perpetrated against him: Anderson v The Assessor of Criminal Injuries Compensation [1999] WADC 120.
2.Where the failure to provide a statement or co‑operate with the police did not affect the police investigation, as the police were otherwise able to investigate the matter by other means: Jansen (1996) 15 SR (WA) 216.
3.Where the applicant's failure to assist police in a television interview was thought to be reasonable where to do so would have left him open to reprisals: Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200.
4.Where the applicant's fear of the offender (the applicant's de facto partner) and indifference to breaching the law were circumstances which prevented the applicant from reporting the offence: Woodruff v Northern Territory of Australia [2000] NTCA 8 (14 July 2000).
The nature of the appeal
An appeal under the Act is a hearing de novo, usually on the evidence and information before the assessor: Gullelo v Halloran [2008] WADC 145 [5]. By s 56 of the Act:
(1)On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.
(2)On an appeal under section 55 the District Court may do any or all of the following —
(a)exercise any power of an assessor under this Act, other than the power under s 19(1)(b), s 24(1) or s 25;
(b)confirm, vary or reverse the assessor's decision, either in whole or in part;
(c)make any order that an assessor could make under this Act;
The ground of appeal
There is only one ground of appeal, namely:
1.The assessor failed to give sufficient weight to the fact that any withdrawal of the Appellant's statement was made under duress
It was submitted by Mr M J Joubert, as counsel for Mr Collard, that Mr Collard took the following steps to advance the prosecution:
(a)making a report to the police;
(b)making a statement and signing it;
(c)identifying an assailant; and
(d)participating in an interview which was recorded by video.
Mr Collard's partner also gave police a statement and identified an assailant.
As a result of these steps, the police pursued the matter resulting in the two arrests and the matter coming before the Magistrates Court. Mr Joubert submitted that the matter was then out of the control of Mr Collard and that s 25 of the Criminal Procedure Act 2004 applied as follows:
1.If no evidence has been adduced in relation to a charge, the prosecutor may inform the court that the prosecutor is discontinuing the prosecution of the charge.
2.On being so informed, the court may consent or, if satisfied that the discontinuance would be an abuse of process, refused to consent to the discontinuance of the prosecution concerned.
3.If a prosecution of a charge is discontinued, the court must dismiss the charge for want of prosecution.
In this way, Mr Joubert submitted that it was only the prosecutor who was able to discontinue the charge as to which, Mr Collard had no right or authority.
Mr Joubert submitted the Chief Assessor was wrong to hold that Mr Collard 'withdrew his complaint and declined to proceed to give evidence at trial'. He relied on an example of an alleged assault between parties who are known to each other, after which, they resolve issues between themselves. However, once the prosecution has preferred a charge, the complainant cannot withdraw the complaint and if a complainant is reluctant to testify, then that complainant can be compelled to give evidence.
With respect to this submission, it is the fact that it was Mr Collard who advised the police that he did not wish to continue with the prosecution. Mr Collard cited family reasons, namely it was because of his partner Ms Winmar and newborn child that he made this request. She did not wish to give evidence.
However, Mr Collard's advice to the police is only partially informative of how the discontinuation occurred. The police had other reasons of their own for not proceeding to trial. These will be discussed shortly.
Further, the police could have compelled Mr Collard's attendance at court to give evidence. However, that did not happen. Further still, there is no evidence the police informed Mr Collard that the prosecution of his complaint could have proceeded with only his evidence and that it was not necessary to have his evidence corroborated by another witness, being his partner.
The circumstances leading up to the discontinuation
The police running sheet indicates that on the day following the assault, they were warned by Mr Collard's aunty, the owner of the home where the assault occurred, that there may be a revenge attack on her home. She indicated that she would not return to her home.
On 23 July 2010, police attended at Mr Collard's home where there was damage to most windows. The police were unable to confirm the cause of this damage.
On 2 September 2010, Mr Collard attended at the Bunbury police station complaining of trouble at his home the previous evening. This does not appear to have been reported that previous evening, however Mr Collard believed that the family of the first offender referred to above had been in attendance. Ms Winmar was struck in the head, but he did not wish to make any complaint. Ms Winmar was pregnant at this time.
On 5 November 2010, Mr Collard was taken into custody, where he remained until 4 April 2012.
On 9 January 2011, Ms Winmar, delivered her baby.
On 20 January 2011, Ms Winmar did not attend the trial of Mr Collard's complaint.
On 22 March 2011, an application for Ms Winmar to give evidence via video link was refused.
On 4 April 2011, Ms Winmar advised that she would not attend at any trial. She was required to look after the baby and her other children. On 19 April 2011, she advised she did not attend on 4 April 2011 by reason of family matters.
Further complicating Mr Collard's situation of being in custody, from where he could not offer physical support to Ms Winmar, is the fact that he heard she suffered some form of confrontation with one of the accused, which resulted in the early delivery of their child. Whether the confrontation was true or not is not to the point. He says it was information he received. If so, he could reasonably have believed it, especially given events occurring shortly after the alleged assault.
Ms Winmar's baby was born on 9 January 2011. It is the fact that the birth occurred early at 36.3 weeks gestation and further, that there were documented problems of gestational diabetes, pre‑eclampsia and limited antenatal care. Now, however incorrect Mr Collard may have been in his belief as to the cause of the early birth and the nature of the medical problems, there is at least medical evidence of the fact of that early birth and those problems which is consistent with his belief that Ms Winmar and the baby suffered problems with an early birth by reason of matters outlined above, when he was in custody and not able to assist them.
It can well be understood that these matters caused Mr Collard distress in not being able to help Ms Winmar and their newborn baby. Mr Collard is not a sophisticated person. There were, objectively through the eyes of a person like him, problems his partner and baby were experiencing. Ms Winmar was also refused permission to give evidence via video link. These matters were on top of the assault itself, his aunty's fear of retribution and other incidents after the assault as outlined above. For those reasons, he did not wish to cause Ms Winmar and child any further problems. Clearly she did not wish to give evidence.
On 4 April 2011, whilst he was still held in custody, Mr Collard was concerned for Ms Winmar and his sick newborn child and therefore, he preferred not to proceed to trial. He reported this to the investigating officer who, on 5 April 2011 reported to his superior officer, amongst other things that:
1.Mr Collard had not suffered permanent damage from the assault.
2.Mr Collard's partner would not attend the trial.
3.Identification of the accused and their actions were critical issues.
4.Mr Collard 'would rather this matter went no further and did not proceed to a trial'.
5.There was a very high reluctance of witnesses to assist in this investigation, with most being related to the accused.
6.The first accused accepted that there was a fight, but that he said it was a fight by consent and it was a fair fight only between the two of them.
It does not appear the police obtained statements from any witnesses other than as detailed earlier. However, by reason of most people at the gathering being linked as family, any assistance given to the police by one family member against another or against a family friend could understandably cause problems within this family community and hence the reluctance of potential witnesses to involve themselves.
However, it was wrong to say that permanent injury had not been suffered. Mr Collard's injuries are set below.
It was also wrong to say that identification was critical, given that one of the accused participated in an interview with the police admitting to a fight with Mr Collard and the other accused was 'family' and known to Mr Collard. Mr Collard and Ms Winmar identified both accused in digiboard processes.
These misapprehensions by police were likely to have been key matters in the recommendation to not proceed.
Further, it is not known from the file provided to the Chief Assessor whether Mr Collard was told that, irrespective of the attendance at trial of Ms Winmar or not, the case could still proceed on his evidence alone were he inclined to do so.
The Chief Assessor referred to Mr Collard's letter requesting that the police not proceed with prosecution. That letter is in the following terms:
To whom it may concern
I Gregory (Collard) Staveley would like to have the matter I reported to police of Assault withdrawn, I do not wish for this matter to proceed. My reasons for this is due to my family experiencing current health issues and I do not want to put stress on my family.
This undated letter was sent by a facsimile transmission to the police on 19 April 2011, ie, seven days after the withdrawal of the complaint. It was Mr Joubert's submission that it was provided only so that the police had an audit trail from Mr Collard as to his reason for the withdrawal. Mr Collard did not write this communication, he only signed it.
It was not a fear for himself, but a fear expressed to Mr Collard by Ms Winmar for herself and their newborn child that caused him to request the matter not proceed: Pargorski, Anderson and Lewington. She also had other children. The police could have required to him to proceed as submitted by Mr Joubert and the investigating officer could have informed Mr Collard that the prosecution could have proceeded on his evidence alone. It could have succeeded, provided his evidence was believed beyond reasonable doubt.
However, it was not just Mr Collard's decision to not proceed which resulted in the withdrawal of the complaint. The police were very much a part of that process. They believed that without Mr Collard's partner Ms Winmar, the case was weakened and they pointed to identification issues. Further, the police believed that Mr Collard had not suffered any permanent injury. Other persons who attended the gathering did not wish to give evidence and hence, for more reasons than just Mr Collard's reluctance, the investigating officer's recommendation was to not proceed. This was accepted by the investigating officer's superior officer and the matter was withdrawn by the prosecution. It was the court which dismissed the charge.
On 1 July 2013, the Chief Assessor gave a 'provisional determination' rejecting the claim by reason of s 38 of the Act and on 12 September 2016, she was not satisfied that Mr Collard acted under duress. In neither letter did she refer to the role of the police in discontinuing the charge.
Ms R Davey, from the State Solicitor's Office, as amicus curiae, also referred to s 39 and s 41 of the Act.
Was Mr Collard engaged in criminal conduct?
Section 39 of the Act provides as follows:
(1)If an assessor is satisfied —
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
Ms Davey submitted that the commission of an offence by Mr Collard must be excluded before any award could be made in his favour.
There is no evidence that Mr Collard was involved in the commission of an offence. He was acting in aid of his aunty. The Chief Assessor does not appear to have taken any issue with this.
In the circumstances, Mr Collard's claim should not be refused by reason of the provisions of s 39 of the Act.
Mr Collard's behaviour
Section 41 of the Act provides as follows:
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, … an assessor —
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury …; and
(b)may, if he or she thinks it is just to do so —
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
For the reasons outlined above, nothing in s 41 of the Act should preclude a claim in Mr Collard's favour.
Conclusion as to claim
This appeal is based on a ground that the Chief Assessor failed to give sufficient weight to Mr Collard acting under duress by the withdrawal of his statement and not assisting the prosecution at trial. However, this does not accurately state Mr Collard's true situation which is that first, he was acting under duress in requesting the police to not proceed with the prosecution and to withdraw it. This was by reason of incidents occurring after the alleged assault and the family health and stress issues relayed to him by his partner Ms Winmar, as detailed above. There was also a fear of retribution held by his aunty. Secondly, there were other substantive reasons the prosecution was discontinued and which include the investigating officer's incorrect view of pertinent matters relevant to the success or otherwise of the prosecution and the fact of Mr Collard apparently not suffering any permanent injury, whereas in fact he not only suffered bodily harm, but he really suffered grievous bodily harm.
Up until he made his request, Mr Collard had provided police with all the assistance that might have been expected of him. Thus the submission that he did all that he could, but it was then the police who withdrew the prosecution, not him. Further, it was the court which ultimately dismissed the charge.
Mr Collard's request to the police to withdraw the prosecution only informs the discontinuation of the assault charge in part and so, the first issue is not whether there was a failure by Mr Collard to have assisted in the prosecution of the alleged offenders, but rather, was his request to withdraw his complaint reasonable in the circumstances? Then, a second issue is relevant, namely the role of the investigating officer seeking authority to discontinue the complaint, his reasons for doing so, and his superior officer agreeing to do so.
The role of the Chief Assessor is to determine whether an applicant has met the requirements of the Act in order to provide the applicant with criminal injuries compensation.
The Chief Assessor had available to her various powers under s 19 of the Act, which provides as follows:
19.Assessor's general powers
(1)For the purposes of deciding a compensation application, an assessor may do any or all of the following, either on the application of an interested person or on the assessor's own initiative —
(a) amend the application;
(b)give written notice of the application and of any amendment to it to an interested person;
(c)seek and receive any information or evidence that the assessor thinks necessary;
(d)make any inquiries and investigate any matters that the assessor thinks necessary;
(e)request the applicant to provide the assessor within formation in relation to the application;
(f) defer deciding the application in order to obtain more information or until information requested under paragraph (c), (d) or (e) is provided.
(2) For the purposes of deciding a compensation application, an assessor may give a person a written notice that requires the person to do any or all of the following —
(a) to give the assessor, within the time specified in the notice, the relevant information described generally or specifically in the notice;
(b)to appear before the assessor at a time and place specified in the notice to give relevant evidence to the assessor;
(c) to produce to the assessor, within the time specified in the notice, any relevant record that is described generally or specifically in the notice and that is in the person's possession or control.
(3)The powers in subsection (1) and (2) may be exercised whether or not a hearing of the compensation application is to be conducted.
(4)An assessor to whom a record is produced may inspect and make a copy of the record and for those purposes may keep the record for a reasonable time.
(5) A person who is given a notice under subsection (2) and who, without a reasonable excuse, does not comply with it commits an offence.
Penalty: $5 000.
From her correspondence refusing the claim dated 1 July 2013, the Chief Assessor only referred to Mr Collard withdrawing his complaint. She did not refer to any of the extraneous matters concerning Mr Collard. Then, on 12 September 2016, the Chief Assessor only referred to Mr Collard's duress relating to his partner's assault, leading to the early delivery of their baby. There are materials in the file held by the Chief Assessor which deal with Mr Collard's reasons for not proceeding with his complaint and his make-up.
By s 19(1)(c) of the Act, it was open to the Chief Assessor to seek and receive any information and evidence she thought necessary and by s 19 (2)(a) and (b), she was able to give written notice requiring a person to give information and to also give evidence, whether or not a hearing was conducted: s 19(3). Certainly, she sought further information as set out in her letter to Mr Joubert dated 1 July 2013.
However, given the anticipated refusal of this application, it might have been more helpful to have conducted a hearing at which the claims of Mr Collard could have been fully ventilated and challenged in person, if appropriate, so as to make for a more informed finding as to the circumstances of his reasons for requesting a withdrawal of the prosecution. That said, it is of course, to be observed that these applications for compensation are usually dealt with on the papers and this comment should not be taken as any criticism of that process.
It cannot be said that Mr Collard did not do all that he ought reasonably to have done to assist in the prosecution. In all the circumstances, Mr Collard did all that he ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offenders. His later request to withdraw the complaint was reasonable given his fear of retribution being perpetrated against his partner Ms Winmar and their newborn child and other children.
In considering Mr Collard's request to withdraw the complaint, regard should be had to his circumstances by reference to events immediately after the alleged assault, Mr Collard being in prison, away from Ms Winmar and newly born child and other children and given ongoing difficulties his partner was experiencing and relaying to him, which he believed to be related to the alleged assault, even if he was wrong. His aunty had also feared retribution.
Further, the police really determined to not proceed with the prosecution for evidentiary reasons which do not withstand scrutiny. They could have issued a subpoena to Mr Collard to attend trial and to have obtained a bring up order to secure his attendance at trial.
If Mr Collard had been told that the prosecution could proceed without his partner, he may well have had proceeded to trial. However, there is no evidence that he was told that and the submission from Mr Joubert is to infer that he was not so told.
The investigating officer was simply wrong in his request to his superior officer as to the reasons why he recommended discontinuation of the complaint as set out at [51] – [54] above. It was not just Mr Collard's request to withdraw the complaint that resulted in the charges being dismissed. The role of the investigating officer in recommending discontinuation is also relevant, however it does not seem to have been considered by the Chief Assessor in either of her letters dated 1 July 2013 and 12 September 2016.
Mr Collard's appeal against the Chief Assessor's refusal to make a claim should succeed. In coming to this finding, it should be noted that this court does not have power to conduct a hearing under s 24 and s 25 of the Act. Such power is expressly removed by s 56(2)(a) of the Act. This finding is necessarily limited to deciding the application afresh solely on the evidence and information that was in the possession of the Chief Assessor.
Assessment of damages
The medical reports indicate that Mr Collard suffered the following injuries:
1.Fractured nasal bone.
2.Fracture of the anterior wall of the frontal sinus.
3.Fractured right orbital floor.
4.Blowout fracture of the orbit.
5.Right eyebrow laceration.
6.Periorbital swelling.
7.Swelling over the right cheekbone.
The sequelae of Mr Collard's injuries are that he suffered:
1.A permanent injury to his right eye.
2.The loss of 25% of his vision of his right eye monocularly.
3.A further disability induced by the monocular loss of temporal peripheral field.
4.The loss of good binocular function needed for depth perception.
A report from Dr Phil Chapman of the Bunbury Regional Hospital indicated that the right‑sided facial bruising was consistent with being made either with a hard punch, or a hard, blunt object like a brick. So too the right eye laceration. The fractured nasal bones were consistent with being struck with a punch. Contemporaneous photographs of Mr Collard's eye indicate the severe nature of the bashing he received.
Mr Collard was kept in hospital overnight and then referred to Royal Perth Hospital for further management of his facial injuries. He was again kept in overnight. He was followed up on several occasions in the faciomaxiliary outpatient clinic at Royal Perth Hospital.
Mr Collard's permanent injuries are the resulting loss of 25% of vision monocularly and some further disability induced by the monocular loss of temporal peripheral field, as well as the loss of good binocular function, which is needed for depth perception.
Mr Collard's eye condition is stable and he is most likely to remain the same. He has the following future risks:
1.He may develop premature cataract in the right eye.
2.There is a small risk which continues to decrease with time, of sustaining further vitreous haemorrhage as a consequence of vascular changes in the chorioretinal scar, and the potential risk of retinal detachment.
3.There is a very small risk of developing a secondary glaucoma in the right eye, but the chance of this occurring is less than 5%.
An appropriate of damages is the sum of $40,000. The maximum award is $75,000, which is merely a jurisdictional limit.
Conclusion
In the circumstances, there should be leave to appeal and an award of $40,000 should be made in Mr Collard's favour.
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