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Re Collard

Re Collard

Case [2018] WADC 1 8 January 2018

Criminal Liability

Compensatory Damages

Criminal Law

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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…

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 Collard

Details

AGLC: Re Collard [2018] WADC 1
Case: [2018] WADC 1
Decision Date: 8 JANUARY 2018

CaseChat Overview and Summary

In this appeal, the applicant sought criminal injuries compensation following an incident of assault occasioning bodily harm. The applicant had previously asked the prosecutors not to proceed with the prosecution of the alleged perpetrator. The Court of Appeal was tasked with determining whether the claimant had reasonably done all they could to assist the prosecution, in accordance with the Criminal Injuries Compensation Act 2003. The primary issue before the court was whether the applicant's request to the prosecutors not to proceed with the case was a reasonable action under the circumstances. The court had to consider whether the applicant's actions were justifiable and whether there were any other factors that should have been taken into account.

The court found that the applicant's request to the prosecutors not to proceed with the prosecution was not a reasonable action in the circumstances. The court determined that the police had their own reasons for discontinuing the prosecution, which were not influenced by the applicant's request. The court held that the applicant should have taken further steps to ensure that the prosecution proceeded, as they had a duty to assist the authorities in bringing the alleged perpetrator to justice. The court further found that the applicant's failure to take such steps amounted to a failure to reasonably do all they could to assist the prosecution.

Consequently, the court dismissed the applicant's appeal and affirmed the decision of the primary tribunal to reject the claim for criminal injuries compensation. The court emphasised that the decision was based on the specific facts of the case and that each case would turn on its own facts. The court also noted that the applicant's request to the prosecutors not to proceed with the prosecution did not automatically entitle them to compensation, as there were other factors to consider.

The court did not make any further orders in relation to the case. The decision highlights the importance of taking reasonable steps to assist the prosecution in criminal cases, particularly where the victim has requested that the prosecution not proceed. The decision also emphasises that each case will turn on its own facts, and that the court will consider all relevant factors when determining whether a claim for criminal injuries compensation should be granted.

Orders