Re Ete
[2023] WADC 137
•16 NOVEMBER 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE ETE [2023] WADC 137
CORAM: WALLACE DCJ
HEARD: 24 OCTOBER 2023 WITH FURTHER SUBMISSIONS FILED ON 31 OCTOBER AND 11 & 12 NOVEMBER 2023
DELIVERED : 16 NOVEMBER 2023
FILE NO/S: APP 37 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: ETE
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: H PORTER
File Number : CIC 2912/2022
Catchwords:
Criminal Injuries Compensation - Appeal from Assessor's decision - Refusal to grant extension of time - Whether an alleged offence occurred - Whether appellant suffered injury as a consequence of an alleged offence
Legislation:
Criminal Code Act Compilation Act 1913 (WA)
Criminal Injuries Compensation Act 2003 (WA)
Defamation Act 2005 (WA)
Racial Discrimination Act 1975 (Cth)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Ms J G Kasbergen appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Briginshaw v Briginshaw (1938) 60 CLR 336
Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741
Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Hansen v Bolton [2017] WADC 25
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439
Lewis v Daily Telegraph Ltd [1964] AC 234
Lloyd v Small (1996) 16 SR (WA) 111
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
MJN v MAJS (2003) 35 SR (WA) 219
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Mundey v Askin [1982] 2 NSWLR 369
Nominal Defendant v Owens (1978) 22 ALR 128
Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340
Re ATS [2017] WADC 92
Re Coad [2023] WADC 9
Re Hatfield (Unreported WASC, Library No 4012, 15 December 1980)
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re Warrek [2019] WADC 50
Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Selkirk v Hocking (No 2) [2023] FCA 1085
Sim v Stretch [1936] 2 All ER 1237
Smith v Lucht [2017] 2 Qd R 489; [2017] QCA 267
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Szanto v Melville [2011] VSC 574
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581
WALLACE DCJ:
Introduction
This is an appeal against the decision of the Criminal Injuries Assessor (Assessor) made on 2 August 2023 refusing to grant an extension of time within which the appellant, ETE, could lodge his application seeking compensation for injuries he asserts that he suffered as a result of an alleged offence committed on or about 1 April 2012.
The alleged offence related to an online news publication reporting on criminal charges brought against the appellant and his brother in relation to an incident which took place on 18 December 2011. Both the appellant and his brother were subsequently acquitted following a trial in the Perth Magistrates Court.
The online news publication allegedly referred to the appellant and his brother, who sought refuge in Australia from Iraq as children, as 'sand niggers'. The appellant contends that the publication of the racial slur constitutes a criminal offence which resulted in the appellant suffering mental and nervous shock and financial loss.
The appellant lodged his application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) on 18 October 2022. Section 9(1) of the CIC Act requires an application to be made within three years after the date on which the offence was committed. Thus, the appellant's application was made seven years and six months out of time. Nevertheless, an assessor has a discretion to allow an application to be made out of time if he or she thinks it is just to do so: s 9(2) of the CIC Act.
The learned Assessor had before them copies of various documents, including relevantly:
1.six undated statements of the appellant;
2.a statutory declaration of the appellant dated 14 March 2023;
3.Australian Citizen Certificate of the appellant dated 6 November 2020;
4.Change of Name Certificate of the appellant dated 23 April 2021;
5.Australian Passports of the appellant issued on 7 December 2020 and 6 May 2022;
6.undated statement of the appellant's parents;
7.undated statement of the appellant's brother AAE;
8.undated statement of the appellant's brother MA;
9.various screenshots of internet search results, online news publications and online chat forums;
10.various photographs of scarring;
11.letter of Dr Samir Benjamin, Consultant Psychiatrist, dated 14 May 2018;
12.appellant's patient medical records maintained by Mirrabooka Medical Centre during 2021 - 2022;
13.letter of Dr Ahmad Fazli, Senior Medical Officer in Psychiatry, Mirrabooka Mental Health Services, addressed to Centrelink dated 28 June 2021;
14.appellant's patient medical records authored by Dr Osama Ghanem at Nollamara Medical Centre dated 24 August 2022;
15.appellant's Department of Health Electronic Health Records variously dated during 2017 - 2018;
16.Western Australia Police Brief relating to charges 6242/2023 and 5594/2023;
17.pay slip from Firm Security Pty issued to the appellant dated 10 September 2011; and
18.screenshot of decision made by the State Administrative Tribunal on 8 March 2012 in respect of the appellant's Ground Controller's License.
(Assessor's Papers)
The learned Assessor refused to exercise their discretion to allow the appellant's application to be lodged out of time on the basis that the application lacked merit. The Assessor reached this conclusion for the reasons previously communicated with the appellant by another assessor, namely, that the media reporting at the time appeared to be fair and they did not 'detect any element of criminal defamation in the news articles'.[1]
[1] Letter to the appellant from R Guthrie, Assessor of Criminal Injuries Compensation, dated 22 June 2023 and Assessor's decision dated 2 August 2023.
Ultimately, albeit for reasons which differ from those relied upon by the learned Assessor, I have found that an extension of time ought not be granted to the appellant within which to lodge his application and on that basis, the appeal ought to be dismissed. The reasons for reaching that decision follow.
The nature of the appeal
The appeal to this court is made pursuant to s 55(1) of the CIC Act and is a hearing de novo, in that the appellant's application is being determined 'afresh' without being fettered in any way by the Assessor's decision at first instance: s 56 of the CIC Act. The court must consider the evidence and material which was before the Assessor but also has a discretion to receive and admit further evidence and information which was not made available to the Assessor: s 56(1) of the CIC Act.
The court has the power to confirm, vary, or reverse the Assessor's decision either in whole or in part and make any order that an assessor could make under the provisions of the CIC Act: s 56(2) of the CIC Act.
The appellant sought to rely on one document additional to those which were before the Assessor at first instance, namely a letter dated 17 October 2023 authored by Dr Osama Ghanem, a general medical practitioner at the Nollamara Medical Centre.
I am satisfied that it is appropriate that I exercise my discretion pursuant to s 56(1) of the CIC Act to receive and admit into evidence the letter of Dr Ghanem given its broad relevance to the issues to be determined and being satisfied that it would not be unjust to do so.[2]
[2] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 - 30 (Malcolm CJ).
The court was assisted by way of oral submissions made at the hearing by the appellant and counsel for the amicus curiae and through the written submissions filed by the amicus curiae with the court on 19 and 31 October 2023. Whilst further correspondence was also received from the appellant on 11 and 12 November 2023 to which I have had regard, no substantive matters were raised in that correspondence which address the issues relevant to the determination of this appeal.
The court did not receive oral evidence from ETE at the hearing, nor from his various family members, which is not an unusual position given the nature of the jurisdiction, and the requirement for compensation applications to be dealt with expeditiously and relatively informally having regard to the requirements of justice and the provisions of the CIC Act: s 18(1).
Factual basis for application for criminal injuries compensation
The appellant is a 33-year-old gentleman who migrated to Australia from Iraq as a child together with his family. The appellant became an Australian citizen on 19 June 2003.
In the early hours of the morning on 18 December 2011, the appellant and his brother AAE were enjoying a night out at a popular night club venue in the Perth CBD when they became embroiled in a physical altercation with a male associate. As a result of the altercation, the male associate suffered an injury to his ear, and he made a formal complaint to police following which the appellant and AAE were criminally charged. They subsequently stood trial in the Perth Magistrates Court in late 2012 and were acquitted of the charges brought against them.
The incident was reported on by media in early 2012. The media publications contained within the materials before the Assessor referred to the appellant and his brother as the 'Nightclub ear-bite brothers'[3] and the 'two Morley brothers'.[4] The appellant however alleges that an additional online media article published in early 2012 referred to the appellant and AAE as 'sand niggers'. No screenshot was taken of the article, and it can no longer be located on the internet. The appellant does not know which media entity published the article or which journalist authored it. The only evidence that such an article was ever published online comes from the appellant, his two brothers, and to a limited extent, his parents.
[3] Reported by Perth Now on 3 January 2012: Assessor's Papers, page 35.
[4] The West Australian 4 January 2012: Assessor's Papers, page 41.
The appellant's evidence is to the effect that in early 2012 he saw a news article online that reported that 'two sand niggers brothers from Morley have been charged'.[5] Whilst the article remained online, the racial slur it contained was removed.[6]
[5] ts 4, 24 October 2023.
[6] Assessor's Papers, pages 12 and 13.
The appellant's parents provided a signed written statement to the Assessor. Whilst they state that an online news article was shown to them at the relevant time, they do not identify what was said in the article. However, they refer to it containing 'racial and harsh names uncalled for'.[7]
[7] Assessor's Papers, page 27.
The appellant's brother AAE, who was his co-accused in the December 2011 nightclub incident, also provided a signed statement to the Assessor. AAE states that he read an online article at the relevant time which referred to himself and the appellant as 'sand niggers'. AAE states that it was later deleted, and he cannot now recall who authored or published the article.[8]
[8] Assessor's Papers, page 30.
MA, the appellant's older brother, also provided a written statement in which he states that he was shown in early 2012 an online news article which reported 'These 2 brothers from Morley sand niggers was charged'. As with the appellant's other family members, MA was unable to identify the author or media outlet allegedly responsible for the publication.[9]
[9] Assessor's Papers, page 33.
The appellant has never raised complaint regarding the online media publication, either with the relevant media outlet, or with any regulatory body, nor by way of formal complaint to police.
The appellant alleges that he has suffered significant mental trauma as a result of the publication of the racial slur. The appellant states that he suffers from 'anxiety, panic attacks, depression, claustrophobic [sic]'.[10]
[10] Assessor's Papers, page 11.
At the time of the incident in December 2011, the appellant was working as a Crowd Controller/Security Officer. After being charged with a criminal offence, his Ground Controller licence was suspended. The appellant did not apply to remove the suspension following his acquittal. As a result of the suspension, the appellant's employment was terminated.
The appellant shortly thereafter commenced work in the mining industry on a fly-in fly-out basis. The appellant continued to work in that industry until on or about 2017 - 2018. Royal Perth Hospital assessment notes dated 15 March 2018 record the appellant as reporting that he had not worked for 12 months due to a hand injury, following which he then lost his employment.[11]
[11] Assessor's Papers, page 182.
On the basis of the medical evidence provided by the appellant to the Assessor, the following medical history of the appellant can be gleaned.
In March 2018, the appellant presented at Royal Perth Hospital Emergency Department following significant deliberate self‑harm to both arms and his left hand, necessitating plastic surgery. The appellant was diagnosed with Acute Stress Reaction and Adjustment Disorder in the context of a relationship breakdown and being evicted from his family home. The appellant was also diagnosed with Cluster B Personality.[12]
[12] Assessor's Papers, page 178.
Whilst staying with family in Sydney, the appellant was suffering from paranoid delusions and attended on Dr Samir Benjamin, a consultant psychiatrist, on 14 May 2018. Dr Benjamin noted in a letter prepared following the consultation, that the appellant denied having any significant medical history but admitted to smoking '30 ‑ 50 cones of cannabis' daily. The appellant's affect was described as inappropriate, and Dr Benjamin recorded that the appellant was preoccupied with delusional thoughts including paranoid persecutory and bizarre delusions and was suffering auditory hallucinations.
Dr Benjamin made a provisional diagnosis of Psychotic Disorder with a differential diagnosis of Schizophrenia and Substance Induced Psychotic Disorder in the background of Substance Use Disorder (Cannabis). The appellant was counselled in relation to the detrimental effects of cannabis and was prescribed Solian tablets to be taken twice daily.[13]
[13] Assessor's Papers, page 121.
In 2021, the appellant successfully applied for a Disability Support Pension. The basis of the application was the appellant's enduring Psychotic Disorder.[14] The appellant continues to be treated for his Psychotic Disorder by way of pharmaceutical intervention subject to ongoing psychiatric review.[15]
[14] Letter dated 28 June 2021 authored by Dr Ahmed Fazli, Senior Medical Officer in Psychiatry, Mirrabooka Mental Health Services: Assessor's Papers, pages 132 - 133.
[15] ts 26, 24 October 2023.
Issues to be determined
The issues which arise to be determined in the appeal are as follows:
(a)whether the court should exercise its discretion pursuant to s 9(2) of the CIC Act to grant the appellant an extension of time within which to bring his application;
(b)whether an 'alleged offence' occurred within the meaning of s 3 and s 17(1) of the CIC Act;
(c)whether the appellant suffered injury as a consequence of the commission of the alleged offence: s 17(2) of the CIC Act; and
(d)whether the appellant has suffered a compensable 'loss' as a result of any injury suffered: s 6 of the CIC Act.
Whether the court should exercise its discretion pursuant to s 9(2) of the CIC Act to grant the appellant an extension of time within which to bring his application
A compensation application must be made within three years after the date on which the alleged offence to which it relates was committed: s 9(1)(a) of the CIC Act. However, a discretion to allow an application to be made out of time can be exercised if the assessor thinks it is just to do so: s 9(2) of the CIC Act.
The policy behind the time limit was explained by Herron DCJ in Hansen v Bolton:[16]
An assessor may allow an application for compensation to be made after the three-year period if he or she thinks it is just to do so, and may do so on any conditions that the assessor thinks it is just to impose. The onus is on [the applicant] to explain to the satisfaction of the court the reasons for the delay in bringing the application. 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.
[16] Hansen v Bolton [2017] WADC 25 [12] (Herron DCJ) (Hansen).
Factors that may be relevant to the exercise of the court's discretion under s 9(2) of the CIC Act include:[17]
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reason/s for the delay;
(d)the merits of the application;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the alleged offender; and
(f)whether injustice will be suffered by the appellant if an extension of time is refused.
[17] Hansen [14]; Re McHenry [2014] WADC 92 [20] - [27] (Herron DCJ); Re Jackamarra [2014] WADC 9 [19] - [23] (Schoombee DCJ) (Re Jackamarra).
The reasons proffered by the appellant for the significant delay are as follows:
… it took me years and years to over calm [sic] this and can finally wrote to you and to be fair with me I was going through changes over the past few years as it has been a very hard tough road for me.[18]
… I know Iv [sic] gone over the 3 years period of making a claim but please understand what I was going through and the years it took me to be able to be stabled which I am now and that didn't happen in just 3 years but it took years for me to finally be able to speak up to you …[19]
… I have been on hell of a road in this past 10 years of battles after battles with my mental health taking a turn it took 10 years for me to finally be stabled once again and can finally speak up as in write to you …[20]
Now why I took so long to put this claim in again like I mentioned it's because of my mental health because of this article have caused me and put me through have scarred me for life … It took me years to finally be stable and have my head straight and cob [sic] with life again and when I first put in this claim is the time I was ready and mentally stable to put in this claim …[21]
[18] Assessor's Papers, page 9.
[19] Assessor's Papers, page 11.
[20] Assessor's Papers, page 15.
[21] Assessor's Papers, page 108.
Additionally, the appellant also relies on the letter of Dr Ghanem dated 17 October 2023 which states:
(a)[ETE] was diagnosed before with Psychotic disorder - possible Schizophrenia.
(b)This psychiatric problem may affect time perception.
(c)This psychiatric problem may has [sic] caused a delay to apply for his compensation few years ago.
In my view, it is necessary to consider the merits of the proposed compensation application in order to properly consider whether the court ought to exercise its discretion to extend time. If the proposed application lacks merit and is therefore unlikely to succeed, given the extensive delay in making the application, that factor is likely be the decisive in determining the court's ultimate disposition.
Whether an 'alleged offence' occurred within the meaning of s 3 and s 17(1) of the CIC Act
For the appellant to make a claim for compensation under the CIC Act he must establish, on the balance of probabilities, that an alleged offence was committed: s 17(1) of the CIC Act. An 'alleged offence' is defined as meaning a crime, misdemeanour or simple offence of which no person has been convicted: s 3 of the CIC Act.
Whilst it is the civil standard of proof that applies and which must be discharged by the appellant, it is nevertheless, a serious matter to make findings that an alleged criminal offence has taken place, particularly when the court is making such findings in circumstances where the alleged offender or offenders have had no opportunity to be heard.[22] Therefore, the court must feel an actual persuasion that the alleged offence has occurred.[23] A conclusion that an offence has been committed should not be reached without the exercise of caution and only on the basis that the evidence survives careful scrutiny and appears precise and not loose and inexact.[24]
[22] Re Jackamarra [75]
.[23] Briginshaw v Briginshaw (1938) 60 CLR 336, 361.
[24] Re ATS [2017] WADC 92 [29] ‑ [31] (Herron DCJ).
The appellant must also negate or rebut any defences which may reasonably be open on the evidence.[25]
[25] CIC Act, s 17(5); Re Warrek [2019] WADC 50 [3] (Troy DCJ).
In order for the appellant to discharge the burden of proof and persuade the court on a balance of probabilities, he must show that there are more than merely conflicting inferences of equal degrees of probability that an offence has occurred, so that the choice between them is not a matter of mere conjecture.[26]
[26] Nominal Defendant v Owens (1978) 22 ALR 128, 132 - 133; Lloyd v Small (1996) 16 SR (WA) 111, 113 ‑ 114.
The appellant submits that the online publication which referred to him as a 'sand nigger' constitutes an alleged offence. The appellant, who was not legally represented, was not able to identify a provision of the Criminal CodeAct Compilation Act 1913 (WA) (Criminal Code) which was breached by the alleged conduct.
However, those provisions of the Criminal Code which appear to have relevance include:
1.Section 345 - the offence of criminal defamation.
2.Section 78/s 80B - the offence of engaging in conduct likely to incite racial animosity or racist harassment/conduct likely to racially harass.
Criminal defamation
In relation to the offence of criminal defamation, s 345 of the Criminal Code provides:
(1)A person who, without lawful excuse, publishes matter defamatory of another living person (the victim) -
(a)knowing the matter to be false or without having regard to whether the matter is true or false; and
(b)intending to cause serious harm to the victim or any other person or without having regard to whether such harm is caused,
is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 12 months and a fine of $12,000.
In order for the appellant to persuade the court that the publication of the words 'sand niggers' in the 2012 online news publication constitutes the offence of criminal defamation, the appellant must establish the following elements on a balance of probabilities:
(a)a person published defamatory matter of another person;
(b)knowing the matter to be false or without having regard to whether the matter is true or false;
(c)intending to cause serious harm to the complainant or any other person or without having regard to whether such harm is caused; and
(d)the person does so without lawful excuse.
Section 345(7) of the Criminal Code provides that the terms 'publish' and 'defamatory' have the meanings that those terms have in the law of tort (as modified by the Defamation Act 2005 (WA)) relating to defamation.
The test to be applied in order to determine the meaning of the published words is whether, under the circumstances in which the matter was published, ordinary reasonable persons would understand the published words in a defamatory sense.[27] This enquiry necessitates answering the following two questions:
1.What is the meaning of the words used?
2.Is the meaning of the words defamatory of the appellant?
[27] Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, 745; Lewis v Daily Telegraph Ltd [1964] AC 234, 260 (Lord Reid); Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506.
At common law, words are defamatory if they assert or attribute an act or condition to a person which would tend to cause ordinary reasonable people to think less of the person.[28] That is, the published matter must damage or reflect adversely on the person's reputation.[29]
[28] Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84, 91; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, 10.
[29] Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 643 - 644 (Aickin J); Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 1 NSWLR 16, 17 - 18 (Begg J); Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 678 (Hunt J).
The following perhaps captures what has variously been identified in the relevant case law as being defamatory in nature:
(a)a publication is defamatory if, without justification or lawful excuse, it is calculated to injure the reputation of another by exposing them to hatred, contempt or ridicule;[30]
(b)a publication is defamatory if it tends to make the person the subject of the publication shunned and avoided without any moral discredit on their part;[31] and
(c)a publication is defamatory if it tends to lower the person in the estimation of right‑thinking members of society generally.[32]
[30] Parmiter v Coupland (1840) 6 M&W 105; 151 ER 340.
[31] Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, 587.
[32] Sim v Stretch [1936] 2 All ER 1237, 1240.
The meaning of the words is to be determined by the sense in which a fair‑minded ordinary reasonable person in the general community would understand the published words.[33] The test is therefore, an objective one.
[33] Lewis v Daily Telegraph Ltd [1964] AC 234, (260) (Lord Reid).
In the modern age in which online communications are often instantaneous, relatively informal in nature and at times authored by those shielded by anonymity, it has unfortunately become more commonplace for material to be published which is capable of being offensive, hurtful, or inappropriate in nature.
However, such publications are not necessarily also defamatory in nature. That is, words may be capable of causing hurt or offence to a person or a class of persons, without necessarily causing harm to their reputation.[34] The fundamental question is whether the words used are capable of conveying an imputation which has disparaged the person's reputation and thus is defamatory.
[34] Mundey v Askin [1982] 2 NSWLR 369, 372.
In relation to the first element of the offence of criminal defamation, I accept the unchallenged evidence of the appellant and his brothers, which is broadly supported by the signed statement of the appellant's parents, as establishing that a 2012 online news publication referred to the appellant and his brother as 'sand niggers'. Thus, a person published matter about another person, namely the appellant.
However, I am not satisfied on the balance of probabilities that the publication of the racial slur is defamatory in nature, in the legal sense. Whilst the language is derogatory with clear racist undertones, in my view it is not capable of damaging the appellant's reputation, that is, it is not capable of causing the appellant to be shunned and avoided or of lowering the appellant in the estimation of right‑thinking members of society generally.
In my view there is also no imputation of an act or condition (either express, implied or inferred) to the appellant by the use of the offending words, which would tend to cause the ordinary reasonable person to think less of the appellant thus causing damage to his reputation and standing within the community.
Indeed, there is no evidence before the court of either (a) the appellant's reputation and standing within the community in 2012 or (b) the lessening of that reputation or standing in 2012 as a result of the publication of the racial slur.
Further, in relation to the second and third elements of the offence of criminal defamation, the appellant has also not been able to establish on the balance of probabilities that the person or persons who published the relevant words did so:
(a)knowing them to be false or without regard to whether they were true or false; and
(b)intending to cause the appellant serious harm or without regard to whether it would cause the appellant serious harm.
In the context of a racial slur, the second element of the offence appears to have little to no practical application, indicative perhaps of the inherent difficulties of alleging criminal defamation in respect of what constitutes a racial slur as opposed to a statement attributing an act or condition specifically to the appellant.
In relation to the third element, I note that whilst 'serious harm' is not defined in the Criminal Code, in the context of defamatory material it is well understood to require damage of sufficient gravity to connote serious reputational harm, which is not trivial, slight or negligible.[35] Mere injury to feelings would be incapable of reaching the threshold of 'serious harm'.[36]
[35] Selkirk v Hocking (No 2) [2023] FCA 1085 [21], [28] (O'Callaghan J).
[36] Jones v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 [38] (Beazley JA); Szanto v Melville [2011] VSC 574 [161] ‑ [162] (Kaye J); Smith v Lucht [2017] 2 Qd R 489; [2017] QCA 267 [14] - [16] (Philippides JA), [54] (Flanagan J).
Whilst one could reasonably infer that the use of a racial slur such as the one complained of, would cause hurt and/or offence and/or the wounding of a person's sensibility, it would be difficult for the court to be satisfied that the author used the words with the intention to cause 'serious harm' to the appellant's reputation or without regard to whether it would do so.
The appellant has therefore, not been able to persuade me, on the balance of probabilities, that the offence of criminal defamation has been committed.
Conduct likely to incite racial animosity or racist harassment or to racially harass
Chapter XI of the Criminal Code concerns those offences in relation to racial harassment and incitement to racial hatred. The following provisions are of relevance:
76.Terms used
In this Chapter -
animosity towards means hatred of or serious contempt for;
display means display in or within view of a public place;
distribute means distribute to the public or a section of the public;
harass includes to threaten, seriously and substantially abuse or severely ridicule;
member of a racial group includes a person associated with a racial group;
publish means publish to the public or a section of the public;
racial group means any group of persons defined by reference to race, colour or ethnic or national origins;
written or pictorial material means any poster, graffiti, sign, placard, book, magazine, newspaper, leaflet, handbill, writing, inscription, picture, drawing or other visible representation.
…
78.Conduct likely to incite racial animosity or racist harassment
Any person who engages in any conduct, otherwise than in private, that is likely to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 5 years.
Alternative offence: s 80A or s 80B.
Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.
…
80B.Conduct likely to racially harass
Any person who engages in any conduct, otherwise than in private, that is likely to harass a racial group, or a person as a member of a racial group, is guilty of a crime and is liable to imprisonment for 3 years.
Summary conviction penalty: imprisonment for 12 months and a fine of $12 000.
In order for the appellant to satisfy the court, on the balance of probabilities, that an offence has been committed in breach of s 78 of the Criminal Code, the appellant must establish that:
1.the person engaged in conduct, otherwise than in private; and
2.such conduct was:
(a)likely to create, promote or increase animosity towards a racial group or a person as a member of a racial group; or
(b)likely to create, promote or increase harassment of a racial group or a person as a member of a racial group.
In relation to the first element, clearly publishing a news article online constitutes a person engaging in conduct that was 'otherwise than in private'.
In relation to the second element, the amicus in its written submissions submits that the appellant cannot point to any evidence before the court as to how the use of the words 'sand niggers' relates to a 'racial group' or a 'member of a racial group'. Whilst the amicus acknowledges that there is evidence before the court that the appellant is a member of a racial group, being born in Iraq, the amicus submits that there is no evidence as to how the words 'sand niggers' relates to the Iraqi people or to the appellant as an Iraqi person.
I am not persuaded by the submission made by the amicus in this regard. As set out at [61], s 76 of the Criminal Code defines 'racial group' as meaning any group of persons defined by reference to race, colour or ethnic or national origins. The appellant, given his Iraqi ethnicity, is a person of race, colour or ethnic or national origins. It has long been understood within society that referring to a person as a 'nigger' is a contemptuous, and offensive reference to the darker shade of that person's skin and/or their non-Caucasian ethnicity. The insertion of the word 'sand' before the word 'nigger', applying an understanding of everyday parlance, refers to a person of colour or non‑Caucasian ethnicity originating from a country of sandy terrain, which would include the Middle East. From a review of the online news articles published at the relevant time contained within the Assessor's Papers, the publication of the appellant's name identifies him as a person of Middle Eastern descent. In those circumstances, I am satisfied, on the balance of probabilities, that the reference to 'sand nigger' is a derogatory and offensive reference to the appellant's Middle Eastern ethnicity and/or the colour of his skin or both.
I am therefore, satisfied that the use of the words 'sand nigger' are capable of identifying the appellant as a member of a racial group insofar as that term is defined in s 76 of the Criminal Code.
In relation to the second element of the offence, the appellant must establish that the use of the words 'sand nigger' in reference to the appellant in the online article, was likely to create, promote or increase animosity towards the appellant or harassment of him or the racial group to which he belongs. 'Likely' in its ordinary usage means a substantial chance and not a remote chance; more than just a mere possibility.[37]
[37] Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 [15] - [18] (Mason, Wilson & Deane JJ).
I am satisfied, on the balance of probabilities, that publishing an article connected to a criminal charge being brought against the appellant which referred to him as a 'sand nigger' by way of reference to his ethnicity and/or skin colour, was likely to either create, promote or increase animosity towards the appellant or the racial group to which he belongs or harassment of him or the racial group to which he belongs.
That is, I am satisfied on the balance of probabilities that the publication of the racial slur was likely to either create, promote or increase serious contempt for the appellant or the racial group to which he belongs and/or harassment by way of threats, abuse or severe ridicule. It is unnecessary for the appellant to establish that it did so - it is sufficient that I am satisfied on the balance of probabilities that it was likely to do so.
I note further that the publication of racial slurs, of the very nature alleged to have been published in the 2012 online news article, have long been legislated as being unlawful in Australia, due to the potential of inciting racial hatred.[38] Western Australia is the only Australian State that has also criminalised the conduct.
[38] Racial Discrimination Act 1975 (Cth), s 18C.
Therefore, the appellant has been able to establish on the balance of probabilities that an alleged offence pursuant to s 78 of the Criminal Code was committed in the publishing of the 2012 article in the terms identified by the appellant. It is thus, unnecessary for me to consider whether an alleged offence was also committed pursuant to s 80B of the Criminal Code.
In my view, none of the defences set out in s 80G of the Criminal Code are applicable in the circumstances of the alleged offending.
Whether the appellant suffered injury as a consequence of the commission of the alleged offence: s 17(2) of the CIC Act
Section 3 of the CIC Act defines 'injury' as meaning bodily harm, mental and nervous shock or pregnancy. In relation to mental or nervous shock, the injury must constitute more than a mere emotional reaction and thus, have an enduring character.[39]
[39] Re Hatfield (Unreported WASC, Library No 4012, 15 December 1980) (Burt CJ).
In order for the appellant to be entitled to compensation, it is not necessary for the alleged offence the subject of the application to be the sole cause of his injury.[40]
[40] Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673.
Where the evidence establishes that non‑compensable events had a propensity to cause the injury or loss or contributed to the injury or loss, if capable of being disentangled, the award of compensation should be reduced to take into account the other contributing events.[41] If it is not possible to disentangle the consequences of non‑compensable events from the consequences of the compensable offences, then the appellant is entitled to compensation for the full injury and loss suffered if the appellant has established that the compensable offence materially contributed to their injury or loss.
[41] MJN v MAJS (2003) 35 SR (WA) 219 [47] - [52].
Ordinarily, objective independent medical evidence from an appropriately qualified medical practitioner is required in order for a party to establish that an injury exists which is causally linked to an offence or alleged offence.[42]
[42] Re Coad [2023] WADC 9 [25] (Troy DCJ).
During March to May 2018, the appellant was diagnosed with the following mental health disorders:
(a)Acute Stress Reaction and Adjustment Disorder;
(b)Cluster B Personality; and
(c)Psychotic Disorder ‑ differential diagnosis including Schizophrenia and Substance Induced Psychotic Disorder.
There is no evidence before the court from which I could be satisfied on the balance of probabilities that any one or more of the above diagnoses was caused or materially contributed to by the commission of the alleged offence. I say this for the following reasons:
(a)the significant temporal disconnection between the publishing of the 2012 online article and the onset of the symptoms and ultimate diagnosis in relation to each disorder, namely a period of some six years;
(b)the complete absence of any reference in any of the relevant medical reports and records provided by the appellant to the 2012 online article;
(c)the identification in the relevant medical records in relation to the appellant's diagnoses of Acute Stress Reaction, Adjustment Disorder and Cluster B Personality being causally linked to the appellant's breakdown in his significant relationship and being evicted from his family home; and
(d)the identification by Dr Benjamin of the emergence of the appellant's Psychotic Disorder (differential diagnosis of Schizophrenia) occurring in the background of significant Substance Use Disorder (Cannabis).
Indeed, the appellant conceded during the hearing that he is not seeking to persuade the court that his Psychotic Disorder and/or personality disorder was caused by the publication of the 2012 online article.[43] Rather, the appellant submitted to the court that he suffered depression and anxiety following the publication of the 2012 online article which caused him to seek treatment from various medical practitioners over the years. The appellant informed the court that he was not able to obtain any medical records in that regard.
[43] ts 24, 24 October 2023.
In the absence of any evidence before the court in relation to the appellant seeking treatment for mental health issues, including depression and/or anxiety, following the publication of the 2012 online article, the court is not persuaded that the appellant suffered injury by way of mental or nervous shock which is causally linked to the publication of the online article. Whilst I am satisfied that the appellant suffered an adverse emotional reaction to the publication, I am not satisfied that it constitutes a compensable injury.
It is therefore not necessary for me to consider whether the appellant suffered loss as a result of any injury suffered.
In conclusion, I find the appellant's compensation application is without merit and unlikely to succeed. On that basis, I refuse to exercise my discretion pursuant to s 9(2) of the CIC Act to extend time within which the proposed compensation application can be made.
Orders
The court therefore, makes the following orders:
1.The decision of the Assessor refusing to grant the appellant an extension of time within which to make his application is hereby confirmed.
2.The appeal is dismissed.
3.There be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
GL
Associate to Judge Wallace
16 NOVEMBER 2023
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