Re Harvey
[2023] WADC 83
•31 JULY 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE HARVEY [2023] WADC 83
CORAM: EGAN DCJ
HEARD: 30 SEPTEMBER 2022
DELIVERED : 31 JULY 2023
FILE NO/S: APP 33 of 2022
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: LYLE ASHLEY HARVEY
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 921/2020
Catchwords:
Criminal injuries compensation - Appeal from assessor's award - Whether extension of time for bringing application should be granted - Application for compensation out of time - Granting leave out of time on conditions - Proven and alleged offences - Whether alleged offences proven on balance of probabilities - Jurisdictional limit - Related offences - Loss of earning capacity - Post-traumatic stress disorder
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Restraining Orders Act 1997 (WA)
Result:
Extension of time granted and appeal allowed
Award of compensation made
Representation:
Counsel:
| Appellant | : | In person |
| Amicus Curiae | : | Ms I G Inkster 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):
A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Bedetti v Chief Executive Officer [2003] WADC 37
Bothma v Hildebrand [2019] WADC 92
Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10
Bridgman v Nannup [2008] WADC 28
Briginshaw v Briginshaw (1938) 60 CLR 336
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Chiro v The Queen (2017) 260 CLR 425
Clayton v Aust (1993) 9 WAR 364
Cody v JH Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629
Couper v Alexander [2020] WADC 56
CSS v KD [2016] WADC 82
Curran v Champion [2012] WADC 9
Dincer v Giancristofaro [2015] WADC 49
DR v CD [2018] WADC 148
EB v Ramljak [2021] WADC 134
EM v CL [2021] WADC 127
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Gleeson v Lee (1996) 18 SR (WA) 353
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Green v Lee (1996) 17 SR (WA) 93
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hiscox v Guildersleeve [2011] WASC 229
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
JMD v GJH [2012] WADC 124
KBR v ADM [2018] WADC 120
KMC v Director of Public Prosecutions (SA) [2020] HCA)) 6
Labib v Histon [2017] WADC 39
LS v SL [2023] WADC 8
M v J (Unreported, WASC, Library No 920598, 19 November 1992)
Madigan v XYZ [2022] WADC 123
M‑AG [2019] WADC 174
Martin v Martin [2015] WADC 138
MES v KG (1995) 12 SR (WA) 330
Michael v Panetta (1994) 10 SR (WA) 323
Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D970275, 12 September 1997)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Re AK [2016] WADC 156
Re Anderson [2022] WADC 97
Re ATS [2017] WADC 92
Re ATS [2019] WADC 76
Re Attorney‑General (Cth); Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321
Re Butler [2020] WADC 22
Re Carter (1984) 4 SR (WA) 219
Re Collard [2018] WADC 1
Re Jackamarra [2014] WADC 9
Re McHenry [2014] WADC 92
Re Puterangi [2017] WADC 168
Re Richards [2022] WADC 100
Re RJA [2022] WADC 106
Re Robinson [2017] WADC 18
Re RT (2006) 47 SR (WA) 197
Re RW [2018] WADC 116
Re; Hojetzki [2009] WADC 77
Robertson v Hopwood [2018] WADC 66
Simonsen v Legge [2010] WASCA 238
SJR v JJC [2020] WADC 161
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stocker v Loeper [2001] WASC 176
TAW v NJS [2011] WADC 187
Tobin v Dodd [2004] WASCA 288
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Underwood v Underwood [2018] WADC 13
VHM (by her next friend the Public Trustee) v JAB [2014] WADC 47
Ward v Davey [2023] WADC 78
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
X v McAllister [2021] WASCA 3
EGAN DCJ:
Overview
By Notice of Appeal dated 1 June 2022 (Notice), the appellant appealed, out of time, against an award of criminal injuries compensation (the claim for which was also made out of time) made by a criminal injuries assessor (Assessor) under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act).
The Assessor awarded the respondent the sum of $40,062.50 (the Award).
The Award related to not only various breaches of violence restraining orders and other offences for which the appellant was convicted and sentenced, but also a number of alleged offences in relation to which the appellant was not charged.
The Assessor also made an order pursuant to s 45(1)(b) of the CIC Act that a sum of $12,500 may be the subject of proceedings under pt 6 of the CIC Act against the appellant.
The appellant submits that both the Award and, in particular, the order pursuant to s 45(1)(b), are unfair, and, in effect, that the respondent's claim for criminal injuries compensation should not be allowed or, alternatively, that there should be an order made under s 45(1)(a) barring proceedings under pt 6 of the CIC Act.
For the reasons that follow, I:
(a)allow the appellant's appeal out of time;
(b)allow the respondent's claim for compensation out of time, conditioned on the basis that proceedings under pt 6 of the CIC Act be barred;
(c)amend the respondent's claim for compensation on my own initiative; and
(d)otherwise make a compensation award in favour of the respondent in the sum of $22,062.50, and order that:
(ii)the respondent be paid the sum of $15,000;
(ii)Legal Aid be paid the sum of $2,062.50; and
(iii)up to $5,000 be paid subject to the provisions of s 48 of the CIC Act for psychological treatment.
Background
By way of background, and in summary, the appellant and the respondent were in a relationship for approximately three months from December 2015 to February 2016.
The respondent ended the relationship due to the appellant's controlling behaviour towards her.
On 18 April 2016, the respondent obtained a violence restraining order (VRO) on an interim basis to prevent the appellant from contacting her. On 4 August 2016, a final VRO was issued for a period of 12 months, thereby expiring in early August 2017.
Between May 2016 and February 2017, the appellant not only repeatedly breached the VROs by his conduct, but he also engaged in other conduct. In mid to late 2016, as well as mid‑2017, the appellant pleaded guilty to a number of offences and was sentenced, including to a term of imprisonment.
On 20 February 2020, the respondent's solicitor, on behalf of the respondent, filed an application dated 19 February 2020 with the Criminal Injuries Compensation Assessor of Western Australia for compensation pursuant to the provision of the CIC Act.
On 28 April 2022, the Assessor made the Award.
The Award was made under s 12(1) of the CIC Act in respect of the following incidents which were found to be proven offences:
(a)Two counts of breaching a VRO on, respectively, 3 June 2016 and 5 July 2016, of which the appellant was convicted on his pleas of guilty on 7 July 2016;
(b)Two counts of breaching a VRO and one count of using a carriage service to menace, harass or cause offence committed by the appellant on, respectively, 7 July 2016, 20 July 2016 and between 9 July 2016 and 20 July 2016, of which the appellant was convicted on his pleas of guilty on 4 August 2016; and
(c)Four counts of breaching a VRO on, respectively, 24 September 2016, 27 September 2016, 28 September 2016 and 30 September 2016, of which the appellant was convicted on his pleas of guilty on 17 November 2016.
The Award was also made under s 17(2) of the CIC Act in respect of incidents - or alleged offences - which occurred on the following dates, and for which no one was charged (and I note that the Award did not contain any detail as to the alleged offences, including in particular what the alleged offences were):
(a)28 March 2016 at Beechboro;
(b)22 May 2016 at Lesmurdie;
(c)26 May 2016 at Midland;
(d)22 September 2016 at Lesmurdie;
(e)23 September 2016 at Lesmurdie;
(f)24 September 2016 at Lesmurdie;
(g)28 September 2016 at Lesmurdie; and
(h)7 February 2017 at Beechboro.
Of the Award, $12,500 was apportioned for the proven offences, and $27,562.50 for the alleged offences.
It was also ordered that $2,062.50 go to Legal Aid (as solicitors for the respondent), and up to $5,000 be paid subject to the provisions of s 48 of the CIC Act for psychological treatment (which relates to the payment of future treatment expenses).
Furthermore, the Assessor also made an order pursuant to s 45(1)(b) of the CIC Act that only $12,500 may be the subject of proceedings under pt 6 of the CIC Act against the appellant (which concerns, in effect, the recovering, in whole or in part, of compensation paid to victims from persons convicted of any offence or offences which caused injury or loss to a person claiming compensation).
The Assessor did not provide reasons for her decision.
Notice of Appeal
On 1 June 2022, the appellant filed his Notice, out of time, against the Award on a single ground, namely: 'Because I think this is unfair'.
The hearing of the appeal took place on 30 September 2022.
At the hearing:
(a)the appellant was self‑represented, and no written submissions were provided. The appellant relied on both the Notice and his oral submissions, although at times those submissions were difficult to follow;
(b)the respondent did not appear and nor did she file any submissions;
(c)the Chief Executive Officer of the Department of Justice (CEO) was ably represented by Ms Inkster of the State Solicitor's Office, who appeared as amicus curiae.
Issues arising
Five main issues arise in this appeal:
(a)first, whether the appellant should be granted leave to appeal out of time;
(b)secondly, if leave to appeal out of time is granted, whether the respondent should be granted an extension of time to bring the application for criminal injuries compensation;
(c)thirdly, if an extension of time to bring an application is granted, whether it is appropriate to make an award for compensation in favour of the respondent;
(d)fourthly, if so, what is the jurisdictional limit of the respondent's claim; and
(e)fifthly, again if so, the appropriate quantum of any compensation award in favour of the respondent.
I will deal with each of these issues in turn.
Issue 1: Appeal out of time - Section 55(3) and s 55(4) of the CIC Act
Section 55(3) of the CIC Act provides, in effect, that an appeal must be commenced within 21 days after the date of a decision by the Assessor.
Section 55(4) provides that the court may allow an appeal to be commenced after the 21 days 'if it is just to do so'.
As I have stated above, the Assessor's decision is dated 28 April 2022, and so the last date to commence an appeal against the Award was 19 May 2022.
As I have also stated above, the Notice was filed on 1 June 2022, meaning that it was 13 days out of time.
A discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an appellant where strict compliance with the rues will work an injustice upon the appellant: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J); Re McHenry [2014] WADC 92 [24] (Herron DCJ).
The principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered by the court in Simonsen v Legge [2010] WASCA 238 [8] (judgment of the court) and stated to be as follows:
8.The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:
(a)on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;
(b)the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);
(c)nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);
(d)there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:
(i)the length of the delay;
(ii)the reasons for the delay;
(iii)the prospects of the applicant succeeding in the appeal; and
(iv)the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] ASCA 55 [11]; (2007) 33 WAR 389;
(e)other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City ofCanning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];
(f)the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando(1997) 18 WAR 450, 454;
(g)in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City ofCanning v Avon Capital Estates (Australia) Ltd [17]; and
(h)similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].
These principles are germane to an appeal to the District Court from the Magistrates Court (see, for example, Dincer v Giancristofaro [2015] WADC 49 [8] - [11] (Bowden DCJ)) as well as an appeal from a registrar (see, for example, Labib v Histon [2017] WADC 39 [41] (Gething DCJ)), and are an elaboration of the factors traditionally applied in appeals under the CIC Act (see Gleeson v Lee (1996) 18 SR (WA) 353, 354 ‑ 355 (Hammond CJDC)).
There are strong policy reasons in favour of complying with limitation periods: Re RT (2006) 47 SR (WA) 197 [30] (Goetze DCJ). The time limit is a substantive provision laid down by the CIC Act and not a mere procedural time limit imposed by the rules of the court which may be treated as an indulgence appropriate to procedural rules.
In Clayton v Aust (1993) 9 WAR 364, 366, Malcolm CJ considered a statutory time limit in relation to inheritance disputes and held that the burden of persuading a court that an application should be heard despite the delay is not a trivial matter, and an applicant is required to make a substantial case for it being just and proper for the court to exercise its statutory discretion to allow an application. The mere reason that an applicant may never be able to litigate his or her claim if an extension of time is not granted is not, by itself, enough to warrant an extension of time because if it were, there would be no discretion to be exercised: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 549.
The appellant set out his reason for not appealing within time in an affidavit attached to the Notice. Relevantly, the appellant stated that:
I am appealing this claim for compensation late due to my family issues at the moment as my brother has just passed away and [I have] been occupied with that and [have not] had the time to file my appeal.
At the hearing of the appeal, the appellant advised the court that his brother had passed away on or about 23 April 2023.
It is a matter of common human experience that immediate family bereavements are very difficult and challenging times. Time is spent grieving, dealing with funeral and funeral related arrangements, caring for other family members, and the like. Those matters alone can prevent a person from attending to normal daily and usual living activities, let alone the abnormal or unusual living activities such as attending to lodging an appeal from a decision by a criminal injuries compensation assessor.
When considered in the context of the four major factors set out in pars (d), (e), (g) and (h) of the matters set out by the court in Simonsen v Legge set out at [29] above, I do not consider that a delay of 13 days is significant. Moreover, I note that the appellant's prospects of a successful appeal, or alternatively, a partly successful appeal, are, in all the circumstances, reasonable.
Furthermore, as the respondent did not engage with the appeal in any way, there is no information before me to meaningfully form a view as to the extent, if any, of any prejudice suffered by her as a consequence of the appellant commencing the appeal out of time (although, it is undeniable that the delay caused by an appeal would inevitably delay any compensation which would be paid to the respondent).
Finally, I note that there is no evidence before the court which would lead to a conclusion that the failure by the appellant to commence the appeal within time was in any way intentional or contumelious.
In the circumstances, and notwithstanding any general prejudice in the form of delay that would be suffered by the respondent, I consider that it is just to allow the appeal to be commenced out of time.
Issue 2: Application out of time - Section 9(2) of the CIC Act
Pursuant to s 56(1) of the CIC Act, in hearing an appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision'. The appeal is therefore a hearing de novo (see Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ); Re Collard [2018] WADC 1 [30] (Goetze DCJ)) and all issues relating to the claim must be reconsidered. Accordingly, the court is required to consider again whether the respondent's application should be permitted, because the time limit for making the application had expired.
Also pursuant to s 56(1) of the CIC Act, the court may determine the appeal 'solely on the evidence and information that was in the possession of the Assessor, or on any further evidence and information received'. In this regard I note that the appellant did not seek to place any additional material before the court. It follows that the only papers before the court, are the papers that were before the Assessor (Assessor's Papers). I have therefore determined the appeal on the basis of the Assessor's Papers and, of course, the Notice and oral submissions from the appellant, as well as the written and oral submissions from the amicus.
Section 9(1) of the CIC Act provides, in effect, that an application for compensation must be made within three years after the date on which the offence to which it relates was committed, or, if it relates to more than one offence, the date on which the last of the offences was committed.
However, s 9(2) of the CIC Act provides that an assessor, or the court in the case of an appeal, 'may allow a compensation application to be made after three years if he or she thinks it is just to do so, and may do so on any conditions which he or she thinks it is just to impose'.
The last offence of the appellant on which the respondent's application was based was committed on 7 February 2020.
The application filed with the Assessor was dated 19 February 2020, although it was filed the following day, that is on 20 February 2020, which was 13 days after the expiration of the time period allowed for making an application under the CIC Act.
The burden is on an applicant (in this case, the respondent) for compensation to explain to the satisfaction of the court the reasons for the delay in bringing the application: Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D970275, 12 September 1997), 3 (Commissioner Greaves).
I have discussed in detail the legal principles to be applied for extending time in the context of Issue 1 (see [28] - [32]). Those legal principles apply equally to Issue 2 given that the legal test to be applied for extending time in s 9(2) CIC Act is the same as for s 55(4), that is, if it is 'just to do so'. By way of shorthand, in the context of exercising the court's discretion under s 9(2) CIC Act, the relevant factors are:
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed 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 respondent (appellant);
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
(See: Re Jackamarra [2014] WADC 9 [20] (Schoombee DCJ); Re McHenry [16].)
Considering these factors in turn, I note that the history and background of the respondent's application has already been set out. As far as the length of and reason for the delay is concerned, that is explained within a letter dated 19 February 2020 from the solicitor for the respondent to the Assessor. In that letter, the solicitor for the respondent stated as follows:
[The appellant] was convicted of the last offence against [the respondent] on 26 May 2017. I was operating under the mistaken view that the limitation period in this matter was 26 May 2020. I realised yesterday that the limitation period is in fact three years from the date of the last offence, not the last conviction.
[The appellant's] last offence against [the respondent] was breach [of a] violence restraining order. He wrote a letter to her from prison and her father received it on 7 February 2017. [The respondent's] father called her that day and she authorised her father to open it and he read the letter over the phone to her. [The respondent] reported the breach to police the following day. Therefore, by my calculations, the offence date was in fact 7 February 2017 and the limitation period expired on 7 February 2020.
I ask that [the respondent's] application be accepted in the circumstances. The delay is entirely due to my error on my behalf and I have submitted the application today (which was as soon as possible after my error).
The consequences to the respondent in refusing a grant of an extension are obvious. It would result in her being disentitled to make any claim for compensation, and that disentitlement would be through no fault of her own; rather, it would be as a sole consequence of an error or misunderstanding on the part of her solicitor. In the circumstances of the respondent's injury, and the steps that she had to take as a consequence of the appellant's offending, that is not insignificant.
As far as the consequences to the appellant are concerned, it is notable that the appellant had no involvement in the respondent's application for compensation before the Assessor, and, as such, took no issue with the application being made out of time. In this regard, the Assessor, or someone on behalf of the Assessor, wrote to the appellant on 23 February 2021 (being over one year from the date the respondent filed her application) advising the appellant that the respondent had applied for criminal injuries compensation under the CIC Act, and that if there were any matters which he would like the Assessor to consider prior to any determination or an order being made, then he should make written submissions within 21 days (Assessor's Letter). In particular, the appellant was advised that he might wish to address either of:
1.The circumstances of the incident including whether there was anything about the [respondent's] behaviour, condition, attitude or disposition which may have contributed, either directly or indirectly to their injury or provoked the offence;
2.Your personal circumstance, including your income, assets, liabilities, employment, health and ability to pay compensation recovery order that may be made.
Notably, no reference was made in the Assessor's Letter to the respondent's application for compensation being made out of time, or the reasons for it being out of time. Equally notably, the Assessor's Letter did not indicate to the appellant that he might specifically wish to address that the application was made out of time, and whether he might suffer any prejudice as a result of the application being granted. Nonetheless, the Assessor's Letter did indicate, in effect, that any award made to the respondent would be paid by the State of Western Australia, and that the State 'may seek to recover some or all of the amount awarded from you'.
The appellant did not respond to the Assessor's Letter, or otherwise communicate with the Assessor in any way concerning the respondent's claim for compensation.
As stated above, in the grounds of the Notice, the appellant stated that the Assessor's award was 'unfair'.
At the hearing of the appeal, the appellant took issue with both the respondent's application for compensation being granted, and the Award.
In this regard, the appellant stated, in effect, that he received notice of the respondent's application for compensation shortly after becoming a sentenced prisoner, and that it was made at a time when he had no opportunity to actively defend the application.
The appellant also advanced a number of inchoate submissions as to why the respondent was not entitled to compensation, and properly distilled those were as follows: first, the events for which she had received the Award had occurred some years earlier; and secondly, because the respondent had not suffered any post‑traumatic stress disorder injury that was capable of being compensated, or, in the event that she did suffer such an injury, she should have sought compensation earlier than what she did.
The respondent added, equally inchoately, that if the respondent suffered injury in the form of post‑traumatic stress disorder from being in a relationship with him, then he equally suffered post‑traumatic stress disorder as a consequence of being in a relationship with the respondent.
Needless to say, the appellant seemed unwilling or unable to recognise that the respondent's claim arose as a consequence of the proven and alleged offences which he committed against the respondent, and that her injury was supported by medical evidence. The appellant also seemed unable to appreciate that the respondent had three years in which to make a claim, and that thereafter the claim would need to be assessed, which would of course take some time.
Finally, the appellant submitted, in effect, that any award for criminal injuries compensation which included a component to be paid by him, would, in effect, be manifestly unfair, as it would: be 'kicking [him] while [he was] down'. The appellant added that it would also destroy his mental health, and, in any event, he had no money to pay any such award.
From these arguments, as unstructured as they were, the reasons advanced by the appellant as to why the respondent's application for compensation should not be granted fall into two categories:
(a)the ability of the respondent to claim compensation in the first place; and
(b)the impact or consequences to the appellant - or, to put it another way, the prejudice to the appellant - of allowing any claim by the respondent and/or making any award.
Reasons which fall within the first category are, of course, entirely without merit as they are directed to not only the worthiness of the respondent to receive compensation, but also her legal ability to claim and receive compensation even though a number of years had passed since the relationship ended and the appellant committed the offences. It follows that there is nothing within the first category that persuades me that the respondent's claim for compensation should not be allowed notwithstanding it was made out of time.
I turn then to the second category of arguments raised by the appellant.
Given the inchoate nature of the appellant's submissions, I am mindful of the principles which apply in relation to dealing with litigants in person. Such litigants are entitled to some leniency in terms of compliance with court rules (Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court)), and the court should approach the documents in which a litigant in person articulates this or her claim with some flexibility: Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
Indeed, the court needs to be astute to ensure that, in a poorly expressed or unstructured document in which a litigant in person sets out their case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could put it into proper form: Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
Furthermore, a frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. In Re Attorney‑General (Cth);Ex parte Skyring [1996] HCA 4; (1996) 70 ALJR 321, Kirby J at [321] stated it this way:
[I]t is always important for every Judge to keep an open mind in case a person who has been rejected by courts in the past have, hidden amongst the verbiage of his or her arguments, a point which has not previously been seen and which may have merit … Vigilence, and not impatience, is specially required where that person is not legally represented.
The potential for financial prejudice to the appellant in allowing the respondent's appeal out of time is not insignificant, although of course one must remember that an order made by an assessor pursuant to s 45(1)(b) of the CIC Act will not necessarily result in an offender (in this case, the appellant), having to pay any money.
Section 50 of the CIC Act requires, in effect, that the CEO apply to the Chief Assessor for a compensation reimbursement order for any amount determined by an assessor under s 45(1)(b) of the CIC Act. At the hearing of any such application, the Chief Assessor is to have regard to, amongst other things, the offender's means to satisfy any such order, having regard to the offender's income, assets and liabilities, the offender's current or prospective employment, and the extent to which the offender is likely to be able to satisfy any such order within a reasonable time: see s 52(2)(d) and s 52(2)(e) of the CIC Act.
Given this procedure, and the possibility that no order under s 45(b)(1) will be made, or if it is made, that the CEO will choose not to make an application for a compensation reimbursement order, or if the CEO does make an application, that the Chief Assessor will in fact decide not to make an order, the appellant's potential for financial prejudice is not, in my view, sufficient to not allow the respondent's claim for compensation out of time (although of course it may be a factor when considering whether to make an order barring proceedings under pt 6 of the CIC Act).
Now, the appellant was not armed with any medical reports to support the submission made by him that his mental health would be affected if the respondent's claim were allowed out of time, nor was the detail of that submission set out or contained in any affidavit material. Nevertheless, as I have indicated, the court is required to adopt some leniency and be flexible in the case of litigants in person.
Section 52(2)(d) and s 52(2)(e) of the CIC Act do not include within them the need for an assessor to consider the wellbeing, mental health, or impact that a compensation reinforcement order might have on an offender. Such considerations have therefore clearly (and very understandably) been found by the West Australian Parliament to be irrelevant in cases where claims for compensation have been made within time. However, in light of the legal principles to be applied when considering an extension of time for an application to be made, I consider it is a matter that would arise in the context of not only whether the respondent's application should be allowed out of time, but also whether the application, if allowed, should be conditioned on the basis that there should be a bar to recovery under pt 6 of the CIC Act.
Given the framework of the CIC Act, I find it difficult to conceive of circumstances where the mental health alone of an offender would be such as to warrant not allowing the grant of an extension of time to a claimant out of time; rather, I consider it more likely that the claim for compensation would be allowed out of time, but that consideration would then be given to an order being made barring proceedings under pt 6 of the CIC Act.
In the circumstances, there is nothing within the arguments raised by the appellant that persuade me that the respondent's claim for compensation should not be granted out of time.
For completeness, I note that a further consequence of a grant of an extension of time and any award is that, pursuant to s 46 of the CIC Act, the Consolidated Account is charged with payment of any award of compensation. Regardless, this has limited relevance in my consideration of whether to grant the respondent an extension of time, but to the extent that it is relevant, it is not in my view a factor which would disentitle an extension of time being granted.
In terms of the remaining factors to be considered, there are in my view good prospects of the respondent's application for compensation succeeding.
Furthermore, and in any event, I consider that an injustice would be done if the respondent's application for compensation was refused.
Taking into account all the matters discussed above, including that: the respondent's delay in making a claim for compensation beyond the three year time limit is not substantial; the responsibility for the delay lay with the respondent's solicitors and not the respondent; and the respondent herself would be significantly prejudiced if the application were refused; I consider that it would be just for the respondent's claim for compensation to be allowed beyond the three years set out in s 9(1) of the CIC Act. As such, and notwithstanding any prejudice which might be suffered by the appellant, pursuant to s 9(2) of the CIC Act, I determine that the respondent's application for compensation should be allowed.
The question then remains as to whether the prejudice suffered by the appellant and/or the potential for prejudice to be suffered by him is or are sufficient, either individually or in combination, to warrant an order barring proceedings under pt 6 of the CIC Act.
As I have discussed above, an assessor, or the court in the case of an appeal, can allow a claim for compensation on the basis of conditions if 'it is just to do so'.
The term 'just' is not defined in the CIC Act, and I have not identified any cases which have considered it in the context of the CIC Act, and nor were any furnished to be by either the appellant or the amicus. In those circumstances I consider the term is to be given its plain and ordinary meaning: Cody v JH Nelson Pty Ltd [1947] HCA 17; (1947) 74 CLR 629 [647] (Dixon J).
The New Shorter Oxford English Dictionary defines 'just' to mean, relevantly, 'in accordance with the principles of moral right, or of equity; equitable; fair; … deserved, merited; and having reasonable or adequate grounds'.
As I have already indicated, at the hearing of the appeal, the appellant submitted, relevantly, that allowing the application would be 'kicking [him] while he [was] down', and also that it would 'destroy his mental health'. The appellant added that he had attempted to rebuild his life since he was released from prison in 2017, and that as part of that journey he has struggled time and time again, including by relapsing back into drugs, and that he also struggled to find work. The appellant stated further, in effect, that any attempt to recover money from him would take him 'right back to the bottom'.
The appellant clearly has a vested financial interest in any application for compensation by the respondent being allowed out of time given the possibility that an assessor, or a court in the case of an appeal, might make an order pursuant to s 45(1)(b) of the CIC Act. The possibility of such an order is real, as is the possibility that the CEO would seek, and be granted, a compensation reimbursement order. As I have already discussed, the appellant also has a vested psychological interest in ensuring that there is no order made pursuant to s 45(1)(b) of the CIC Act given the likely negative impact that such an order will have on his mental health. Given this prejudice, or potential prejudice, I see no reason why the appellant should not have the benefit of certainty provided by the three-year time limitation under the CIC Act.
I note of course that the appellant's behaviour towards the respondent was nothing short of deplorable, and indeed for the proven offences he was convicted and sentenced to prison. Moreover, as I have alluded to, a number of his submissions at the hearing of the appeal underscore that he still fails to appreciate that his actions have caused an injury to the respondent, and an injury that is compensable for a number of years after the incidents the subject of the claim took place. The appellant's lack of appreciation is particularly emphasised by his submission that the respondent has 'played it along' in an attempt to receive some compensation, and that she has done so even though 'her family is well off'. Despite these observations however, punishment of an offender plays no part in the fixing of an award of criminal injuries compensation: B v W (1989) 6 SR (WA) 79, 89 (Williams J).
I also note for completeness that in her application the respondent requested that an order be made barring proceedings under pt 6 of the CIC Act out of concern. This request was made out of concern that if an order under pursuant to s 45(1)(b) of the CIC Act was made, and proceedings were undertaken by the CEO pursuant to pt 6 of the CIC Act, that the appellant would re‑initiate his harassment and intimidation of the respondent.
I would add that irrespective of whether or an order is made pursuant s 45(1)(b) of the CIC Act, the respondent would still receive compensation, assuming of course an award was made in her favour following consideration of her application.
Ultimately, and after having weighed the competing considerations, for the reasons stated I am of the view that whilst the respondent's compensation application should be allowed out of time under s 9(2) of the CIC Act, it should be conditional, namely that proceedings are barred under pt 6 of the CIC Act.
Having determined that it is just for the respondent's claim to be allowed notwithstanding that it was made out of time, albeit on the condition that proceedings under pt 6 of the CIC Act be barred, I turn to consider the respondent's claim for compensation itself.
Issue 3:
By virtue of s 12(1) of the CIC Act a person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered.
Furthermore, by virtue of s 16(2) of the CIC Act, a person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss suffered.
Moreover, s 38 of the CIC Act provides, in effect, that a compensation award cannot be made in favour of a victim if the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.
Based on the above, an assessor, or the court in case of an appeal, must be satisfied that:
(a)the respondent is a victim of the proven offences and/or alleged offences; and
(b)the respondent did all that she ought reasonably to have done to assist in the identification, apprehension and prosecution of the appellant.
I will deal with each of these issues in turn.
Is the respondent a victim - Proved offences?
The following principles are applicable in relation to an application in respect of a proved offence: Underwood v Underwood [55] - [62]; Bothma v Hildebrand [2019] WADC 92 [35] (Gething DCJ):
(a)the offender or claimant for criminal injuries compensation cannot re-litigate the facts which led to the offence; it is not a backdoor means by which to appeal the conviction;
(b)a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts;
(c)a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessments, including for the purposes of s 41 of the CIC Act, to the effect that he or she had a defence to the proved offence;
(d)where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the only reliable guide to that issue will usually be the facts admitted for the purposes of sentencing. This will ordinarily be able to be discerned from the transcript of the sentencing hearing;
(e)a plea of guilty does not constitute an admission of all the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible; and
(f)both a claimant and an offender (in this case, respectively, the respondent and the appellant) may introduce evidence and other material in relation to the facts and circumstances to the extent that it is not inconsistent with points (b) and (c) above.
Accordingly, with respect to the proved offences, the appeal is to be generally determined on the basis of the statements of material fact for each offence, unless the appellant was sentenced on the basis of amended facts, in which case those admitted facts are the relevant facts for the purposes of this appeal.
In this case, the Assessor's Papers did not contain statements of material facts.
However, the applications in relation to proven offences (bar one) were accompanied by certified prosecution notices recording the appellant's convictions; as well as Western Australia Police Incident Reports (singular, WAPOL Incident Report) and Information Reports (collectively, WAPOL Reports) which set out the material facts relating to the offences for which the Appellant was convicted.
The amicus suggests that the court can proceed by having regard to the facts provided in the WAPOL Reports for the respective offences, and that those facts be read only to the extent required to determine the facts that would constitute admissions to the elements of the offences for which the Appellant was convicted. This is of course consistent with the approach taken by Gething DCJ in Underwood v Underwood.
I agree that this is an acceptable way to proceed, as it would ensure:
(a)first, that the appeal could be determined on a basis of facts which the court may assess; and
(b)secondly, there is no finding inconsistent with the facts for which the Appellant was sentenced. (See in this regard an analogous example where the High Court held that if no finding can be made in respect of the facts underlying the verdict of the jury in a case of persistent sexual conduct the offender is to be sentenced on the basis most favourable to him of her: Chiro v The Queen (2017) 260 CLR 425; see also KMC v Director of Public Prosecutions(SA) [2020] HCA 6.)
Furthermore, I note that for each proven offence the appellant pleaded guilty.
On the basis of the above, I find that the following nine offences as committed by the appellant are proved offences for the purposes of s 12(1) of the CIC Act (further details of which are set out and contained in Annexure A of this judgment):
Proven Offence No Offence Date Offence 1 3 June 2016 Breach of VRO 2 5 July 2016 Breach of VRO 3 7 July 2016 Breach of VRO 4 9 - 20 July 2016 Using a carriage service to menace, harass or offend 5 20 July 2016 Breach of VRO 6 26 September 2016 Breach of VRO 7 27 September 2016 Breach of VRO 8 28 September 2016 Breach of VRO 9 7 February 2017 Breach of VRO
For completeness, I note that in the Award the Assessor identified that there were 8 proven offences, rather than 9. This appears to be as a consequence of the Assessor mischaracterising Proven Offence 9 as an alleged offence rather than a proven offence. However, as I have noted above the appellant pleaded guilty to Proven Offence 9.
Is the respondent a victim – alleged offences?
I turn then to consider whether the respondent was a victim of the alleged offences.
The respondent's application for compensation with respect to the alleged offences were brought under s 17 of the CIC Act; that is, for the commission of alleged offences for which no person has been charged.
Where no conviction has been entered, the applicant for compensation bears the onus of proving the offence: Re Carter (1984) 4 SR (WA) 219 (Hammond J); MES v KG (1995) 12 SR (WA) 330, 331 - 332 (Commissioner Clyne) and Re ATS [2017] WADC 92 [28] (Herron DCJ).
That includes establishing to the requisite standard that the alleged offender had no defence to the allegation that he or she committed the offence: Green v Lee (1996) 17 SR (WA) 93, 97 (Wisbey DCJ) and Re ATS [2019] WADC 76 [28] (Davis DCJ).
What is necessary to establish a matter on the balance of probabilities will vary according to the nature of what is sought to be established. In cases where criminal conduct is alleged, clear and cogent evidence will be required: Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 ‑ 298 (Glass JA).
Section 17(4)(a) of the CIC Act provides, in effect, that the court must not make a compensation award in respect of a s 17 application unless it is satisfied that the claimed injury and any claimed loss has occurred, and did so as a consequence of the commission of the alleged offence.
Section 3 of the CIC Act defines the term 'satisfied' as meaning 'satisfied on the balance of probabilities'. The applicant bears the onus of proving, to the civil standard, that an alleged offence has occurred: See Re Robinson [2017] WADC 18 [10] (Troy DCJ); Martin v Martin [2015] WADC 138 [29] (Derrick DCJ); Re Jackamarra [13]; Re RW [2018] WADC 116 [17] (Vernon DCJ).
Having regard to the definition of 'alleged offence' in s 3 of the CIC Act, this means that the applicant must satisfy the court, on the balance of probabilities 'that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it': Re Jackamarra [13].
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to be proved; that is particularly so when criminal conduct is alleged: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 - 171 (Mason CJ, Brennan, Deane & Gaudron JJ); Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
In the context of criminal injuries compensation, the Briginshaw approach has been applied regularly: Martin v Martin [30]; Re Jackamarra [73] - [74]; Re ATS [29], [141] (Herron DCJ).
It is a serious matter to find that an alleged offender has committed an act in the nature of an offence, particularly where the alleged offender is not given the opportunity to refute those allegations: Re Jackamarra [71], [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': Re ATS [29], [114] (Herron DCJ). See also Re RW [17].
To discharge the burden, the evidence adduced by the applicant must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a matter of mere conjecture: Martin v Martin [30].
Where an application for compensation is made under s 17 of the CIC Act, the court cannot award compensation if it is satisfied that the alleged offender is not criminally responsible for the alleged offence, unless the alleged offender was not criminally responsible due to unsoundness of mind: s 17(5) of the CIC Act; Re Robinson [69] - [70]. Thus, an applicant is also required to negative any defences reasonably open on the evidence: Re Robinson [22].
In this case, each of the applications in relation to alleged offences were accompanied by witness statements as well as both WAPOL Reports which set out the material facts relating to the alleged offences, noting of course that the respondent identified the appellant as the alleged offender. Annexure B of this judgment sets out these documents insofar as they relate to each alleged offence.
Given the above, I turn to consider the alleged offences.
Alleged offences
The respondent applied for compensation in relation to the following seven alleged offences of:
Alleged Offence No Alleged Offence Date Alleged Offence 1 28 March 2016 Aggravated Assault 2 28 March 2016 Depravation of liberty 3 28 March 2016 Unlawful damage 4 22 May 2016 Breach of VRO 5 26 May 2016 Breach of VRO 6 22 - 24 September 2016 Breach of VRO 7 28 September 2016 Breach of VRO
I will consider each of these alleged offences in turn, taking into account relevant details set and contained within the Assessor's Papers (as summarised in Annexure B).
(a) Alleged offence 1 - aggravated assault
Section 313(1) of the Criminal Code (WA) provides that a person who assaults another is guilty of a simple offence and is liable, if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000.
'Assault' is relevantly defined in s 222 of the Criminal Code as:
A person who strikes, touches, or moves, or otherwise applies force of any land to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that person, and the act is called an assault.
'Circumstances of aggravation' are defined, relevantly, to mean circumstances in which the offender has, or has had, an intimate personal relationship or other personal relationship with the victim: Criminal Code, s 221(1); Restraining Orders Act 1997 (WA), s 4(1).
An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law: Criminal Code, s 223.
An assault may not be unlawful if an excuse or defence applies, such as provocation or self-defence: See, eg, pt 1 Ch V of the Criminal Code, s 246 (provocation); s 248 (self‑defence).
In some circumstances, consent may render the application of force lawful, provided the degree of violence to the person assaulted did not exceed that to which consent was given: See the discussion in Curran v Champion [2012] WADC 9 [36] - [38] (Staude DCJ).
Taking these matters into account, and upon considering the relevant materials within the Assessor's Papers as reflected in Annexure B for this offence, I am not satisfied to the requisite standard that this offence occurred and could therefore be said to be an alleged offence for the purposes of the CIC Act.
(b) Alleged offence 2 - deprivation of liberty
Section 333 of the Criminal Code provides that a person commits a crime if the person unlawfully detains another person.
A person is said to have detained another person if they deprive that other person of personal liberty by: taking or enticing the other person away; by confining or detaining the other person in any place; or in any other manner: Criminal Code, s 332(1).
Detention of another person may not be unlawful if an excuse or defence applies, such as the execution of a court process or warrant: Criminal Code, see, for example, s 224, s 225, s 226.
Taking these matters into account, and upon considering the relevant materials within the Assessor's Papers as reflected in Annexure B for this offence, I am not satisfied to the requisite standard that this offence occurred and could therefore be said to be an alleged offence for the purposes of the CIC Act.
(c) Alleged offence 3 - unlawful damage
Section 445 of the Criminal Code provides that any person who unlawfully destroys or damages any property of another person without that other person's consent is guilty of an offence.
As is apparent from the above, an element of the offence is the destruction of, or alternatively damage to, the property the subject of the offence.
Taking these matters into account, and upon considering the relevant materials within the Assessor's Papers as reflected in Annexure B for this offence, I am not satisfied to the requisite standard that this offence occurred and could therefore be said to be an alleged offence for the purposes of the CIC Act.
(d) Alleged offences 4 - 7 - breach(es) of a VRO
Section 61(1) of the Restraining Orders Act 1997 provides that a person who is bound by a Family Violence Restraining Order or VRO and who breaches that order commits an offence.
The prosecution must prove, as an essential element of the offence, that at the time of the alleged breach the accused was bound by the terms of the restraining order: Hiscox v Guildersleeve [2011] WASC 229 [6] (Murray J).
The best evidence of whether a person is bound by an order, is evidence of the order itself, and in order to determine whether the order has been breached, regard must be had to the terms of the order and the conduct, or alleged conduct, of the accused.
Taking these matters into account, and upon considering the relevant materials within the Assessor's Papers as reflected in Annexure B for these offences, I am satisfied to the requisite standard that these offences occurred and could therefore be said to be alleged offences for the purposes of the CIC Act.
Accordingly, in light of the above, when considering the respondent's claim for compensation, I will disregard Alleged Offences 1 ‑ 3, and proceed on the basis that only Alleged Offences 4 - 7 are alleged offences for which compensation is, or might be, awarded.
Did the respondent assist authorities?
I turn then to consider whether the respondent did all that she ought reasonably to have done to assist in the identification, apprehension and prosecution of the appellant in relation to both the proven and alleged offences.
As I have stated above, and as is set out in the annexures, there are 13 incidents in total, nine of which are for proven offences, with the remaining four being alleged offences.
For the nine proven offences, I am satisfied that the respondent did everything she ought reasonably have done to assist in the prosecution of the appellant.
For the four alleged offences, (Alleged Offences 4 - 7) I note that the respondent provided statements, signed or unsigned, to the authorities, and as such I am satisfied that she did everything she ought reasonably have done to assist in the identification, apprehension or prosecution of the person who committed the offence, namely the appellant.
In addition, pursuant to s 41(a) of the CIC Act, in deciding whether to make a compensation award, or the quantum of any such award, an assessor, or the court in the case of an appeal, must have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. Further, if the victim has contributed in some way, then pursuant to s 41(b) of the CIC Act, an assessor, or the court in the case of an appeal, may refuse to make a compensation award or alternatively reduce the amount that would otherwise have been awarded.
In this regard two issues arise:
(a)first, for Alleged Offence 7, the WAPOL Incident Report states, in effect, that the respondent was 'previously given advice from police to block the [appellant's] number however [the respondent] is not interested in doing this. Telstra have given her advise [sic] to answer every call'. This conduct by the respondent is perhaps explained by the statement from her father in which he states, in effect, that in order to track a threatening call or calls from a private number the call would need to be answered. In those circumstances I consider that the act of answering the call the subject of Alleged Offence 7 is a foreseeable response to the appellant's offending, and not conduct which contributed, directly or indirectly to her injury; and
(b)secondly, at the hearing of the appeal, the appellant submitted, amongst other things, that the respondent told him that she did not want to be with him, yet 'constantly' went to see him, but then caused for the VRO to be issued 'out of nowhere', and that she has 'played the part'. Within this submission is the semblance of an argument that the respondent's behaviour, attitude, or disposition, contributed, directly or indirectly, to her injury. If that is the case, the argument ignores the fact that the respondent's claimed injury arose out of the appellant's proven and alleged conduct, all of which occurred after the respondent had obtained a VRO (noting of course that I have found that Alleged Offences 1 - 3 do not constitute alleged offences for the purposes of the CIC Act), and but for all of that conduct the respondent's injury would not exist. It follows that I do not accept the appellant's argument that the respondent's injury was caused or contributed to by her behaviour, attitude, or disposition.
In the circumstances, and having disposed of the above two issues, I do not consider that any conduct or behaviour of the respondent identified by the appellant contributed directly or indirectly to her injury. As such, I turn to the issue of the amount of compensation to be awarded to the respondent.
Issue 4: The jurisdictional limit
As discussed above, the respondent has claimed compensation as a result of nine proven offences and four alleged offences (Alleged Offences 4 - 7), or 13 offences in total. An issue therefore arises as to the jurisdictional limit of the claim.
Section 33 of the CIC Act provides as follows:
33.Maximum for multiple related offences
(1)For the purposes of this section, 2 or more offences are related to one another if an assessor is satisfied -
(a)that they were committed at approximately the same time, whether by one person or by 2 or more persons acting in concert; or
(b)that they are related for any other reason.
(2)If as a consequence of the commission of 2 or more related offences, a person -
(a)suffers injury;
(b)suffers loss as the close relative of a victim who dies as a consequence of one of the offences; or
(c)suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed the maximum amount that may be awarded for the last one of the offences to be committed.
The maximum is not reserved for a worst-case assessment but is simply a monetary cap.
If the proven and alleged offences against the respondent were 'related offences' then the maximum amount which can be awarded is that which can be awarded for injury suffered in respect of one offence, namely $75,000: see s 31(1) CIC Act. Otherwise, the maximum which can be awarded is $75,000 for each offence, making a total cap of $975,000.
The matter is not discretionary; rather, it is a jurisdictional limit.
It has been observed that there is little case law on the meaning of 'related offences': LS v SL [2023] WADC 8 [117] (Sweeney DCJ). Two offences which occur on the same day and in the same place, albeit at different times, and causing different injuries have been held not to be related, but instead separate and distinct incidents: Re Puterangi [2017] WADC 168 (Davis DCJ). In Stocker v Loeper [2001] WASC 176 [11], McKechnie J considered the equivalent provision in the Criminal Injuries (Compensation) Act 1970 (WA), and determined that offences are not related offences if they constitute separate and distinct violations of the applicant by the offender (an approach which was approved in X v McAllister [2021] WASCA 3, by the Court of Appeal).
No specific consideration is given by the respondent to whether the proven and alleged offences are separate and distinct, or related. Moreover, the respondent does not seek to identify any particular proven and/or alleged incident that led to her injury. Instead, reliance was placed on the report of Ms Yiannitsaros (discussed further below) where, amongst other things, she said that the respondent 'had endured some nine months of harassment, intimidation, threats … and stalking'. Accordingly, I consider that the respondent proceeded on the basis that no particular incident caused her injury; rather, her injury arose as a consequence of the aggregate of the appellant's behaviour comprising all of the proven and alleged offences.
The Assessor did not address the issue of related offences, although she did apportion $12,500 to 'the proved offences' and $27,562.50 to 'the alleged offences'. It would therefore seem that the Assessor dealt with the various offences compendiously based on whether they were proven or alleged.
Given, the contents of Ms Yiannitsaros' report, and the fact that she opines that the respondent's injury has arisen as a consequence of 'her abusive relationship with [the appellant]' and exposure to 'traumatic incidents' and 'traumatic events', I am unable to determine that the respondent's injury was caused by a particular proven offence or alleged offence. Instead, when taking into account both s 33(1)(b) of the CIC Act and Ms Yiannitsaros' report, I consider that all of the proven and alleged offences, in combination, caused the injury to the respondent, and that as a result, the proven and alleged offences are in fact related, notwithstanding that each incident did not occur within temporal proximity of each other.
It follows that the monetary limit of the compensation which this court can award for all proven and alleged offences is $75,000.
In those circumstances I will turn now to assess the damages.
Issue 5: Appropriate quantum of compensation
Before assessing the amount of compensation, it is necessary to set out some of the general principles relevant to the assessment which applies in this case. Those principles have previously been comprehensively set out by Glancy DCJ in M‑AG [2019] WADC 174, and I respectfully reproduce certain of those principles below.
Compensation is payable for injury and loss as a consequence of the commission of an offence. No compensation award is to be made unless the assessor, or the court in the case of an appeal, is satisfied that the claimed injury and any claimed loss has occurred and did so 'as a consequence of the commission of a proved offence or an alleged offence': s 12 - s 17 CIC Act.
The onus is on an applicant to establish on the balance of probabilities that the claimed injury or loss occurred as a consequence of the offence or alleged offence: Re Carter. That is, the applicant must establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injury and loss for which compensation is sought: s 3 CIC Act.
It is not necessary that the injuries for which compensation may be awarded are solely caused by criminal offences: Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673 (Mason & Wilson JJ with Murphy J agreeing); S v Neumann (463) - (464).
Whilst it is permissible to look at awards of criminal injuries compensation made in other appeals, there is limited utility in doing so because the circumstances of each case are unique: Michael v Panetta (1994) 10 SR (WA) 323, 323 - 324 (Jackson DCJ); TAW v NJS [2011] WADC 187 [24] (Bowden DCJ).
The CIC Act s 3 defines 'injury' to include bodily harm and 'mental and nervous shock'. The expression 'mental and nervous shock' encompasses any malfunction of the victim which can be seen to be a consequence of the impact of the events constituting the offence, or associated with the commission of the offence, as they impact on the mind or the nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ). Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but does not encompass mere fright, humiliation or anguish: M v J (Unreported, WASC, Library No 920598, 19 November 1992) (Scott J). What is required is something of a more enduring character which can be described as an injury: S v Neumann (461).
'Loss' includes loss of earning which are a direct consequence of the injury: CIC Act s 6(2)(c). An injury which results in a loss of earning capacity, either past or future, is compensable: A v D (1994) 11 WAR 481, 489 (Pidgeon, Nicholson & Ipp JJ). When a loss of earning capacity is proved, the damages to be assesses are essentially a matter of judgment and often cannot be proved by precise figures: A v D (489).
Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence. The court will not generally rely on conclusions made by unqualified persons on the basis of medical records without such supporting evidence: Re; Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
In fixing the amount of compensation, the correct approach is to apply the ordinary tortious principles for the assessment of damages, subject to the jurisdictional limit imposed by the CIC Act: S v Neumann (463).
The ordinary tortious principles include that a person who is injured is obliged to obtain reasonable medical treatment. Failure to obtain reasonable medical treatment or to take reasonable medical advice as to treatment can be taken into account when determining the award of compensation to be made: Bedetti v Chief Executive Officer [2003] WADC 37 [11] (Jackson DCJ).
In addition, s 6(2)(b) of the CIC Act refers to expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment which the victim is likely to need as a direct consequence of the injury suffered by the victim.
Section 48 of the CIC Act provides, in effect, that if a compensation award made in favour of a victim includes an amount in respect of expenses of the kind referred to in s 6(2)(b), the amount is not to be paid unless an assessor, or the court in case of an appeal, is:
(a)given evidence by or on behalf of the victim; and
(b)satisfied that the expenses have been reasonably incurred by or on behalf of the victim for treatment that the victim required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates; and
(c)given a request for payment of the relevant amount.
The effect of s 6(2)(b) and s 48 of the CIC Act is that if an award is to be made for future medical expenses, an assessor or the court in the case of an appeal, must be satisfied of two matters:
(a)first, that the expense is likely to be reasonably incurred by the appellant; and
(b)secondly, that the need for the treatment is a direct consequence of the injury suffered by the victim.
The meaning of the word 'likely' as a degree of probabilities will vary according to the statutory context in which the word appears. Where the word is used in the context of criminal law it has been said that it should not be construed to mean 'more likely than not' or to assume a degree of mathematical probability not conveyed as a matter of ordinary language or the statutory context. It is said to convey a notion of substantial, real and not remote chance, regardless of whether it is more or less than 50%: Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10 (Gibbs CJ).
Where an award is to be made for future medical treatment, the award ought to specify the amount because, as set out above, the CIC Act s 48 conditions the payment of compensation for future treatment.
Lastly, by virtue of s 56(2) of the CIC Act, it is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part.
The respondent's application and her injury
In her application for compensation, the respondent indicated, in effect, that she was claiming for mental and nervous shock caused by three incidents, namely aggravated assault, deprivation of liberty and unlawful damage (and I note that these are Alleged Offences 1 - 3 as referred to in [118] and Annexure B), although she went to declare that she was basing her claim under both s 12 and s 17 of the CIC Act, which, as I have discussed above, relate to, respectively, proven and alleged offences.
Notwithstanding that ambiguity, in the supporting documentation provided by the respondent's solicitor, it is clear that the respondent was claiming for all proven and alleged offences.
In the Award, the Assessor stated that she had amended the respondent's application by her own initiative pursuant to s 19(1)(a) of the CIC Act, although it is unclear in what respect the Assessor amended the application.
Section 19(1)(a) of the CIC Act provides, relevantly and in effect, that in deciding a compensation application, an assessor, or the court in the case of an appeal, can on his or her, or, in the case of a court, its, own initiative, amend the application.
It seems possible that the Assessor exercised her discretion to encapsulate not just Alleged Offences 1 - 3, but all proven offences and alleged offences. If that is the case, then I consider that unnecessary given, as I have said, the respondent clearly declared that she was maintaining her claim for compensation on the basis of both proven and alleged offences (and the supporting materials subsequently provided details of both proven and alleged offences).
Alternatively, the Assessor may have amended the respondent's claim to include a claim by the respondent for 'loss of earnings', given that loss of earnings was not a box checked by the respondent when submitting the claim form (although I note that the respondent did check the box for 'loss of earning capacity'). Notwithstanding the omission or failure by the respondent to check the box for loss of earnings, when providing materials in support of her claim, the respondent's solicitor did indicate that because of the appellant's offending the respondent was 'unemployed and financially disadvantaged' and 'out of work for 3 - 4 months'. Regardless, on the face of the respondent's compensation claim form, the loss of earnings box is not expressly checked, and so notwithstanding what is said by her solicitor in her supporting materials, it could be said that the respondent was not pursuing a claim for loss of earnings.
In the circumstances therefore, and to the extent necessary, I have amended the respondent's application of my own initiative pursuant to s 19(1)(a) of the CIC Act to include a claim for loss of earnings, and I will discuss that claim in due course.
The respondent's injury is detailed in a report prepared by Ms Chrystalla Yiannitsaros, clinical psychologist, dated 27 January 2020.
In that report Ms Yiannitsaros discusses the background of the respondent as well as the nature of the proven and alleged offences (albeit in compendious terms), before moving on to discuss the respondent's psychological functioning and results of the respondent's psychometric questionnaires. When discussing psychometric questionnaires, Ms Yiannitsaros states, relevantly, that the respondent's ' … profile suggested she would meet diagnostic criteria for [post‑traumatic stress disorder] and that her current symptoms would be high enough to be causing ongoing distress in her daily life therefore interfering with her ability to function'.
In her summary and conclusions, Ms Yiannitsaros then states as follows:
Overall [the respondent's] psychometric profiles as the information provided at clinical interview indicate she would meet diagnostic criteria for [post-traumatic stress disorder]. In her abusive relationship [the respondent] as well as in the months following her separation, [the respondent] was directly exposed to traumatic incidents that threatened death and/or serious injury.
As a result, [the respondent] currently experiences: recurrent, involuntary, and intrusive distressing memories of the incident/s; recurring distressing dreams in which the content and/or effect of the dream are related to the traumatic event/s are recurring; dissociative reactions (e.g. flashbacks) in which she feels or acts as if the traumatic event/s are recurring; and intense or prolonged psychological distress at exposure to internal and external cues that resemble an aspect of the traumatic event/s.
[The respondent] described persistent avoidance of stimuli associated with the traumatic event/s as evidenced by avoidance of distressing memories, thoughts, or feelings about or closely associated with the traumatic events; and avoidance of external reminders (people, places, activities, objects, situations) that arouse distressing memories, thoughts, or feelings associated with the traumatic event/s.
[The respondent] experiences negative alterations in cognitions and moods associated with the traumatic event/s as evidence by her persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g. '[n]o one can be trusted'); persistent, distorted cognitions about the cause or consequences of the traumatic event/s that leads her to blame herself; persistent negative emotional states (e.g. fear, anger, horror, guilt, shame); markedly diminished interest in activities (e.g. study. Social settings); feelings of detachment from others; and a persistent inability to experience positive emotions (e.g. persistent presence of 'emotional numbness').
[The respondent] experiences marked alterations in arousal and reactivity associated with the traumatic event/s as evidenced by the presence of irritable behaviour and angry outbursts; hypervigilance; exaggerated startle response; problems with concentration; and sleep disturbance.
Ms Yiannitsaros then goes on to observe that:
The above difficulties commenced following the traumatic event/s, cause clinically significant distress or impairment in social and occupational functioning, and are not attributable to the presence of any other condition.
Ms Yiannitsaros stated further that:
The abuse experienced by [the respondent] during her relationship with [the appellant] as well as during the months following their separation has significantly impacted upon her ability to complete her studies as planned, pursue her chosen career pathway as planned, establish appropriate friendships, and pursue and maintain romantic relationships.
In light of Ms Yiannitsaros' report, I am satisfied that that there is a causal relationship between the commission of the proven offences and Alleged Offences 4 - 7 and the respondent's injury for which compensation is sought: see generally S v Neumann (463); Re AK [2016] WADC 156 [71] (Schoombee DCJ); Martin v Martin [82].
Accordingly, I will assess the respondent's claim on the basis that I am satisfied, on the balance of probabilities, that the respondent suffered post-traumatic stress disorder as a result of both the proven offences and Alleged Offences 4 - 7.
Issue 6: Assessment of compensation
The court may confirm, vary or reverse the Assessor's decision either in whole or in part: s 56(2)(b) of the CIC Act. However the court is to determine the application 'without being fettered by the Assessor's decision': s 56(1) CIC Act. As such, the entirety of the evidence must be reconsidered independently of the decision of the Assessor: Re ATS [17].
Loss of Income and loss of earning capacity
Neither the respondent's claim for compensation nor indeed her supporting material set out any detail concerning the loss of income which she suffered as a result of the proven and alleged offences.
Nonetheless, in supporting materials provided to the Assessor by the solicitor for the respondent, the solicitor states, in effect, that: the respondent was terminated from her employment due to the appellant's 'pursuit of her at work and the disruption that caused to the workplace'; that this led to the respondent 'being unemployed and financially disadvantaged'; and that the respondent was ' … out of work for 3 - 4 months and she became dependent upon loans from her family to meet her expenses'.
In addition, Ms Yiannitsaros states in her aforementioned report that 'as a result of the incidents [the respondent] was terminated from her employment leading to economic disadvantage'.
There is however no formal record of the reason why the respondent ceased employment at the relevant time. Correspondence from the respondent's employer to the Assessor (which is included within the Assessor's Papers) clearly states that the respondent resigned rather than was terminated.
Moreover, based on payslips provided by the respondent's employer to the Assessor, the respondent's employment came to an end on 27 May 2017, and I note that all proven offences other than Proven Offence 9 were committed in the period 3 June 2016 to 30 September 2016, and Alleged Offences 4 - 7 occurred in the period 22 May 2016 to 28 September 2016.
On that basis, the respondent's employment came to an end eight months after all but one of the proven offences (Proven Offence 9), and almost three months after the last of the alleged offences.
Moreover, as far as Proven Offence 9 is concerned, that involved a breach of a VRO, and I note the breach itself involved the appellant writing a letter of apology to the respondent seeking her forgiveness for his offending. According to the WAPOL Incident Report the appellant sent the letter to the respondent at a time when he thought the VRO had come to an end. The relevant Prosecution Notice records that the offence occurred on 30 January 2017 although the relevant WAPOL Incident Report and the relevant WAPOL Criminal Injury Report refer to the event as being 7 February 2017. The time difference (between 30 January 2017 and 7 February 2017) may possibly be explained by reference to both the date of postage and the date of receipt but it is unclear from the Assessor's Papers, and in any event nothing turns on it.
Regardless, and as stated above when taking into account Proven Offence 9, the respondent's employment came to an end, say, five months after the last proven or alleged offence committed by the appellant. If Proven Offence 9 is removed from the calculation (noting that it was a letter of apology), the respondent's employment came to an end some nine months after Proven Offences 1 - 8, and Alleged Offences 4 - 7.
It follows that the respondent's employment did not come to an end during the period when the appellant was committing offences against her, or indeed immediately thereafter, and it did not come to an end because her employment was terminated. Of course, that is not to suggest that the respondent might have found it necessary to end her employment because she was suffering from post‑traumatic stress disorder, or that Proven Offence 9 did not play a part in her decision making process, and indeed that may well have been the case. However, that is not how the claim is characterised by the respondent in her claim for compensation, or for that matter reported by Ms Yiannitsaros. And there is no other medical evidence upon which the respondent is relying, such as, for example, doctor's certificates.
In addition, there is no evidence as to what loans were provided to the respondent by her parents on account of being unemployed. It would of course have been a simple matter for the respondent to provide some detail in that regard and/or obtain some form of statement or statutory declaration from her parents as to how much money they loaned to her.
It may be that the respondent was concerned to ensure that only limited information or material was provided as part of her claim for compensation for the reasons stated in [84] above, however the necessary consequence of that is that an assessor, or the court in the case of an appeal, has limited information to make any award.
Moreover, given that the Assessor did not provide reasons when making the Award, I am unable to discern whether and, if so, how, the Assessor attempted to quantify the loss of income or loss of earning capacity sustained by the respondent.
The Assessor did request, and was provided with, details of the respondent's tax returns for the period from 2015 to 2021, as well as payslips from 2015 to 2017, and those materials are contained within the Assessor's Papers.
The respondent's tax return for the 2016/2017 financial year shows a reduction in income of $12,500 as compared to the 2015/2016 financial year, although of course the proven offences (leaving aside Proven Offence 9) and Alleged Offences 4 - 7 occurred in the period 28 March 2016 to 30 September 2016, which thereby traversed two financial years.
I note that the Assessor's order pursuant to s 45(1)(b) of the CIC Act provides that $12,500 be the subject of proceedings against the appellant under pt 6 of the CIC Act. Of course, it may or may not be purely coincidental that the income difference between the respondent's 2015/2016 and 2016/2017 financial years was approximately $12,500. Indeed, the Assessor may have awarded the respondent no amount for any loss of income or loss of earning capacity at all, or alternatively she may have arrived at some lesser or greater figure than $12,500.
Regardless, the documents before me do not sufficiently set out the period during which the respondent lost income, or was prevented from earning income, or what income was lost, and I am unable to divine from either the tax returns or the payslips themselves, or indeed any other materials within the Assessor's Papers, whether the respondent in fact lost income, or suffered a loss of earning capacity.
In the circumstances I am not satisfied that the respondent's injury has resulted in a loss of income or capacity of past economic loss, and so I make no award for economic loss. Importantly, this is not to suggest that the respondent did not suffer a loss of income, or a loss of earning capacity; rather, there is simply insufficient evidence before me to enable an award being made in respect of any such head of loss.
Past medical expenses
As I have indicated above, the definition of 'loss' includes expenses reasonably incurred by or on behalf of the victim that arise in obtaining a report from a health professional in relation to the injury suffered by the victim.
The respondent has claimed $2,062.50 in relation to the psychological assessment by Ms Yiannitsaros. The Assessor allowed that full amount, as do I.
Future medical expenses
As I have also indicated above, 'loss' includes expenses that are likely to be reasonably incurred by a claimant for future treatment needed a as a direct consequence of the injury.
Where an award of compensation is made for future treatment, the award ought specify that amount, because s 48 of the CIC Act conditions the payment of compensation for future treatment.
The respondent did not provide a schedule of future treatment costs with her application, however in her report Ms Yiannitsaros recommends that the respondent engage in trauma‑focussed cognitive behaviour therapy which would involve anywhere from 12 ‑ 28 sessions.
The Assessor awarded up to $5,000 be paid subject to the provisions of s 48 of the CIC Act for psychological treatment, as do I.
Non-pecuniary loss
Non‑pecuniary loss is an assessment of damage which is not readily measurable in money. Nevertheless, damages are awarded because an injured party is entitled to be compensated for the condition which he or she has been left in with a given to giving him or her fair compensation for pain, inconvenience and loss of enjoyment sustained.
As I have discussed above, the correct approach to adopt in assessing the amount of compensation under the CIC Act is to apply the ordinary principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the CIC Act, and to the jurisdictional limit of the CIC Act.
For the reasons discussed above at [145] - [155], the maximum amount of compensation payable in this matter is $75,000.
I have reviewed a number of decisions of this court in order to determine what awards have been made for non‑pecuniary loss in claims for compensation under the CIC Act. Those decisions include, but are not limited to: Bridgman v Nannup [2008] WADC 28; JMD v GJH [2012] WADC 124 (Davis DCJ); VHM (by her next friend the Public Trustee) v JAB [2014] WADC 47 (Wager DCJ); Re AK [2016] WADC 156 (Schoombee DCJ); DR v CD [2018] WADC 148 (Quail DCJ); KBR v ADM [2018] WADC 120 (Gillan DCJ); Robertson v Hopwood [2018] WADC 66 (Gillan DCJ); Couper v Alexander [2020] WADC 56 (Braddock DCJ); SJR v JJC [2020] WADC 161 (Sharp DCJ); Re Butler [2020] WADC 22 (Wallace DCJ); EM v CL [2021] WADC 127 (Burrows DCJ); EB v Ramljak [2021] WADC 134 (Whitby DCJ).
I have also reviewed a number of decisions of this court where damages have been awarded for non‑pecuniary loss because of post‑traumatic stress disorder or similar. The decisions include, but are not limited to: CSS v KD [2016] WADC 82 (Derrick DCJ); Re Anderson [2022] WADC 97 (Commissioner Collins); Re RJA [2022] WADC 106 (Commissioner Collins); Madigan v XYZ [2022] WADC 123 (Lemonis DCJ); Re Richards [2022] WADC 100 (Gething DCJ) and Ward v Davey [2023] WADC 78 (Lemonis DCJ).
As I have stated above, the utility in considering other decisions is, or can be, limited given that the circumstances of each case are unique, but they do serve to assist in benchmarking.
Given all of the circumstances of the case, I consider an appropriate global award of general damages for the injury suffered by the respondent as a consequence of all of the proven and alleged offences that is, Proven Offences 1 ‑ 9, and Alleged Offences 4 - 7, committed by the appellant is, $15,000.
Conclusion
By way of summary, and for all the reasons stated above:
(a)pursuant to s 55(4) of the CIC Act, I allow the appellant's appeal to be commenced out of time and extend the appellant's time to appeal until 1 June 2022;
(b)pursuant to s 9(2) of the CIC Act, allow the respondent's claim for compensation out of time, and extend the respondent's time for making the claim until 20 February 2020, conditioned on the basis that proceedings under pt 6 of the CIC Act be barred;
(c)pursuant to s 19(1)(a), I amend the respondent's application of my own initiative to include a claim for loss of earnings, although make no award for loss of earnings (or loss of earning capacity); and
(d)otherwise award compensation to the respondent as follows.
Amount of compensation award:
Legal Aid
$2,062.50
Future medical expenses
$5,000.00
Non-pecuniary loss
$15,000.00
Total
$22,062.50
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Associate to the Judge
31 JULY 2023
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