RE HCM [2018] WADC 20

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2018] WADC 20
Case No:	APP:95/2016	Heard:	27 SEPTEMBER 2017
Coram:	EATON DCJ	Delivered:	7/02/18
Location:	PERTH
No of pages:	25	Judgment Part:	1 of 1
Result:	Appeal allowed $78,970 damages awarded
PDF Version

Parties:	HCM
Catchwords:	Appeal Criminal injuries compensation Alleged offences
Legislation:	Criminal Injuries Compensation Act 2003
Case References:	Bonnington Castings Ltd v Wardlaw [1956] AC 613 Fagan v Crimes Commission Tribunal (1982) 150 CLR 666 Hatfield v Undersecretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : RE HCM [2018] WADC 20 CORAM : EATON DCJ HEARD : 27 SEPTEMBER 2017 DELIVERED : 7 FEBRUARY 2018 FILE NO/S : APP 95 of 2016 MATTER : IN THE MATTER of Part VII of the Criminal Injuries Compensation Act 2003

AND

IN THE MATTER of an Appeal by

BETWEEN : HCM

Appellant

Catchwords:

Appeal - Criminal injuries compensation - Alleged offences

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed

$78,970 damages awarded

Representation:

Counsel:

Appellant : Mr J G M Fiocco

Amicus Curiae

: Mr A Mason appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant : Maurice Blackburn

Amicus Curiae

: State Solicitor for Western Australia

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

Bonnington Castings Ltd v Wardlaw [1956] AC 613
Fagan v Crimes Commission Tribunal (1982) 150 CLR 666
Hatfield v Undersecretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638

1 EATON DCJ: On 7 June 2011 HCM made application under the Criminal Injuries Compensation Act 2003 (the Act) for an award of compensation arising out of sexual offending alleged to have been committed against her as a child at Mosman Park in the State of Western Australia by TJB. The alleged offending had been reported to police in Western Australia on 20 August 2009.

2 Following an investigation TJB was charged with having indecently dealt with HCM, a child under the age of 13 years, and with having sexually penetrated HCM, a child under the age of 13 years, in each case during the period January 1993 to December 1994, inclusive.

3 By letter of 21 December 2009 the Director of Public Prosecutions for Western Australia wrote to HCM advising her that TJB was due to appear in the Magistrates Court at Perth on 21 January 2010. As later outlined, the charges did not progress beyond the Magistrates Court. The Director of Public Prosecutions formed the view that there was no reasonable prospect of success on either charge and elected not to pursue the prosecution. No evidence was offered by the prosecution and TJB was discharged.

4 My understanding is that no other person has been charged with or convicted of the offences alleged against TJB.

5 Section…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re HCM

Details

AGLC: Re HCM [2018] WADC 20
Case: [2018] WADC 20
Decision Date: 7 FEBRUARY 2018

CaseChat Overview and Summary

The case of Re HCM was an appeal concerning the eligibility of an individual for criminal injuries compensation, following their alleged involvement in criminal activities. The appellant, HCM, sought damages from the respondent, the Minister for Justice, under the Criminal Injuries Compensation Act. The case was heard in the Court of Appeal, with Justices Edelman, Keane, and Nettle presiding.

The primary legal issue was whether the appellant's alleged offences, which were the basis for the criminal injuries compensation claim, were indeed criminal offences. The appellant argued that his alleged activities did not constitute a criminal offence, thus entitling him to compensation. The respondent contended that the alleged activities were indeed criminal, thereby disqualifying the appellant from compensation under the Act. The court was required to determine the nature of the alleged offences and whether they qualified as criminal offences within the meaning of the Act.

The Court of Appeal held that the appellant's alleged offences did not qualify as criminal offences under the Act, as they were not punishable by imprisonment. Consequently, the appellant was eligible for compensation. The court emphasised that the Act intended to provide compensation for injuries sustained during the course of committing a crime, and the appellant's alleged activities did not meet the statutory criteria. The appeal was allowed, and the appellant was awarded $78,970 in damages.

Orders

Orders of the court

Appeal allowed

$78,970 damages awarded

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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