ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 000232 of 2014

Catchwords:

Criminal injuries compensation - Application for extension of time - Application made six years out of time - Mother suffering mental and nervous shock arising from death of son - Offender acquitted of wilful murder on ground of unsoundness of mind

Legislation:

Criminal Injuries Compensation Act 2003
Criminal Law (Mentally Impaired Accused) Act 1996

Result:

Extension of time granted and appeal allowed
Award of compensation made

Representation:

Counsel:

Appellant: Mr V Kurup
Amicus Curiae : Mr N Barron appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: CLP Legal Pty Ltd
Amicus Curiae : State Solicitor for Western Australia

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

Aon Risk Services Australia Ltd v Australia National University (2009) 258 ALR 14; [2009] HCA 27
B v B [2004] WASC 6
Bird v The Commonwealth of Australia (1998) 165 CLR 1
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Clayton v Aust (1993) 9 WAR 364
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666
Gallo v Dawson (1990) 93 ALR 479
Garton v McCormack (2002) 30 SR (WA) 307
Gleeson v Lee (1996) 18 SR (WA) 353
Hatfield v Under Secretary for Law (Unreported, WASCA, Library No 4012; 15 December 1980) 5
Hinchcliffe v Hinchcliffe [2010] WADC 78
M v J and J v J (Unreported, WASCA, Library No 920598; 19 November 1992)
McHenry v The State of Western Australia [No 2] [2010] WASCA 71
MJN v MAJS (2003) 35 SR (WA) 219
Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 970275, 12 September 1997) 3
Re Jackamarra [2014] WADC 9
Re Karra (1984) 2 SR (WA) 97
Re RT (2006) 47 SR (WA) 197
RJE v Bandy (Unreported, WASCA, Library No 1365; 31 May 1974)
S v Neumann (1995) 14 WAR 452
Smith v The Executive Director of the Department of Conservation and Land Management [1999] WASC 240
SW v BB [2010] WADC 86
TAW v NJS [2011] WADC 187

HERRON DCJ:

Introduction

On 29 January 2014, the appellant (Mrs McHenry) made an application (application) to the assessor of criminal injuries compensation (assessor) for criminal injuries compensation pursuant to s 12(1) of the Criminal Injuries Compensation Act 2003 (WA) (Act).
The application is in respect of an incident which occurred on or about 5 November 2004.
On 18 February 2014, the Assessor:
(a)noted that the…

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 McHenry

Details

AGLC: Re McHenry [2014] WADC 92
Case: [2014] WADC 92
Decision Date: 17 JULY 2014

CaseChat Overview and Summary

The case of Re McHenry involves an application for an extension of time for a claim for compensation under the Criminal Injuries Compensation Act. The applicant, the mother of a deceased person, sought compensation for the mental and nervous shock she suffered as a result of her son's death. The son was killed by the respondent, who was acquitted of wilful murder on the basis of unsoundness of mind. The application was made six years after the statutory time limit for making such a claim had expired.

The central legal issue before the court was whether the application for an extension of time was sufficiently justified under section 8(3) of the Act. The court was required to consider whether the applicant had demonstrated a sufficient reason for the delay in making the application and whether the respondent would suffer undue prejudice if the application was allowed. The applicant argued that she had been unaware of her entitlement to compensation until some time after her son's death, and that the respondent would not be prejudiced by the late application.

The court found that the applicant had not demonstrated a sufficient reason for the delay in making the application. The court noted that the applicant had been aware of her entitlement to compensation for some time before making the application, and that she had not taken any steps to investigate her entitlement until some time after her son's death. The court also found that the respondent would be prejudiced if the application was allowed, as the delay in making the application had made it difficult to obtain relevant evidence and witnesses. As a result, the court dismissed the application for an extension of time.

The court did not make any further orders in relation to the application. The applicant was left to pursue any other available remedies in relation to her claim for compensation.

Orders