Re Piggott
[2017] WADC 150
•24 NOVEMBER 2017
RE PIGGOTT [2017] WADC 150
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 150 | |
| Case No: | APP:29/2017 | 6 OCTOBER 2017 | |
| Coram: | BOWDEN DCJ | 24/11/17 | |
| PERTH | |||
| 37 | Judgment Part: | 1 of 1 | |
| Result: | Extension of time within which to lodge the application granted Application for compensation dismissed | ||
| PDF Version |
| Parties: | DUNCAN PIGGOTT |
Catchwords: | Criminal injuries compensation Appeal from assessor's refusal to award compensation Whether alleged offence proven on the balance of probabilities |
Legislation: | Criminal Injuries Compensation Act 2003 |
Case References: | Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 Egitmen v The State of Western Australia [2016] WASCA 214 Hansen v Bolton [2017] WADC 25 Hinchcliffe v Hinchcliffe [2010] WADC 78 Hogben v Darcy [2009] WADC 63 Lloyd v Small (1996) 16 SR (WA) 111 Marchesano v The State of Western Australia [2017] WASCA 177 Nominal Defendant v Owens (1978) 22 ALR 128 Powell v The Queen (Unreported, CCA SCt of WA, Library No 4004, 2 December 1980) Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240 R v Tranby (1991) 52 A Crim R 228 Re ATS [2017] WADC 92 Re Richardson [2009] WADC 93 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : C F HOLYOAK-ROBERTS
File No : CI 1482 of 2016
Catchwords:
Criminal injuries compensation - Appeal from assessor's refusal to award compensation - Whether alleged offence proven on the balance of probabilities
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Extension of time within which to lodge the application granted
Application for compensation dismissed
Representation:
Counsel:
Appellant : Mr R R Cywicki
Amicus Curiae : Mr S R Pack appeared on behalf of the Chief Executive Officer of the Department of Justice
Solicitors:
Appellant : Nigams Legal
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Egitmen v The State of Western Australia [2016] WASCA 214
Hansen v Bolton [2017] WADC 25
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
Lloyd v Small (1996) 16 SR (WA) 111
Marchesano v The State of Western Australia [2017] WASCA 177
Nominal Defendant v Owens (1978) 22 ALR 128
Powell v The Queen (Unreported, CCA SCt of WA, Library No 4004, 2 December 1980)
Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240
R v Tranby (1991) 52 A Crim R 228
Re ATS [2017] WADC 92
Re Richardson [2009] WADC 93
1 BOWDEN DCJ: On the 22 January 2013 Mr Piggott and Mr Benjamin Browne (hereafter referred to as Mr Browne) were involved in an incident at Mr Browne's residence. During the incident Mr Browne struck Mr Piggott and Mr Piggott sustained grievous bodily harm.
2 At the time there were four adults at the residence. Mr Browne's wife, Mrs Taryn Browne, says she was inside. His brother, Mr Nathan Browne, says he was around the corner relieving himself. Mr Browne and Mr Piggott both give vastly different accounts of what occurred.
3 Shortly after the incident Mr Piggott left the residence and was spoken to by ambulance officers. The police spoke to Mr Piggott and Mr Browne on the night in question.
4 Mr Piggott was taken to hospital, treated and then released. About a week later he underwent surgery to his injuries. He did not make a formal complaint to police until 1 April 2013.
5 During the police investigation various officers expressed different views as to whether a criminal charge could be made out. A decision was made not to lay charges. Mr Piggott was unhappy and reported the matter to the Crime and Corruption Commission (Western Australia). They referred it to the police department for a further review. An opinion from a prosecutor at the Director of Public Prosecutions was obtained. Ultimately that opinion and the review concluded that there were insufficient prospects of obtaining a conviction and criminal charges were not laid.
6 On 25 May 2016 Mr Piggott applied for compensation under s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). On 5 April 2017 the Assessor of Criminal Injuries Compensation (Assessor) refused the application as the Assessor was not satisfied on the balance of probabilities that an alleged offence occurred.
7 Mr Piggott filed a notice of appeal against the Assessor's decision on 26 April 2017 on the following grounds:
1. The Assessor erred by refusing to award compensation to the appellant in finding that there was a lack of proof of the alleged offence, and that it had not been proven on the balance of probabilities.
2. The Assessor erred in failing to award compensation to the appellant on the grounds that there was sufficient evidence to raise a defence of self-defence pursuant to s 17(4) of the Criminal Injuries Compensation Act 2003 (WA).
Particulars
2.1 there were inconsistencies within the evidence provided by the respondent and his corroborative witnesses;
2.2 there was an absence of any complaint and medical evidence to support the respondent's version of events;
2.3 the assessor failed to take into account the evidence submitted by the appellant showing the serious nature of his injuries in support of his application for compensation.
8 The appeal was filed within time.
The nature of the appeal
9 An appeal under the Act is a hearing de novo. A court may confirm, vary or reverse the Assessor's decision either in whole or part.
10 The appeal is to be determined 'without being fettered by the Assessor's decision'. It has been said that it is appropriate to have regard to the assessment made by the learned Assessor as the specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63. In my view in an appeal such as this it is not appropriate to have regard to the assessment made by the Assessor but rather to independently review the evidence.
11 The court has a wide discretion to determine the matter either solely on the evidence and information in possession of the Assessor or may receive further evidence. In this case the court received further oral evidence from Mr Piggott and further evidence by way of a letter from his employer and from Royal Perth Hospital in relation to the claim for economic loss.
Extension of time
12 An application for compensation must be made within three years of the date of the alleged offence: s 9(1)(ca).
13 Mr Piggott's application was made by letter dated 18 May 2016 however it was returned by the Assessor on 17 June 2016 as it was incomplete. Mr Piggott then provided further information and documents as requested on 19 July 2016 which date was effectively treated as the date of the application.
14 The alleged offence occurred on 22 January 2013. Therefore the application was made almost six months out of time.
15 Pursuant to s 9(2) of the Act, the court may allow an application to be made after a three year period if it thinks it is just to do so and may do so on any condition it thinks it is just to impose.
16 The onus is on Mr Piggott to explain to the court's satisfaction the reasons for the delay in bringing the application. The factors relevant to the exercise of the court's discretion include (Hansen v Bolton [2017] WADC 25 [11] – [14] (Herron DCJ)):
(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 to the parties of the grant or refusal of an extension of time including the extent of any prejudice to the respondent;
(f) the prospects of the compensation application succeeding; and
(g) whether an injustice would be suffered if an extension of time is refused.
17 The reason for the delay has been adequately explained. The alleged incident occurred on 22 January 2013, police attended and spoke to Mr Piggott that night. He was uncooperative and made no formal complaint. He made a formal complaint to the police in Karratha on 1 April 2013 and a formal investigation was commenced.
18 The police advised Mr Piggott on 16 May 2014 that they would not be proceeding to lay charges. Mr Piggott complained to the Crime and Corruption Commission on 26 September 2014.
19 The Crime and Corruption Commission referred the matter to WA Police for an internal review. On 19 January 2015 WA Police advised that an internal review had concluded and no charges would be preferred.
20 On 19 February 2016 as a result of contact between Mr Piggott's lawyers and the Crime and Corruption Commission, the Crime and Corruption Commission advised that they had closed their file on 19 January 2015 (apparently without advising Mr Piggott). On 19 July 2016 this application was made.
21 The reasons for the delay were that Mr Piggott was hoping that the decision by the police to not lay charges would be reviewed. He took active steps to have that decision reviewed. He was not advised that there would be no further review until, it appears, 12 months after that decision was made.
22 There is no respondent to the application and there is no prejudice to any other party, refusal to extend time would mean Mr Piggott could not litigate his claim and while that by itself is not enough to warrant an extension of time in all the circumstances it is appropriate that I extend the time within which to lodge the application to 19 July 2016.
Issues
23 The issues are:
(1) whether the court is satisfied on the balance of probabilities that an alleged offence was committed against Mr Piggott;
(2) whether Mr Piggott was engaged in criminal conduct at the time he sustained the injury;
(3) whether Mr Piggott by his behaviour contributed to the injury; and
(4) if the court is satisfied that it is appropriate to make an award, the amount of the award.
Some background issues
24 It is common ground that the police investigated the incident and did not lay charges. The opinions of the police officers, prosecutors, the Assessor and others in respect of whether there is sufficient or insufficient evidence to lay a criminal charge or obtain a conviction are irrelevant to my consideration of the materials.
Was the appellant the victim of an alleged offence?
25 As no one was charged with any offence in relation to the incident s 17 of the Act applies. The fact that criminal charges were not laid is no bar to Mr Piggott's claim succeeding. If Mr Piggott proves on the balance of probabilities that he sustained compensable injuries as a result of a criminal offence the application is entitled to succeed.
26 Mr Piggott must show that there are more than conflicting inferences of equal degree of probabilities so that a choice between them is a mere matter of conjecture: Nominal Defendantv Owens (1978) 22 ALR 128; Lloyd v Small (1996) 16 SR (WA) 111.
27 There are several differences between the power of an assessor and the power of the appeal court when dealing with these applications. For a detailed examination of the statutory scheme and those differences see: In Re ATS[2017] WADC 92 (Herron DCJ).
28 Generally speaking, the effect of s 56(2)(a) of the Act is that on appeal the court is not able to conduct a s 24(1) or s 25 hearing nor is it able to give written notice of the application to an interested person. An appeal court does retain the power to conduct a hearing pursuant to s 62(A) in respect of any question that the assessor may decide under the Act. The appeal court may seek and receiving information (s 19(1)(c)), make inquiries and investigate (s 19(1)(d)) and request information from the applicant (s 19(1)(e)).
29 If an award of compensation is made it is paid from the consolidated account (s 46) and not by the alleged offender. There is, therefore, no interested person within s 3 ie, there is no person who may become liable under pt 6 of the Act to pay an amount to the State.
The evidence
Mr Duncan Piggott
30 Mr Piggott provided a statement to the police dated 1 April 2013. He said that on 22 January 2013 he was at the Redcliffe Tavern with his friends Mr Nathan Browne and Mr Browne. They each had six or so beers while at the tavern and were intoxicated but not 'like drunk'.
31 At around 6.30 pm they left and went to Mr Browne's house. His wife and two young children were home. All three adult males went into the back yard and sat around the table in the outdoor area and had more beer and spirits.
32 Mr Piggott said the outdoor area was brick paved and containing a bar to the right of a sliding door and had a square outdoor table with chairs around it. The rest of the backyard was taken up by a large pool.
33 Mr Piggott said he was sitting at the table with his back towards the sliding door facing the pool. Mr Browne was standing around the side of the house on the path to the garage door and his son ran out of the house through the sliding door and jumped into the pool. Mr Browne came running and said 'don't let him in the fucking pool' and then recovered his son from the pool. Mr Piggott felt annoyed that he was being blamed for the son jumping in the pool stood up and said 'well there is no point getting up me I didn't know they weren't allowed in the pool, where's your fucking pool fence?'.
34 Mr Piggott said that all of a sudden something hit him to the back of the head. He did not see who hit him. He fell forward and when he tried to get up was hit again and knocked back down to the ground. When he tried to get up again and whilst on his hands and knees he was kicked in the head twice and knocked out.
35 When he came to he was at the front of the house and Mr Nathan Browne was standing near him asking if he was alright. Mr Piggott said he walked down the street and was approached by a Maori who told him to sit down on the grass. A short time later he was picked up by an ambulance and taken to hospital.
36 After the incident he had limited contact with Mr Nathan Browne who did not say much about what occurred. He received two text messages from Mr Browne's phone, one on 22 January 2013 stating 'hope u okay nates' and the other on 23 January 2013 saying 'That was fukn crazy lastnite so sorry man hope ur ok bene'.
37 Mr Piggott provided a further statement dated 11 May 2016 which is broadly consistent with the earlier statement although it adds further detail. Mr Piggott identifies his assailant and says it was Mr Browne who attacked him and knocked him back to the ground after the initial hit from behind and also says that while he was on his hands and knees he was yelling 'Why is this happening'.
38 Mr Piggott provided an affidavit dated 28 January 2017 responding to various matters raised by the Assessor. In the affidavit he said that when he was picked up by the St John Ambulance officers and taken to Royal Perth Hospital he told the officers he had been punched and kicked to the head and all around his body and also told the police officers the same thing. I note that none of the officers refer to such statements being made to them.
39 In the affidavit Mr Piggott also says that shortly after he was assaulted he was interviewed by a female police officer whilst in excruciating pain, shocked and disorientated. He said he was not able to give an account of the incident but told the officer he had been assaulted. He says that due to his condition he was not able to pay attention to what was said to him as his main priority was obtaining treatment for his injuries.
40 Mr Piggott says that when the officer explained that she was trying to help him, he replied that all he wanted to do was get medical attention. He said he was not able to respond coherently to the police officer's questions because he was distressed, disorientated and in pain.
41 He also maintained he told the Royal Perth emergency department hospital staff that he had been assaulted.
42 His recollection was that when he was on his hands and knees on the ground he was kicked mainly on the left side of his body by Mr Browne's right foot. He said he was not sure which blow led to the eye injury because the events happened quickly and traumatically.
43 He said he believed a portion of the pool fence had fallen down or the pool gate was ajar which allowed the child to jump into the swimming pool. He could not recall the exact details because he was inebriated at the time and has cognitive issues affecting his recollection of events due to the serious nature of the injuries he suffered.
44 The portion in Mr Piggott's affidavit where he speculates as to why Mr Nathan Browne gave the account he did is opinion evidence and ignored by me.
45 Mr Piggott also says in the affidavit that as a result of the anxiety, psychological stress, depression and decline in his cognitive function he has difficulties with his memory and is unsure as to which particular blow caused the fracture of his left eye socket.
46 Mr Piggott's written submissions in the appeal say his credibility is bolstered because he is a person of prior good character and has not been charged with a criminal offence and has no recorded criminal outcomes. I reject this submission. In civil proceedings evidence of the good character of a party is only admissible in limited circumstances. Such circumstances do not exist in this case.
47 Mr Piggott's recollection of events, on his own admission, was affected by the amount of alcohol that he consumed and the injuries he had sustained.
48 His evidence relating to the pool fence is unsatisfactory. He said in his initial statement to the police that a male child jumped into the pool and the implication in his question to Mr Browne of 'Where's your fucking pool fence' is that Mr Piggott did not see a pool fence.
49 Mrs Browne's statement discloses that none of the children jumped into the pool after the three males returned to the home and the pool was surrounded by a fence since its construction years before. The documentary evidence from the council and Mrs Browne's evidence confirm that there was always a fence around the pool. I accept her evidence in this regard.
50 Mr Piggott's later evidence, in his affidavit of 28 January 2017, was that he believed a portion of the fence had fallen down or the gate was ajar. When he gave evidence on 6 October 2017 he said he did not have a good recollection of the pool fence as he was not paying particular attention to it.
51 It appears that Mr Piggott now accepts the overwhelming evidence of the existence of the pool fence and rather than admit he did not see it is trying to justify why he did not see it by saying that part of the fence was down or the gate was open. The significance of this evidence is not only that Mr Piggott did not notice the fence but it leads me to find that once he become aware that there was a fence he tailored his evidence to say that he believed the fence was down or the gate was open.
52 Mr Piggott's evidence relating to his behaviour towards the police and ambulance officers on the night shows in my view a reluctance to accept any fault on his behalf. He was not prepared to accept that he was swearing at the paramedics. He said he was not aggressive, mean or abusive to the hospital staff and claimed they had exaggerated, although he conceded he did give 'some words'. He said he was not as rude to the police as they were trying to make out saying they had 'elaborated' but accepted that at one stage he told an officer to 'F off'.
53 At a time when he says he was in excruciating pain, shocked and disorientated and not in 'good shape' Mr Piggott claims he remembers that he was not swearing and being uncooperative as alleged and that the police, ambulance and hospital officers have exaggerated. In my view it shows reluctance by Mr Piggott to accept any conduct that portrays him in an unfavourable light.
54 I accept that at the time the officers spoke to him Mr Piggott was intoxicated, disorientated, in a state of shock and experiencing significant pain. I find he was aggressive and uncooperative to the police, the ambulance officers and later to hospital staff.
55 It is as equally as likely that such behaviour occurred because he was in an aggressive frame of mind on the night in question and therefore behaved in the manner alleged by Mr Browne, as it is that such behaviour occurred because he was intoxicated and had just suffered a serious injury and was angry, in pain, shocked and disorientated. It is intractably neutral and I do not draw an inference from Mr Piggott's behaviour to police and ambulance officers or hospital staff that he was the aggressor in the incident.
56 In his statement to the police of 1 April 2013 Mr Piggott says that after Mr Browne was trying to get his son out of the swimming pool Mr Piggott stood up, there was an exchange of words and all of a sudden he was hit in the back of the head. He did not recall where Mr Browne was standing. Mr Piggott made no mention of Mr Browne taking the child inside.
57 In his statement of 11 May 2016, Mr Piggott refers to Mr Browne starting to move towards the house after he got his son out of the pool and then all of a sudden something hit him in the back of the head.
58 In his evidence on 6 October 2017 Mr Piggott refers to Mr Browne getting his child out of the pool and into the house behind him 'and that is when it happened. He just came back out and bang'. The effect of his evidence was that he had a vague recollection of seeing Mr Browne take the child inside. Mr Piggott said that although he was not watching he saw it peripherally.
59 Mr Piggott's recollection has evolved from making no mention of Mr Browne going into the house, to seeing him move towards the house, then seeing him take the child into the house.
60 In the statement of 1 April 2013 Mr Piggott says he did not see who hit him. In his statement of 11 May 2016 he says he did not see who hit him in the back of the head but says that when he got back up Mr Browne was attacking him and knocked him back to the ground. In the affidavit of 28 January 2017 he said Mr Browne repeatedly punched and kicked him to the head and the body and he was being kicked mainly by Mr Browne's right foot.
61 Mr Piggott's memory has evolved from the point where he did not know who originally attacked him to the point where he can recall Mr Browne performing specific acts.
62 In his statement of injuries suffered and impact of the injuries dated 11 May 2016, Mr Piggott says 'I think I was dragged by the arm out to the front yard and that has caused the shoulder pain'. In the statement of 1 April 2013 he makes no mention of this. It is an example of Mr Piggott restructuring his evidence to support his claim.
63 Mr Piggott's evidence that a child jumped into the pool is not accepted by me. It is contradicted by Mrs Browne, whose evidence I accept, and Mr Browne.
64 Mr Piggott's evolving memory, his reluctance to accept any conduct that portrays him in an unfavourable light and the fact that I find that he had tailored part of his evidence to suit known facts, the inconsistency of his evidence with Mrs Browne's evidence over the existence of the pool fence and whether a child jumped into the pool causes me to doubt the accuracy of his recollection of events. In addition there is a discrepancy between what he says he told ambulance officers, police officers and hospital staff and their record of what they say he said.
Mr Nathan Browne
65 Nathan Browne provided a statement to the police on 27 June 2013.
66 At the time of the incident he was living at his brother's house. He went with his brother to meet Mr Piggott at the Redcliffe Tavern where they stayed for a couple of hours before they went back to his brother's house.
67 Mr Nathan Browne said that he and his brother probably had about five or six beers before they left the pub. He was not sure how much alcohol Mr Piggott consumed.
68 When they arrived at his brother's house they carried on drinking. Mr Piggott and his brother eventually had an arm wrestling competition which was won by Mr Piggott who Mr Nathan Browne described as quite a bit bigger than his brother.
69 Mr Nathan Browne said that after about an hour he went around the corner to relieve himself and heard a scuffle but did not hear any words exchanged. When he returned Mr Piggott was sitting on the ground and his brother was standing over him about a metre or two away.
70 Mr Piggott was bleeding from the left eye and was not saying anything. His brother was walking back slowly. Mr Nathan Browne said he grabbed his brother from behind and started to pull him back saying 'back off'. His brother told him to 'get this fucking idiot out of his house'. That remark does not assist in determining how the incident started.
71 Mr Nathan Browne said he helped Mr Piggott to his feet and walked him to the front door and told him to stay there while he got some ice. When he returned after getting the ice Mr Piggott was about 200 m down the street stumbling and holding his eye. He yelled out to Mr Piggott to come back but Mr Piggott kept walking.
72 Mr Nathan Browne said he later asked his brother about the incident but could not remember the response.
73 A couple of months later he said Mr Piggott called and asked what had happened and he replied that he did not really know. He told Mr Piggott that when he came around the corner Mr Piggott was already on the ground.
74 Mr Nathan Browne said during the next couple of weeks his brother told him he had sore ribs and could not lift anything and said he copped a couple of punches from Mr Piggott on the night. (This is a self-serving statement by Mr Browne.)
75 Officer Lings who spoke to Mr Nathan Browne on the evening in question said Mr Nathan Browne appeared heavily intoxicated and told them he was too drunk and could not recall the incident.
76 The evidence that Mr Nathan Brown grabbed Mr Benjamin Brown from behind and told him to 'back-off' does not assist me in establishing what occurred. The evidence is intractably neutral. Mr Nathan Browne's evidence is that when he came around the corner Mr Piggott was sitting on his bottom and his brother was about a metre or two away walking back slowly. Clearly the incident was already over by that time. Mr Nathan Browne's actions do not lead me to draw any inference as to either what occurred or who instigated the incident. At most it is evidence of who Mr Nathan Browne thought had the upper hand.
77 The evidence that Mr Nathan Brown heard 'a scuffle', taken alone or with other evidence, does not permit any reliable inferences to be drawn as to what occurred.
Mrs Taryn Rebecca Browne
78 Mrs Browne made a statement to the police on 12 August 2013 by which time she had separated from Mr Browne who no longer resided with her and their two children, aged 6 and 5.
79 Mrs Browne said that the residence had a large swimming pool in the backyard and a glass fence fitted at the time the pool was complete. The glass fence had a self-closing gate which stopped children from entering the pool area. None of the children were tall enough to open the pool gate.
80 She said on 22 January she was at home with her two children. The three adult males attended at around about 5.00 pm. She provided some food for them and they ate at the outside table.
81 Whilst she was watching Home and Away, between 7.00 pm and 7.30 pm, she heard a fight in the alfresco area. She did not hear any arguing prior to the fight and had no idea what or who started the fight. She could not see much but could tell it was between her husband and Mr Piggott. She did not want the children to witness the fight so she took them upstairs. When she came downstairs Mr Nathan Browne was trying to help Mr Piggott who had a cut on his left eye. Mr Piggott left the house and she never saw him again.
82 She did not ask either her husband or Mr Nathan Browne what had happened. She said the children did not go into the swimming pool after the adult males came back to her residence from the hotel.
83 Officer Lings spoke to Mrs Browne on the evening in question. He said she was sober and cooperative and told him that when Mr Browne and Mr Piggott became aggressive towards each other she took the children upstairs to the bedroom and said she did not witness the incident. She also told him that Mr Browne and Mr Piggott were both drunk.
84 I accept Ms Browne's evidence. She was sober and cooperative with the police on the night in question. She described both men as aggressive and drunk.
Police Officer Lings
85 Officer Lings was a police constable on 22 January 2013 when he received a call at around about 8.30 pm to assist St John Ambulance with an injured male.
86 In company of Officer Carter he located Mr Piggott lying on a front lawn with a lot of blood on his face and a swollen eye socket. He attempted to speak to Mr Piggott but he would not answer. There was a strong smell of alcohol coming from Mr Piggott's breath.
87 Officer Lings said Mr Piggott provided his name but refused to answer any questions about his injury and refused to answer the questions being asked by the ambulance officer.
88 Officer Lings said that both he and Constable Carter tried numerous times to get an account from Mr Piggott as to what caused his injuries. Mr Piggott replied to the effect 'the Browne brothers did it' and when asked 'Did the Browne brothers assault you?' did not reply.
89 When asked 'where are the Browne brothers, what are their names?' Mr Piggott looked away and made no reply. When Constable Carter asked Mr Piggott if he was assaulted he told her to fuck off.
90 Mr Piggott was advised that if the officers did not have the details of what happened or the names of who assaulted him they could not investigate the assault to which Mr Piggott responded 'just fuck off'.
91 The officers then advised Mr Piggott that if he wished to make a report he could phone the police or attend a local police station at a later date.
92 I accept Officer Lings evidence. He is totally independent.
Mr Benjamin Browne
93 Officers Lings and Carter attended Mr Browne's residence on the night in question and spoke to Mr Browne. Officer Lings said Mr Browne appeared to be intoxicated. After cautioning him they asked what happened.
94 Mr Browne told the officers that they had been drinking at the Redcliffe Tavern and returned to his house at about 7.00 pm and continued drinking. He said Mr Piggott was very drunk and started arguing over past issues, became aggressive and tried to punch him whereupon a scuffle broke out resulting in both men throwing punches at each other.
95 Mr Browne told the officers he was able to dodge most of Mr Piggott's punches but some of his punches connected with Mr Piggott which caused him to stop fighting. He then walked Mr Piggott to the front door and told him he was no longer welcome.
96 On 1 July 2013, Mr Browne participated in an electronic record of interview (ERI) with police officers which lasted approximately 54 minutes.
97 Mr Browne said he had at least two or three beers at the Redcliffe Tavern with Mr Piggott and his brother and nothing aggressive or untoward occurred.
98 Mr Browne said the three males then went back to his house and had dinner and a few more drinks. They consumed a 750 ml bottle of bourbon. He said there had been a fence around the pool since the house was built 4 ½ years ago. At one stage he and Mr Piggott had a friendly arm wrestle which Mr Piggott won and eventually discussions turned to their mutually deceased friend, Josh, and an argument occurred.
99 Mr Browne said he was a 'bit blurry' about the details of the argument, however he claimed Mr Piggott was getting worked up. He said that neither of them was agreeing with what the other said.
100 Mr Browne said the incident occurred very quickly and maintained that he was 5 out of 10 on the mythical sobriety scale.
101 Mr Brown said he was standing behind the bar and Mr Piggott was on the other side and then came around the side of the bar and got closer and closer to him.
102 Mr Browne said he was backed into a corner, which he described as a little alcove, and could not go anywhere. He demonstrated on the ERI that he had both his hands out at about stomach height in a conciliatory 'I surrender gesture' and said Mr Piggott then punched him to the ribs and once to the face. He remained standing and hit Mr Piggott back once or twice. They then wrestled. Mr Piggott kept on coming at him and he punched him in the face, in the eye. Mr Piggott then tried to tackle him and they collided with the alfresco doors, damaging them. Mr Piggott tried to get him around the waist and was holding and tackling him. He was able to get Mr Piggott off but Mr Piggott came again and tried to hit him. Mr Browne said he clipped Mr Piggott with an elbow or 'something' and Mr Piggott went down.
103 He claimed that Mr Piggott come towards him and had a go three or four times before he ultimately went down.
104 Mr Browne said Mr Piggott got to his feet with blood on his eye, face and nose. Mr Nathan Browne then came between them. Mr Browne said he told Mr Piggott to get out and offered to call a taxi or ambulance however Mr Piggott did not want this. As Mr Nathan Browne escorted Mr Piggott to the front door the latter was trying to break through Mr Nathan Browne's restraint. The police arrived a short time later and asked him why the other man was hurt but he did not have a scratch on him. Mr Browne replied that he was a bit quicker, 'I got better punches in. The other man didn't do so well'.
105 During the interview Mr Browne said he was assaulted by Mr Piggott and he defended himself. At one stage he said he feared for his wife and kids and the rest of the people around. He said Mr Piggott kept on coming back at him. He said he responded to Mr Piggott punching him in the ribs. He made a number of gratuitous comments, which I ignore, about Mr Piggott describing him as a 'bit of a warrior' and 'bit of a nutcase' and a 'bit of a psycho' and by nature a person who after a couple of drinks wanted to fight.
106 Mr Browne asked the interviewing officers whether he could lay charges against Mr Piggott. He said he did not take lightly to being beaten up in his own home. He said Mr Piggott was a solid guy, about his height and about 105 kg in weight.
107 Mr Browne told the police that it was six weeks before his ribs reached the stage where he could lift and that his boss knew that he could not work properly for 2 – 3 weeks. Mr Browne said his boss told him his ribs were broken and there was not much that could be done about it.
108 Mr Browne said Mr Piggott's suggestion that one of Mr Browne's children had come out of the house and jumped into the pool and that caused them to have words was a story made up so that Mr Piggott's position sounded better. He said Mr Piggott's claim that he was kicked in the head when he was down was false.
109 I reject Mr Piggott's submission that Mr Browne's credibility is undermined as he is not a person of good character. This is allegedly established by the material (appellant's book of documents page 62) which shows Mr Browne had been charged with criminal offences nine times and had six recorded criminal court outcomes. Firstly, there is no evidence of the nature of the charges other than that they were not traffic matters. Secondly, criminal court outcomes could be convictions, acquittals, discontinuances or adjournments.
110 Mr Browne told the police officers on the night of the incident that he walked Mr Piggott to the front door and told him he was no longer welcome. In the ERI Mr Browne said he told his brother Mr Nathan Browne to get Mr Piggott out of his house. Mr Nathan Browne says that he helped Mr Piggott to his feet and walked him to the front door. Ms Taryn Browne says that 'Nathan was trying to help Duncan out'. Mr Piggott's statement was when he came to he was already out the front of the house and Mr Nathan Browne was standing with him.
111 The preponderance of the evidence shows that it was Mr Nathan Browne and not Mr Browne who assisted Mr Piggott from the residence.
112 I accept the evidence that it was Mr Nathan Browne who assisted Mr Piggott to the front door. This finding reflects adversely on Mr Browne's recollection of the events and causes me to be alert to the dangers that he has tailored his evidence to suit what his brother and wife have said.
113 When he was spoken to on the night in question Constable Lings said that Mr Browne told him that the punches from Mr Piggott missed and he was able to dodge most of the punches. This implies that he did not dodge all of the punches.
114 Mr Nathan Browne says that his brother told him over the next few weeks after the incident that he had sore ribs and copped a couple of punches from Mr Piggott that night.
115 In his ERI Mr Browne told the police that Mr Piggott punched him on the left side of the chest to the ribs and to the head and that he had two broken ribs from the incident. In the ERI he clearly refers to injuries that he did not mention to the officers on the night. Mr Browne sought no medical attention for his injuries. I find he exaggerated the extent of the injuries he suffered. I do not accept his evidence that he feared for his wife and children.
116 These factors illustrate the need to be cautious of Mr Browne's evidence.
Mr Damon Syme
117 Mr Syme did not witness the incident. Police notes indicate that he advised the police at about 7.22 pm that whilst inside his house he heard a disturbance coming from next door so he walked outside and heard two males fighting and heard one of the males shouting, 'I invite you inside my house you drink all my piss and this is how you treat me?'.
118 In my view such a remark is intractably neutral. It is as equally likely to be the remark of an alcohol influenced aggressor refusing to accept responsibility and blaming a victim for making him angry as it is to be from a victim expressing disbelief at the behaviour of a guest and friend who has attacked him.
119 I accept this evidence. Mr Syme is independent. Mr Syme's evidence that he heard males fighting takes the matter nowhere. Such generic descriptions considered alone or with other evidence do not permit any reliable inferences to be drawn as to what occurred.
St John Ambulance Service
120 The St John Ambulance Service patient care record indicates that on 22 January 2013 the St John Ambulance crew arrived at the scene at approximately 7.46 pm and departed at 8.13 pm when they transported Mr Piggott to Royal Perth Hospital.
121 The St John Ambulance Service notes say that when the ambulance officers arrived Mr Piggott was sitting on the lawn vomiting and had evidence of trauma to his face. He told the officer he had been kicked in the face but did not know whether weapons were used. It is also said that he did not know whether he had been knocked out and complained of, inter alia, neck pain.
122 The ambulance officers noticed that Mr Piggott's zygoma felt intact, the mandible region was swollen and there was haematoma and periorbital ecchymosis to the left eye. They noted that Mr Piggott was able to move all limbs equally and there was central cervical neck pain on palpitation.
123 The officer's notes refer to Mr Piggott throwing equipment and say they were unable to fully assess Mr Piggott due to his aggression and swearing. I accept the accuracy of the notes.
Officer McLean
124 Officer McLean's statement does not assist in resolving any of the issues that I have to consider.
Police incident reports, running sheets, CAD reports and various reviews and correspondence
125 I have reviewed the police running sheets, police incident reports, the CAD reports and the various memorandums. They summarise in detail the steps taken by the police in the investigation and provide the police officers' conclusions and opinions. These are of no assistance. I base my decision on my examination of the primary evidence.
126 Ms Boots, a prosecutor with the Director of Public Prosecutions, Acting Inspector Weston and Detective Uzonovic conducted reviews of the police investigation and evidence and the decision not to lay charges. Each reached their own conclusions. This is of no assistance to me. I am required to form my own opinion based on an examination of the material.
127 The Assessor's file also contains correspondence from Mr Nigam's office of 28 January 2015 and 15 April 2015 (x 2), Superintendent Royce's letter of 19 January 2015 and correspondence from Mr Nigam's office to the Crime and Corruption Commission and their reply. These materials are of no assistance to me.
128 There is also correspondence from the Assessor to Mr Nigam's office requesting further information and Mr Nigam's replies of 2 December 2016, 6 December 2016 and 31 January 2017. The material forwarded by the replies being pay slips and information relevant to the extension of time is relevant material and has been considered by me as have the submissions contained within those letters.
129 The police officer's conclusion that Mr Piggott's injury was more consistent with a fist punch to the left eye and not a kick is outside the area of the officer's expertise and ignored by me.
The Assessor's decision
130 The Assessor made a provisional determination on 7 November 2016 and a final decision on 5 April 2017. In my view, it is not appropriate that my decision be influenced by the Assessor's decision. I must independently review the materials and reach my own conclusion.
Dr Hirsch
131 Dr Hirsch's report of 12 June 2014 was based on his reading of the Royal Perth Hospital case file notes. I accept the accuracy of the notes.
132 It is noted that when Mr Piggott was seen in the emergency department on 22 January 2013 there was significant bruising and left sided periorbital haematoma.
133 Radiology revealed a fracture of the orbital floor and lateral and medial walls. Mr Piggott was unable to open his eye fully but had visual acuity and was discharged with appropriate analgesics. I accept Mr Piggot's evidence that he was discharged so that the bruising could subside to permit surgery to occur.
134 When reviewed at the faciomaxillary clinic it was noted that Mr Piggott suffered from diplopia, enophthalmos and hypoglobus on the left eye. He required surgical repair of the left orbital floor which occurred and he was discharged from hospital the day after surgery.
135 Mr Piggott was reviewed on 11 February 2013 and it was noted that he had good movement of the left eyeball, slight diplopia on extreme downward gaze and there was hypoaesthesia in the distribution of the left infra orbital nerve.
136 When seen on 25 March 2013 six weeks after the surgery it was noted he suffered enophthalmos and hypoglobus which had resulted in a visible cosmetic defect that may require corrective surgery.
Royal Perth Hospital Emergency Department notes
137 The medical notes indicate an injury, bruise and contusions to Mr Piggott's head and other areas and note that Mr Piggott suffered a left orbital fracture, was unable to open his eye and suffered a large haematoma. His vision had normal acuity.
138 X rays and CT scans showed that the head lateral wall and medial wall were fractured, the cervical spine showed no prevertebral soft tissue swelling and normal alignment. I accept the accuracy of the notes.
Dr Peter Ricciardo
139 Dr Peter Ricciardo, an oral and maxillofacial surgery registrar, provided a report of 14 January 2014 which stated that the injuries sustained by Mr Piggott were consistent with significant blunt force trauma directed to the left eye.
140 Dr Ricciardo said Mr Piggott sustained a fracture of the left orbital floor (the eye socket) as a result of the alleged assault and suffered from double vision (diplopia), restricted eye movement, enophthalmos and hypoglobus a condition whereby the left eyeball sits lower and deeper within the eye socket as a result of the orbital floor injury.
141 In his opinion the injury to the eye socket was not of such nature as to be likely to endanger life but it was of such a nature as to be likely to cause permanent injury to health in the absence of treatment. The likely permanent injury was diplopia (double vision) and enophthalmos/hypoglobus (altered appearance).
142 Surgery was conducted on 31 January 2013 for repair of the left orbital floor which involved lifting the contents of the orbital floor into position and repairing the bony defect with titanium mesh. Mr Piggott was discharged from hospital on 1 February 2013. I accept the accuracy of this report.
Other evidence
143 Other evidence from Mr Piggott, his employer and additional medical experts is dealt with later in the judgment.
Was Mr Piggott injured as a consequence of the commission of an offence?
144 Mr Piggott bears the onus of establishing on the balance of probability that he was injured as a consequence of the commission of an offence. It is necessary for Mr Piggott to negate the existence of defences reasonably open to Mr Browne.
145 The offence allegedly committed by Mr Browne is unlawfully causing grievous bodily harm.
146 The elements which must be proven are, firstly, that Mr Piggott suffered grievous bodily harm, secondly, that Mr Browne caused that grievous bodily harm and, thirdly, that the grievous bodily harm was unlawfully caused.
147 The injuries sustained by Mr Piggott clearly amount to grievous bodily harm. I accept the evidence of Dr Ricciardo and Dr Hirsch in this regard. Dr Ricciardo's evidence clearly establishes that the orbital floor injury was of such a nature as to be likely to cause permanent injury to health. In the absence of treatment the likely permanent injury would be diplopia (double vision) and enophthalmos/hypoglobus (altered appearance).
148 The disfigurement of a person's face is not considered, by itself, to be an injury to health, thus injuries like scarring, or severing a portion of the ear lobe are not considered in law to amount to a permanent injury to health because a mere cosmetic disability with no consequence upon the function of the body does not involve impairment of health as the word is ordinarily understood: R v Tranby (1991) 52 A Crim R 228.
149 An altered appearance by itself may not constitute grievous bodily harm. Leaving aside whether enophthalmos/hypoglobus amounts to a permanent injury to health, I am satisfied that in the absence of treatment the likely permanent injury to health would be diplopia (double vision) and this clearly constitutes grievous bodily harm.
150 Further, I am satisfied that it is more likely than not that the grievous bodily harm was caused by Mr Browne. The cause of the injury was a striking by Mr Browne to Mr Piggott's face/eye region and I am satisfied this was an act occurring in the exercise of Mr Browne's free will. That is, he meant to strike Mr Piggott.
151 The law relating to self-defence is contained in s 248 of the Criminal Code Act 1913 (WA) (the Criminal Code) and was dealt with in Egitmen v The State of Western Australia [2016] WASCA 214.
152 A harmful act includes an assault.
153 The Code provides that a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).
154 Section 248(4) provides:
A person's harmful act is done in self-defence if -
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
155 In Egitmenthe court referred to the four elements that constitute self-defence (Buss P [76]).
156 In the circumstances of this case they are:
• first, that Mr Browne (subjectively) believed his harmful act was necessary to defend himself from a harmful act, including a harmful act that is not imminent (s 248(4)(a));
• secondly, Mr Browne's harmful act was a reasonable (objective) response by him in the circumstances as he (subjectively) believed them to be (s 248(4)(b));
• thirdly, there are reasonable (objective) grounds for Mr Browne's (subjective) belief that his harmful act was necessary to defend himself from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c));
• fourthly, there are reasonable (objective) grounds for Mr Browne's (subjective) belief as to the circumstances (s 248(4)(b) read with s 248(4)(c)).
157 The legal burden of proving that Mr Browne was not acting in self-defence rests on Mr Piggott. There is an evidentiary burden on Mr Browne.
158 The evidentiary burden is discharged if there is evidence which taken at its highest in favour of Mr Browne could lead the tribunal of fact to consider that it is more likely than not that all of the elements of the defence have not been negated. Questions as to the weight to be given to the evidence and the credibility of the evidence are matters for the court's subsequent assessment.
159 The evidentiary burden can be discharged as a result of any evidence presented to the court. Slender evidence may be sufficient, depending on the facts and circumstances of a case, to discharge the evidentiary burden: Marchesano v The State of Western Australia [2017] WASCA 177[82] – [94].
160 I find that Mr Browne's ERI discharges the evidentiary burden. Taking it at its highest from Mr Browne's point of view the statements made in the ERI could cause the court to consider it more likely than not that self-defence has not been negated.
161 Taking Mr Browne's ERI at its highest it could establish that the grievous bodily harm was inflicted by Mr Browne in the following circumstances.
162 Following a discussion about issues leading to the regrettable suicide of a mutual associate, Mr Piggott moved physically closer to Mr Browne. Mr Browne raised his arms in an 'I give up' gesture, Mr Piggott moved towards him and punched Mr Browne to the ribs and face. Mr Browne then punched Mr Piggott once or twice and the two men wrestled. Mr Piggott kept coming at Mr Browne who punched Mr Piggott in the face/eye region. Mr Piggott tried to tackle Mr Browne and they fell backwards onto the alfresco doors. Mr Piggott tried to get Mr Browne around the waist and was holding and tackling him. Mr Browne was able to get Mr Piggott off but Mr Piggott came again and tried to hit Mr Browne. Mr Browne struck Mr Piggott who went to the ground and the confrontation ended.
163 Taken at its highest for Mr Browne this could amount to self-defence. A court could be satisfied that it was more likely than not that Mr Browne believed that his acts (the use of force) were necessary to defend himself from Mr Piggott's harmful act (assaults) and that his harmful acts (the assaults on Mr Piggott) were a reasonable response in the circumstances as Mr Browne believed them to be. Taken at its highest for Mr Browne a court could be satisfied there were reasonable grounds for Mr Browne to believe that he was under attack from Mr Piggott and the force he used was necessary to defend himself from Mr Piggott.
164 The evidentiary burden being satisfied Mr Piggott must satisfy the court that Mr Browne was not acting in self-defence when he inflicted the injury; that is, Mr Piggott must exclude at least one of self-defence's four elements on the balance of probabilities.
165 The only witnesses to the actual incident were Mr Piggott and Mr Browne. Both had been drinking for several hours before the incident.
166 Mr Piggott's evidence is defective. His recollection of events on his own admission was affected by the alcohol and the injuries he sustained. As detailed previously his evidence in relation to the pool fence is unsatisfactory. I do not accept his evidence in relation to a child jumping into the pool. He was not prepared to accept that he was swearing at the paramedics and maintained that the hospital staff had exaggerated the extent of his behaviour towards them and maintained that he was not rude to the police. I reject this evidence. His behaviour towards the various officers in question is not, in my view, of significance in this case, but it is Mr Piggott's reluctance to accept that he engaged in any conduct that portrays him in an unfavourable light that causes concerns. The manner in which his evidence evolved in relation to seeing Mr Browne take the child inside, in my view, is an example of restructuring the evidence in a manner which suits his case.
167 In addition, Mr Piggott's memory has evolved from the point where he did not know who originally attacked him to the point where he can recall Mr Browne performing specific acts. This and his statement that he thinks he was dragged by the arm out to the front yard are examples of Mr Piggott restructuring the evidence in a manner which suits his case. There are discrepancy between what he says he told the first responders and their record of what they say he said.
168 Similarly Mr Browne's evidence has defects. I find that he exaggerated the extent of the injuries he received. I reject his evidence that he feared for his wife and children's safety. He had been drinking on the night in question. His earlier statement to the police that he walked Mr Piggott to the front door after the incident is demonstratively wrong. It is contradicted by his wife and Mr Nathan Browne's statements. I accept their evidence in this regard. The fact that in later statements Mr Browne's recollection changed leads me to conclude that he is restructuring his evidence so that his version of the evidence fits with what others are saying.
169 Mr Browne refers in his ERI to injuries that he did not mention to the officers on the night. He told the officers on the night in question that most of Mr Piggott's blows missed him and whilst I accept that this implies that some of the blows hit him the whole context of the ERI is that he was under constant attack from Mr Piggott who was physically 'mauling' him.
170 Mr Browne told the interviewing officers that Mr Piggott was trying to break Mr Nathan Browne's restraints and wanted to have a go as Mr Nathan Browne was taking him to the front door. This is contrary to Mr Nathan Browne's statement, which I accept, which describes no such activity by Mr Piggott.
171 Mr Browne says that Mr Nathan Browne got between them. This is contrary to Mr Nathan Browne's statement wherein he says he grabbed his brother from behind.
172 Mr Browne says that Mr Piggott was the type of person who after a few drinks always wanted to fight whereas Mr Nathan Browne says that the incident was a bit out of character for both participants as they had not previously got into any fights.
173 Clearly, there are defects in the evidence of both Mr Browne and Mr Piggott. Mr Piggott has, I find, reconstructed evidence in a manner to advance his case. Mr Browne has, I find, done likewise and he has exaggerated the extent of the injuries he received. Both accounts contain discrepancies and display inadequacies and inconsistencies in certain aspects.
174 Whilst honest witnesses can err about details of events Chief Justice Burt's words in Powell v The Queen (Unreported, CCA SCt of WA, Library No 4004, 2 December 1980), made in a different context, illustrate the difficulties in relation to these type of cases. Sir Francis Burt CJ was referring to assault cases and made this observation:
They are difficult to try because the events are of short duration, they happen as often as not in circumstances where they can't clearly be seen, and it is not easy at the end of the day to say with any degree of certainty just what happened, nor is it easy, nor is it common that one can produce a witness who with any degree of objectivity can tell the court what happened … A state of belief in either set of witnesses is not, under those circumstances, easy to achieve so that in the end these so called simple cases are cases where quite often the trier of the fact will be obliged to say: 'I don't know what happened. My mind is not carried to the persuasion one way or the other.'
175 There is no suggestion that the events in this case could not clearly be seen, however the comments made by Sir Francis Burt illustrate the difficulties that can confront a court. In this case there is the added complication that each of the principal witnesses were affected by alcohol.
176 In circumstances where there are defects with both Mr Browne's and Mr Piggott's version of events and the other evidence, in my view, is intractably neutral, there is nothing to show that one version of events is more inherently likely or unlikely than the other.
177 There is nothing that makes it more likely than not that Mr Piggott's version of events is to be preferred over Mr Browne's. There is nothing innately improbable with respect to Mr Browne's version of events.
178 I am not satisfied that it is more likely than not that the grievous bodily harm was unlawfully caused. Mr Piggott has to satisfy me that the bodily harm was unlawfully caused and all I am able to say is that there was a verbal confrontation then a physical confrontation between the two men resulting in Mr Browne causing grievous bodily harm to Mr Piggott. In light of the intoxication of both men, the fact that both have, in my view, changed aspects of their evidence so that it fits with other evidence, and the defects in their evidence I am not able to say exactly what occurred in the physical confrontation.
179 Mr Piggott submits that if I was satisfied that he suffered grievous bodily harm and that Mr Browne caused the grievous bodily harm but not satisfied on the balance of probabilities that the events unfolded as Mr Browne said Mr Piggott's claim should be successful. In my view, this is not the correct approach.
180 The unlawfulness element of the charge must be proved by Mr Piggott on the balance of probabilities. Mr Browne has to satisfy an evidentiary burden in relation to self-defence and in considering whether the evidentiary burden is established, matters are taken at the most favourable for Mr Browne. If the evidentiary burden is established, the onus remains on Mr Piggott to exclude on the balance of probabilities self-defence.
181 I am satisfied that there was physical conflict between Mr Piggott and Mr Browne, but am not able to ascertain exactly what started the incident and who struck the first blow and what occurred in the incident.
182 I accept Mrs Browne's evidence that both men were drunk and aggressive. The incident occurred quickly. Instant judgments were made. There is not always time for calm detached assessment when under actual attack.
183 I am not satisfied that Mr Browne was not under attack by Mr Piggott.
184 Even accepting that Mr Browne exaggerated the extent of the injuries he received I am not satisfied that it is more likely than not that Mr Browne did not believe it was necessary to do the acts he did to defend himself from Mr Piggott's advances and assault.
185 Mr Piggott has not established objectively that it is more likely than not that what Mr Browne did was not a reasonable response in the circumstances that he believed them to be.
186 It is suggested by Mr Piggott that Mr Browne's response was not a reasonable response because his wife and brother were in close proximity and could have rendered assistance and he could have retreated or called for help. These are factors to be considered but they do not in themselves mean that it was not a reasonable response for Mr Browne to defend himself in the manner he says he did. As a matter of law a person is not required to retreat before they resort to self-defence. A retreat may have been a reasonable response. Mr Browne's response may not have been the only reasonable response but I am not able to say that it is more likely than not that it was not a reasonable response in the circumstances that he believed existed.
187 Mr Piggott also says that the fact that he suffered significantly more injuries than Mr Browne is a matter that should lead me to conclude that Mr Browne was the aggressor.
188 There is no doubt that the injuries sustained by Mr Piggott were far more serious than the injuries sustained by Mr Browne. The police officers did not observe any injuries on Mr Browne on the night, and there is no evidence before me that anyone observed any injuries on him. Mr Browne made no complaint of injuries on the night of the incident. There is no medical evidence to support his claimed injuries. I note that Mr Piggott did not make his complaint until some 10 weeks after the incident and the police did not re-interview Mr Browne until approximately five months after the incident a time when injuries would not be apparent.
189 The central thesis behind the submissions is that the person who sustained significantly more injuries than the other is unlikely to have been the aggressor. The disparity in the injuries between the parties is certainly a factor to consider but a disparity in injuries does not lead to a presumption that the person with the most severe injuries was not the aggressor.
190 The fact that there were disparate injuries is a matter that I have taken into account, but it does not cause me to retreat from my conclusion that each man's version of events of what occurred is equally likely. It is just a fact of life that the person who suffers more severe injuries is more likely to make a complaint, irrespective of whether they were the aggressor or the victim.
191 The disparity in the injuries taken alone or in combination with the other evidence (Mr Browne's failure to retreat, the position he was in when Mr Nathan Browne came onto the scene, Mr Natham Browne's actions in grabbing him, his failure to complain of injuries to police on the night in question, his patently wrong evidence in relation to who assisted Mr Piggott leave the house and the other defects in his statements previously referred to, his efforts to characterise Mr Piggott as aggressive and the lack of independent evidence as to his injuries), does not persuade me that Mr Browne was acting out of uncontrolled aggression rather than in self-defence.
192 Mr Nathan Browne's evidence that when he came upon the scene Mr Piggott was sitting on his bottom and his brother was standing over him must be seen in its context which includes Mr Nathan Browne saying his brother was backing off and was some distance away from Mr Piggott.
193 Mr Piggott has also failed to show that it is more likely than not that there were no objectively reasonable grounds for Mr Benjamin Browne's belief that it was necessary to do the acts that he did to defend himself from Mr Piggott's attack. In circumstances where it is as equally likely that Mr Browne had been assaulted and Mr Piggott continued to advance upon him and tried to tackle him, objectively it cannot be said that Mr Browne did not have reasonable grounds for that belief.
194 Finally, and for the same reasons, Mr Piggott has failed to establish that it is more likely than not that there were no objectively reasonable grounds for Mr Browne to believe that the circumstances (ie, that it was necessary to do what he did to defend himself, and that Mr Piggott was attacking him) were as he believed them to be.
195 I am not satisfied on the balance of probabilities that Mr Browne committed the criminal offence of unlawfully causing grievous bodily harm to Mr Piggott and I would dismiss this application.
Was Mr Piggott engaged in criminal conduct? (s 39(1))
196 Section 39(1) provides that if a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, a compensation award cannot be made in favour of the person.
197 In Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29, the court of appeal found this section did not require a causal connection between the offence committed by the complainant and the offence which gave rise to that person's injuries. Only a temporal relationship was required and whether such a relationship existed was to be determined after considering all the facts and circumstances of the case.
198 Their Honours approved her Honour Judge Yeats' decision of Re Richardson [2009] WADC 93 where her Honour stated, inter alia, that 'generally if the applicant's injuries and the applicant's offence are part of the one incident that would be sufficient to show a temporal connection'.
199 His Honour, Chief Justice Martin specifically referred to the example of a claimant seeking compensation for an injury suffered during an assault which was the retaliatory response from an assault which the claimant initiated, but the retaliation went beyond self-defence, stating that 'it was clear from the language used in s 39 of the Act … that it was intended that compensation would not be available in [that] example' [32].
200 In that case the applicant had been indecently assaulted and sexually penetrated without her consent. On the afternoon that those events occurred, she had been using methylamphetamine with the offender. The court found that her conduct in committing the offence of using methylamphetamine was a disentitling offence because there was a temporal connection in fact and degree between that offence and the sexual assaults that occurred.
201 Even if I be in error in my earlier conclusion I could not be satisfied on the balance of probabilities that Mr Browne's assault on Mr Piggott was not merely retaliation which went beyond self-defence in response to Mr Piggott's assault upon him. Clearly there is a temporal connection as it is all part of the one incident. In those circumstances, s 39 would preclude an award of compensation in favour of Mr Piggott.Did Mr Piggott's behaviour contribute to his injury? (s 41)
202 Section 41 provides:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor —
(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b) may, if he or she thinks it is just to do so —
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.
204 I am not satisfied it is more likely than not that Mr Browne was not acting in self-defence nor satisfied that it is more likely than not that his acts were not retaliation which went beyond self-defence in response to Mr Piggott's assault and therefore the application ought be dismissed.
205 In those circumstances it is unnecessary for me to deal with s 41.
Did Mr Piggott fail to assist investigators? (s 38)
206 In view of my earlier findings it is not necessary for me to answer this question however for the sake of completeness I shall.
207 Section 38 of the Act provides, inter alia:
No award if applicant did not assist investigators
An assessor must not make a compensation award in favour of a victim ... if the assessor is of the opinion that 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.
208 The question to be asked is what could reasonably be expected of Mr Piggott: Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240 [15]. The aim of this section is to ensure that authorities are not prevented from investigating the factual circumstances of an alleged offence.
209 In this case the police were promptly on the scene having been called, it appears, by a neighbour. They questioned Mr Piggott who, on any version of the events, was uncooperative. They also spoke to Mr Browne. Mr Piggott at the time provided only minimal information and did not make a formal complaint. He lodged a formal complaint on 1 April 2013 approximately 10 weeks after the incident.
210 It is suggested that the failure to lodge a formal complaint until 10 weeks later affected the police investigation by depriving the police of any opportunity to forensically examine the scene. Realistically an examination of the scene would provide very little forensic evidence. Ultimately, this incident had two witnesses, Mr Piggott and Mr Browne. I find that initially Mr Piggott was uncooperative and verbally abusive toward the police at a time when he was intoxicated, in a state of shock, disorientated and suffering pain as a result of the injuries he had sustained.
211 There is no doubt that Mr Piggott had been drinking. There is no doubt that he had been assaulted and suffered a significant injury. His failure to cooperate with the police must be considered in light of the injuries he had received.
212 Whilst I accept that there is a long delay of some 10 weeks before the matter was formally reported to the police, during that period of time Mr Piggott was hospitalised, discharged, re-admitted to hospital, underwent surgery and discharged from hospital again. He returned to work about six weeks after the incident but was working in a relatively remote location (Cape Preston) and had to travel some distance to Karratha police station to report the incident. Mr Piggott's evidence at the appeal was that several people advised him to report the incident.
213 I find that in the interval from the incident occurring through to his discharge from hospital, it was not reasonable to expect that Mr Piggott would report the matter.
214 In so far as the interval from his discharge from hospital to making the complaint the obligation on Mr Piggott must be understood in the context of his subjective circumstances. The question is whether in his subjective circumstances he did not do an act which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the alleged offender.
215 Mr Piggott's evidence at the appeal was that he did not report the matter because he was frightened of Mr Browne. He agreed that since the incident he had not seen Mr Browne nor contacted him and had not received any threats from him. He agreed that the two text messages he received from Mr Browne were not threatening. He maintained however that he was frightened of 'lighting a fire' by reporting the matter and was scared it could happen again. Whilst this may be Mr Piggott's subjective belief it is in my view an unreasonable belief. There is nothing to show that since the incident Mr Browne has threatened or poses a threat to Mr Piggott.
216 However after considering all of the evidence I am of the view that Mr Piggott did not inhibit the police investigation. I accept that he delayed the police investigation but I find that it cannot be said that he did something that prejudiced the identification, apprehension or prosecution of the offender by authorities. It has been suggested that if it was reported earlier the police could have investigated whether Mr Browne received bruising or other injuries in the incident. The reality is police spoke to him that night and made no note of observing any injuries.
217 Even when Mr Piggott reported the matter the file was not forwarded to Kensington Police until 14 June 2013 and Mr Browne participated in an electronic record of interview on 1 July 2013. The delay in reporting the matter did not, in my view, materially prejudice the investigation or materially alter the way it was conducted. The long delay between the report and the file being forwarded to Perth is not attributable in any way to Mr Piggott.
218 Section 38 must be assessed carefully with a great deal of scrutiny before it acts as 'guillotine' on a claim: Hinchcliffe v Hinchcliffe [2010] WADC 78 (Stevenson DCJ).
219 I would not find that s 38 operates to prevent an award of compensation being made to Mr Piggott.
The quantum of compensation
220 If I be in error in my earlier conclusions and Mr Piggott was entitled to compensation I would have awarded compensation of $48,948.90 and allowed the additional sum of $2,410 as provision for future medical expenses pursuant to s 48 of the Act.
221 I find that as a result of the incident Mr Piggott has suffered significant injuries. Mr Piggott said he lost vision to his left eye and has no feeling around his left cheekbone and eye socket. Immediately after the assault he was taken to hospital but due to the swelling he was discharged and told to come back in about a week.
222 Initially he could not see out of his left eye for four days and had blood draining out of his sinuses for over a week. He described the pain as being incredible. Mr Piggott re-attended the hospital on 29 January 2013 and underwent surgery two days later on 31 January 2013. The surgery involved repairing the orbital floor of his left eye with a permanent titanium fixture.
223 Mr Piggott normally resides in New South Wales and was not allowed to fly for four weeks after the surgery and resided with his employer in Western Australia for four weeks. Mr Piggott said during this time he was away from his family, unable to work, sad, depressed and angry about what had occurred.
224 When he was able to return to work there were many days when he found it difficult to focus. He said he suffered many sleepless nights.
225 Mr Piggott said his eye still sat lower and further back than previously, the effect being that whenever he looked down or tilted his head backwards he suffered vision problems.
226 His evidence at the appeal was that his eye became tired whenever he watched TV, explaining that if he tilted his head back whilst watching TV or descending a ladder he suffered blurred and double vision and it took some time to focus. Whilst at work if his welding helmet fell slightly down he had to readjust it otherwise he could not see what he is doing.
227 In addition he suffered nerve damage in that his face from his left front teeth across his cheek bone and up to his eyelid is numb and feels 'tired' and he is required to take anti-inflammatory medication due to the nerve pain. As at 6 October 2017 when he gave evidence at the appeal Mr Piggott was still suffering from numbness to his face and teeth. I accept Mr Piggott's evidence on these matters. It is corroborated by the medical evidence
228 Mr Piggott attended the Byford Medical Centre in relation to his sore shoulders. He said he thought he was dragged by the arm out to the front yard and that had caused his shoulder pain. He said he did not suffer shoulder pain before the incident. He said he was required to undergo cortisone injections in his neck to help with this pain and has been receiving regular treatment from a chiropractor for the shoulder and neck pain. His evidence was that this treatment was required because of degeneration and a bulged disc. The chiropractic treatment occurred approximately once every three weeks costing him $50 - $100 per visit depending on the length of the visit. He also said he finds it difficult to ride his mountain bike due to the pain in his neck and left arm.
229 Mr Piggott said he was still suffering anger and anxiety and sleeplessness. He said that in social settings he felt uncomfortable, lacked confidence had become socially withdrawn, and was generally more cautious around people and felt 'down about life'.
230 Dr Anastas' report of 29 November 2016 describes Mr Piggott as suffering severe soft tissue injury and a left periorbital fracture including to the left orbital floor which required surgical intervention. Whilst noting that surgical intervention was remarkably good, Dr Anastas noted a restriction of the infraduction of the left globe which resulted in vertical bionocular diplopia when looking down, a left infraorbital nerve injury and persisting facial asymmetry through the left globe (enophthalmus-hypoglobus).
231 I find that Mr Piggott has a permanent disability in that he suffers from double vision (diplopia) which impacts his work inter alia as a welder in particular when using a welding mask in that he has to compensate in terms of his head and body position to enable his eyes to focus. Similarly, aspects of his daily life for example watching TV while reclining require him to adjust his head and body positioning to obtain appropriate vision.
232 I also accept that he has an impaired sensation to his mid-face area over his lips and his left upper teeth and suffers left globe enophthalmus-hypoglobus.
233 I accept Dr Anastas' evidence that Mr Browne suffered a total whole of person impairment of 13%. This was based on a 30% impairment of left eye vision which corresponds to a visual impairment for both eyes of 8%. This, according to Dr Anastas equates to a whole of person impairment of 8%. Dr Anastas made an additional 5% allowance for the permanent deformity of the orbit, the scars and the other cosmetic deformities which do not otherwise alter ocular function and this resulted in a total whole of person impairment of 13%.
234 Dr Jenkins, a chiropractor, provided a report of 4 May 2016 indicating that Mr Piggott required regular chiropractic care for pain relief and improved movement of function. Dr Jenkins referred to Mr Piggott suffering acute neck and shoulder pain and presenting with sharp pain and numbness and reduced strength in the left shoulder a condition which has progressively worsened over the last two years. Dr Jenkins' opinion was that localised spinal degeneration is often instigated after a traumatic incident and it is possible the assault 'may of' contributed to that condition. Dr Jenkins put it no higher than that. I am not satisfied by the medical evidence that on the balance of probabilities the neck and shoulder pain is related to the incident. I am not satisfied on the balance of probabilities that the incident was a cause of the neck or shoulder injury or contributed in any way to an exacerbation of the degenerative condition.
235 I accept Ms Coxon's evidence that Mr Piggott suffers from post-traumatic stress disorder of a severe degree. This includes mild anxiety, moderately high stress and mild depressive symptoms. Ms Coxon describes the post-traumatic stress disorder as chronic in light of the symptoms existing for some three and a half years.
236 Ms Coxon reported that Mr Piggott suffered from short-term memory deficits, notwithstanding that he has an average to above average skills in other cognitive domains, and had a decline in cognitive functioning as a result of the head trauma based on her estimate of his pre-assault cognitive functioning compared to his current functioning.
237 Ms Coxon said Mr Piggott required at least six months' psychological treatment with a clinical psychologist costing $2,410. At this stage Mr Piggott has not received any psychological or psychiatric counselling. Mr Piggott's evidence was that he was waiting the outcome of this application and if he received compensation he would follow up with psychological treatment. Section 6(2)(b) of the Act includes expenses that are likely to be reasonably incurred for future treatment needed as a direct consequence of the injury. Section 48 of the Act imposes conditions on the payment for future treatment expenses.
238 I accept that Mr Piggott's injuries have an ongoing effect on both his work and social activities.
239 If I was to allow the application I would award $30,000 for general damages and $2,410 as a provision for future medical expenses within s 6(2)(b) of the Act.
240 I accept the evidence from Mr Piggott's employer, S&K Mine Services. That evidence establishes that Mr Piggott was employed on a full-time casual basis in a fly-in, fly-out capacity earning $70 per hour and was due to return to work on 23 January 2013 and would have completed his rostered shift on 26 February 2013 (35 days, or 420 hours).
241 As a result of the incident, hospitalisation and surgery he was unable to return to work and missed that rostered shift. His employer was able to offer some light duty work at the workshop for part of that period. On his normal rostered shift Mr Piggott could have earned $18,522 (net) but in fact earned only $11,201.40 (net), a net loss of $7,320.60.
242 I also find that for the period from 4 March 2013 to 8 April 2013 Mr Piggott could have earned $18,522 net but earned only $12,171.60, a net loss of $6350.40 making a total net loss of $13,671. This was because Mr Piggott was unable to work his normal rostered shifts as he was required to attend post-operative treatment at Royal Perth Hospital on 25 March 2013. I accept the evidence from his employer and from RPH Oral, Maxillofacial and Dental Surgery Outpatient Clinic (email of 13 October 2017) in this regard.
243 Mr Piggott also claims a sum of $1,208 in relation to board paid to his employer while he was living with his employer in circumstances where, but for the incident, he would have been at a mine site in accommodation free of any cost to himself. I would have allowed this amount of $1,208 making a total economic loss of $14,880 (rounded up).
244 I also allow the sum of $2,561.90 being Ms Coxon's report fee and Dr Anastas' report fee of $1,507 a total of $4,068.90. For reasons previously expressed I would not allow Dr Jenkins' report of $180.
245 Therefore, if I was to award compensation, I would have awarded the sum of:
General damages $30,000.00
Economic loss $14,880.00
Past report fees $4,068.90
$48,948.90
247 For the reasons contained herein I dismiss the application.
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