Re Sullivan - [2017] WADC 17

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SULLIVAN [2017] WADC 17

CORAM: EATON DCJ

HEARD: 26 OCTOBER 2016

DELIVERED : 9 FEBRUARY 2017

FILE NO/S: APP 22 of 2016

BETWEEN: TODD ANDREW SULLIVAN
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :MS H PORTER
File No  :CI 1266 of 2009

Catchwords:

Appeals - Criminal injuries compensation - Alleged offence - Assistance in the identification, apprehension or prosecution of the alleged offender - Whether the applicant did what he reasonably ought to have done in that regard

Legislation:

Criminal Injuries Compensation Act 2003
High Court Rules 1952

Result:

Application for an extension of time granted
Appeal dismissed

Representation:

Counsel:

Appellant: Mr S Blyth
Amicus Curiae : Mr A Mason appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Lewis Blyth & Hooper
Amicus Curiae : State Solicitor for Western Australia

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

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gleeson v Lee (1996) 18 SR (WA) 353
Pargovski [2015] WACIC 19
Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240
Sullivan [2016] WASCIC 4

EATON DCJ: By an application dated 24 November 2004 Todd Andrew Sullivan (the appellant) made application for compensation pursuant to the Criminal Injuries Compensation Act 2003. His application was accompanied by a letter from his solicitors, Lewis Blyth & Hooper, of the same date, explaining why the application form was 'necessarily incomplete' and that it was being filed in that form to avoid the expiry of the appellant's right to make claim.
The appellant's application referred to an incident on 29 November 2001 at Girrawheen. By way of explanation, the covering letter from his solicitors informed that he had, on that day, attended a house in Girrawheen to pick up an acquaintance. That person was not present. There was, at the house, a man, known to the appellant only as 'George'. That man attacked him with an iron bar, striking him repeatedly on the head, torso, knees and arms. The appellant, in consequence, suffered two severely broken arms as well as injuries to his head and legs. The covering letter explained that the matter was 'later reported' to police at Warwick police station.
Ms H Porter, Chief Assessor of Criminal Injuries Compensation (the assessor), conducted a hearing of the application on 10 February 2011.
On 4 March 2016 she refused the appellant's application, giving written reasons for doing so (Sullivan [2016] WASCIC 4).
By notice of appeal filed in this court on 29 March 2016 the appellant appeals the assessor's decision on two grounds being:
1.the learned assessor erred in fact and in law, in determining that the appellant had not done all that was reasonably required of him to assist in the identification, apprehension and prosecution of the alleged offender pursuant to s 38 of the Criminal Injuries Compensation Act;
2.the learned assessor failed to find and ought to have found on the evidence presented that the appellant was entitled to a compensation award at the maximum of $75,000.
On 3 May 2016 Principal Registrar Melville, in chambers, made an order that the Chief Executive Officer of the Department of the Attorney General have leave to appear as amicus curiae and certain programming orders, including that the application for leave to appeal out of time be heard at the same time as the appeal or at such time as the court allows. Further, he directed that the court issue a notice to produce to the Director of Public Prosecutions and Royal Perth Hospital, that the chief executive officer prepare and file those notices, lodge them at the court and serve them, once signed. He gave leave to the appellant and the chief executive officer to inspect any documents produced to the court in response to the notices.
On 8 August 2016 the Principal Registrar made a further order for the issue of a notice to produce directed to the Commissioner of Police. He gave leave to the appellant and the chief executive officer to inspect any documents produced to the court in response to the notice.
In due course documents were produced by Royal Perth Hospital, the Commissioner of Police and the Director of Public Prosecutions.
The appeal was heard by me on 26 October 2016. I reserved my decision.
Section 55 of the Criminal Injuries Compensation Act provides that an interested person may appeal to this court against an assessor's decision to refuse to make a compensation order. Such an appeal is to be commenced within 21 days from the date of the decision and must be conducted in accordance with the rules of this court. The section further provides that if it is just to do so, this court may allow an appeal to be commenced after the expiry of 21 days and may do so even if the period has expired.
Section 56 of the Criminal Injuries Compensation Act obliges me to decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in possession of the assessor. I may, however, receive further information and evidence. I may, in that reconsideration of the application confirm, vary or reverse the assessor's decision, either in whole or in part.
Quite obviously, the applicant is an interested person. As to additional evidence or information, there is no requirement for the existence of special grounds or exceptional circumstances. I may admit additional evidence or receive additional information and should do so unless there is some reason why it would be unjust to do so.
In her reasons for decision the assessor said [67]:
I am satisfied the applicant did not do everything reasonably required of him to assist in the identification, apprehension or prosecution of the alleged offender and I therefore refuse his application for compensation.
It is clear, from that statement, that the basis of the assessor's refusal was the obligation cast upon her by s 38 of the Criminal Injuries Compensation Act which provides:
An assessor must not make a compensation award in favour of the victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative 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.

The application for an extension of time within which to appeal

As mentioned, the appeal notice was filed on 29 March 2016. The decision appealed from was made on 4 March 2016. It follows that the appeal notice should have been filed not later than 25 March 2016. There was a delay of four days. The appellant seeks an extension of time.
In Gleeson v Lee (1996) 18 SR(WA) 353 Chief Judge Hammond said that an application for an extension of time in which to appeal a decision of an assessor should be determined according to four considerations. They are:
(a)the length of the delay;
(b)the reasons for the delay;
(c)whether there is an arguable case; and
(d)the extent of any prejudice to the respondent.
In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 McHugh J considered whether an application for an extension of time in which to file a notice of appeal ought to be granted (at 480). The applicant relied upon a rule (O 60 r 6) in the High Court Rules 1952 (Rules of the High Court) which provided that the court may enlarge the time appointed by the rules for doing an act upon such terms, if any, as the justice of the case may require. He said that the object of the rule was to ensure that rules which fixed times for doing acts did not become instruments of injustice. He added that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.
With reference to the specific rule relied upon; McHugh J said that the discretion to extend time can only be exercised in favour of an applicant upon proof that strict compliance with the time limit will work an injustice upon the applicant having regard to:
(a)the history of the proceedings;
(b)the conduct of the parties;
(c)the nature of the litigation;
(d)the consequences for the parties of grant or refusal of the application for an extension of time;
(e)the prospects of the appellant succeeding; and
(f)the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.
In the matter before me there is no respondent with a vested right to retain a judgment, the only judgment being that of the assessor to refuse the appellant's application.
The nature of the litigation is an application for compensation and the consequence for the appellant of a refusal of his application for an extension of time would be to effectively deny him his right of appeal from the refusal of his application for compensation.
The delay is only a matter of a few days.
I am in receipt of the following as to the appellant's application for an extension of time within which to appeal:
1.an affidavit of Steven John Blyth sworn 2 December 2016;
2.the appellant's written submissions dated 2 December 2016; and
3.written submissions and a list of authorities from the CEO of the Department of the Attorney General dated 2 December 2016.
Having considered all of the pertinent factors, including, in particular, the explanation for the delay provided by Mr Blyth, the length of the delay and the consequence for the appellant of a refusal of the application, I am of the view that I should grant an extension of time. I extend the time for the filing of a Notice of Appeal in this matter by one week.

Further evidence and information

As mentioned, notices to produce were served upon Royal Perth Hospital, the Director of Public Prosecutions and the Commissioner of Police. All responded, producing documents to the court. I propose, in the exercise of my discretion, to receive that further information. There is certainly no reason why it would be unjust to do so.

The incident giving rise to the appellant's application

Among the many documents produced by Royal Perth Hospital is a triage nursing assessment indicating that on 29 November 2001 the appellant arrived by private transfer at that hospital at 9.23 pm. The triage nurse recorded:
INJURY – MULTIPLE INJURIES – ARMS. HIT TO BILAT ARMS, BACK AND HEAD WITH STEAL BASEBALL BAT AT LOC? DURATION GCS 15 DEFORMITIES TO BOTH ARMS LAC TO R) ELBOW R) ARM SWOLLEN AND TIGHT NVO INTACT.
The handwritten notes on the triage nursing assessment at 9.50 pm describe the appellant as a young man apparently having been assaulted at 5.00 pm that day.
A letter of 6 December 2004 addressed 'to whom it may concern' and apparently written at the request of the appellant by a Dr Kosterich at Royal Perth Hospital informs:
This man presented to Royal Perth Hospital on 29 November 2001. The history recorded in his case file is that he had been allegedly assaulted. He stated that he had been struck on the arms. On examination, there was a 2 centimetre laceration on the right forearm. There was grazing at the left knee. There was a bruise at the right knee. There was swelling at the left proximal forearm. X‑rays were taken which showed fractures of the right olecranon at the elbow and fracture of the left ulnar shaft. He was admitted into hospital and taken to theatre for open reduction and internal fixation of both fractures. Post‑operatively, he was treated with antibiotics and analgesia. He was able to be discharged on 4 December 2001. He was to have been seen in the outpatient clinic on 13 December 2001. He did not attend this clinic until 3 October 2002. At this time, X‑rays showed the factures to be united. His name was placed on the waiting list for removal of metal. He was admitted to hospital on 2 August 2004 to undergo removal of plate from the ulna bone. This was an uncomplicated procedure and he was discharged home the same day.
On 21 May 2008 the appellant signed a type‑written statement in which he said that on 29 November 2001 he went to an address in Girrawheen to collect a friend. Someone drove him to that address. The driver stayed in the vehicle while the appellant went to the house and knocked on the front door. It was answered by a man he had never met before. He recalls having, in the past, seen him and perhaps exchanged 'one or two words' with him.
The appellant told the man that he was at the house to pick up his friend known to him as 'Damien'. The man invited him into the house. He entered. There was a female inside. The appellant went to the kitchen and was told by the man to sit at the kitchen table. Before he did so he felt the pain of a blow to the back of his head. The blow pushed him forward. He stood up and attempted to run to the front door. The man came towards him with a metal bar in hand. The appellant described it as 'a metre and a bit long and about 3 inches thick of solid steel'. In addition, he said, he noticed a pistol on the kitchen table.
As he tried to reach the front door the man struck him several times with the metal bar. There were blows to his arms, face, the back of his head and legs. He estimated that there were 'at least 12 full‑blooded blows and perhaps half a dozen less blows'. They caused him to fall to the floor. He said that the man began hitting him on his knees and demanding the PIN to his key card. He responded by providing a false PIN. He eventually lost consciousness.
The appellant added that, when he stood up from the table after the first blow, he noticed that there were others in the house besides the man and the female. He did not recognise anyone. He said:
That was the reason why I started heading for the front door as opposed to fighting back, because I knew I had no chance with all these other people there as well.
He regained consciousness to find 'a couple of the other guys who had been out the back slapping me across the face trying to bring me around'. His necklaces, bracelets, rings and wallet were gone. He was lying on a piece of cardboard. His legs were numb and he was unable to stand.
The man who had driven him to the house was waiting outside in the vehicle. The man who had wielded the metal bar called the driver into the house. Once inside, he was threatened and told not to tell the police. While that was happening another of the males in the house was holding a firearm to the appellant's side 'so that I would not say anything or scream to bring attention to myself'. He was, at the time, still lying on the cardboard. Being unable to walk, some of those at the house dragged him outside, still on the cardboard and put him into the vehicle.
The driver, the appellant and several people from the house, including the man who had been wielding the metal bar, got into the vehicle. It was driven to the home of a man the appellant described as 'Con'. Once there, one of the men went to Con's house and returned with him to the vehicle. The appellant, still in the vehicle, asked Con for '$500 or $1,000'. Con only had $100 which he gave to a man in the front seat who, said the appellant, was probably the man who had wielded the metal bar. The group then returned in the vehicle to the house in Girrawheen. The appellant again lost consciousness on the return journey.
He regained consciousness when water was splashed in his face inside the Girrawheen house. He described the man who had hit him with the metal bar as 'pacing up and down his backyard extremely agitated'. The appellant said that he was trying to speak to the female, whose name was Heather. Every time he tried to do so the man who had hit him with the metal bar came to him and hit again with the bar 'to keep me quiet'. He said:
Thus I recollect that when I returned to the Girrawheen house after Con had given $100 I was struck by George a further six – eight times with the either a metal bar or a metal baseball bat.
The appellant said that the person who had driven him to the Girrawheen house was still in the vehicle, waiting, while he was inside trying to talk to Heather. He says that he was:
begging the driver just to drive me away from the house, saying that they were going to kill me. I offered to give him $1,000 or $10,000 or whatever he wanted to just drive me away because I thought they were going to kill me, but he did not want to incur George's wrath and so he simply refused and stayed there.
It is not clear how the appellant got from the vehicle, it having been driven from Con's place to the Girrawheen house, inside the Girrawheen house and then back into the vehicle but he did say:
As I was sitting in the car drifting in and out of consciousness, I then noticed that my right arm had been broken. Basically it was facing around the wrong way. Also my left arm had been broken and I could in fact see the bone sticking out of the skin – my right arm was in pain but I had not noticed anything else because I had been hit so much and was so out of it at that time.
In addition a couple of teeth had been knocked out. In particular two teeth had been knocked out and subsequently a further damaged tooth was removed by a dentist in Temple Street, Victoria Park about 2 1/2 years after the assault. In total about 12 teeth were either lost or damaged. Specifically and as a result of the assault I lost and have yet to replace about four teeth.
The appellant says that he again lost consciousness. It is not clear whether that occurred at the Girrawheen house or in the vehicle. His recollection is that he regained consciousness at the Emergency Department of Royal Perth Hospital. He was, he said, still in the vehicle.
He said:
The driver who had driven me to the house and had been driving the whole time had driven me to the hospital. I only met the driver that night at a Caltex Service Station and had offered him $20 fuel money to take me to Girrawheen. I have not seen him since the assault and do not recall his name nor do I know where he lives. He was in the car by himself. I think the car was a Ford Falcon – it was white and sort of square shaped. I got taken to the hospital and the driver left. I have never spoken to him or seen him again.
It seems that, at the time of the assault, the appellant did not know the name of his assailant or any other person in the house apart from the female he named as Heather.
He said two or three weeks after being discharged from hospital he was at the home of a friend by the name of David McPherson. While there, the man who had wielded the metal bar and assaulted him, 'burst through the door wielding what appeared to be the same metal bar that he had used on me previously'. That man left the house. The appellant said that he has had no further contact with him.
Subsequent to the incident at David McPherson's house, police from Warwick police station had spoken to the appellant about another matter. At that station he met Detective Robert Corden who, noticing his injuries, asked him what had happened. He says that he told the detective about the assault. Having done so, he said:
They brought up on their computer a picture of a guy whose name is apparently George and who I recognised from the photo. I confirmed that this was him. The police said:
'Don't worry about having him charged, it won't be in your best interests because of repercussions they might incur – don't worry we will get him locked up'.
Those words he attributed to Detective Corden. He said that as a result of that advice he 'never laid any charges'.
My understanding is that the appellant only became aware of the name 'George' upon identifying his assailant from a photograph shown to him at the Warwick police station by police officers. To that point, he did not know the name of his assailant. Nor did he know the name of any of the persons at the Girrawheen house, other than Heather, or the driver of the vehicle that took him to that house, then to Con's place and back to the Girrawheen house and finally to Royal Perth Hospital.

Of the persons he came into contact with on or about the time of the assault he has mentioned only Con and Heather by first name.
It is readily apparent from the foregoing that, upon his discharge from Royal Perth Hospital on 4 December 2001, the appellant made no effort to report the attack upon him.
No person has ever been charged or convicted of any offence in consequence of the injuries suffered by the appellant on 29 November 2001. He is, of course, not precluded from making an application for compensation. Section 17 of the Criminal Injuries Compensation Act applies if an alleged offence is committed but no person is charged with the alleged offence. A person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss also suffered. The Criminal Injuries Compensation Act defines 'alleged offence' to mean a crime, misdemeanour or simple offence of which no person has been convicted. The term 'offence' means an alleged offence or a proved offence.
It is apparent that the appellant alleges an offence committed in the form of an assault upon him by the man wielding the metal bar at the house in Girrawheen.
It follows that the Criminal Injuries Compensation Act enables the appellant to make application, which he did, but obliges the assessor not to make a compensation award in consequence of his application unless satisfied that the claimed injury and loss occurred and did so as a consequence of the commission of the alleged offence. Further, by s 38, an assessor must not make an award if he or she is of the opinion that the victim, in this case the appellant, did not do any act or thing which he ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. The latter is the man wielding the metal bar.
Although not stated as a finding, I infer that the assessor was satisfied that the claimed injury and loss occurred and did so as a consequence of the commission of the alleged offence.
By s 41 of the Act, in deciding whether or not to make a compensation award, an assessor is obliged to have regard to any behaviour, condition, attitude or disposition of the victim that contributed, directly or indirectly, to the victim's injury. The assessor may refuse to make a compensation award because of such contribution or may reduce the amount awarded by that reason.
In that regard, in her findings, the assessor said (at [61]):
On balance, although I am suspicious that the reasons for the assault very likely arose from the applicant's activities with respect to illegal drugs, I could not make a finding that this was the case. Had the applicant been eligible for compensation, and noting that I did not have to decide this issue as the application was resolved on another basis, it would in my opinion had been difficult to be satisfied pursuant to s 41 of the Act, that behaviour, etc, of the applicant had 'contributed, directly or indirectly' to the applicant's injuries.
The assessor then turned her mind to the issue of whether the appellant had done what he ought to have reasonably done to assist in the identification, apprehension or prosecution of the person who committed the offence or offences.
In written submissions provided by the State Solicitor as amicus curiae, the substance of the appeal is distilled, helpfully, to whether the appellant is entitled to compensation under s 38 of the Criminal Injuries Compensation Act and, if so, as to the amount to be awarded.
Section 38 focuses on what the appellant ought reasonably to have done to assist in the identification, apprehension or prosecution of the man wielding the metal bar. The test is an objective one, the relevant question being what was objectively reasonable in all the circumstances. In deciding that issue I should focus on what could reasonably be expected of the appellant in all of the circumstances (see Prideaux v Chief Executive Officer [2000] WADC 143; (2000) 24 SR (WA) 240, 242 ‑ 244).
The application made by the appellant on 24 November 2004 under the heading 'incident details' gave the date of the incident as being 29 November 2001 and the place of the incident as being 'residential property in Girrawheen'. He named himself as the victim. No other information was provided.
In a covering letter of 24 November 2004 his solicitors informed the assessor:
Our client later reported the incident to the police, via a policeman named 'Mr Corden' at Warwick Police Station (although our client was initially approached by Mr Corden for an unrelated purpose). Mr Corden correctly identified George from the police files and said to our client words to the effect, 'don't make a complaint, because there will be severe repercussions for you [from George]. Don't worry we are going to lock him up anyway' (implicitly for another crime of which the police were aware).
It was because of fear of repercussions, strengthened by the comments of Mr Corden, that our client has not made an official complaint to the police. We therefore note that, despite not making an official complaint (as indicated by questions 10 and 12 ‑ 16 of the Criminal Injuries Compensation application form), our client did in fact inform the police of the incident, but was advised not to proceed with a complaint.
By letter of 8 December 2004 the assessor wrote to the appellant's solicitors acknowledging receipt of the application on 24 November 2004. The assessor returned the application on the basis that it was incomplete with a request that it be resubmitted with all questions answered.
In particular, the assessor said:
In your submissions, I note reference is made to the fact that your client informed the police of the incident, yet was advised not to proceed with the complaint. Did your client make a statement with the police? If so, you need to provide us with a copy of this statement. If not, the assessor needs to be satisfied that the incident in question actually occurred where evidence cannot be provided. Therefore, I suggest your client write his own statement providing full details of the events leading up to the incident and the applicant's involvement in the incident.
On 21 May 2008 the appellant completed and signed a written statement setting out what he had done to assist in the identification, apprehension and prosecution of the alleged offender. He said that, within 14 days of 29 November 2001, police officers from Warwick Police Station came to his home in Cannington regarding an unrelated matter. One of those officers, Detective Robert Corden, asked him how he came to have damage to his teeth, face and eyes. The appellant says he then told the detective about the events of 29 November 2001 and that, in particular, he had been assaulted by a man named 'George' who was a member of a bikie gang known as 'The Mongrel Mob'. He said that he identified George as being of Maori descent and that Detective Corden 'appeared to immediately know who George was'. He continued:
While at the Warwick Police Station Detective Corden utilised the computer records to access photos of [T]he [M]ongrel [M]ob and the first photo brought up on screen identified as being George. I saw George's name on that computer screen and his surname was 'Monsall'. I saw but do not recall the address that was on the screen [for] him. Detective Corden told me that they have dealt with George before and were familiar with him and he was not a bloke to be messed with. I asked the detective what could be done about George assaulting me and the detective immediately said to me 'just leave it, we have got enough stuff on him to deport him – it's not worth the repercussions'. I asked whether a restraining order could be put in place against George but they suggested that not occur because George would have to be informed of the restraining order my address would be disclosed.
The statement went on to assert that the detective told the appellant that police were intending to charge George with other offences or had already done so that there was no point in him bringing a formal complaint against George because it would not achieve anything given George was to be deported in due course.
The appellant's solicitors also submitted a statement by the appellant's father Clinton Wayne Sullivan dated 21 May 2008, to the assessor. In it he said that he had spoken with Detective Robert Corden and that the detective said that, in order to make an application for compensation for his injury and loss the appellant would have to make a formal complaint against the person who assaulted him. Mr Sullivan said that the detective advised that his son should not make any formal complaint because of what his son's assailant might do to him and his wife or to people living in his house at that time. He said that the detective informed him that he knew exactly who the person was, that the police had 'a lot of stuff on him' and that they were building a case against him and in all likelihood he would be deported.
The appellant's father said:
I thought the detective knew best and did not want to put Todd or myself or my family in harm's way.
It is fair to say that, on the appellant's account, he had not, of his own initiative, immediately brought the alleged assault to the attention of the police but that it did, nevertheless, come to the attention of police at the Warwick Police Station within weeks. According to the appellant, at that time, police officers at the station and, specifically Detective Corden, knew not only of the alleged assault and that injuries had been suffered in consequence but also the identity of and criminal history of the alleged assailant. On the account given by the appellant the alleged assailant was then being prosecuted by police for other matters and was likely to be deported to New Zealand.
If the appellant's account is to be accepted, at the time of the visit to the Warwick Police Station, within weeks of the alleged offence, police had identified the alleged assailant and had details of the alleged assault. Ordinarily, such information would be sufficient to ground, at the very least, an investigation into the allegation and possibly, apprehension and prosecution.

The hearing

Ultimately the assessor conducted a hearing at which the appellant and his father, amongst others, gave evidence.
The appellant told the assessor that on the morning of the day that he attended at Warwick Police Station he was making breakfast at the home of a friend, David McPherson, when there was a knock at the door. There were two police officers; one being, as matters transpired, a Senior Constable Corden. They told the appellant that they needed to have a chat. In consequence, he accompanied them in their motor vehicle. It was driven a couple of blocks away from Mr McPherson's home and brought to a stop at the end of a cul‑de‑sac. Officer Corden went from the front seat to the back seat where, I infer, he was seated next to the appellant. He said to the appellant 'this is how it's going to work' and added that the police had his DNA. Officer Corden then asked him questions about stolen property.
The appellant was later driven to Warwick Police Station where he was provided with a cool drink and offered food.
The appellant said that, at the time of his visit to that police station, the injuries suffered earlier which led to his admission to Royal Perth Hospital, were still readily apparent. Officer Corden, he said, commented on them. The appellant said: 'Well, initially I wasn't going to tell them anything … about my assault'.
While at the police station he was joined by other police officers on a balcony. He gave evidence to the effect that he told the officers that he had been assaulted by a man by the name of George at a house. He said that he had been driven to the house to meet a friend who he expected would be there. Upon arrival at the front door he was invited inside by the man known as George. He said that he told police that 'George' struck him with an iron bar. Police responded, he said, by telling him that they knew who his assailant was. The officers concerned were, he said, Officer Corden and his blond‑haired partner.
The appellant said: 'I actually asked them if I should get a VRO or a restraining order'. He said that they replied that such a step would not be advisable. One of the officers said 'we've got enough on him to put him away'. Another officer then called him to a computer screen. On the screen were a number of faces, or portrait photographs, otherwise known as 'mug shots'. The police officer asked the appellant to look at the mug shots with a view to the possible identification of his assailant. He pointed to a mug shot and said 'that's him right there'. The mug shot was, he said, accompanied by the words 'known Mongrel Mob associate or member'. One of the officers standing by said, according to the appellant, 'yeah, we know who he is'. There followed a conversation. The appellant said:
Okay. Basically the three of us were all just huddled around in the big room. I was sitting on the chair, they were standing, and I said to them 'what would you say is in my best interests? What do I do' you know, because they have told me to stay away from him and stuff like that and I did mention laying charges against him and they said 'no mate you don't need to. We've got enough on him to get him out of – well, we've got enough on him to put him away'.
The appellant told the assessor that he was at a loss at the time about what to do. He said that he wanted to lay charges against his assailant and/or obtain a violence restraining order against him. The police, however, told him that he should wait.
It seems that at some stage while at Warwick Police Station on that day the appellant did take part in a formal interview with police officers as to other alleged criminal activity on his part. He was subsequently charged in respect of those matters and entered a plea of guilty in the Magistrates Court.
It seems that, upon being charged at the police station, bail was arranged and a telephone call was made by Officer Corden, according to the appellant, to the appellant's father. He said that in the course of that call he overheard the officer telling his father that a man named George was going to be arrested and deported.
The appellant told the assessor that prior to his visit to the Warwick Police Station he did not know that the name of his assailant was George. He had seen him before at a TAB at Northlands but had never spoken to him. The house that he visited was in Girrawheen. He was expecting to meet his friend Damien there. He could think of no reason why he was assaulted.
The appellant told the assessor that, prior to his visit to the Warwick Police Station, he had not reported the assault upon him because of fear for himself and members of his family. As to his visit to the police station and its consequences, he said:
Well, yes - well, they said I didn't lay any charges. They made it sound to me like they were going to get rid of him and send him overseas, back to New Zealand, and then everything should be okie dokie.
At the conclusion of his evidence‑in‑chief, the appellant answered questions from the assessor admitting that at the material time he had a heroin addiction. His parents paid most of his drug debts. He derived money also from Centrelink payments and from criminal activity. He accepted that in January 2002 he owed money to his drug suppliers to the extent that he was afraid of the consequences of not paying. His circumstances, he agreed, formed part of a plea in mitigation presented on his behalf to the District Court of Western Australia upon his conviction and sentencing for certain property offences. The assessor said:
Now, what I am putting to you is, is it not the case that you know you were assaulted in pursuit of your drug activities at that time?
He answered:
No, that is not the truth at all.
Robert Mackay Corden gave evidence under oath. He was then a serving police officer and had been in 2001 when he dealt with the appellant. His records indicated that he interviewed the appellant on 11 February 2002 and subsequently charged him with a series of burglaries and property offences largely committed in the latter part of 2001 and in January 2002 along with some associated fraud charges. The latter involved selling stolen property to Cash Converters.
At the time of his earlier dealings with the appellant he was a detective senior constable at the Warwick Detectives Office. His recollection was that he, at about that time, had two occasions to speak with the appellant. On the second he noticed that the appellant had a black eye and enquiring as to what had happened to him. That was on 11 February 2002. He was confident that those two occasions were at Warwick Police Station.
Officer Corden recalled that, in company with a more junior uniformed officer, he went to a home and collected the appellant in connection with a stolen motorcycle. They eventually returned to the Warwick Police Station. There is a balcony at the police station where smoking is permitted. The officer agreed that if the appellant had wanted a cigarette at that time then he would have been taken to that balcony. He had no recollection of that actually occurring. He did conduct a formal recorded interview with the appellant on 11 February 2002. There was, he said, a separate discussion about the appellant's apparent injury. The officer said:
I asked him how he got it and he was a little bit reticent to start with and I think probably, as we spoke, he became a bit more relaxed and realised that – what I was about and when he said that he had been hit by somebody and I said to him – I can remember – and this is an overview of our conversation. I asked him if he wanted me to do something about it and he didn't, and then a little bit down the track I asked him again who – just out of curiosity more than anything, who hit him and he said somebody by the name of George, and I obviously would have asked him for a surname. He either didn't know or didn't want to tell me. He did say he believed he was of Maori extraction and then – I mean I could obviously see that he probably wasn't travelling well in life whether – for whatever reason. I said, 'well did you want me to do something about it?' – I said – 'because you know I will' and he said 'he's not the sort of person that I really want to do business with' and I can remember saying to him 'you know it would draw the crabs if we do, but it's your call'.
When asked to explain what was meant by 'draw the crabs' he said that it mean to draw 'bad vibes and heat on him'.
When asked, the officer said that he definitely did not produce a photo board. He explained that, for that type of identification, a photo board would have to be ordered and a process followed. The name George, a person being of Maori descent, meant nothing to him at the time. A photo board, or digi‑board as they are sometime known, would have been, at that stage, delivered in hard copy not electronically. Each photo, in such a format, is presented without written information.
As at the time of giving evidence the officer said that he had not established the identity of a person called George because no complaint had been made in that regard. He had, he said, not been involved in the deportation of any New Zealand suspect or offender.
He did recall having a conversation with the appellant's father at about that time but could not recall the content of the conversation.
In cross‑examination by counsel for the appellant the officer reiterated that the appellant had told him that he had been beaten up by a man by the name of George but did not say where that had occurred. The appellant told him that he did not want to do anything about it. The officer said that he explained to the appellant that if he did he would take photos of the injury and obtain a statement. He commented that he thought that the appellant was 'pretty scared'.

Counsel for the appellant put to him the appellant's account of being shown a photograph on a computer screen and identifying a person as being his assailant, noting the reference to the gang called 'Mongrel Mob'. The officer replied 'not while he was ever with me – never ever'. He added that, in 2001, there was no capacity on the WA Police computer system to bring up a photo on a screen as described by the appellant.
The officer had no recollection of the particular content of his telephone conversation with the appellant's father but accepted that he would have spoken to him on the phone, perhaps about bail matters, given that the appellant was being charged. He was asked specifically whether he had told the appellant's father that it would be better not to press charges against the appellant's assailant because he was going to be extradited to New Zealand. He replied:
No, - I don't remember saying that. I haven't been involved in any extraditions, I mean, people – you know, deporting them. I mean, at that stage I still didn't know who George was and its only until you had told me now that I know who George is.
It is the case that counsel for the appellant had put to Officer Corden that George might be a person by the name of George Monsall. The officer did not know.
The officer had no recollection of climbing into the back seat of a police vehicle in a cul‑de‑sac and speaking to the appellant about DNA.
The appellant called Clinton Wayne Sullivan, his father, to give evidence before the assessor. He said that he first became aware of the alleged assault on his son and the injuries suffered by him in November of 2001. He recalls getting a telephone call informing him that his son was in Royal Perth Hospital. In response he visited him there, his recollection being that he did so a few days after his son's admission. His facial and bodily injuries were, he said, obvious. He visited again both at Royal Perth Hospital and later at Shenton Park Rehabilitation Hospital.
Upon discharge from hospital the appellant did not reside with his father. They remained, nevertheless, in regular contact. Clinton Sullivan added:
We weren't really on speaking terms back then so – I mean, we were interested in his well-being of course.
Clinton Sullivan's recollection was that his son told him about a person called 'George' about three or four weeks after his initial visit to him in hospital. Prior to that, he said, the appellant had told him that he had been assaulted but wouldn't say who assaulted him despite being questioned by him in that regard. When he eventually mentioned the name George, Clinton Sullivan said that he told his son that he should press charges. The appellant replied that he did not intend to because his assailant was 'a nasty piece of work'.
Clinton Sullivan said that sometime later he had a telephone call from the appellant who was calling from the Warwick Police Station. His son was ringing to ask questions about bail and a surety. After speaking with his son he spoke with Officer Corden. He said:
I just asked him what can be done about it and I said, 'he is no angel, but no‑one deserves to be beaten up like that no matter what they may have done'.
He said that the officer replied that the WA Police knew enough about the appellant's assailant to have him extradited back to New Zealand and that his son should wait until the assailant was imprisoned in New Zealand and then make application for criminal injuries compensation in Western Australia. When further questioned by the appellant's counsel, Clinton Sullivan was sure that he had discussed the matter of criminal injuries compensation with the officer.
The appellant, at the hearing conducted by the assessor, also called David Paul McPherson. He had known the appellant for about 11 years. For a time the appellant was his boarder. At the time of the alleged assault on 29 November 2001 they were not known to each other. They met later. He recalled that, when they did meet, the appellant had two broken arms which were both in splints. He asked the appellant how he came to be injured. The appellant told him that he had been in a motorcycle accident.
Mr McPherson described an incident at his home when the appellant, with his injuries, was still boarding there along with others. A tall, large man of Maori appearance walked into his home, unannounced and uninvited, carrying a metal bar. The man told the appellant and Mr McPherson that he was looking for a person and mentioned a name. He directly questioned the appellant in that regard. The intruder made a brief tour of inspection of the house and left. Following his departure the appellant told Mr McPherson that the man's name was 'George'.
Lee Anthony Williams gave evidence at the hearing. He was a serving police officer and had, in 2001, been attached to the Warwick Police Station where he worked with Officer Corden. Cross‑examined by the appellant's counsel Officer Williams was asked about the appellant's evidence to the effect that he had identified, by reference to a photograph on a computer screen, the man who had assaulted him. Officer Williams replied: 'It certainly didn't happen with me, no'.
One further witness called by the appellant was Nicholas Jarrod Stevenson who was, for a time, a solicitor in the employ of the firm representing the appellant. In the course of his work with that firm he spoke with the appellant and, in consequence, located Officer Corden who was, at that stage, posted to a detectives' office in Katanning. He noted a telephone conversation with the officer on 8 February 2005. His note of that conversation indicated that the officer had difficulty remembering contact with the appellant. Mr Stevenson's file note indicated that the officer said that he would check his records and get back to him.
There was a further conversation between Mr Stevenson and the officer on 19 May 2005. Mr Stevenson's note of that conversation suggested that the officer told him that the appellant did not wish to proceed with any complaint as to the cause of his injuries because he feared repercussions if he did so. His recollection was that Officer Corden knew of a person called George.

The appellant's circumstances in late 2001 and early 2002

The material before the assessor included a file from the Director of Public Prosecutions relating to the prosecution of David Paul McPherson. That file was produced in response to a notice issued by the assessor pursuant to s 63(2)(b) of the Criminal Injuries Compensation Act.
It is the case that David Paul McPherson was interviewed by police officers on 21 February 2002 and charged with aggravated burglary with intent to commit an offence, said to have been committed on 4 January 2002 at 283 Riverton North Drive in Shelley in company with the appellant. He subsequently pleaded guilty to the lesser charge of being unlawfully on premises in the Perth Court of Petty Sessions on 10 July 2002 and was placed on a six month community based order and ordered to perform 60 hours of community service work.
When interviewed, Mr McPherson told the officers that he and the appellant stopped at that address because there was a 'for sale' sign in the front yard, suggesting to him that the home might be vacant. They intended to steal property. They went to the front door. On it was a note indicating that the alarm was off and that the door was unlocked. He opened the door and went inside.
The property was the home of Barry Richard Ryle and his wife. That day was his birthday. Early that morning his wife had unlocked the front door, disarmed the alarm and left a note for their son who was, with his family, expected to make a surprise birthday visit.
As expected, shortly before 7.00 am Ronald Ryle, his wife and son arrived at the home with a birthday present. Upon arrival he noticed a blue Holden Commodore sedan parked outside with the driver's side door ajar. He and his family went to the front door and saw the note left by Mrs Ryle. The door was open. Two men, the appellant and David Paul McPherson, walked out. He questioned them and one replied that they were 'from the real estate agents'. The two men got into the blue Holden Commodore and drove away. Ronald Ryle made a note of the departing vehicle's registration number. The matter was reported to police. No property had been taken.
Upon discharge from hospital the appellant returned, in all probability, to accommodation shared with David Paul McPherson. Certainly, both, when interviewed by police officers on different occasions in February 2002 gave their address as being 81 George Way, Cannington.
When interviewed by police officers at the Warwick Police Station on 11 February 2002 the appellant admitted his involvement in the offence alleged to have been committed at 283 Riverton North Drive, Shelley on 4 January 2002 explaining that he and David Paul McPherson were, at that time, heavy drug users and were engaging in criminal activity in order to generate funds to buy drugs or to pay for drugs already purchased on credit.
It does appear that, at the time of his injuries, the appellant had a significant drug habit which led to offending both before and after his admission to and discharge from Royal Perth Hospital. For example, on 4 December 2002 the appellant appeared before her Honour Judge French in this court and entered a plea of guilty to a charge of aggravated burglary. He was convicted on that plea.
The facts of that offending were that on a date unknown between 23 January 2002 and 26 January 2002 he and another attended a home which had a 'for sale' sign at the front and appeared to be unoccupied. The appellant went to the rear of the house while his co‑offender kept a lookout. He stole a 50 cc Suzuki motorcycle, a chainsaw and a whipper snipper from an unlocked garage there. They were placed in a vehicle parked at the front of the property and were later pawned at a pawnbrokers called 'Cash City Cannington'.
The sentencing judge was informed that, when interviewed about the offence on 11 February 2002 at the Warwick Police Station, the appellant admitted his involvement and that he had stolen property for the sole purpose of obtaining money.
The facts as outlined by the prosecutor before her Honour were admitted by counsel for the appellant. The court was told that the offence had been committed in order to get money to pay off existing drug debts. In a plea in mitigation, counsel for the appellant explained that the appellant had, during 2002, been admitted to the Drug Court with a view to rehabilitation but that other health events resulting in medical intervention and hospitalisation precluded him from completing the course.
The appellant was sentenced to a 12‑month intensive supervision order with a programme requirement relating to substance abuse counselling and treatment. Her Honour directed that there be random urinalysis.
It is the case that in 1999 the appellant was convicted in the Perth Court of Petty Sessions of home burglary and stealing. In March 2001 he was sentenced to 6 months' imprisonment for home burglary and possession of cannabis. On 15 October 2002 he was again dealt with in the Perth Court of Petty Sessions on one count of burglary, two of fraud and four of stealing.
All of the convictions mentioned above were, I infer, the result of a significant drug addiction.
It appears as though David Paul McPherson may have been in a similar situation.
There can be no doubt that when the appellant arrived at Royal Perth Hospital on the evening of 29 November 2001 he had suffered significant injuries. The only evidence of how he came by those injuries is his own account of what occurred on that day. On that account he was unlawfully assaulted. On that account an offence or offences were committed.
It is also beyond doubt that the appellant declined to report the matter to police. His explanation is that he did so out of fear that if he did make a report he or a member of his family might be attacked and harmed. On the appellant's account his assailant was not known to him and there was no reason for the attack upon him.
While in hospital the appellant was visited by his father who advised that the attack upon him should be reported to police. The appellant did not take that advice. Given his addiction both before and after his hospitalisation and his associated criminal activities, it is perhaps not surprising that the appellant's preference was to avoid contact with police rather than initiate it.
David Paul McPherson, with whom the appellant was sharing accommodation following his discharge from Royal Perth Hospital, said that when he asked the appellant how he came by his injuries, the appellant told him that he had been in a motorcycle accident.

The circumstances in which the appellant's injuries came to the attention of police

It is the case that the appellant did nothing to bring the cause of his injuries to the attention of police until 11 February 2002. On that day he did not make contact with police. Rather, they came to him, investigating a series of offences. He was a suspect and subsequently charged. I infer that, had the appellant not been engaged in criminal activity, he would not have been the subject of police investigation and would not have contacted police to report the cause of his injuries. I infer also that, had Officer Corden not enquired of the appellant as to the cause of his injuries, which were apparent, the circumstances in which he came by those injuries would not have been brought to the attention of police.
There is no evidence that the appellant took any step to report the matter of the alleged offence committed against him on 29 November 2001 between 11 February 2002 and his application for criminal injuries compensation on 24 November 2004. The assessor wrote to the appellant's solicitors on 8 December 2004 enquiring as to whether the appellant had made a statement as to the events giving rise to his injuries. In consequence the appellant's solicitors delivered to the assessor a proof of evidence signed by the appellant on 21 May 2008 and additional statements of the same date by the appellant and his father detailing their respective encounters with police officers on about 11 February 2002.
The material before me indicates that the appellant made a detailed written statement to police at Mandurah on 2 August 2012.
The statements dated 21 May 2008 made by the appellant and his father and presented to the assessor were in response to the assessor's enquiry as to whether the appellant had informed police of the incident giving rise to the injuries. Both said that, to the best of their respective recollections, their encounter with Officer Corden was within two weeks of 29 November 2001. They were both wrong in that regard. I am satisfied that the first contact between the officer and the appellant and his father was on 11 February 2002, some 10 weeks after the incident giving rise to the injuries.
In his statement, Clinton Wayne Sullivan said that the asked the officer, in a telephone conversation, as to what could be done about the alleged assault and about criminal injuries compensation. He said that the officer told him that his son would have to make a formal complaint to police and advised against that course 'because of what that person might do to myself or to my wife or to people living in my house at that time'. Clinton Sullivan went on to say that the officer told him that he knew exactly who the offender was and that he was going to be deported.
These matters were put to Officer Corden in cross‑examination by counsel for the appellant when he gave evidence before the assessor on 10 February 2011. He accepted that he probably did speak to Clinton Sullivan about his son's bail. As to the suggestion that he advised against making a formal complaint he said:
No, I - I don't remember saying that. I haven't been involved in any extraditions, I mean, people – you know, deporting them. I mean, at that stage, I still didn't know who George was…
In his statement of the same date, the appellant said:
While at the Warwick police station Detective Corden utilized the computer records to access photos of the Mongrel Mob and the first photo brought up on screen I identified as being George, I saw George's name on that computer screen and his surname was at 'Monsall'. I saw but do not recall the address that was on screen for him.
The tenor of the evidence given by the appellant and his father and written statements made by both is to the effect that the appellant, but for what occurred and what was said at the Warwick Police Station on 11 February 2002, might have made a formal complaint to police as to the events giving rise to his injuries. The suggestion is that no formal complaint was made because police advised against it. The further suggestion is that, in any event, the reason why the appellant had not made complaint to that point, based on fear of his assailant, was reinforced by the comments of police officers.
If the evidence of the appellant and his father in that regard is to be accepted I would conclude that, as of 11 February 2002, Officer Corden knew the name and address of the man identified by the appellant as being his assailant. All that was required, having regard to s 38 of the Criminal Injuries Compensation Act, was a formal complaint as to the alleged offence or offences and a statement from the complainant. An investigation would have ensued and the apprehension and prosecution of the offender would likely follow. There was nothing further that the appellant might reasonably have done to assist in the identification, apprehension and prosecution of his assailant other than to cooperate thereafter with the authorities.
The forgoing propositions depend upon acceptance of the appellant's account of the identification of his assailant and, to a slightly lesser extent, upon the evidence of his father as to his conversation with Officer Corden.
As to the alleged identification of the assailant at the Warwick Police Station, I am not satisfied as to the truthfulness of the appellant's account. Nor am I satisfied that Officer Corden advised against making a complaint and the reasons attributed to him for giving that advice. It may be that the appellant did express his fear of his assailant to police officers on 11 February 2002 as being his reason for not making a formal complaint to initiate an investigation. It has, in the past, been generally accepted that fear of an offender, on its own, is not sufficient to justify a failure to assist in the identification, apprehension and prosecution of an alleged offender (see Pargovski [2015] WACIC 19 [21] and cases considered there).
I find that the appellant was asked by police officers as to how he came by his injuries and that he continued on the course that he had adopted from the outset, that being to take the matter no further. Had he made complaint an investigation might have been undertaken and enquiries made as to the location of the house in Girrawheen, the identity of the appellant's friend Damien, the identity of the woman called Heather, the identity of the man who drove the appellant and others around on that day and eventually to Royal Perth Hospital, the identity of the man called Con whose home was visited by the driver of the car, the appellant, the assailant and others and as to the identification of those at the Girrawheen house. None of those steps were taken because the appellant, perhaps out of fear of the assailant, elected not to make complaint.
The assessor was of the opinion that the appellant had not done what he ought reasonably to have done to assist in the identification, apprehension and prosecution of his assailant. Having formed that opinion, she was obliged by law to refuse the appellant's application for compensation.
I appreciate that the issue of the reasonableness of the appellant's actions is to be approached objectively having regard to the appellant's circumstances at the time. I have already described his circumstances. They are such as to preclude acceptance, without question, of his account of the incident giving rise to his injuries, the basis of his alleged fear of his assailant and his explanation of what occurred once the injuries came to the notice of police. The detail, such as it is, that has emerged as to those matters, has done so years later in the context of an application for criminal injuries compensation. The information provided in support of that application, the further information provided in 2008 and the complaint and statement to police in 2012 does not serve to satisfactorily explain what occurred in late 2001 and early 2002. What is known, without doubt, as mentioned, is that the appellant did suffer very serious injuries on 29 November 2001 and that he chose, initially, not to bring the cause of those injuries to the attention of police and, when they did come to the attention of police, he chose not take the matter any further.

On the appellant's account, as of 11 February 2002, he and police knew of the identity of his assailant and police probably knew of his whereabouts. I do not accept that to be so. On the account advanced by the appellant the assailant was about to be apprehended by police for other matters and deported to New Zealand. That being the case, there would seem to be no reason why police would advise the appellant against making complaint and no reason why the appellant would not make complaint. With the assailant apprehended and charged with the other matters and the violent assault upon the appellant, the danger to the appellant and his family would surely have abated.
For reasons best known to him, the appellant chose not to make complaint and thus initiate an investigation. In my assessment he chose not to assist in the identification, apprehension and prosecution of his assailant. The assessor was right to form the opinion that she did. Having done so, she was obliged to refuse the application. The appeal must fail.