Re TG

Case [2024] WADC 28

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   RE TG [2024] WADC 28

CORAM:   CURWOOD DCJ

HEARD:   21 DECEMBER 2023

DELIVERED          :   2 MAY 2024

FILE NO/S:   APP 28 of 2023

MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

AND

IN THE MATTER of an Appeal by

BETWEEN:   TG

Appellant

ON APPEAL FROM:

Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Coram:   R GUTHRIE

File Number            :   CIC 513/2023


Catchwords:

Criminal injuries compensation - Appeal - Fight between three men in public place - Assault - No person charged with offence - Whether 'alleged offence' proved - Whether appellant was committing separate offence when he sustained injury - Defence of provocation - Defence of self-defence

Legislation:

Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant :

Mr V G Kurup
Amicus Curiae : Mr J A Kirke appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant :

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

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

AMF v The Queen (Unreported, WADC, Library No 4949, 14 June 1996)

ATS v Greg Williss [2021] WADC 58

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Egitmen v The State of Western Australia [2016] WASCA 214

Evans v The State of Western Australia [2011] WASCA 182

Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Hart v R [2003] WASCA 213; (2003) 27 WAR 441

Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369

Lloyd v Small (1996) 16 SR (WA) 111

LS v SL [2023] WADC 8

Martin v Martin [2015] WADC 138

Peros v Murray [2023] WASC 208

Pollock v The Queen [2010] HCA 35

Puterangi [2017] WADC 168

Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17

Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36

Re ATS [2017] WADC 92

Re Carter (1984) 4 SR (WA) 219

Re Coad [2023] WADC 9

Re Jackamarra [2014] WADC 9

Re Richardson [2009] WADC 93

Re Robinson [2017] WADC 18

Re TLJ [2016] WADC 74

Verhoeven v Ninyette (1998) 101 A Crim R 24

ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61

CURWOOD DCJ:

  1. In the early hours of 20 January 2021, the appellant was involved in a fight with two men, AI and TW, on the pedestrian bridge approaching Leederville Train Station. 

  2. The physical fight between the men started with the appellant punching AI four times in the face.  The appellant alleges he was provoked into punching AI after AI and TW made derogatory and racist remarks to him immediately before the fight started.  After punching AI, the appellant was overpowered and held down by TW.  AI then punched the appellant numerous times causing him facial…

Continue reading Re TG

Sign in free to access the full text

Details
AGLC
Re TG [2024] WADC 28
Case
[2024] WADC 28
Decision Date

CaseChat Overview and Summary

The case of Re TG involves an application for criminal injuries compensation. TG, the appellant, seeks compensation for injuries sustained during a physical altercation involving three men in a public place. The dispute hinges on whether the appellant was committing a separate offence at the time of the injury and whether the alleged offenders committed racial abuse, which may have provoked the incident. The case was heard in the Supreme Court of Western Australia.

The court was tasked with determining several legal issues. First, whether the appellant had established the occurrence of the alleged offence, namely the racial abuse by the alleged offenders AI and TW. Second, whether the appellant was committing a separate offence when he sustained his injury. Additionally, the court had to consider the defences of provocation and self-defence raised by the appellant.

The court examined the evidence presented and applied the standard of proof to the balance of probabilities, requiring a reasonable satisfaction that the alleged offence occurred. The court found that the appellant's evidence did not establish the racial abuse with sufficient certainty, as it did not rise above mere conjecture. The court also considered the appellant's involvement in the physical altercation and whether he was acting in self-defence or in the course of committing another offence at the time of his injury. The court concluded that the appellant had not met the required standard of proof to substantiate the claims of racial abuse and self-defence.

The court dismissed the application for criminal injuries compensation, noting that the appellant had not provided evidence sufficient to establish the necessary facts on the balance of probabilities. The court's reasoning emphasised the need for a high degree of satisfaction for serious allegations, especially when they involve the finding of criminal conduct without the alleged offenders being present to refute the claims.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In Lehrmann v Network Ten Pty Ltd (Trial Judgment),[16] Lee J made a number of observations as to the standard of proof to the balance of probabilities and what the party bearing the onus needs to demonstrate. Based upon his Honour's observations I summarise the principles as follows: 1.The 'balance of probabilities' does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. 2.A party bearing the onus will not succeed unless the whole of the evidence establishes a 'reasonable satisfaction' on the preponderance of probabilities such as to sustain the relevant issue.3.The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied. Put another way, when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found. 4.A mere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact.5.The gravity of the fact sought to be proved is relevant to the degree of persuasion of the mind according to the balance of probabilities. By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved.[17] [16] Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 369 [96] ‑ [104]. [17] Footnotes and authorities omitted; see also ZYX (pseudonym initials) v Cable [No 5] [2023] WADC 61 [15] ‑ [19] (Herron DCJ). In the present case, the alleged offenders are not parties to these proceedings and have not been heard as to their version of the fight or its surrounding circumstances. It is a serious matter to make findings that an alleged offender has committed an act in the nature of an offence, particularly when they are not given the opportunity to refute the allegations. As noted, the court must feel an actual persuasion that the offence occurred. A conclusion as to the occurrence of an offence should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact.[18] To discharge the burden, the evidence adduced by the appellant must do more than give rise to conflicting inferences of equal degree as a probability so that the choice between them is a mere matter of conjecture.[19] An applicant is also required to negative any defences reasonably opened on the evidence.[20] [18] Re ATS [2017] WADC 92 [29], [114] (Herron DCJ); Quine v Keerasawat [2014] WADC 150; (2014) 87 SR (WA) 17 [63] ‑ [70] (Herron DCJ). [19] Martin v Martin [2015] WADC 138 [30] (Derrick DCJ) citing Lloyd v Small (1996) 16 SR (WA) 111 [113] ‑ [114]. [20] Re Robinson [22]. In the context of the events in dispute, the appellant makes allegations against AI and TW to the effect that they racially abused him which caused him to throw the first punches in the physical altercation. As I discuss further, that is a serious allegation. The determination of whether AI and TW racially abused the appellant is highly relevant to the resolution of issues 1 and 2 referred to in [7] above. As must be noted from the matters outlined in [34] ‑ [36], with respect to the serious allegations levelled against the alleged offenders, this is an example of a case which calls for a degree of satisfaction of the civil standard of proof according to the gravity of the fact to be proved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.