Re TG - [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:

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.
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 injuries.
Police investigated the incident and the circumstances leading up to it. No person was charged over the incident.
The appellant applied for compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act) for the injuries he suffered in the fight.
On 19 June 2023, an assessor of Criminal Injuries Compensation (the Assessor), refused the appellant's application for criminal injuries compensation under the Act. In substance, the Assessor concluded that:
1.When the appellant was injured, he was committing a 'separate offence' within the meaning of s 39 of the Act in that he assaulted AI 'by striking blows to his head' and that conduct precluded the award of compensation.
2.Further, s 41 of the Act applied so as to enliven a discretion to refuse to make a compensation award because the appellant had invited and initiated the physical altercation.
The appellant has appealed the Assessor's decision to this court.
The following issues need to be determined in the appeal:
1.Did an 'alleged offence', within the meaning of the Act, occur on 20 February 2021 in which the appellant suffered injury as a consequence of the alleged offence? In considering whether an alleged offence occurred it is also necessary to consider any relevant defences which would be available to the alleged offenders, AI and TW, if they had been charged with an offence.[1]
2.Was the appellant committing a separate offence at the time of the alleged offence, being an unlawful assault of AI, which precludes him from being awarded compensation by s 39 of the Act?[2] In determining whether the appellant committed a separate offence of common assault against AI at the time of or immediately preceding the alleged offence, the issue in this case is whether the appellant was provoked into committing the assault on AI, such that the defence of provocation would apply to the appellant's assault of AI.
[1] If the issue 1 is resolved on the basis that an alleged offence was committed and the person who committed the alleged offence was criminally responsible for that act, the court may award compensation to the appellant by virtue of s 17(5) of the Act.
[2] If the answer to this question is yes, the court must refuse to award compensation: s 39 of the Act.

Nature of hearing

Nature of the appeal to the District Court

Section 55 of the Act gives a right of appeal to this court against an assessor's decision to refuse to make a compensation award. The appeal must be commenced within 21 days after the date of the assessor's decision. In the present case the appeal has been commenced within time.
By s 56(1) of the Act:
… the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision.
The entirety of the evidence must be reconsidered independently of the Assessor's decision.[3] The appeal is to be heard de novo and it is not necessary for the court to determine an error on the part of the Assessor.[4]
[3] See, for example Re Coad [2023] WADC 9 [10], [17] (Troy DCJ). See also Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ) (Guy).
[4] Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude).
In my reconsideration of the matter, I have independently reviewed the evidence, including fresh evidence adduced for this appeal, which I refer to in [13] and [14] below. I have not had any regard to the merits decision of the Assessor and have only considered the decision so as to give context to the submissions made by the parties in the appeal.[5]
[5] This approach is consistent with the approach of Bowden DCJ in Guy [14].
The court may determine the appeal on the basis of the information that was in the possession of the assessor or may receive further evidence and information. Upon the further hearing of the matter, it is open to the court to 'confirm, vary or reverse the assessor's decision, either in whole or in part'.[6]
[6] The Act s 56(2)(b).
The appellant relies upon the following material in support of the appeal:
1.A matter book containing all of the documents before the Assessor (and running to some 88 pages of material), comprising documents which included:
(a)the appellant's criminal injuries compensation application;
(b)the appellant's police statement dated 24 February 2021 and a victim impact statement dated 14 February 2023;
(c)Western Australian Police (WAPOL) incident report, running sheet and information report;
(d)photographs of injuries;
(e)correspondence between the appellant's solicitor and the Office of Criminal Injuries Compensation;
(f)medical reports; and
(g)loss documentation relating to the claim.
2.Closed circuit television (CCTV) footage of the fight from a fixed camera overlooking the Leederville Train Station pedestrian footbridge.
3.A statutory declaration made by the appellant under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) on 7 December 2023.
4.A medical report dated 16 March 2023 from Dr Pedram Imani. That report provided in part as follows:
I reviewed [the appellant] at the ENT clinic today. He is a young gentleman who was involved in an incident back in February 2021 resulting in nasal bone trauma. He has since developed anosmia post the incident. He also describes some nasal obstruction symptoms however he has intact nasal passages on examination.
5.The appellant and the Chief Executive Officer of the Department of Justice also filed written submissions.
The documents in the matter book and the CCTV footage were before the Assessor but the statutory declaration and medical report that I have identified at [13(3)] and [13(4)] above were not. I granted leave pursuant to s 56(1) of the Act for the appellant to rely upon these documents at the appeal hearing. The statutory declaration, which I refer to in further detail below, set out the details of what the appellant said were offensive and derogatory remarks made towards him by AI and TW (and his commentary generally on the CCTV footage).
Before turning to the legal and factual issues raised in the appeal, I turn first to the factual background.

Factual background

The events under consideration occurred in the early hours of 20 January 2021. Shortly before the fight on the train station footbridge, the appellant had a brief argument with AI and TW on the footpath in front of a takeaway food shop on Oxford Street, Leederville. According to the appellant:
1.The argument started when another male was urinating in the street in front of unknown women. TW and AI were laughing at this.
2.After an exchange of words between the men, one of TW or AI said to the appellant 'I'll fuck you up' to which the appellant responded, 'I don't care, you're not intimidating'.
3.The other man walked over to the appellant and said, 'if you touch my brother I'll fuck you up'.
4.The appellant responded by saying 'I'm not gonna touch him I'm not that sort of person'.[7]
[7] Appellant's statement, par 8; Book of documents, page 10.
According to WAPOL running sheet incident reports, police spoke to the appellant before the fight on the footbridge about his 'aggressive behaviour'. Police told the appellant to move along due to his abusive language towards AI.
The appellant says that after his contact with AI and TW near the takeaway food shop, he walked towards the train station in a southerly direction along Oxford Street. The appellant says as he was walking to the train station one of the men approached him. As he was approached by the men, the appellant said to him 'I just want to go home' and 'I'm on the way to the train station'. The appellant says that the men walked with him until they got to the footbridge leading to the station.[8]
[8] Appellant's statement, par 12; Book of documents, page 10.

As part of the investigation into the incident, WAPOL obtained CCTV footage taken from a fixed camera not far from the entrance to the public walkway to Leederville Train Station. The CCTV footage was played at the hearing of the appeal in the presence of counsel for the parties. No sound is available from the CCTV footage.
From the CCTV footage the following events can be observed:
1.The footage commences at 01:41 on 20 January 2021.
2.TW can be seen in the footage first, crossing Oxford Street while looking back waiting for the appellant and AI who were walking together and engaged in a conversation.
3.The men crossed Oxford Street together and walked to the pedestrian bridge. The appellant stops shortly after the entrance of the footbridge as the two men appear to attempt to walk past the appellant.
4.The appellant says something and TW and AI stop walking. At this point, TW was a few metres in front of AI and the appellant.
5.From 01:42:07 until 01:43:03 the men stand together. It appears that the appellant is talking in a very animated manner. TW and AI appear to say little, if anything. At numerous points, the appellant gestured with both of his arms in an aggressive manner. At 01:42:32 the appellant gestured using his right leg in a forceful kicking motion. Several times he speaks with his arms wide open at above shoulder height.
6.At 1:43:02 the appellant stands very close to AI, places his right hand on AI's shoulder and points in his face. Obviously, it is not clear what was said but the demeanour of AI was not aggressive at the time when the appellant placed his right hand on AI's shoulder. Prior to this AI and TW were not saying anything to the appellant. The appellant again gestures and speaks to AI at 01:44:04.
7.The appellant then starts walking up the circular footbridge. AI follows the appellant at a slow speed. The appellant stops walking, turns around and punches AI four times in the face. AI did not appear to expect a punch or act as if he was ready for a physical fight.
8.TW then grabs the appellant to hold him down as AI punches him approximately seven times in the face and in the body. Police arrive almost immediately on the footbridge and, at 01:45:01, a police officer tasers AI. The total time of the physical fight was 43 seconds.[9]
[9] Appellant's first punch occurred at 1:44:09 and AI's last punch was at 1:44:52 providing the total fight duration of 43 seconds.
In a statement to WAPOL made on 24 February 2021, the appellant said one of the men was 'mouthing off' at him, which made him angry, and the appellant asked the man if he wanted to have a fight. He then started throwing punches at one of the men until the other man grabbed his arms from behind and threw him to the ground. The other man then grabbed him by the hair and started to punch him in the head. The statement was made to WAPOL before any CCTV footage of the incident was available.
In his appeal to this court, the appellant elaborated on the circumstances of the fight by his statutory declaration. The appellant states in his statutory declaration as follows:
6.Upon reviewing the CCTV footage, I believe that it is evidence that as the Offenders and I were on the bridge, we engaged in an exchange of words before I turned and walked away from the situation after enduring offensive remarks, including derogatory terms such as 'half cast' and 'gone walkabout'.
7.I kept telling them to stop calling me that and when they continued to make those derogatory remarks, I said that 'Yes, my mother is white and father is Aboriginal, what is wrong with that'.
8.Then as I turned and walked away, the offenders followed me and repeatedly called me half cast and go walkabout. That is when I lost it, and took a swing at the offender.
9.It is crucial to note that 'walkabout' is considered inappropriate and offensive language to use in my culture, and its use by non‑Aboriginal individuals is especially hurtful.
10.The term 'go walkabout' is often implied lack of discipline and responsibility and is disrespectful and highly offensive.
11.I hate talking about it as it upsets me. The sudden rush of anger that led to my reaction was a direct result of the provocation and insults directed at my cultural identity.
In the statement that the appellant gave to police immediately after the incident,[10] the appellant stated 'that the big guy [AI] was mouthing off to me saying things that pissed me off and made me angry'. Further, the statement said 'I had enough and asked him if he wanted to fight. I started throwing a few punches'.
[10] Book of documents, page 9.
The appellant says that he sustained a number of injuries as a consequence of being punched during the fight, including:
(a)multiple bruises to the face;
(b)facial parathesis and pain;
(c)septal haematoma; and
(d)abdominal and hip pain.
Contemporaneous photographs of the appellant's injuries are consistent with him suffering bruising and cuts to his left eye, forehead and nose from the fight.[11]
[11] The photographs of the appellant's injuries are consistent with those outlined in medical records in the Assessor's papers, pages 23 ‑ 26. The medical records are pages 72 ‑ 87.

Other contemporaneous records relating to the incident

As I have noted, contemporaneous records from WAPOL in the form of running sheet records were provided to the Assessor.[12] Police officers conducted an interview with the suspect AI on 12 May 2021. The interview was not available for review and a summary of matters said in the interview is contained in WAPOL's running sheet. The WAPOL running sheet records AI's version of events as being that:
1.About 10 minutes before the fight on the footbridge, AI got into an altercation with the appellant and asked the appellant to leave alone an elderly male who was urinating nearby.
2.The appellant challenged AI to a fight before police approached the appellant telling him to leave the area or he would receive a move on notice.
3.AI made full admissions to police of punching the appellant in the face during the fight.
4.AI said he was defending himself and stated that the appellant punched him in the face at least three times before he retaliated.
[12] Hearing Book, page 21.
Aside from the interview AI gave to police, the WAPOL running sheet recorded that the appellant was approached by police prior to the fight for his aggressive and threatening behaviour. WAPOL recorded that the appellant was told to move along due to his abusive language towards AI not far from the fight scene which corroborates with AI's account in his interview with police. The running sheet also record that the appellant was abusive towards members of the public walking past the footbridge after the fight.
As an aside, on 22 July 2021 WAPOL recorded that,[13] in completing its investigation and determining not to charge any person with an offence, the appellant punched AI four times before he retaliated. Further, the CCTV footage corroborates an account given by AI that he was trying to get home and that the appellant continued to follow him and harass him and his friend.

Issue 1 - Did an 'alleged offence', within the meaning of the Criminal Injuries Compensation Act, occur on 20 February 2021 in which the appellant suffered injury?

[13] Hearing Book, pages 21 - 23.

The resolution of this issue involves a consideration of the following sub‑issues:
(a)the meaning of 'alleged offence' under the Act;
(b)in the context of the factual circumstances of this case whether AI (and TW) assaulted the appellant and, whether as a consequence of such assault, the appellant suffered bodily injury; and
(c)whether at the time of committing any alleged offence the offenders, AI and TW had any reasonable excuse for engaging in a fight and assaulting the appellant.

Relevant statutory provisions and general principles regarding entitlement to compensation the burden and standard of proof

Notwithstanding that no person has been convicted of an offence relating to the incident, criminal injuries compensation is capable of being awarded if certain conditions are met. Section 3 of the Act defines 'alleged offence' to mean a crime, misdemeanour or simple offence of which no person has been convicted.
Section 17(4)(a) of the Act provides that the assessor (or the court as the case may be) must not make a compensation award in respect of an application unless satisfied:
(a)the claimed offence occurred;
(b)the claimed injury and any claimed loss had occurred; and
(c)the claimed injury and any claimed loss occurred as a consequence of the commission of the alleged offence.
The court must be satisfied that an alleged offence occurred in the manner described by the appellant and it must be more probable than not that the alleged offending occurred.[14]
[14] Re TLJ [2016] WADC 74 [51] (Goetze DCJ).

An applicant in a criminal injuries compensation application must satisfy the court to the civil standard of proof on the balance of probabilities that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted and that, with respect to an assault, each of the elements of the defence of self-defence have been negatived on the civil standard.[15]
[15] Re Jackamarra [2014] WADC 9 [13] (Schoombee DCJ); Re Robinson [2017] WADC 18 [17] (Troy DCJ). See also Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36; Re Carter (1984) 4 SR (WA) 219.
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.

Did an alleged offence occur?

The appellant contends that he is the victim of an assault. The 'alleged offence' was assault occasioning bodily harm contrary to s 317(1) of the Criminal Code Act Complication Act 1913 (WA) (Criminal Code). That section provides as follows:
(1)Any person who unlawfully assaults another and thereby does that other person bodily harm is guilty of a crime, and is liable -
(a)if the offence is committed in circumstances of aggravation or in circumstances of racial aggravation, to imprisonment for 7 years; or
(b)in any other case, to imprisonment for 5 years.
For the purposes of this appeal, to prove the alleged offence of assault occasioning bodily harm contrary to s 317(1) of the Criminal Code it requires the appellant to demonstrate on the balance of probabilities:
(a)a person (AI or AI and TW);
(b)unlawfully assaulted;
(c)another person (the appellant); and
(d)thereby bodily harm was done to that person (the appellant).
Assault is defined in s 222 of the Criminal Code as follows:
A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
For the purposes of my analysis, proof of an alleged offence principally centres on whether an 'unlawful' assault occurred. The CCTV footage clearly shows a prima facie assault by AI and TW on the appellant. Further, the medical and photographic evidence shows that the appellant suffered injury, being bruising and cuts to his left eye, mouth, forehead and, as a result of the punches thrown by AI on the footbridge (and that those injuries would constitute bodily harm within the meaning of the Criminal Code).
With respect to the justification of the appellant's actions in punching AI, I return to this issue in my discussion of issue 2. For an assault on the appellant to be unlawful, any relevant defences available to AI and TW must be considered. I now turn to a consideration of potential defences available to AI and TW.

Was the assault excused by law?

An assault is unlawful and constitutes an offence unless it is authorised or justified by law.[21] An assault may be justified (and hence not be unlawful) if an excuse or defence applies, such as provocation or self‑defence. In all of the circumstances, AI and TW could readily argue that they were acting in self‑defence by reason of the appellant striking AI four times before they acted physically.
[21] Criminal Code s 223.
The appellant bears the burden of proving that he was unlawfully assaulted and, thereby, that the assault was not authorised, justified or excused by law.[22] For the reasons that follow, my opinion is that if the appellant committed an unlawful assault before AI and TW responded, then on the balance of probabilities, AI and TW acted reasonably and in self-defence.
[22] AMF v The Queen (Unreported, WADC, Library No 4949, 14 June 1996) (Commissioner Greaves).
For self‑defence to apply, AI and TW must have subjectively believed that the harmful act (restraining and punching the appellant) was necessary to defend themselves (or another person) from a harmful act.[23] Secondly, AI and TW's harmful act (or acts) must be a reasonable response which requires a question of objectiveness, in the circumstances as the offender subjectively believes them to be.[24] Thirdly, there are reasonable (objective) grounds for AI and TW's (subjective) belief that the harmful act is necessary to defend both or either of them from a harmful act. Fourthly, there are reasonable (objective) grounds for AI and TW's (subjective) belief as to those circumstances.
[23] Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328 [95] (Buss JA with whom Martin CJ agreed) (Goodwyn).
[24] Goodwyn [95].
Assuming that AI and TW were charged with common assault and they raised the issue of self‑defence, I consider that there is a reasonable basis for AI and TW to have proved the matters set out in [45]. In those circumstances, the State would need to prove, beyond reasonable doubt, that they were not acting in self‑defence.[25] There would be four possible ways for the State to demonstrate that they were not acting in self‑defence:[26]
(a)that AI did not believe that his action of punching the appellant whilst he was being held by TW was necessary to defend himself;
(b)that the belief AI held at the time that it was necessary to defend himself was not a reasonable belief, in other words, there were no reasonable grounds for his belief;
(c)that AI's response in punching the appellant whilst the appellant was being held by TW was not a reasonable response to the circumstances AI believed he faced; or
(d)that the belief AI held at the time about the circumstances he faced, was not a reasonable belief, in other words there were no reasonable grounds for his belief.[27]
[25] Criminal Code s 248; Goodwyn [96]. For the purposes of this appeal, I only need to consider whether by the materials raised by the appellant, whether a prosecution was likely to negative a defence of self-defence on the balance of probabilities.
[26] These matters are based upon the Court of Appeal decisions in Goodwyn and Egitmen v The State of Western Australia [2016] WASCA 214 [76].
[27] In these four subparagraphs I have referred to AI's beliefs and responses. Similar observations apply to TW, without repeating the matters in full.
As I have noted, there is no available evidence before me, other than within the WAPOL running sheet, as to AI's state of mind at the time of the assault. As I have noted at [26], before the fight on the footbridge there was an altercation between AI and the appellant, and, according to AI the appellant challenged him to a fight before the police told the appellant to move on. Further, with respect to his punching of the appellant in the fight, AI said that he was defending himself and stated that the appellant punched him in the face at least three times before he retaliated. As I have already noted, the CCTV evidence is clear that the appellant threw the first punches in the fight.
As there is no information as to TW's version of events, one argument is that I would not be able to conclude that AI and TW were acting in self‑defence for the following reasons:
(a)the lack of evidence of their subjective intention; and
(b)the objective evidence as disclosed by the CCTV footage being that:
(i)AI and TW overpowered the appellant who was on his own; and
(ii)after TW held down the appellant AI hit the appellant a number of times such that it is difficult to conclude that AI's response was reasonable, at least after the first or second blows were inflicted.
Notwithstanding these matters, I consider that there would be some difficultly with the State proving that AI and TW were not acting in self‑defence (whether on the lower standard of the balance of probabilities which I must consider for the purposes of this appeal or beyond reasonable doubt for the purposes of the prosecution).
It is not difficult to infer that AI did believe that his action of punching the appellant was necessary to defend himself. The appellant had punched AI firmly four times in the face before he or TW responded. There is no indication that the punching would have stopped but for the intervention of TW and AI. Although AI punched the appellant numerous times, the duration of the fight was a total of 43 seconds. I consider that there would be a reasonable basis for AI and TW to conduct a defence that they were acting in self‑defence in which case the assault of the appellant would not be unlawful.
It is, however, trite that the excuse of self‑defence does not apply with respect to an assault which is excused by law. Unless any assault by the appellant is lawfully excused, I consider on the facts, that AI and TW would be acquitted from their assault on the grounds of self‑defence. Further, if any assault by the appellant is not lawfully excused, by virtue of the provisions s 39 of the Act, which I now turn to, the issue of whether AI and TW were acting self‑defence assumes less importance (see [77], [82] ‑ [83] and [88] below).

The Act precludes an award of compensation if a victim of an offence is engaged in criminal conduct at the time of injury

In the present case, the fight between the appellant, AI and TW potentially involved multiple offences, namely, an assault by the appellant of AI and an assault by AI and TW of the appellant.
Section 39 of the Act provides that an assessor must not make a compensation award in favour of a person injured as a consequence of the commission of an offence, if the injury was suffered when the person was committing a separate offence.[28] That section of the Act may preclude an award of compensation to the appellant if he assaulted AI immediately before he suffered injuries from AI punching him.
[28] With respect to the word 'offence' s 3 of the Act defines offence to mean an alleged offence or a proved offence.
For s 39 of the Act to be enlivened, a temporal connection (rather than a causal connection) is required between the injuries suffered by the appellant and any separate offence committed by the appellant. Whether there is a temporal connection requires judgment by an assessor of all the facts and circumstances of the case to determine whether at the time an appellant was injured, the applicant was committing a separate offence. Generally, if an appellant's injury and offence are part of the one incident, that is sufficient to show a temporal connection. [29]
[29] Re:Richardson [2009] WADC 93 [31] (Yeats DCJ), cited with approval in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [33] (Martin CJ with whom Newnes JA & Murphy JA agreed with).
As I refer to in further detail below, the appellant's argument is that his 'first' assault on AI was legally excused (because he would be able to rely on a statutory defence of provocation).

Issue 2 - Was the appellant committing a separate offence at the time he sustained his injuries?

In summary, counsel for the appellant says that the Assessor erred in not awarding compensation to the appellant by holding that the appellant was committing a separate offence. The appellant argues that the Assessor should have found that the appellant was provoked by the alleged offenders following him and abusing him. As I have noted, I do not place any weight on the findings or conclusions of the Assessor but have referred to the issues in this manner because of the way in which the argument of the appeal by the appellant developed.
Before determining the matter, the Assessor invited the appellant's solicitors to view the CCTV footage.
After reviewing the CCTV footage, the appellant's solicitors made submissions to the Assessor by letter of 13 June 2023.[30] In that letter the appellant's solicitors stated as follows:
The CCTV footage shows that at 1.42 am three men crossed the road together and was [sic] having a conversation. They walked the bridge and stood there talking.
Our client was trying to explain something to them; he used his hand gestures as he spoke. The content of what was spoken was inaudible.
The two men, one in white shirt … and (the other) in dark shirt … stood together at the entrance of the bridge for about 2 minutes and 30 seconds. After the conversation, all three men walked together in the same direction, our client was slightly ahead of the two men. The two men appeared to be harassing and provoking our client. It is unknown what was actually said.
However, our client stated in his Statement [says] that they made racist remarks to him. They called him and [sic] half caste. It appears from the footage that the two men continued to provoke our client. Our client further stated in his statement of effects that he became upset and angry as they intimidated [sic] him.
It was then that our client turned around and swung at the man wearing a dark shirt and long pants. The punch was connected on the face. The man in white shirt (TW). Immediately held our client to the ground while the man in dark shirt (AI).
[30] Assessor's papers, pages 42 - 43.
The letter from the solicitors of 13 June 2023 also said the following:
We submit that it was 1.42 am in the morning, and it was dark and the two men intimidated our client and provoked him. Our client reacted by taking a swing at one of the 2 men. All he wanted to do was to catch the train and go home. These 2 men were the instigators and although our clients threw the first punch, he is not the culprit who started the incident. The incident was started by the two men who were following our client and racially abusing him. It is natural for our client to react to the racial abuse. Not everyone is a Buddha, who can smile when abused. The retaliation from (AI) was disproportionate to our client's reaction in throwing a single punch.
(emphasis added)
The submissions made in the context of the CCTV footage must be considered in the context of what the CCTV shows which I have referred to in [20] above.
The CCTV footage clearly shows the appellant throwing the first punch in the physical fight. That punch was forceful and connected with AI's jaw. The appellant's second, third and fourth punches struck AI in the face. The extent of any injuries sustained by AI are not clear from the evidence before me.
Section 313(1) of the Criminal Code sets out the offence of common assault as being that any 'person who unlawfully assaults another is guilty of a simple offence'.[31]
[31] See also [22] above for the definition of 'assault'.
Based upon the CCTV footage I find that the appellant assaulted AI. Further, absent any defence available to him, the appellant committed an offence of common assault contrary to s 313(1)(b) of the Criminal Code prior to the 'alleged offence' occurring.
As I have found that the appellant was committing an assault, I must also consider any of the defences that may be applicable to the appellant. The appellant submits that the defences of provocation and self‑defence are applicable to him.

Was the appellant's assault of AI unlawful?

Principles in relation to provocation

The appellant contends that he was provoked by racial insults made by AI and TW.
Section 246 of the Criminal Code provides that a person is not criminally responsible for assaulting a person who provoked him or her, if certain facts exist. That section provides:
246.Defence of provocation
A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self‑control, and acts upon it on the sudden and before there is time for his passion to cool; provided that the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm.
Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self‑control and to induce him to assault the person by whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self‑control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.

Section 245 relevantly defines provocation, used with reference to an offence of which an assault is an element, to mean and include (subject to qualifications not here relevant):
any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, … to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered.
The defence of provocation when applied to an assault involves both a subjective and an objective test. The subjective test asks whether the provocation in fact caused the accused to lose his power of self‑control. The objective test of provocation asks whether an ordinary person could have acted as the accused did. That is, the provocation must be such as could cause an ordinary person to lose self‑control and act in a manner which would encompass the accused's actions.[32]
[32] Peros v Murray [2023] WASC 208 [34] (Archer J).
The relevant principles were recently summarised by Sweeney DCJ in LS v SL.[33] The relevant principles for a person to not be criminally responsible due to provocation are:
1.There must be a wrongful act which gives the accused provocation for the assault.
2.The accused must be deprived of the power of self-control. Whether an act deprives a person of self-control is a question of fact. The defence requires the provocation to be of such nature that it could or might have caused an ordinary person to lose self-control.[34] The fact finder can take into consideration facts that apply to the appellant's circumstances and characteristics, such as age, to assess the provocation from the viewpoint of the appellant.
3.The accused acts upon the wrongful act suddenly and before there is time for his passion to cool. There must be a sudden and temporary loss of control.[35] The accused must have acted out of an uncontrolled emotional state that is induced by a wrongful act which gives the accused provocation for the assault.[36]
4.The harm must not be disproportionate and is not intended or likely to cause death. It is necessary to consider how an ordinary person would react.[37] This consideration also assists in determining whether the appellant acted in a spur of provocation or was acting for some other reason.[38]
[33] LS v SL [2023] WADC 8 [51] - [56] (Sweeney DCJ).
[34] Evans v The State of Western Australia [2011] WASCA 182 [127] (Evans) (McLure P with whom Mazza J agreed with).
[35] Hart v R [2003] WASCA 213; (2003) 27 WAR 441 [68] (Steytler J with whom McLure & Pullin JJ agreed with); Criminal Code s 246.
[36] Pollock v The Queen [2010] HCA 35 [33] (judgment of the court).
[37] Evans [127].
[38] Verhoeven v Ninyette (1998) 101 A Crim R 24 (Wheeler J).
The contemporaneous records do not make any reference to any racist insults. The highest the evidence goes is the appellant saying in his police statement three days after the incident that 'the big guy was mouthing off to me saying things that pissed me off and made me angry'. While that may be consistent with racist insults, those allegations are not expressly made. There is nothing in the police records which would indicate that any racist insult was made at the time of or immediately before the fight.
Based upon the CCTV footage, there is considerable gesturing by the appellant at 1.43 am. The appellant's gesturing is aggressive in nature. The appellant waves his hands erratically, coming seemingly close to AI's face. At that time of gesturing, it does not appear from the CCTV footage that the other men are acting in a harassing or intimidating way. There had been a discussion for over a minute before the appellant grabbed AI by the shoulders before proceeding to walk on. There was a short period with the appellant gesturing and pointing.
One of the offenders, AI, can be seen jerking his head in a manner of disapproval at the appellant but he does not attempt to physically strike or punch the appellant. The appellant moves to proceed up the footbridge and is closely followed by AI. The appellant turns around and strikes AI to the face with four punches.
If the appellant's statement is accepted at face value that AI and TW made offensive remarks to him, the alleged offensive remarks did not, when they were first made, cause the appellant a sudden loss of self‑control resulting in him punching AI. According to the appellant, the offensive remarks were made on more than one occasion. They did not preclude the appellant from walking away instantly.
The appellant says that the offenders then followed him and repeatedly called him 'half‑caste' and to 'go walkabout'. Having watched the CCTV footage carefully I do not feel an actual persuasion that racist insults or remarks were made for the reasons I elaborate on in [79] ‑ [82]. I do not find on the balance of probabilities that derogatory statements in the terms alleged were made because it is not seemingly corroborated by the CCTV footage and, further, there is only limited times when the alleged offenders are talking at all. Rather, when the CCTV footage is watched in its totality, it is the appellant who is talking in an animated fashion and overtly gesturing. Based upon the earlier evidence I have referred to as to the appellant acting in an aggressive manner before the incident on the footbridge (outside the takeaway food shop), I cannot conclude on the balance of probabilities from all of the evidence I have considered, that it was AI and TW acting in an aggressive manner towards the appellant and verbally abusing him (whether racially or otherwise).
I also do not feel a persuasion that the words spoken caused the response because on the appellant's version he walked away but it was later him that turned to punch AI.
It is somewhat difficult to make a finding about what was said in the absence of hearing any parties but, as I have referred to in [33] above, the appellant bears the onus of proof for the purposes of this appeal. I must feel an actual persuasion in this case that a lawful excuse to an offence is available to the appellant where the occurrence of the offence appears clear from the CCTV footage. A final conclusion as to the occurrence of the events contended by the appellant should not be reached:
(a)without the exercise of caution; and
(b)unless the evidence survives careful scrutiny and appears precise and not loose and inexact.
The fact that no allegation of a racist remark, or racist insult was made, contemporaneously means that, in the absence of hearing from the offenders, it is difficult to be persuaded on the balance of probabilities that such conduct occurred.
I do not consider that the assault is excused by a defence of provocation for the following reasons:
1.Based upon the inconsistency in the reporting of the matter to the police when compared to the statutory declaration, combined with viewing the CCTV footage in its entirety, I am unable to feel a persuasion that any racist or other remarks were made such as to cause the appellant to lose his power of self‑control.
2.I find that an ordinary person would not have acted in the manner the appellant did.
3.The appellant's earlier behaviour before the incident also needs to be seen in the context of the contacts between the men. He was acting aggressively before the incident on the footbridge. It was the appellant who stopped the other men and was holding the conversation with them. At one point, the appellant prevents one of the men from leaving or moving past him on the footbridge.
4.AI and TW appear to be calm in the CCTV footage, even as the appellant is aggressively gesturing to them. The men also appear to attempt to leave twice, slightly turning away from the appellant, but the appellant continues to talk and gesture. The appellant is the one to turn around and strike AI.

Was the appellant acting in self‑defence?

The appellant also argued that he was acting in self‑defence when he started the physical fight.
I have discussed the requirements for establishing self‑defence at [45] ‑ [46] above.
I do not find that the appellant was acting in self-defence. I cannot make a finding that the appellant subjectively believed that he was defending himself from a harmful act. There is insufficient evidence before me to support this finding. The appellant's statutory declaration of 7 December 2023 makes no reference to the appellant believing that the men were about to attack him. Rather, the appellant admits that he felt a 'sudden rush of anger' that led to his attack.
In any event, I find that the harmful act was unreasonable, and that there were no reasonable grounds for the appellant's subjective belief, if there was one, that he was at risk of harm.[39] I cannot make a finding on the balance of probabilities that the appellant was afraid, and that the attack on AI was warranted.
[39] Goodwyn.
In the circumstances, for the appellant's assault on AI, I do not consider a defence of self‑defence would succeed on the balance of probabilities.
In all of these circumstances I consider that, on the balance of probabilities, the appellant was committing an offence of common assault immediately prior to the offence committed by AI.

Application of s 39 of the Act to my finding that the appellant's assault of AI was unlawful

As a consequence of these conclusions, the appellant was committing an offence at the same time in which he suffered injuries as a consequence of the assault on him by AI. Accordingly, s 39 of the Act applies.
This is a case whereby the entirety of the assault was captured on CCTV, and that the events in relation to the assault are clearly part of one confrontation.[40]
[40] ATS v Greg Williss [2021] WADC 58 (Goetze DCJ).
The temporal nature of s 39 has been considered by various cases in this court. One case, by way of an example to the present facts, is Puterangi[41] where Davis DCJ discussed the application of s 39 in the context of two separate fights. Her Honour found a second fight as being distinct from the first, there being a physical separation of the parties, before a second fight took place approximately 15 minutes after the first in a different location. Section 39 of the Act did not apply as the fights were not temporally related, taking place in two separate locations, and that the first fight was 'well and truly over by the second'.
[41] Puterangi [2017] WADC 168.
The temporal nature of the two assaults is not an issue in this matter. The footage clearly shows one altercation. The appellant's punch was mere seconds before the assault from AI and TW and therefore does not preclude me from making a s 39 finding. AI's assault of the appellant was a direct response to the appellant's punches. As I have already noted, the first punch by the appellant which struck AI was an offence for the purposes of s 39 of the Act and being a separate offence, an application for compensation should be refused.
The circumstances in which compensation is sought by the appellant in this case is he was injured in a fight which he started. I find that on the available evidence, the appellant assaulted AI. AI then punched the appellant. When considering whether there is a temporal connection involves a question of fact and degree. In all the circumstances, I am satisfied on the balance of probabilities that the appellant committed an offence which was connected temporally to the assault on him by AI. As such s 39 applies such as to preclude a compensation award in favour of the appellant.

Conclusion

Taking into account all matters, I am not persuaded on the balance of probabilities of any racial provocation, vilification or unlawful acts by AI (or TW) to the appellant which justified the first punches in the physical fight. I cannot conclude on the balance of probabilities that the incident on the footbridge occurred in the manner in which the appellant contended for the purposes of his application. On all of the available evidence I find:
(a)the appellant unlawfully assaulted AI;
(b)defences of provocation and self defence to the appellant with respect to his assault on AI could not be found on the balance of probabilities;
(c)AI and TW, who responded to the appellant's assault on AI, were acting in self‑defence, and
(d)in the event that I am wrong in the conclusion that AI and TW were acting in self‑defence, the appellant had committed a 'separate offence' at the time he suffered injury from punches from AI, such that s 39 of the Act precludes the award of compensation to the appellant.
Accordingly, I dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LM
Associate to Judge Curwood
2 MAY 2024