Re TLJ
[2016] WADC 74
•20 MAY 2016
RE TLJ [2016] WADC 74
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 74 | |
| Case No: | APP:60/2015 | 11 DECEMBER 2015, 29 JANUARY & 15 APRIL 2016 | |
| Coram: | GOETZE DCJ | 20/05/16 | |
| PERTH | |||
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Compensation awarded: $15,000 | ||
| PDF Version |
| Parties: | TLJ |
Catchwords: | Criminal injuries compensation Appeal from assessor's decision to refuse award Alleged sexual abuse by father Father not charged Psychological injury Other matters also causing psychological harm Disentangling consequences of offence from other psychological harm Turns on own facts |
Legislation: | Criminal Injuries Compensation Act 2003 Evidence Act 1906 The Criminal Code |
Case References: | Bird v The Commonwealth of Australia (1998) 165 CLR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Gallo v Dawson (1990) 93 ALR 479 Gleeson v Lee (1996) 18 SR (WA) 353 Hinchliffe v Hinchliffe [2010] WADC 78 M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulations [2014] WASC 468 Pfennig v The Queen (1995) 182 CLR 461 Re McHenry [2014] WADC 92 Re Prefumo [2013] WADC 127 S v Neumann (1995) 14 WAR 452 Zadeh [2015] WADC 136 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
AND
IN THE MATTER of an Appeal by
- Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram : L V DEMPSEY
File No : CI 000792 of 2014
Catchwords:
Criminal injuries compensation - Appeal from assessor's decision to refuse award - Alleged sexual abuse by father - Father not charged - Psychological injury - Other matters also causing psychological harm - Disentangling consequences of offence from other psychological harm - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003
Evidence Act 1906
The Criminal Code
Result:
Appeal allowed
Compensation awarded: $15,000
Representation:
Counsel:
Appellant : In person
Amicus Curiae : Mr L Nicholls appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant : Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bird v The Commonwealth of Australia (1998) 165 CLR 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Gallo v Dawson (1990) 93 ALR 479
Gleeson v Lee (1996) 18 SR (WA) 353
Hinchliffe v Hinchliffe [2010] WADC 78
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulations [2014] WASC 468
Pfennig v The Queen (1995) 182 CLR 461
Re McHenry [2014] WADC 92
Re Prefumo [2013] WADC 127
S v Neumann (1995) 14 WAR 452
Zadeh [2015] WADC 136
- GOETZE DCJ:
Introduction
1 TLJ appeals the decision of the learned Assessor of Criminal Injuries Compensation who refused her application for criminal injuries compensation.
Compensation applications
2 The Criminal Injuries Compensation Act 2003 is an
Act to provide for the payment of compensation to victims of offences in some circumstances, and for related matters.
3 Applications for criminal injuries compensation are made in writing to the Chief Assessor of Criminal Injuries Compensation. An assessor may make a compensation award and assess that award or an assessor may refuse to make an award.
4 Applications for compensation can be made by victims of crime even if no person is charged with the alleged offence. Section 17 of the Act provides, relevantly:
17. Alleged offence: no person charged
(1) This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
5 TLJ alleges that, approximately 30 years ago, her father indecently assaulted her. He has not been charged with an offence arising out of that alleged assault. TLJ applied for compensation for the injury she says she suffered as a consequence of the commission of the alleged offence.
6 The learned assessor refused TLJ's claim on the grounds of 'insufficient corroborative evidence and lack of particularity'. For this reason, the assessor found it unnecessary to assess any compensation. TLJ now appeals that decision to refuse her application.
Appeals
7 Section 55 of the Act relevantly provides:
55. Appeal lies to District Court
(1) An interested person may appeal to the District Court against an assessor’s decision -
(a) to make or to refuse to make a compensation award;
(b) as to the amount of a compensation award.
interested person, in relation to a compensation application or to a compensation award made on such an application, means -
(a) the applicant; or
(b) a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or
(c) the CEO;
9 TLJ, as an applicant, is an interested person, within the meaning of s 55(1), who has a right under s 55(1)(a) to appeal against the decision of the assessor to refuse to make a compensation award in her favour.
10 TLJ's father is not an interested person.
Section 17 compensation application
11 TLJ's father has not been charged with any offence. He did not have any part to play in TLJ's compensation application. He has had no role in this appeal. There can be no recovery from him under pt 6 of the Act of any compensation award that may be made in favour of TLJ. His identity has been protected by this appeal being anonymised. His rights are not affected in this kind of compensation application: Mineralogy Pty Ltd v Chief Executive Officer, Department of Environment Regulations [2014] WASC 468 [103].
12 There is no express prohibition in s 17 against compensation applications in the circumstances of this matter, being that, the alleged offender is known, but has not been charged with the alleged offence, his whereabouts are also known and he can be served with process.
13 The assessor did not have any difficulty in processing TLJ's application for compensation under s 17. She does not appear to have considered that there was any prohibition on an application in these circumstances. She merely rejected the application on its merits.
14 However, in Re Prefumo [2013] WADC 127 [31] - [46], Herron DCJ queried whether an award could be made in such circumstances. He found it unnecessary to decide the issue on the facts in that appeal.
15 At the hearing of this appeal, counsel for the Chief Executive Officer of the Department of the Attorney General, who appeared at the appeal as amicus curiae, observed that s 17 of the Act permits an award of compensation in circumstances which apply to TLJ's application for compensation.
16 Counsel for the chief executive officer advised that alleged offenders in appeals from an assessor are not provided with notice of the hearing. That is because they are not involved in the compensation application before the assessor.
17 Neither TLJ, nor counsel for the chief executive officer, sought to have TLJ's father be given notice of the appeal to attend in some capacity other than as a witness or simply to just have notice of it and to determine for himself what to do about it, if anything.
18 Counsel for the chief executive officer did not have any difficulty with this application proceeding in the absence of TLJ's father. Counsel submitted that it is undesirable in compensation applications of this kind for alleged offenders to agitate or litigate issues absent any clear intention in the Act for such alleged offenders to do so. Further, the Act is remedial and should be construed beneficially in favour of the applicant.
19 Consistent with the compensation application proceeding in this matter absent the alleged offender is the fact that assessors do not have the power to grant such alleged offender a certificate against self-incrimination under s 11 of the Evidence Act 1906. That is because a compensation application is a 'proceeding' as defined in s 3 of the Evidence Act,which includes a matter in which evidence may be given. Only a judge can grant a s 11 certificate. However, the term 'judge' does not, by definition, include an assessor: s 3. The Criminal Injuries Compensation Act should not be seen to abrogate the right against self-incrimination. This is perhaps another reason why this kind of compensation application under s 17 proceeds in this manner.
20 Absent full argument and with the express concurrence of counsel for the chief executive officer, it seems that, notwithstanding the reservations of Herron DCJ made also in the absence of argument, compensation applications of this kind can be made in the manner in which this application and appeal have proceeded.
Leave to bring application out of time
21 The Act requires that applications be made within three years after the date on which the offence was committed: s 9(1)(a). As noted, the alleged offending occurred some 30 years ago.
22 TLJ filed her application for criminal injuries compensation on 10 March 2014. She required leave to bring that application out of time under s 9(2) of the Act.
23 The assessor granted leave to TLJ to bring her application out of time.
24 The time limit for TLJ to have brought her claim for compensation is a substantive provision of the Act. It is not merely procedural. It should have been observed. There are strong policy reasons for imposing limitation periods and ensuring they are complied with: Re McHenry [2014] WADC 92 [16] - [17].
25 By reason that this appeal is a fresh hearing of the application for compensation, this court is to consider all aspects of that application, including the application for leave to extend time, even though the assessor granted such extension: Hinchliffe v Hinchliffe [2010] WADC 78 [24] and Re McHenry [12].
26 In Gleeson v Lee (1996) 18 SR (WA) 353, 354 – 355, Hammond CJDC held that an application for an extension of time in which to appeal a decision of the assessor should be determined by reference to:
(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.
There may be additional factors in any given case.
27 First, in this case, the delay is extreme, being some 30 years after the offending and 20 years after TLJ became an adult.
28 Secondly, TLJ was brought up within a dysfunctional family in which she suffered violence and ongoing psychological abuse as being the norm. She was educated to year 7 standard and left her parents' home aged 14 years. She returned to her parents' home for an unknown period of time aged 18 years when she gave birth to her eldest child. She probably did not stay with her parents for more than one year.
29 TLJ's complaint to the police was made on 1 December 2011.
30 TLJ explained her delay in making her report to the police and her application for compensation when asked to do so by the assessor on 15 January 2015. Such explanation included the fact that she lived in fear that her parents 'will come after me'. She did not know to whom to turn for help or where to go.
31 The alleged offending concerned TLJ's personal rights and sexual integrity. She has had little education and little, if any, parental guidance and assistance since childhood. It was not until 2011 that TLJ was able to bring herself to make complaint to the police. In April 2013, she was advised that the police would not proceed further. TLJ was provided with details of the Sexual Assault Referral Centre in the event that she might wish to resort to counselling, although the file does not reveal whether she received such counselling. She did however, receive counselling from Anglicare Sexual Assault Counselling for two years, apparently on a police referral.
32 TLJ filed her application for criminal injuries compensation in March 2014. This would seem to be during the period of counselling from Anglicare. It is not known when she first became aware she could claim criminal injuries compensation for her father's alleged offending. However, having regard to the 30 years since the alleged offending and the nature of it, being against her sexual integrity and personal rights, her claim was filed within a relatively short period of her having the courage to report the matters to the police. She continued to be in fear of her parents in January 2015.
33 Thirdly, from her statement to the police detailed below, TLJ has an arguable case.
34 Fourthly, TLJ's father is not a party to the application or to the appeal. He is not an interested person in either the outcome of the application or the appeal for the reasons expressed at [11] above. There is no prejudice to him, other than a possible finding against him. The delay has really only caused prejudice to TLJ.
35 In Gallo v Dawson (1990) 93 ALR 479, 480, McHugh J, in considering an application for an extension of time to appeal set by a procedural rule, noted that the discretion to extend time should only be exercised where compliance with the time limit would work an injustice having regard to certain matters therein set forth.
36 Section 9(2) of the Act requires that an extension of time be granted only 'if it is just to do so'. The Act is remedial in character and should be construed beneficially: Bird v The Commonwealth of Australia (1998) 165 CLR 1. This supports the conclusion that, in the circumstances outlined above, it would be just to grant leave to make the application out of time, as the assessor did.
The alleged offending
37 TLJ was born on 28 September 1978.
38 The alleged offending is said to have occurred between January 1985 and December 1986 at Lancelin in the home of the TLJ, who was then either 7 or 8 years old. TLJ and her father were at home alone. In a statement to the police, she said:
18. Dad was lying face down on a mattress on the floor in front of the television. The television was turned on.
19. I was kneeling next to my Dad on the mattress on his right hand side.
20. I was giving my Dad a massage, rubbing his back.
21. Dad was only wearing a dressing gown. I'm pretty sure it was a red silk dressing gown. It was a short one that went just above his knees.
22. I was massaging his back through the dressing gown as he was still wearing it.
23. Dad grabbed my right forearm and placed my hand on to his inner thigh at the top of his leg.
24. I could feel it was warm and hairy. I could feel the shape of his testicles in my hand.
25. Dad had no clothes on underneath his dressing gown.
26. Dad held my hand there for about a minute and I remember him saying, '[T], rub there'.
27. All of a sudden Dad panicked and let go of my arm.
28. I pulled away and ran downstairs and saw my Mum walking towards the stairs.
29. I was too scared to go near Dad. I didn't cry or show any emotion to Mum or tell her what had happened with Dad.
39 TLJ's police statement concludes in the usual way as follows:
This statement is true to the best of my knowledge and belief. I have made this statement knowing that, if it is tendered in evidence, I will be guilty of a crime if I have wilfully included in the statement anything that I know to be false or that I do not believe is true.
40 In another note on the assessor's file is the information that TLJ's father:
Put hand on genitals for about a minute.
Other evidence before the assessor
41 TLJ is of the mistaken view that knowledge by other members of her family of the alleged offending supports her application. That view is not correct.
42 Generally, evidence from a person to whom complaint was made at the first reasonable opportunity following the alleged offending can be received to bolster the credibility of the complainant, including as to the fact of the alleged offending.
43 At some much later unknown time after the alleged offending, TLJ informed her brother TJ and another brother RJ, who is now deceased, of it. Further, her aunty C also heard of it from TLJ's cousin. When and how this information was conveyed is not known.
44 The complaints of the alleged offending by TLJ to AJ and RJ and that aunty C learnt of it are not evidence of recent complaint by TLJ. They were not made at the first reasonable opportunity following the alleged offending. Had TLJ complained to her mother immediately upon her mother's return home on the day of the alleged offending then, evidence from her mother of that complaint could have been received as evidence of recent complaint, being an exception to the rule against hearsay evidence. Evidence of the complaint could then be used to bolster TLJ's credibility.
45 The assessor's file contains information indicating that on 3 November 1981, TLJ's father was convicted, on his own plea of guilty, of four offences of indecent assault upon four young girls contrary to s 183 of the Criminal Code, as it was in 1981. Two of the four complainants were older half-sisters of TLJ. Two of the complainants were aged 7 years and two were aged 9 years. The four girls rubbed baby oil 'on his legs', 'up and down his penis and around his testicles', 'on him' and 'about his penis' respectively. Each girl was subjected to other acts, but unlike TLJ and her father, it does not appear that any of the other girls and TLJ's father were interrupted by anyone who thereby unwittingly ended the offending.
46 There is also evidence of other sexual misconduct by TLJ's father against TLJ, but it has not been particularized in any real detail. She did not claim compensation for those other acts.
47 The police running sheet on the assessor's file includes information that TLJ's father 'denied the allegation'.
Finding as to offending
48 Section 56 of the Act provides as follows:
56. Dealing with appeals
(1) On an appeal under section 55 against an assessor’s decision, the District Court must 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 the possession of the assessor or may receive further evidence and information.
(2) On an appeal under section 55 the District Court may do any or all of the following —
(a) exercise any power of an assessor under this Act, other than a power under section 19(1)(b), 24(1) or 25;
(b) confirm, vary or reverse the assessor’s decision, either in whole or in part;
(c) make any order that an assessor could make under this Act;
(d) order an unsuccessful party to the appeal to pay a successful party’s costs as set by the Court in accordance with the scale of costs prescribed by the regulations;
(e) refer a question of law that arises in the appeal to the Court of Appeal for determination;
(f) make any necessary consequential order.
1. an appeal against an assessor's decision is informed by s 55(1) as being against a decision:
(a) to make or to refuse a compensation award;
(b) as to the amount of a compensation award.
Here, we are only concerned with an appeal against a decision to refuse an award;
3. section 56(2)(a) prevents this court from exercising the powers of the assessor under s 19(1)(b), s 24(1) and s 25(1), s 25(2) and s 25(3), including to conduct a hearing, relevantly as follows:
19. Assessor's general powers
(1) For the purposes of deciding a compensation application, an assessor may do any or all of the following, either on the application of an interested person or on the assessor’s own initiative –
…
b) give written notice of the application and of any amendment to it to an interested person;
(1) An assessor may conduct a hearing of a compensation application if he or she thinks fit.
25. Hearings
(1) If an assessor decides to conduct a hearing of a compensation application, the assessor must cause written notice of the time and place of the hearing to be given to the applicant and to any other interested person that the assessor intends to hear.
(2) A person who is notified of a hearing is entitled -
(a) to appear at the hearing and be heard by the assessor; and
(b) to appear in person or to be represented by a legal practitioner, or by a person approved by the assessor; and
(c) to present evidence and to call, examine and re-examine witnesses and to cross-examine any witness not called by that person.
(3) Section 63 applies for the purposes of conducting a hearing.
…
51 TLJ is required to prove her claim for compensation on the balance of probabilities. It must be more probable than not that the alleged offending occurred. However, there must be reasonable satisfaction of that offending in the manner described by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 (361) as follows:
But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
… It means the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
52 The assessor rejected TLJ's claim saying that:
I have insufficient corroborative evidence and lack of particularity to be satisfied you were the victim of an alleged sexual offence – either as described by you or at all.
53 It is not known from these brief reasons whether the assessor refused the claim because she believed, as a matter of law, that corroboration and greater particularity were required, or whether she simply took the view that, on the known facts, she required corroboration and greater particularity.
54 However, with respect to the assessor, even if the alleged offending were to proceed to a criminal trial, corroboration of TLJ's evidence would not have been required as a matter of law to obtain a conviction. It was open to the assessor to have allowed TLJ's application without corroboration.
55 The assessor also referred to lack of particularity. However, this alleged offending occurred some 30 years ago. The timeframe of the alleged offending has been specified by TLJ to be when she was 7 or 8 years old. The place of the alleged offending, the identity of the alleged offender and the nature of his alleged act have all been specifically detailed as set out in her police statement detailed above. The detail provided is probably as good as any witness could provide in TLJ's circumstances. The essential features have been adequately particularised.
56 The only direct evidence as to the alleged offending came from TLJ. That offending can be found to be established on her evidence alone if regard is had to the seriousness of the allegation and provided her evidence is credible, accurate and reliable and satisfies the court on the balance of probabilities. This satisfaction must be achieved on a review of all the evidence and information available.
57 There must necessarily be careful scrutiny of TLJ's accusation, but her evidence need not be regarded with critical disbelief. Further inquiry is not required in an appeal of this kind.
58 The conflict between TLJ's police statement with her declaration of its truth and the police note of a denial of the allegation by her father would ordinarily require a hearing with cross-examination of the parties in order to resolve the issue. However, that did not happen before the assessor and it cannot occur on appeal by reason of s 56 of the Act.
59 The four convictions admitted by TLJ's father reveal his propensity to commit an offence of the kind alleged by TLJ. The convictions also reveal a striking similarity of massaging between the admitted acts involving four similarly aged girls and the act alleged by TLJ. Two of the girls were TLJ's half-sisters. There is a strong degree of probative force in the admitted offences which clearly outweighs the prejudicial effect of her father's propensity: Pfennig v The Queen (1995) 182 CLR 461, 581, 484 – 485 and 528.
60 There has not been any further evidence or information provided on appeal as to the offending.
61 Counsel for the chief executive officer did not challenge TLJ as to her accusation. By his presence at the appeal, the public interest in the matter has been safeguarded.
62 Further, save for a finding against the alleged offender, his interests are protected. He is not an interested person in this appeal.
63 In a sense, the assessor conducted her inquiries in a vacuum in that she reached her conclusion only on the papers provided to her. She did not conduct a hearing. However, that is the nature of these compensation applications. It is, of course, a matter for the assessor herself to determine whether or not to conduct a hearing: s 24 and s 62A. The assessor's general powers are set out in s 19 and these powers may be exercised even without a hearing.
64 This appeal has also necessarily been conducted in the same vacuum as before the assessor. It is determined solely on the evidence and information in the possession of the assessor: s 56(1).
65 It is to be remembered that the Act is remedial in character and is to be construed beneficially.
66 Regard has been had to TLJ's police statement with her declaration, her father's prior admitted offending and denial as recorded, together with the constraints emanating from Briginshaw. Having assessed the whole of the evidence, I am satisfied on the balance of probabilities that TLJ's complaint is true. Her appeal against the refusal of the assessor to make a compensation award in her favour therefore succeeds.
To assess or remit?
67 I have allowed TLJ's appeal against the assessor's refusal to make a compensation award. There is power to make any consequential order: s 56(2)(f). To remit the assessment would be consequential upon the reversal of the assessor's decision and follows logically or of necessity from the appeal succeeding, as to which see Zadeh [2015] WADC 136 [13].
68 It is therefore necessary to determine whether to assess that award or to remit it to the assessor for assessment.
69 In this appeal, I have the assessor's file with all relevant information to enable an assessment of damages. I now also have the advantage of a further psychological report not available to the assessor upon which written submissions have been received from TLJ and counsel for the chief executive officer.
70 I have had regard to the nature of the assessment required in this appeal.
71 In the circumstances, I propose to assess TLJ's compensation award.
TLJ's background
72 TLJ was mistreated within her dysfunctional family as a child and during her adolescence. She was admitted to Joondalup Psychiatric Clinic aged 14 or 15 years and then Graylands Hospital aged 17 years, apparently because she was suicidal. She suffered depression after the birth of her first child, a son, who is now 18 years old. TLJ said her mother manipulated her into permitting her mother to adopt this child. She also referred to her mother having custody of him.
73 TLJ had posttraumatic stress disorder, constant anxiety and depressive symptoms as reported on 25 July 2007 by Dr Paul Corrigan, psychiatric registrar. This illness was the direct result of events leading up to the deliberate burning of her house in May 2005 and the harassment which preceded and followed it, including threats in respect of which TLJ has previously claimed criminal injuries compensation.
74 In 2012, TLJ required psychiatric evaluation as an involuntary patient for an exacerbation of mental illness. She then had a diagnosis of long standing of posttraumatic stress disorder with persistent hyperarousal. She had declined treatment for anxiety, depression, grief and stress. At that time, her husband was admitted to Graylands Hospital with chronic paranoid schizophrenia and her children were taken into care by the Department of Child Protection. She then had a generalised anxiety disorder from child sexual abuse and trauma in her adult life.
75 TLJ has received counselling and therapy from various agencies since at least her teenage years. This has been ongoing to the present. The above history is probably not complete.
Consequences of the offending
76 During the course of the appeal, TLJ commissioned a psychological report in an endeavour to disentangle her various psychological injuries and conditions, if possible. That report, dated 4 April 2016, has now been provided by Ms Melissa Harrison, consulting psychologist, who reviewed TLJ over three sessions, each being of two hours duration.
77 Ms Harrison reported that TLJ's present symptoms were consistent with a number of psychological concerns being:
(a) posttraumatic stress disorder, with dissociative symptoms;
(b) major depressive disorder, with severe anxious distress;
(c) unspecified feeding or eating disorder; and
(d) personality disorder (deferred).
78 In coming to her conclusion, Ms Harrison noted that TLJ's psychological presentation was complex. The sexual offending by her father caused extreme distress and there was equally significant distress arising as a consequence of TLJ's exposure to a dysfunctional and domestically violent early upbringing.
79 Previously, TLJ would likely have met the diagnostic criteria for substance induced disorder (possibly multiple), however this is reported to have resolved. She is also likely to have a previously undiagnosed neurodevelopmental disorder. It is necessary to conduct further assessment to determine if she has a specific learning disorder or disorders.
80 Ms Harrison reported:
61. As detailed above [TLJ's] historical report and psychological presentation is complex. While [TLJ] has described extreme distress resulting from the alleged sexual offences of her biological father, she has equally described significant distress arising as a consequence of her exposure to a dysfunctional and domestically violent early upbringing. There is little doubt that [TLJ] has been significantly impacted by her dysfunctional childhood and adolescence. However, this impact cannot be solely attributed to the alleged sexual offending by her biological father. While [TLJ] has described continuing to fear for the safety of herself and her children at the hands of her father, this does not appear directly related to the alleged sexual offending, but rather influenced by her parents' general behaviour towards her.
62. As previously noted, [TLJ] has described an extremely troubled life and numerous factors have been identified as predisposing onset of her psychological symptoms. In addition to the alleged sexual abuse by her biological father, these include her early exposure to a chronically domestically violent family environment, her reported experiences of emotional medical, and educational neglect, the suicide of a brother to whom she reported being extremely close, her experiences of sexual victimisation further to moving out of the family home, and the general isolation she has experienced as a function of her restricted social and vocational life. It would be fair to say that aside from her children and partner, [TLJ] has described little by way of protective factors to mitigate the impact of her earlier trauma.
63. While these factors would best be considered cumulative in nature, it is understood that it is necessary to disentangle the consequences of these factors from the alleged sexual abuse for the purpose of compensation. Under such circumstances, it might seem prudent to consider whether [TLJ] would be experiencing her current difficulties in the absence of the alleged sexual offending by her father. In such an absence, I would expect that [TLJ] would likely display reduced hypervigilance in relation to the sexual safety of her children, and reduced concern regarding her father's access to children in her mother's care. Nevertheless, based on [TLJ's] reported perception of past events, I would expect [TLJ] to continue to experience many of her presenting difficulties.
Findings as to psychological matters
81 TLJ is required to establish that the offending materially contributed to her psychological injury: S v Neumann (1995) 14 WAR 452, 463 - 464.
82 Clearly, TLJ has a range of psychological concerns, many of which do not emanate from her father's offending against her. The next issue then is, if possible, to disentangle the psychological consequences caused by the offending from other concerns not caused by compensable events. As Martino DCJ said in MJN v MAJS (2003) 35 SR (WA) 219 [50] - [52]:
[50] Where an applicant has been the victim of offences for which compensation or a certificate can be awarded (compensable offences) and of offences for which compensation or a certificate cannot be awarded (non-compensable offences) the onus is on the applicant to prove that the compensable offences did contribute materially to the applicant's injury or loss. The compensable offences need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlaw [1956] AC 613; Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666.
[51] It is not possible to disentangle the consequences of non-compensable offences from the consequences of compensable offences the applicant is entitled to compensation for the full injury and loss if the applicant has established that the compensable offences did contribute materially to the applicant's injury or loss: Bonnington Castings Ltd v Wardlaw; Fagan v Crimes Compensation Tribunal; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
[52] Where the evidence establishes that the non-compensable offences had a propensity to cause the applicant's injury or loss and did contribute to the injury or loss the award of compensation will be reduced to take account of that chance: Wilson v Peisley (1975) 50 ALJR 207; Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.
83 Ms Harrison detailed at par 61 of her report above that TLJ's fear for the safety of herself and her children at the hands of her father is not directly related to the sexual offending, but is rather influenced by her parents' general behaviour towards her. This is however, quite different to her finding at par 63 above regarding the sexual safety of her children and her father's access to her children. Absent the sexual offending against TLJ, there would be reduced hypervigilance in relation to the sexual safety of her children and reduced concern regarding her father's access to her children in her mother's care. To this end, an award can be made by reason of the offending. This added hypervigilance and concern is a consequence of the offending: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506, 515.
84 In addition to this hypervigilance and concern, Ms Harrison's report also details that TLJ consumed daily amphetamine from age 13 for the purpose of staying awake throughout the night in case her father attempted to assault her. On weekends, she would then sleep in a safe environment at a friend's home and there she took heroin in order to 'come down'. She provided sexual favours to assist her pay for these drugs.
85 It is no wonder then that, given the offending against her in 1985 - 1986, TLJ sought to remain awake in order to prevent further offending against her. It is not apparent from the file whether TLJ was aware of her father's earlier convictions at the time of this substance abuse, or whether it only became known to her later. TLJ left school at the age of 13. She left home aged 14 years.
86 When TLJ realised that the continued drug use was not good for her, she gave it up and commenced drinking alcohol. She also began to eat excessively and gained considerable weight for which she was prescribed Duramine.
87 Where substance abuse results from, or is secondary to, a psychiatric or psychological disorder, which is itself a consequence of the commission of an offence, the substance abuse can be categorised as an injury amounting to mental and nervous shock: CKN v The Assessor of Criminal Injuries Compensation [2008] WADC 79 [127].
88 Ms Harrison has therefore, for the purpose of criminal injuries compensation, disentangled the psychological consequences of the offending from the consequences of non-compensable events which have caused TLJ's complex psychological presentation.
89 The maximum award at the time of the offending in 1985 was $15,000. The maximum award for an offence in 1986 was $20,000: s 31(1). It is not known whether this offending occurred in 1985 or 1986. For this reason, the 1985 maximum must be the limit of any award. These maximum amounts are merely jurisdictional limits and are not reserved for the worst cases: S v Neumann. The correct approach to fix the amount of compensation is to apply the ordinary principles in tort for the assessment of damages, subject, in this case, to the jurisdictional limit of $15,000: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992).
90 An appropriate award of damages is a sum of $12,500.
91 Further, TLJ has incurred a cost of $2,617.20 for Ms Harrison's consultations and report. I will allow a claim for such sum in addition to the compensation award: s 30(1). However, as the maximum award is limited to $15,000, the total compensation award must be limited to such sum.
A further matter – s 6
92 In passing, Herron DCJ in Prefumo at [17] noted that this court has power under s 63(2) to give a witness notice of the hearing of the appeal and to require that witness to give evidence. I must respectfully disagree.
93 On my reading of the Act, s 56(1), permits this court to receive further evidence and information. Further, s 19(1)(c) and s 19(1)(d) provide this court with the assessor's powers as follows:
19. Assessor's general powers
(1) For the purposes of deciding a compensation application, an assessor may do any or all of the following, either on the application of an interested person or on the assessor’s own initiative –
…
(c) seek and receive any information or evidence that the assessor thinks necessary;
(d) make any inquiries and investigate any matters that the assessor thinks necessary;
…
95 Pursuant to s 19(1)(c) and s 19(1)(d), the court could, in theory, 'seek and receive any necessary information or evidence' from, or 'make inquiries' with and 'investigate', TLJ's father. However, it seems to me that any attempt to do so, whether by requiring his personal attendance at the appeal or by him providing written materials, under the guise of an exercise of the powers under s 19(1)(c) or s 19(1)(d), would be improper and would amount to subterfuge to get around the direct prohibition of s 56, s 19(1)(b), s 24 and s 25. By contrast, under s 56(1), this court may 'receive further evidence and information' were TLJ's father to voluntarily attend and be heard at the appeal to make submissions or wish to provide written materials.
Result
96 The appeal is allowed. TLJ is entitled to compensation in the sum of $15,000.
12