Re Vercoe - [2024] WADC 9

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CRIMINAL INJURIES COMPENSATION

LOCATION:   PERTH
CITATION:   RE VERCOE [2024] WADC 9
CORAM:   ZEMPILAS DCJ
HEARD:   8 FEBRUARY 2024
DELIVERED          :   26 FEBRUARY 2024
FILE NO/S:   APP 22 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: MICHEAL VERCOE
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number            :   CIC 278/2023

Catchwords:

Appeals - Criminal injuries compensation - Alleged behaviour of victim prior to offence - Provocation - Section 39 of the Criminal Injuries Compensation Act - Whether victim contributed to injury - Section 41 of the Criminal Injuries Compensation Act

Legislation:

Criminal Injuries Compensation Act 2003 (WA)
Criminal Procedure Act 2004 (WA)

Result:

Appeal allowed
Award reduced

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Mr J Kirke appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Bedetti v Chief Executive Officer [2003] WADC 37
Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Bennett v The State of Western Australia [2012] WASCA 70
Bentham v Wass [2004] WADC 47
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Bothma v Hildebrand [2019] WADC 92
Briginshaw v Briginshaw (1938) 60 CLR 336
Cahill v Smith [2015] WADC 148
Curran v Champion [2012] WADC 9
De Florenca v Hayden [2007] WADC 54
Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407
EB v Ramljak [2021] WADC 134
Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Fairhead v Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73
Gullelo v Halloran [2008] WADC 145
Guy v Hampson [2019] WADC 19
Hill v Clarke [2015] WADC 93
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hutchings v Lachlan [2012] WADC 89
JPG v O'Brien [2002] WADC 232
Lyle v Soc [2009] WASCA 3
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Martin v Martin [2015] WADC 138
Milburn-Thomas v Palmer [2020] WADC 158
Nagel v Tahere [2020] WADC 110
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Passaris v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D990151, 1 June 1999)
R v Fraser [1975] 2 NSWLR 521
RBF v OSD-S (2004) 36 SR (WA) 61
Re AK [2016] WADC 156
Re Collard [2018] WADC 1
Re CY [2014] WADC 41
Re HCM [2018] WADC 20
Re Hojetzki [2009] WADC 77
Re Hondros [1973] WAR 1
Re Jackamarra [2014] WADC 9
Re Robinson [2017] WADC 18
Re Warrek [2019] WADC 50
Robertson v Hopwood [2018] WADC 66
S v Neumann (1995) 14 WAR 452
Savic v Duric [2021] WADC 53
Scott v Kevill [2002] WADC 80; (2002) 28 SR (WA) 226
TAW v NJS [2011] WADC 187
Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173
Underwood v Underwood [2018] WADC 13

ZEMPILAS DCJ:

Introduction

The appellant asks the court to set aside or vary an award for criminal injuries compensation that was made in favour of the respondent.
The respondent was the victim of an offence committed by the appellant (Offence) and the appellant says that, because of the respondent's behaviour prior to the Offence, he should not have been awarded criminal injuries compensation in that amount or at all.

General principles applicable

Nature of the appeal

An appeal under the Criminal Injuries Compensation Act 2003 (WA) (Act) is a hearing de novo.[1] Consequently, there is no requirement for the appellant to demonstrate error on the part of the Assessor.
[1] Underwood v Underwood [2018] WADC 13 [19] (Underwood); Re Collard [2018] WADC 1 [30]; Gullelo v Halloran [2008] WADC 145 [5].
The court may confirm, vary or reverse the Assessor's decision either in whole or in part.[2] It is open to the court to increase or decrease the compensation awarded by the Assessor (subject to the jurisdictional limit).[3]
[2] Section 56(2)(b) of the Act.
[3] Guy v Hampson [2019] WADC 19 [15].
The appeal is to be determined by the court 'without being fettered by the Assessor's decision'.[4]
[4] Section 56(1) of the Act.
For the purposes of the appeal, the court has been provided with the Assessor's papers (Assessor's Papers) including the statements of the respondent and witnesses, body worn camera footage and closed circuit television footage relating to the Offence.
In addition to the Assessor's Papers, the court has been provided with copies of the transcripts of proceedings in relation to the Offence, namely:
(a)The plea of guilty before Magistrate Roberts, heard on 15 February 2021 in the Joondalup Magistrates Court;[5] and
(b)The sentencing proceedings before Magistrate Roberts, heard on 8 March 2021 in the Joondalup Magistrates Court.[6]

Fresh evidence

[5] Magistrates Court transcript (Magistrates ts), 15 February 2021.

[6] Magistrates ts, 8 March 2021.

Section 56(1) of the Act provides that the court may decide the appeal solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information.[7] The court will permit fresh evidence to be admitted 'unless there is some reason why it would be unjust to do so'.[8]
[7] District Court Rules 2005 (WA) r 50(2).See Underwood [36]; Cahill v Smith [2015] WADC 148 [8].
[8] Re HCM [2018] WADC 20 [13]; Underwood [37]; Re Robinson [2017] WADC 18 [8]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
On 12 September 2023, the appellant was ordered to file a book of documents on which he intended to rely at this appeal,[9] no later than 14 days prior to the hearing.
[9] Orders of Registrar Kubacz made 12 September 2023.
No additional documents were filed by the appellant, until he filed his affidavit dated 4 December 2023.[10]
[10] Exhibit 1
As there is no reason why it would be unjust to do so, it is appropriate that the court receive the further evidence.

Background

On 17 May 2023, an Assessor of Criminal Injuries Compensation (Assessor) awarded the respondent $17,500.00 (Award) on the respondent's application for criminal injuries compensation under the Act lodged 27 January 2023 (Application).
The respondent had claimed compensation for injury and loss resulting from the Offence, which was an unlawful wounding which occurred on 13 September 2020. The appellant was convicted of the Offence on his plea of guilty at Joondalup Magistrates Court on 15 February 2021 and sentenced on 8 March 2021.
The Assessor ordered that, pursuant to s 45(1)(b) of the Act, a maximum of $5,000.00 was recoverable from the appellant under pt 6 of the Act.
The Assessor did not provide reasons for making the Award.
A summary of the facts of the Offence, as read by the prosecution at sentencing,[11] is as follows:
1.At about 7.20 pm on 12 September 2020,[12] the appellant was at home and received a phone call from a friend. The friend told the appellant that the respondent was being argumentative and disruptive at the Beldon Tavern.
2.A short time later, the appellant attended the Beldon Tavern and spoke with his friend in the carpark.
3.The appellant entered the tavern and confronted the respondent. An argument ensued. After a short time, the appellant pushed the respondent off his barstool and onto the ground.
4.The appellant then picked up the barstool and used it to strike the respondent on the head. This caused three cuts on the respondent's head. One of the cuts severed an artery.
5.A struggle broke out, during which the appellant punched the respondent to the head several times. Eventually, the appellant and respondent were separated by staff and other patrons.
6.The appellant left the Beldon Tavern and the respondent was later conveyed by ambulance to Joondalup Health Campus for treatment.
7.On 21 October 2020, the appellant was arrested at his home. The appellant was conveyed to Joondalup Police Station where he participated in a video interview and made full admissions.
[11] Magistrates ts 3, 8 March 2021.
[12] This date is incorrect. It is accepted by the appellant and respondent that the date of the Offence was 13 September 2020.

Issues on appeal

By notice of appeal filed on 6 June 2023, the respondent commenced an appeal against the Award. The appellant provided one ground of appeal as follows:
Respondent awarded wrong assessment of $. Provocation all witnesses and threats of death and rape!
The appeal was commenced within time.[13]
[13] The Award was made on 17 May 2023 and the notice of appeal was filed on 6 June 2023, within the 21‑day period prescribed by s 55(3) of the Act.
The respondent was served with the notice of appeal on 29 June 2023.[14] The respondent has not indicated an intention to participate in the appeal.
[14] Service Certificate filed 29 June 2023.
It is apparent from the ground of appeal that the appellant disputes the quantum of the Award.
While not explicit in the ground of appeal, the appellant has indicated in the course of correspondence with the amicus curiae that his primary contention is that the respondent is not entitled to compensation in respect of the Offence. The appellant asserts that the respondent provoked the appellant in relation to the Offence, and this behaviour disentitles the respondent to the Award.
The appellant has subsequently filed an affidavit in support of his appeal.[15] In it, the appellant asserts:
(i)The behaviour of the respondent was 'bad and intoxicated' and should not be 'rewarded with a crazy compensation payout' for an outcome that 'he instigated and provoked';
(ii)The respondent said to the appellant 'he would kill my kids and rape my wife' which were 'provoking and dangerous words to say to anyone';
(iii)The CCTV footage supports 'that you can clearly see [the appellant] walk away for a second or two and then retaliate to his words'; and
(iv)The CCTV footage outside the tavern after the incident also corroborates the appellant as leaving 'and [the respondent] going crazy and still trying to provoke the situation'.
[15] Exhibit 1.
There are five main issues in this appeal:
1.Is the respondent entitled to compensation?
2.If so, what is the appropriate assessment of any compensation award?
3.In the circumstances of the case, should the court refuse to make a compensation award or reduce the amount it otherwise would have awarded on the basis of s 39 or s 41 of the Act?
4.If so, is it appropriate for the court to vary the order made by the Assessor under s 45(1)(b)?
5.What final orders are appropriate?

Entitlement to compensation

General principles

The respondent's claim for compensation is based on 'the commission of a proved offence'.[16] The term 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'.[17] The appellant's conviction for the Offence is a proved offence for the purposes of the Act.
[16] Section 12(1) of the Act.
[17] Section 3 of the Act.
For a claim based on the commission of a proved offence, the scheme of the Act is that an assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation.[18] Compensation for a proved offence can only be awarded if the assessor is satisfied, on the balance of probabilities, that the applicant has suffered the injury and loss claimed, and that the injury and loss were a consequence of the commission of the offence.[19]

Proved offence where there has been a plea of guilty

[18] Underwood [46] (Gething DCJ).

[19] See s 3 of the Act (definition of 'satisfied') and s 12(3); see also BAS v The Estate of NAS (Dec) [2000] WASCA 270 [11].

The following principles are applicable in relation to an application in respect of a proved offence in which there has been a plea of guilty:[20]
(a)the offender or claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction;
(b)a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts;
(c)a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of s 41 of the Act, to the effect that he or she had a defence to the proved offence;
(d)where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the only reliable guide to that issue will usually be the facts admitted for the purposes of sentence which will ordinarily be able to be discerned from the transcript of the sentencing hearing;
(e)a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible; and
(f)both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances to the extent that it is not inconsistent with the paragraphs above.
[20] Bothma v Hildebrand [2019] WADC 92 [35] (Gething DCJ); Underwood [55] - [62] (Gething DCJ).
Where, in the case of a plea of guilty, issues arise as to the identification of the precise facts evidenced by a conviction (beyond those necessarily underpinning the conviction), the facts admitted for sentence and any facts found by the sentencing judge establish the facts of the conviction.[21]
[21] Bennett v The State of Western Australia [2012] WASCA 70 [67] (Martin CJ), applied in LS v SL [2023] WADC 8 [30] (Sweeney DCJ).
Therefore, this appeal is to be determined on the basis of the relevant statements of material facts read onto the record by the prosecution at sentence, and it would be wrong in principle to reach any finding of fact which contradicts those facts as found.[22]
[22] Section 129(3) of the Criminal Procedure Act 2004 (WA); LS v SL [41] - [42] (Sweeney DCJ).

Assessment of compensation

General principles

The maximum amount of compensation which may be awarded is $75,000.[23] The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases.[24]
[23] Section 31(1) of the Act.
[24] S v Neumann (1995) 14 WAR 452, 463 (Murray J); Underwood [112] (Gething DCJ); Re CY [2014] WADC 41 [30] (Sleight DCJ); TAW v NJS [2011] WADC 187 [21] (Bowden DCJ); De Florenca v Hayden [2007] WADC 54 [16] (Yeats DCJ).
The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and the jurisdictional limit imposed by the Act.[25]
[25] M v J (Unreported, WASCA, Library No 920598, 19 November 1992), 11 ‑ 12 (Scott J); Underwood [112] - [113] (Gething DCJ); Re CY [30] (Sleight DCJ); Re Jackamarra [2014] WADC 9 [15] (Schoombee DCJ); LS v SL [132] (Sweeney DCJ).
In assessing the amount of compensation which should be awarded the court must have regard solely to the injury suffered by an applicant in consequence of the commission of the offence, and not to the seriousness of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim.[26]
[26] Underwood [115] (Gething DCJ); Re CY [29] (Sleight DCJ); Re Jackamarra [15] (Schoombee DCJ).
In assessing the appropriate amount of compensation, a broad and subjective assessment must be undertaken with consideration of what the community would regard as reasonable compensation.[27]
[27] Re Warrek [2019] WADC 50 [37] (Troy DCJ) (Re Warrek); R v Fraser [1975] 2 NSWLR 521, 523 (Wootten J).
There is limited utility in comparing other awards of compensation or damages for personal injuries due to the inability of appeal courts and tribunals to know that they are comparing like with like.[28]

Injury and loss

[28] Fairheadv Quartermaine [2010] WADC 1; (2010) 69 SR (WA) 73 [14] (Deane DCJ).

Compensation is relevantly payable where a person has suffered 'injury' in consequence of the commission of an offence.[29] Bodily harm is included in the definition of 'injury'.[30]
[29] Section 12(1) of the Act.
[30] Section 3 of the Act.
In order to make an appropriate award of compensation, sufficient evidence ought to be before the court.[31] Supporting medical evidence from an appropriately qualified medical practitioner is generally required to prove that an injury exists and was caused by the offence.[32]
[31] Passaris v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D990151, 1 June 1999) 5 - 6 (Nisbet DCJ).
[32] See Re Hojetzki [2009] WADC 77 [48] (Sleight DCJ).
As a general proposition, a victim cannot be expected to provide an objective and impartial account of an offence and its consequences in a victim impact statement provided to the court.[33]
[33] Dimitrovska v The State of Western Australia [2015] WASCA 162; (2015) 253 A Crim R 407 [74] (Martin CJ, McLure P & Hall J agreeing).
Compensation is also payable where a person has suffered 'loss'; the meaning of which includes economic loss, past medical expenses and future medical treatment.[34]
[34] Section 6 and s 17(2) of the Act.
The definition of 'loss' includes expenses actually and reasonably incurred by or on behalf of the victim that arise in obtaining any report from a health professional in relation to the injury suffered by the victim.[35]

Causation

[35] Section 6(2)(a)(ii) of the Act.

An applicant must establish a causal relationship between the commission of an offence and the injury or loss for which the compensation is sought.[36]
[36] S v Neumann (463) (Murray J); Re AK [2016] WADC 156 [71] (Schoombee DCJ); Martin v Martin [2015] WADC 138 [82] (Derrick DCJ).
The requirement that a causal link be proved raises two main issues for the court to consider:
(a)first, the extent, if any, to which the appellant's claimed injury and loss was caused or contributed to by pre‑existing physical and psychological injuries; and
(b)second, the extent, if any, to which the appellant has failed to mitigate his injury or loss.
The determination of whether the requisite causal connection exists is a question of fact to be resolved as a matter of common sense.[37]
[37] EB v Ramljak [2021] WADC 134 [36] (Whitby DCJ), citing Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 ‑ 413; Fagan v The Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 and Underwood.
A sufficient causal connection will be established if, as a matter of ordinary common sense and experience, the offence or offences are regarded as having 'materially contributed' to the injuries or loss.[38]
[38] EB v Ramljak [36] (Whitby DCJ), citing Bonnington Castings Ltd v Wardlaw [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515; Lyle v Soc [2009] WASCA 3 [40], and Underwood [87]. See also S v Neumann (463) - (464) (Murray J); Martin v Martin [83] (Derrick DCJ).
An applicant is obliged to mitigate his or her injury or loss by obtaining reasonable medical treatment in respect of the injuries caused by the offences, including the use of prescribed medication. The failure to do so ought to be taken into account when an award of compensation is made.[39]
[39] RBF v OSD-S (2004) 36 SR (WA) 61 [59] (Reynolds DCJ); Bedetti v Chief Executive Officer [2003] WADC 37 [11] (LA Jackson DCJ); JPG v O'Brien [2002] WADC 232 [19] (HH Jackson DCJ).

Conclusions on entitlement and assessment

The events that lead to the injuries suffered by the respondent were described in the statement of facts read at sentencing as follows:[40]
... As the argument got heated, the accused pushed the victim off his stool onto the ground. The accused picked up the bar stool, hitting the victim over the head once with enough force to dislodge the cushion, causing several severe cuts to the victim's head.
The victim suffered three cuts with one of those cuts severing an artery in his head. All the cuts required stitches. This injury was consistent with wounding.
[40] Magistrates ts 3, 8 March 2021 (Magistrate Roberts).
The court has before it the respondent's medical records from Joondalup Health Campus in relation to the Offence (collectively, Medical Records).[41] The Medical Records comprise:
(a)an 'Emergency Department - Patient Information Sheet' from Joondalup Health Campus;[42]
(b)a 'Patient Care Record' from St John Ambulance (SJA Record);[43]
(c)an 'Emergency Department Triage / Nursing Assessment' from Joondalup Health Campus' (Triage Assessment);[44]
(d)an 'Emergency Department Trauma Record' from Joondalup Health Campus (Trauma Record);[45]
(e)'Integrated Progress Notes' from Joondalup Health Campus (Integrated Progress Notes);[46]
(f)various charts relating to medication, observation, and fluid balance;[47] and
(g)a form headed 'PRIORITY ONE CALL'.[48]
[41] Assessor's Papers, pages 98 - 115.
[42] Assessor's Papers, page 98.
[43] Assessor's Papers, pages 99 - 101.
[44] Assessor's Papers, pages 102 - 103.
[45] Assessor's Papers, pages 104 - 105.
[46] Assessor's Papers, pages 106 - 107.
[47] Assessor's Papers, pages 108 - 114.
[48] Assessor's Papers, page 115.
The court does not have before it a report from a medical practitioner in respect of the respondent's injuries. However:
(a)the SJA Record records observations of 'several lacerations to the head requiring wound care' and '?arterial bleed as squirting evident with continuous blood loss';[49]
(b)the Triage Assessment records '40yr old male presenting post head trauma, alleged assault ... 'head hit with glass/bar stool L side of head - approx 600ml blood loss / squirted at the time ? arterial';[50] and
(c)the Trauma Record states '4 x lac. to forehead - 1 x arterial bleeding',[51] notes external bleeding from the forehead with an estimated volume of 600ml,[52] and includes a labelled anterior survey diagram appearing to record four lacerations of 5 cm, 6 cm, 4 cm and 2 cm respectively.[53]
[49] Assessor's Papers, page 100.
[50] Assessor's Papers, page 103.
[51] Assessor's Papers, page 104.
[52] Assessor's Papers, page 105. However, this observation appears to be qualified by the notation '(as per SJA)'.
[53] Assessor's Papers, page 105. An annotation to the diagram appears to record '- deep lac - intact skull'. The laceration labelled as '2cm' appears to be annotated with 'arterial bleed'.
The records identified above are generally consistent with the injuries said to be suffered by the respondent as described by the prosecution at sentencing.[54]
[54] Magistrates ts 3, 8 March 2021 (Magistrate Roberts).
The court has also been provided with photographs of the respondent's injuries.[55]
[55] Assessor's Papers, pages 72 - 77.
Joondalup Health Campus Emergency Department records indicate two instances of the respondent not complying with medical advice: the respondent was non-compliant with C‑spine precautions and chose to leave at his own risk, without taking an antibiotic script.[56]
[56] Assessor's Papers, page 104. The latter is also reflected in the Integrated Progress Notes at Assessor's Papers, pages 106 - 107.
The respondent stated that he suffered mental harm as a result of the Offence[57] however there is no identifiable evidence in support of this assertion.
[57] See eg Statement of Alan Felix Corrigan dated 16 March 2023, pars 3, 6 - 7, 11 at Assessor's Papers, page 10.
While the respondent said he had 'about 3 weeks off work due to the stitches and my line of work' and having 'missed more days than usual with headaches since the incident',[58] there is no identifiable evidence in support of this statement.
[58] See Statement of Alan Felix Corrigan dated 16 March 2023, pars 8 - 9 at Assessor's Papers, page 10.
As noted above, the court does not have before it a report from a health practitioner in respect of the respondent's injuries.
However, the respondent provided two receipts with his application, namely:
(a)a 'General Receipt / Tax Invoice' issued by Western Australia Police in the sum of $30.00 for 'Criminal Injury Compensation Information report CHQ(086420-000228)';[59] and
(b)a tax receipt with receipt number 'ROI4582' issued by Joondalup Health Campus in the sum of $86.72.[60]
[59] Assessor's Papers, page 116.
[60] Assessor's Papers, page 117.
Taking these materials into account, I make a fresh determination in respect of the Award to the respondent.
The respondent is prima facie entitled to compensation by virtue of the injury and loss which were a consequence of the commission of the Offence.
Applying the relevant principles and taking into account:
(i)the limited evidence available as to the nature and extent of the injury (pain and suffering and other non-pecuniary loss) and loss (pecuniary loss) as a result of the Offence, and
(ii)the failure by the respondent to mitigate his injury or loss by obtaining reasonable medical treatment in respect of the injury,
an appropriate award of compensation for injury is $7,000 and for loss is $116.72.

In the circumstances of the case, should the court refuse or reduce a compensation award?

The relevant circumstances

In the appellant's email to the Office of Criminal Injuries Compensation (OCIC) dated 13 February 2023, the appellant states (as original):[61]
... on the date that i wounded [the respondent] was actually provocation. i did my time. [the respondent] provoked the whole situation as i went to walk away he threatened to kill my kids and rape my wife after confronting him for assaulting three of my friends during the day. These words alone are disgusting and dangerous for anyone to threaten people with as well as to be considered provocation. if i had money I would not have pled guilty and not spent time inside a maximum security prison for more than 3 months. i would have sued him for provocation.
all witnesses can attest to [the respondent] being the aggressor all day. witnesses have made statements backing up my involvement in police records and accounts.
…
[61] Assessor's Papers, page 84.
In the appellant's affidavit,[62] the appellant states:
(i)'On the day of our altercation, I received a phone call from my friend and told about how [the respondent] had been threatening violence and starting on him, I also know for a fact, and perhaps you have witness statements, that he had also started trouble with another two patrons. I came to pick up Gary and decided to confront [the respondent], where he was absolutely drunk and still drinking. The result is why we are here today'.
(ii)'His intoxication led him to saying he would kill my kids and rape my wife. To me, your Honour, these are words that no person should say, these words are provoking and dangerous words to say to anyone'.
(iii)'[The respondent] also suggests in the transcript that he waited out the front for an ambulance asking why I had done this and saying that:-
"What goes around comes around".
This is not true, your Honour, footage show us leaving and [the respondent] going crazy and still trying to provoke a situation. He was dragged inside by Beldon staff and I believe [the respondent] was that intoxicated and enraged and would not have stopped if not been for staff taking him back inside'.
(iv)'In conclusion I strongly believe [the respondent] does not deserve this sum of money, as the facts in the transcript and his own acknowledgement of being a provoker ("bit of a dick") and the lawyer identifying and supporting my statement is surely enough evidence to indicate that [the respondent] played a big part in the evening's events. Surely, he needs to take some responsibility in his actions'.
[62] Exhibit 1.
As this appeal concerns a proved offence, the appeal is to be determined on the basis of the statement of material facts upon which the appellant pleaded guilty. Because it is a hearing de novo, I have also reviewed the CCTV footage and the other material before the assessor, including the witness statements. I have also taken into account the fresh evidence in the appellant's affidavit.
The sentencing transcript refers to aspects of the witness' statements which support a contention that the respondent had behaved aggressively or offensively towards others in the period prior to the Offence.[63]
[63] Magistrates ts 4 - ts 5, 8 March 2021.
During sentencing, the appellant's counsel referred to paragraphs in the respondent's statement as well as within the statements of Kamaria Ann Gunn and Kyla Margaret O'Neill[64] and, in the context of the plea in mitigation, repeated the appellant's contention that the respondent made threats against the appellant's wife and children, although it was not clear at what point such a threat was made.
[64] Magistrates ts 4 - ts 5, 8 March 2021.
Direct evidence of the words spoken by the respondent, and directed at the appellant, is only found in the appellant's affidavit.[65]
[65] Exhibit 1.
That evidence is partially supported by:
(i)The CCTV footage that demonstrates the respondent engaging in an aggressive way with the appellant's friend, Mr McLeod, in the appellant's presence, then turning to the appellant just before the commission of the Offence,
(ii)The evidence in the witness statement of Gary Alexander McLeod[66] that the respondent said something to the appellant at that time, and
(iii)The evidence that the respondent had behaved aggressively or offensively to others earlier in the evening and continued to do so after the offence.[67]
[66] Assessor's Papers, page 52, pars 47 - 49.
[67] Assessor's Papers, page 6, pars 6 - 7; Assessor's Papers, page 29, pars 4 - 6; Assessor's Papers, page 36, par 4; Assessor's Papers, page 38, par 6; Assessor's Papers, page 48, pars 17 - 29.
The appellant's evidence about the words that were said to him directly before the Offence, is not supported by the statement of the respondent or the statements of Ms Gunn[68] and Mr McNally.[69]
[68] Assessor's Papers, page 24, pars 9 - 12.
[69] Assessor's Papers, page 43, pars 10 - 12.
However, there are factors which impact the respondent's reliability or credibility in this regard:
(i)His level of intoxication as recorded in Joondalup Health Campus Emergency Department records, consistent with his appearance and demeanour in the CCTV footage outside the tavern immediately after the Offence;
(ii)The respondent's concession in his statement that he had limited recollection of words he said to others earlier in the evening but his acknowledgement he 'may have been a bit of a dick';[70] and
(iii)The aspects of the respondent's statement which are inconsistent with the objective CCTV footage, as to whom the respondent was speaking immediately before the Offence,[71] and in respect of what occurred after the Offence in the carpark.[72]
[70] Assessor's Papers, page 6, par 7.
[71] Assessor's Papers, page 6, pars 14 - 15.
[72] Assessor's Papers, page 6, pars 23 - 25.
The statements of Ms Gunn and Mr McNally are also somewhat inconsistent with the statement of the respondent about what precisely occurred immediately prior to the Offence, in particular, as to what, if any words were spoken by the respondent.
Ms Gunn stated:[73]
[The respondent] just sat in his seat and took the abuse until [the appellant] lost his temper and pushed [the respondent] off the stool.
[73] Assessor's Papers, page 24, par 11.
Mr McNally stated:[74]
[The appellant] walked over and stood over [the respondent] and gave him some strong words.
[74] Assessor's Papers, page 43, par 10.
However, the respondent stated:[75]
I told them both to leave me alone. Repeatedly by telling them to fuck off.
[75] Assessor's Papers, page 6, par 15.
Ms Gunn and Mr McNally's statements are also not consistent with the CCTV footage inside the bar just before the Offence, which shows the respondent in a heated exchange with Mr McLeod just prior to him turning his head towards the appellant.
Ms Gunn and Mr McNally's statements are also at odds with the statement of another member of bar staff, Ms O'Neill, who did hear words exchanged between the respondent and appellant immediately before the Offence, including that the respondent was laughing at the appellant.[76]
[76] Assessor's Papers, page 39, pars 11 - 13 and pars 14 - 15.
In light of this evidence, I turn to consider the application of s 39 and s 41 of the Act.

Section 39 of the Act

Section 39 of the Act relevantly provides:
(1)If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when a person was committing a separate offence,
the assessor must not make a compensation award in favour of the person.
The principles relating to the application of s 39 were summarised by Staude DCJ in Hill v Clarke.[77] In particular:
(a)no causal nexus is required between the injury for which the claim is made, and any offence committed by the victim. Section 39 merely requires a temporal connection.[78] Whether there is a sufficient temporal connection is a question of fact and degree;[79]
(b)the civil standard of proof applies to a determination that the injured person was committing a separate offence. There is no onus of proof on either party when determining if a claimant was committing an offence when injured;[80] and
(c)the gravity of the imputation of a criminal offence and the significance of its consequences warrants the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,[81] following Briginshaw v Briginshaw.[82]Where criminal conduct is alleged, clear and cogent evidence is required.[83]
[77] Hill v Clarke [2015] WADC 93 [11] - [15].
[78] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [34] (Martin CJ, Newnes JA & Murphy JA agreeing).
[79] Attorney General of Western Australia v Her Honour Judge Schoombee [34] (Martin CJ, Newnes & Murphy JJA agreeing).
[80] Hutchings v Lachlan [2012] WADC 89 [34] - [37] (Commissioner Gething).
[81] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449 - 450 (Mason CJ, Brennan, Deane & Gaudron JJ).
[82] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).
[83] Hutchings v Lachlan [37] (Commissioner Gething); McDavitt v McDavitt [30] (Davis DCJ).
Provocation, in and of itself, is not an offence.
However, the respondent's conduct, as described by the appellant and other witnesses (including the respondent himself), could constitute an offence under either or both s 74A or s 338B of the Criminal Code (WA).
Such conduct would require a temporal connection with the Offence. As such, any aggressive or abusive comments made by the respondent to others earlier in time, at least 20 minutes earlier, while possibly constituting an offence as described above, would not in my view have a sufficient temporal connection with the Offence committed by the appellant to enliven the application of s 39.
On the other hand, a threat made by the respondent to the appellant immediately before the commission of the Offence may constitute an offence as described above and would in my view have a sufficient temporal connection with the Offence committed by the appellant to enliven s 39.
This would not necessarily be inconsistent with the plea of guilty or the statement of facts upon which the conviction was founded. In fact, it is consistent with the submissions made by the appellant's lawyer during the sentencing hearing.[84]
[84]Magistrates ts 5, 8 March 2021.
However, in order to be satisfied as to the matters set out in s 39(1)(a) and s 39(1)(b), I would need to be satisfied to the required standard, and on the basis of clear and cogent evidence, that the respondent said threatening, insulting or offensive words to the appellant just before the commission of the Offence, such that might constitute an offence under either or both s 74A or s 338B of the Criminal Code (WA).
Given the conflicting evidence outlined above, I could not be satisfied to the required standard that the respondent committed any such offence which was connected temporally to the Offence.
Therefore, s 39 has no application.

Section 41 of the Act

Section 41 of the Act relevantly provides:
41. Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.

The question is not whether the respondent contributed to the Offence, but whether he contributed to the injury suffered.[85]
[85] Robertson v Hopwood [2018] WADC 66 [22], [66] (Gillan DCJ).
It was the appellant's conduct in striking the respondent with the bar stool that was the subject of the Offence and which also caused the injury to the respondent.
While it would be an abuse of process for the court to go behind a conviction (at least in relation to any facts relied upon by a party that are inconsistent with the conviction), the court is obliged to look at the circumstances of the Offence and the conviction by reason of s 41 of the Act.[86]
[86] Scottv Kevill [2002] WADC 80; (2002) 28 SR (WA) 226 [7] (Yeats DCJ); Bentham v Wass [2004] WADC 47 [5]. See also Re Hondros [1973] WAR 1, 3 (Jackson CJ).
Section 41 is stated in terms that are wider than the defences of provocation and self‑defence.[87]
[87] Underwood [78], [86] (Gething DCJ).
Despite its terms being wider, evidence of the respondent's behaviour earlier in the evening, towards others in the bar, or to others on other occasions entirely, would not fall within the ambit of that described in s 41(1)(a), as it could not be said that it contributed, directly or indirectly to the respondent's injury.
However, the respondent's behaviour immediately prior to the Offence, while not giving rise to a defence of provocation (in particular, where such a defence is not available at law in connection with an offence of unlawful wounding), or self‑defence, may nonetheless provide a reason to adjust the award under s 41.
In order to assess whether the respondent's behaviour contributed directly or indirectly to his injury, I can have regard to the evidence referred to above about whether the respondent said something to the appellant immediately prior to the Offence.

I note the CCTV footage outside the tavern after the Offence which shows the respondent, while bleeding from his injury, persistently attempting to reach the appellant who was trying to leave in a vehicle. The respondent actively resisted attempts by bar staff to go inside for a period of nearly two (2) minutes.
I also note the Joondalup Health Campus Emergency Department records indicate two instances of the respondent not complying with medical advice: the respondent was non-compliant with C‑spine precautions and chose to leave at his own risk, without taking an antibiotic script.[88]
[88] Assessor's Papers, page 104. The latter is also reflected in the Integrated Progress Notes at Assessor's Papers, pages 106 - 107.

Considering all the materials, I find on the balance of probabilities that:
(a)The respondent's aggressive and provocative behaviour immediately prior to the Offence towards the appellant and towards others in the appellant's presence; and
(b)The respondent's behaviour after the Offence including outside the tavern and at the hospital afterwards which collectively delayed or prevented him receiving recommended medical treatment;
contributed, directly or indirectly, to his injury.
I therefore conclude that the respondent, by his behaviour, condition, attitude, or disposition, contributed, directly or indirectly, to his injury.
Such a finding is not inconsistent with the circumstances of the Offence and conviction.
Taking this into account, as is required by s 41, I consider it is just to reduce the amount that would otherwise have been awarded to the respondent.
I reduce the amount I would otherwise have awarded for the injury to $4,000. I do not make any adjustment to the award for loss. The total amount of the Award is $4,116.72.

Can the court vary an order under s 45(1)?

An order made under s 45(l)(b) cannot be appealed pursuant to s 55(1) of the Act.[89]
[89] See eg Curranv Champion [2012] WADC 9 [78] - [79] affirming Tidmarshv The Assessor for Criminal Injuries Compensation [2011] WADC 173 [21].
However, there is recent authority to say that where an appeal is competently brought, it is open to the court on appeal to consider afresh what order should be made under s 45(1).[90]
[90] Nagel v Tahere [2020] WADC 110 [30] (Gething DCJ); Milburn-Thomas v Palmer [2020] WADC 158 (Lonsdale DCJ); Savic v Duric [2021] WADC 53 (Gething DCJ).
In Nagel v Tahere,[91] his Honour Gething DCJ determined that if an award of compensation was varied in an appeal the appropriateness of an order pursuant to s 45(1) must be reconsidered.[92]
[91] Nagel v Tahere (Gething DCJ).
[92] Nagel [30] (Gething DCJ).
In a subsequent decision, Savic v Duric,[93] his Honour Gething DCJ said:
This is because the scope of the power on appeal is wider than a fresh consideration of the decision to make or to refuse to make a compensation award and/or as to the amount of a compensation award. Rather, by CICA s 56(1) the court is to 'decide the application to which the decision relates afresh' (court's emphasis)
[93] Savic v Duric [94] (Gething DCJ).
Because I have varied an award of compensation, the appropriateness of an order pursuant to s 45(1) must also be reconsidered. It is appropriate to vary the order made by the Assessor under s 45(1)(b) so that only the amount of $116.72 is recoverable from the appellant.

Final orders

The appropriate final orders are that:
1.The decision of the Assessor be varied to reduce the amount of compensation to $4,116.72.
2.Pursuant to s 45(1)(b), only the amount of $116.72 be subject to pt 6 of the Act.
3.There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DB
Associate to Judge Zempilas
26 FEBRUARY 2024