Re VPAN - [2011] WADC 40

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: VPAN [2011] WADC 40

CORAM: SWEENEY DCJ

HEARD: 7 MAY 2010

DELIVERED : 17 MARCH 2011

FILE NO/S: APP 69 of 2007

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

BETWEEN: VPAN
LFJN
TPHH (By their next friend NH)

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
Citation  :CI 1035 of 2005

Catchwords:

Criminal injuries compensation - Sexual abuse by father - Alleged offences - Mental and nervous shock - Loss of earning capacity

Legislation:

Criminal Injuries Compensation Act 2003, s 6, s 17, s 34(2), s 38
Evidence Act 1906, s 31A

Result:

Appeal allowed

Representation:

Counsel:

Appellants: Mr B L Nugawela
Amicus Curiae : Ms L Smith appeared on behalf of the Chief Executive Officer

Solicitors:

Appellants: CLP Legal
Amicus Curiae : State Solicitor for Western Australia

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

A v D (1994) 11 WAR 481
B v B [2004] WASC 6
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Hatfield v Under Secretary for Law (unreported; WASC, Library No 4012; 15 December 1980)
LMC v RJO [2002] WADC 147
M v J and J v J (unreported, WASC, Library No 920598, 19 November 1992)
MJN v MJAS (2003) 35 SR (WA) 219
S v Neumann (1995) 14 WAR 452
VPAN [2007] WACIC 41

SWEENEY DCJ:

Introduction

The original respondent in this matter has played no part in this hearing. He has never been charged with any offence in relation to the three appellants, V, L and T, his natural children. An order was made some time ago by the learned assessor that he is not to be pursued for payment of any compensation award made in this case.
On 31 March 2005 N, the children's mother, applied on their behalf for criminal injuries compensation for injury and loss suffered as a result of their having been sexually abused by the respondent. There were no 'proved offences' (see s 12 Criminal Injuries Compensation Act 2003), there having been no convictions, but the learned assessor was satisfied, pursuant to s 17 of the Act, that V was indeed sexually penetrated by the respondent in her vagina, anus and mouth on more than one occasion and that L and T were each sexually penetrated by the respondent on at least one occasion. She also found that L and T heard their father's sexual abuse of their sister V.
The appellants assert that the maximum that could be awarded in respect of each child was $100,000. The maximum that could be awarded each child in respect of a single offence was $50,000. The learned assessor did not, however, make a finding that L and T had been subjected to more than one act of sexual abuse and so the maximum sum that the assessor must have contemplated for each of the boys was in fact…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re VPAN

Details

AGLC: Re VPAN [2011] WADC 40
Case: [2011] WADC 40
Decision Date

CaseChat Overview and Summary

The appellants in this matter are three siblings, V, L and T. Their biological father has been convicted of sexual offences against them and a fourth child. The siblings have applied for compensation under the Criminal Injuries Compensation Act 2003. The appeal concerns the inadequacy of the awards made by the assessor. The appeals were allowed and higher awards were substituted. The court found that V and T had been subjected to multiple acts of sexual abuse and each was awarded the maximum of $100,000. The court found that L had been subjected to one act of sexual abuse and he was awarded the maximum of $50,000. The court found that the awards made by the assessor were manifestly inadequate. The maximum awards were substituted for those made by the assessor. The appeals were allowed and the appeals were remitted to the assessor for the making of new awards. The court directed that no part of the judgment be published so as to identify the parties.

Orders