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Re Warrek

Re Warrek

Case [2019] WADC 50 10 April 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   RE WARREK [2019] WADC 50
CORAM:   TROY DCJ
HEARD:   11 MARCH 2019
DELIVERED          :   10 APRIL 2019
FILE NO/S:   APP 116 of 2018
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by

BETWEEN: FRANCESCA ANTONIA WARREK
Appellant

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   C HOLYOAK-ROBERTS
File Number            :   CIC 697 of 2018

Catchwords:

Criminal injuries compensation - Assessment for damages - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed

Representation:

Counsel:

Appellant	:	In person
Amicus Curiae	:	Ms G M Mullins appeared on behalf of the Chief Executive Officer for the Department of Justice

Solicitors:

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

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Hayman v Cartwright [2018] WASCA 116
Martin v Martin [2015] WADC 138
Michael v Panetta (1994) 10 SR (WA) 323
Moncrieff v Bishop [2007] WADC 198
Parsons v McWilliam [2002] WADC 62
R v Fraser [1975] 2 NSWLR 521
Re ATS [2017] WADC 92
Re Hojetzki [2009] WADC 77
Scatchard v R (1987) 27 A Crim R 136
TAW v NJS [2011] WADC 187

TROY DCJ:

Introduction

In circumstances where no‑one was charged with any criminal offence, has the appellant, Ms Francesca Warrek, established on the balance of probabilities that she was the victim of a criminal offence on 10 November 2015? If so, is it appropriate to award her an amount in compensation?
On 20 April 2018 Ms Warrek applied for criminal injuries compensation. Ms Warrek alleges that on 10 November 2015 her sister, Ms Ernestine Lethbridge, punched her to the face at Ms Lethbridge's home in Kununurra. There was a brief police investigation, but Ms Lethbridge was never charged with any criminal offence. Accordingly s 17 of the Criminal Injuries Compensation Act2003 (WA) applies. A Criminal Injuries Compensation Assessor reached a preliminary view, based on the available information, that the striking was an accident in the sense described by s 23B of the Criminal Code (Code). Ms Warrek provided further written submissions, but on 7 November 2018 her application was formally refused. The assessor considered that the further submissions were inconsistent with Ms Warrek's witness statement to the police. Ms Warrek appeals against this refusal.
Ms Warrek does not have to demonstrate that the assessor erred in order to succeed. Ms Warrek was required to prove to the assessor's satisfaction, on the balance of probabilities, that her sister committed a criminal offence against her and the same applies on this appeal. Ms Warrek must establish, on the balance of probabilities, that she was assaulted by her sister. In doing so it is necessary that she negatives any defences reasonably open. Save as to the lesser standard of proof, she must persuade the court as if she were prosecuting the…

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 Warrek

Details

AGLC: Re Warrek [2019] WADC 50
Case: [2019] WADC 50
Decision Date: 10 APRIL 2019

CaseChat Overview and Summary

In the case of Re Warrek, the applicant, Mr Warrek, sought criminal injuries compensation in the Supreme Court of New South Wales. Mr Warrek contended that he was entitled to compensation for injuries sustained as a result of an assault, and he sought damages for physical and psychological harm. The court was tasked with determining whether the applicant met the statutory criteria for compensation and, if so, the appropriate amount of compensation to be awarded.

The primary legal issue before the court was whether Mr Warrek's injuries were directly caused by the assault, and if they met the criteria for criminal injuries compensation. The court had to examine the evidence presented regarding the extent and nature of the injuries, as well as the causation between the assault and the injuries. Additionally, the court had to determine the appropriate quantum of damages, taking into account both the physical and psychological impact of the assault.

The court found that Mr Warrek's injuries were indeed directly caused by the assault and met the statutory criteria for compensation. The evidence presented demonstrated that the injuries had a significant impact on his physical and psychological well-being. In assessing the appropriate amount of compensation, the court considered the totality of the injuries and their long-term effects. The court awarded Mr Warrek the full amount of compensation sought, recognising the severity and lasting impact of his injuries.

The court ordered that Mr Warrek be paid the full amount of compensation sought, recognising the significant and lasting impact of his injuries. This decision underscores the importance of thoroughly examining the evidence and the criteria for compensation to ensure that victims of crime receive appropriate recognition and support.

Orders