Richardson v Lawford
[2020] WADC 58
•7 MAY 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RICHARDSON -v- LAWFORD [2020] WADC 58
CORAM: GOETZE DCJ
HEARD: 24 FEBRUARY 2020
DELIVERED : 7 MAY 2020
FILE NO/S: APP 75 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: DAVID WILLIAM RICHARDSON
Appellant
AND
VICTORIA MARGARET LAWFORD
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: H L PORTER
File Number : CIC 1741 of 2017, CIC 1742 of 2017, CIC 1744 of 2017 & CIC 1745 of 2017
Catchwords:
Criminal injuries compensation - Appeal by offender from award of compensation - Victim suffered post‑traumatic stress disorder following breaches of domestic violence orders, protective bail conditions and assault - Disentangling consequences of offending from victim's pre‑existing psychological conditions and other non‑compensable circumstances - Offender's claim of not being aware of the application for compensation - Offender seeking to introduce evidence and information on appeal - Turns on its own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
| Amicus Curiae | : | Mr K L Sardinha appeared on behalf of the Chief Executive Officer of the Department of the Attorney General |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Bentham v Wass [2004] WADC 47
Curnow v Garnant (2012) 79 SR (WA) 240
G & N v R (2006) 48 SR (WA) 301
Hansen v Bolton [2017] WADC 25
Robertson v Baker [2014] WADC 14
SW v BB [2010] WADC 86
Townend v McAlindon [2017] WADC 63
Underwood v Underwood [2018] WADC 13; (2018) 94 SR (WA) 57
GOETZE DCJ:
David William Richardson appeals the 'award of $18,442.00 for PTSD' made by the learned Assessor of Criminal Injuries Compensation for criminal injuries compensation in favour of his former partner, Victoria Margaret Lawford. It will be assumed that Mr Richardson is also appealing the decision to make that award.
The convictions and other allegations
Mr Richardson's proved criminal offending concerning Ms Lawford is as follows:
1.On 25 July 2008, he was convicted of two breaches of a violence restraining order committed on 9 and 11 December 2006 at North Perth.
The statement of material facts provided to the assessor by Ms Lawford relating to these convictions details that on 29 September 2006, Ms Lawford obtained a violence restraining order, which was served on Mr Richardson on 25 November 2006. The order prevented Mr Richardson from approaching Ms Lawford. However, on 9 December 2006 he attended at a hotel where she was residing and was ejected from that hotel by the manager and security staff. The police had been called, but they failed to locate him. Mr Richardson returned to the hotel two days later and entered the room in which Ms Lawford was staying. He was then arrested.
2.On 27 July 2009, he was convicted of a breach of protective bail conditions, which offence occurred on 22 December 2008 at Safety Bay.
Ms Lawford advised the assessor that following an alleged assault occasioning bodily harm upon her on 15 November 2008, resulting in protective bail conditions to not contact or attempt to contact or be near her, Mr Richardson later twice telephoned Ms Lawford on 22 December 2008 requesting that she apply to the police to discontinue the assault proceedings against him.
3.On 8 November 2011, he was convicted of an aggravated common assault for events occurring between 12 and 13 July 2011 at Ballajura.
Ms Lawford advised the assessor that she and Mr Richardson argued. This argument then became physical, with him head‑butting her, grabbing and pulling her, lifting her, pushing her to the ground, spitting in her face, lifting her up and pushing her towards the armrest of a lounge. She landed heavily on the floor on her back. He threatened to kill her and again lifted her up and pushed her onto the floor. He hit her right cheek repeatedly with his elbow. He took hold of her wrists and whacked her face with her hands. Then he put his hand over her mouth so that she could not breathe. She struggled and kicked his legs until he let her go. She then went and hid in the garage. Ms Lawford provided the assessor with police photographs of her injuries, including bruising to her face, nose, chest and hands.
Copy medical records were provided to the assessor from King Edward Memorial Hospital for Women and Sir Charles Gairdner Hospital, relating to Ms Lawford's admission and discharge on 2 January 2008. She claimed to have been asleep at midnight when she was thrown to the floor by Mr Richardson, lifted from the floor by her neck and strangled, such that she lost consciousness. She also recalled being kneed in the right flank. She complained of a neck sprain. She was then 16 weeks pregnant with the first of their two daughters. This was not reported to the police by Ms Lawford, who said she was in fear of Mr Richardson and of being tormented by him, if it were to be reported.
In her statement of effects, Ms Lawfored claimed that, following an argument on 2 March 2014, Mr Richardson elbowed her once on the left side of the face. Ms Lawford has also described this incident in a later statement answering queries from the assessor in terms of her being 'decked' by Mr Richardson. This was reported to the police.
In addition to these matters, there were some police incident reports available to the assessor detailing matters occurring on various dates as follows:
1.17 February 2006, in which the parties verbally abused each other and each claimed that the other party had been physical with them. Each was unwilling to provide a statement;
2.21 February 2006, the details of which are not known, save that police returned Ms Lawford to her home;
3.3 March 2006, regarding what Mr Richardson described as a 'verbal and physical confrontation'. He said he fended off Ms Lawford's assault, as a result of which she fell hitting the back of her head, following which police took Ms Lawford to hospital for a check-up. Both parties refused to press charges against the other party;
4.30 September 2006, following a separation, when Ms Lawford claimed Mr Richardson stole her television and DVD player and smashed her car window. Each party gave a different account of events;
5.25 November 2006, when police were called twice to their home. Both matters involved arguments and although Ms Lawford claimed she had been assaulted in the second argument, that was later established to not be true. She wanted Mr Richardson away from her; and
6.19 March 2014, when there was a 'new incident', but details are not known. However, this police report observed that 'the last incident' was recorded as having occurred on 12/13 July 2011 ie that incident detailed above at [2.3].
Further, there was a medical report provided to the assessor dated 15 March 2017 from Dr Frederick Ng, consultant psychiatrist, detailing Ms Lawford's allegations of violence by Mr Richardson against her in that he 'decked her', 'split her head open', 'choked her until she lost consciousness many times', 'picked her up by the neck', 'pushed her dentures back into her mouth', 'punched her head', 'pulled her leg so hard she could not walk' and that he 'did it all the time'. Dr Ng also reported on Ms Lawford's claims of emotional abuse in a domestic setting.
The application for criminal injuries compensation
Ms Lawford sought compensation for the matters outlined above at [2] ‑ [4] inclusive. Her first two applications dated 2 June 2015 and 31 August 2015 were noted by the assessor to be within time, but were incomplete without supporting evidence and information. Ms Lawford was invited to submit a complete application without the need to apply for an extension of time.
A fresh application was filed on 31 May 2017 when Ms Lawford provided the KEMH and SCGH medical records, Dr Ng's report, the police records referred to above and two statements, being Ms Lawford's statements of 'effects' and for an extension of time. Later, she filed the further statement responding to the assessor's queries.
The learned assessor awarded Ms Lawford compensation as set out below at [52] but, only for the proved offences; not for any other matters. The assessor did not provide reasons for her decision, and was not asked to do so.
The time limit for Ms Lawford's compensation application
By s 9 of the Criminal Injuries Compensation Act 2003 (WA), Ms Lawford was required to have commenced her application for compensation for proved offences within three years after the date on which the last of those offences was committed against her. Following the last conviction in November 2011 for the assault on 12/13 July 2011, as detailed above at [2.3], this required her application to have issued no later than 12 July 2014. However, her first application was not in fact received until 1 September 2015.
Apart from perhaps the alleged assault on 2 March 2014, for which the assessor did not provide a compensation award, it is not known why Ms Lawford was advised that, when she submitted a complete application, she could do so without the need to apply for an extension of time.
However, as the award of compensation was only for proved offences, then Ms Lawford's applications for criminal injuries compensation were all more than three years after the latest proved offence. The applications were therefore all after the three year limitation period had expired and she made her last application for compensation seeking an extension of time to do so.
Should Ms Lawford be granted leave to apply for compensation?
By s 9(2) of the Act, a compensation application may be brought after three years if the assessor thinks it is just to do so. Conditions may be imposed, but in this application, no such conditions were imposed.
In Hansen v Bolton [2017] WADC 25 [14], Herron DCJ wrote:
Factors that may be relevant to the exercise of the court’s discretion under s 9(2) include (Re Jackamarra [2014] WADC 9 [20]; Re McHenry [16]):
(a)the history of and background to the proposed application;
(b)the length of the delay;
(c)the reasons for the delay;
(d)the nature of the proposed application;
(e)the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f)the prospects of the compensation application succeeding; and
(g)whether injustice will be suffered if an extension of time is refused.
Ms Lawford said she was not aware of her right to claim criminal injuries compensation until receiving advice on 2 June 2015. She then prepared and filed her first claim on that date. This is not, by itself, a sufficient basis upon which to grant an extension of time within which to apply. However, she also said that until she prepared her 2017 application, she was not in a frame of mind to seek legal advice and organise her affairs due to mental and physical illness.
It is clear that, at all relevant times, Ms Lawford suffered from mental issues impairing her capacity to deal with matters, as reported by Dr Ng below.
Ms Lawford also referred to her parenting commitments and the need to constantly move residence in order to avoid Mr Richardson as reasons for her delay however, Mr Richardson now challenges these matters.
If the extension is not so granted, then Ms Lawford will be denied compensation. That on its own does not justify the granting of an extension of time to make her application. However, given the three convictions of Mr Richardson and Dr Ng's report, the prospects of proceeding to an award on a compensation application within time would have been high.
Given that Mr Richardson did not participate in the process of the compensation application for reasons to be explained shortly, delay by Ms Lawford in making her application did not prevent the assessor from determining whether or not to make a compensation award, and if so, to quantify that award. The police information and Dr Ng's report provided a basis for the making of an award.
Further, when the application for compensation was considered, there was no difference in the ability of Mr Richardson to have opposed that application, whether or not it was brought within time or within such extended time as the assessor granted. That is because he did not respond to the assessor's request for him to participate in the decision‑making process. Therefore, the application for compensation was able to be progressed on the materials provided by Ms Lawford.
However, Mr Richardson's position is now different. He claimed that, at the time of the application for compensation, he did not know of it but now, he does, and he wants to adduce evidence and information on appeal to contradict claims made by Ms Lawford. Save for this added dimension, there does not appear to be any injustice to Mr Richardson by extending time to Ms Lawford to bring her application out of time. This is especially so if his new evidence and information is received, which it will be, for reasons which follow.
In these circumstances, leave should be granted to Ms Lawford to commence her compensation application out of time.
The power to make a compensation award
The general power of an assessor is to make an award in respect of an injury suffered by a victim as a consequence of the commission of a criminal offence. The assessor may award such compensation which the assessor is satisfied is just for the injury and for any loss also suffered: s 30(1) of the Criminal Injuries Compensation Act.
The quantum of damages so assessed must be fair and reasonable compensation for the injuries received by the victim and the disabilities caused, having regard to current general ideas of fairness and moderation.
The maximum award for any single offence is $75,000. The correct approach is to assess compensation by ordinary tortious principles for the assessment of damages, subject to the statutory cut off point at $75,000: Robertson v Baker [2014] WADC 14 [12]. Here, of course, there have been three separate offences, each potentially attracting the maximum award. The amount to be assessed is not to be fixed either as a punishment for Mr Richardson, as the offender, or as an expression of sympathy for Ms Lawford, as a victim: G & N v R (2006) 48 SR (WA) 301 [8].
The assessment of Ms Lawford's compensation award
Ms Lawford relied upon documentation provided by the police, KEMH, SCGH and Dr Ng.
The information received from the police and the hospitals is partly detailed above. Further information is detailed below.
The report of Dr Ng followed his consultation on 15 March 2017 with Ms Lawford.
Dr Ng had available to him a copy of Ms Lawford's statements of effects and answering the assessor's queries together with copies of hospital records, police incident reports and other police materials dealing with the convictions and other incidents detailed above at [2] ‑ [5] inclusive. He also took a history of relevant matters from Ms Lawford. She alleged frequent verbal abuse and physical violence.
Dr Ng had seen and treated Ms Lawford 14 years previously. He recorded that, in 2003, he diagnosed her with Attention Deficit Hyperactivity Disorder and some type of personality disorder. He could not recall the type of disorder from when he previously saw her.
Dr Ng reported that Ms Lawford suffered post‑natal depression after the birth of her first child. Dr Ng was clearly aware that Ms Lawford had a history of illicit drug use, but he said she was not using such drugs at the time she presented to him.
Dr Ng reported that the relationship between Mr Lawford and Mr Richardson endured from 2005 until 2014.
Dr Ng reported that Ms Lawford provided a plausible history of physical and emotional traumatisation in the course of her relationship with Mr Richardson. Dr Ng was not entirely clear how emotionally stable she was when she commenced her relationship with Mr Richardson. Nonetheless, from her history as she provided it, Dr Ng found that her relationship with Mr Richardson would have, more likely than not, significantly increased any pre‑existing depressive and anxiety symptoms and also would have had a negative impact on her self‑confidence and self‑worth, over and above what may have been deficits regarding these parameters prior to her relationship with Mr Richardson.
Ms Lawford reported current and ongoing residual anxiety and depressive symptoms. Dr Ng thought she developed psychiatric symptoms consistent with post‑traumatic stress disorder in the course of her relationship with Mr Richardson, although it was not entirely clear exactly when the post‑traumatic stress disorder actually arose during that relationship. At its worst, this disorder had been of a moderate to moderately severe extent and in 2017, it was still there to a residual extent.
Ms Lawford suffered nightmares about Mr Richardson abusing her. She re‑lived those occasions when she was awake. She described the domestic violence she received, which exceeds those matters leading to conviction. She was fearful of Mr Richardson whilst living with him.
Dr Ng also said that any pre‑existing depression and anxiety of a generalised variety would have been exacerbated to some extent or other in the course of Ms Lawford's relationship with Mr Richardson. Her symptoms were in excess of mental and nervous shock.
The most significant contributing factors in exacerbating any pre‑existing anxiety and depression and precipitating the onset of post‑traumatic stress disorder would, more likely than not, have been the physical and verbal abuse suffered by Ms Lawford during the course of her relationship with Mr Richardson and also, the incident on 2 January 2008.
Dr Ng noted that the incident, which reportedly occurred on 2 January 2008, would more likely than not have exacerbated any depressive and anxiety symptoms arising in the course of her relationship with Mr Richardson.
In November 2016, Ms Lawford began taking Seroquel to assist with sleep and anxiety. This followed her admission to the psychiatric ward of Bentley Hospital with post‑traumatic stress disorder, which she claimed resulted from her relationship with Mr Richardson. There were other periods of hospitalisation.
Ms Lawford's relationship of between 2 and 4 months with another male after the termination of her relationship with Mr Richardson may have perpetuated and exacerbated anxiety and depression. The fact that her two children were, in 2017, residing with Mr Richardson may also have perpetuated her depressive component.
Dr Ng thought that during the course of the relationship with Mr Richardson, her capacity to engage in general, social and recreational activities would have been at least moderately impaired. This impairment remained in 2017 and would persist to some extent into the foreseeable future. The same comments could be said about her relationships with family and friends, her personal wellbeing, self‑esteem, self‑confidence and capacity to engage in home duties.
Dr Ng considered that Ms Lawford required 16 sessions of psychotherapy. They are required at least once every two to three weeks at a cost of $355 per session, together with the use of the tranquiliser Seroquel, for the next one to three years. The estimated cost of such medication was between $50 and $100 per month.
Even with psychiatric treatment, as recommended, for some 12 to 24 months after 2017, some degree of psychiatric impairment would be likely to persist into the foreseeable future. It is not known if Ms Lawford has undertaken any or all of this recommended treatment.
It is to be appreciated that when Dr Ng prepared his written opinion, he could only proceed with information and materials which Ms Lawford and her solicitors provided to him. Then, after consideration of that information and those materials, together with results he obtained from his clinical investigation, Dr Ng provided his opinion. He could not give an eye witness account of her past life. He could not be expected to have provided definitive answers. However, he could express his opinion that something is more likely than not to be the case, based on the evidence and information provided to him, and this is not only what he was required to provide in this matter, but what he did provide.
The requirement is for an assessor to be satisfied that Ms Lawford suffered a compensable injury caused by the proven offences and here, that injury was mental and nervous shock in the form of a psychiatric condition.
Section 3 of the Act defines 'satisfied' as meaning:
satisfied on the balance of probabilities
The onus was on Ms Lawford to satisfy the assessor. If the assessor had not been satisfied, then she was duty bound to not make a compensation award upon Ms Lawford's application: s 12(3) and Underwood v Underwood [2018] WADC 13 [85] ‑ [86]; (2018) 94 SR (WA) 57 [85] ‑ [86].
By s 3 of the Act, 'injury' is defined to include 'mental and nervous shock'. Post‑traumatic stress disorder falls within that definition: Underwood [84].
The fact that Ms Lawford's mental condition will endure into the future requiring ongoing treatment indicates that the mental harm from which she suffers is of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Townend v McAlindon [2017] WADC 63 [46].
Findings on Ms Lawford's claim as presented to the assessor
Based on Dr Ng's report, the following findings can be made:
1.Before she met Mr Richardson, Ms Lawford had a previous personal psychiatric history of depression, anxiety, ADHD and some pre-existing maladaptive personality issues. She also used heroin during her relationship with him;
2.Dr Ng was at least aware of the facts underpinning:
(a)the violence restraining order in 2006 and its breach;
(b)the protective bail condition in 2008 and its breach; and
(c)the assault on 12/13 July 2011,
even if he was not aware of the convictions following such breaches and assault. He was also aware of the alleged assaults on 2 January 2008 and 15 November 2008;
3.Ms Lawford's relationship with Mr Richardson would, more likely than not, have significantly increased her pre‑existing depression and anxiety and would also have had a negative impact on her self-confidence and self-worth over and above any deficits she had regarding these parameters prior to her relationship with Mr Richardson;
4.Ms Lawford developed psychiatric symptoms consistent with post-traumatic stress disorder at some unknown time during the course of her relationship with Mr Richardson. At its worst, the stress disorder was of a moderate to moderately severe extent and, in 2017, it remained to a residual extent;
5.Ms Lawford also suffered symptoms in excess of mental and nervous shock from her relationship with Mr Richardson. Treatment is required; and
6.even with treatment, some degree of psychiatric impairment will be likely to persist into the foreseeable future.
In summary, Dr Ng's report considers the whole of the relationship between Ms Lawford and Mr Richardson to have impacted on the worsening of her pre-existing conditions, the development of her post‑traumatic stress disorder and her mental and nervous shock. He may well have noted that the incident reported on 2 January 2008 would have exacerbated any symptoms however, that incident, set out above at [3], was only an alleged offence. It may be consistent with the convictions referred to above at [2], but as it did not result in a conviction, it was not considered by the assessor in the assessment of a compensation award.
The compensation award as determined by the assessor
The assessor was satisfied that Ms Lawford suffered a compensable injury caused by the proven offences. This is because of Dr Ng's findings, referred to above, which are 'more likely than not to be' the case. The choice of that wording was his, but those findings were open to be accepted by the assessor in concluding she was satisfied that Ms Lawford's compensable injury was caused by the proven offences. That is to say that, the assessor was satisfied that the proven offences materially contributed to a worsening of Ms Lawford's pre-existing mental condition, such that an award was required to compensate her for the worsening of that pre-existing condition.
The learned assessor determined that in the circumstances of Ms Lawford's case, compensation for her injuries arising from the three proven offences, outlined above at [2], should be assessed in the sum of $15,500. Additionally, the sum of $1,215 was provided as a maximum for future medical treatment expenses and there was an allowance for Dr Ng's report in the sum of $1,727. The potential total is the sum of $18,442.
The provision in the award for future medical treatment required a mental health plan from Ms Lawford's general medical practitioner for counselling.
In viewing Ms Lawford's physical injuries and psychiatric condition as a whole, as set out in the materials available to the assessor, a sound discretionary range for the assessment of damages for Ms Lawford's loss of enjoyment of life would be a sum in excess of the amount awarded by the assessor. However, she was not entitled to be awarded compensation having regard to her condition as a whole. She was only entitled to be awarded compensation for such part of her condition as was materially contributed to by Mr Richardson's offending behaviour leading to his convictions. It is therefore clear that by awarding only $15,500, the assessor disentangled Ms Lawford's overall psychiatric condition to only compensate her for so much of that condition as was materially contributed to by Mr Richardson's offending giving rise to his convictions.
Mr Richardson's involvement in the compensation application
Initially, Mr Richardson had no interest in Ms Lawford's compensation application. However, he became an 'interested person' as defined in s 3 of the Act because he was a person who an assessor thought may be liable to have a compensation reimbursement order made against him. That the assessor so thought can be seen from her correspondence, dated 10 April 2018 to Mr Richardson, indicating that the State may seek to recover from him some or all of any amount that might be awarded to Ms Lawford.
The letter dated 10 April 2018 invited Mr Richardson to make written submissions of matters he wished to be considered on Ms Lawford's compensation application. He did not respond. Later, by letter dated 6 March 2019, advice of the making of the award was sent to him. Both letters were sent to him at an address in Warnbro.
In his affidavit of 22 August 2018 in support of his appeal, Mr Richardson swore the Warnbro address was an 'incorrect address'. In a second affidavit sworn 13 January 2020, Mr Richardson referred to it as the 'wrong address'. In both affidavits, he claimed he was deliberately not informed of the compensation application in order to
protect (Ms Lawford) from repercussions
This claim was presumably reasoned because Dr Ng's report recommended against notification of the application as it would prejudice Ms Lawford's emotional well-being. However, it was not up to Ms Lawford to decide whether or not Mr Richardson be notified. In any event, Ms Lawford agreed to Mr Richardson being informed of her compensation application and he was so notified as set out above at [55] and [56].
At the hearing of his appeal, Mr Richardson said he did not know whose the Warnbro address was. He orally listed addresses of places at which he had lived from 2006 onwards, but the Warnbro address was not one of those addresses. At first, he said he had never lived at that address. Later, he accepted that he did live at this address, for about six months, in 2015, which was the year in which the first compensation application was made.
Further, the Warnbro address was Mr Richardson's address in a prosecution notice lodged on 12 December 2006 in respect of a breach of a violence restraining order on 9 December 2006. Contradicting this however, are other police materials indicating that when he was refused bail on 11 December 2006, his address was in Port Kennedy and the incident report from this time recorded his address in Gwelup. The Warnbro address was also his address in a prosecution notice dated 6 August 2011 relating to the aggravated unlawful assault on 12/13 July 2011. However, this last mentioned prosecution notice was not available to the assessor. It was provided by Mr Richardson in the course of this appeal.
Mr Richardson said he received the letter dated 6 March 2019 on or about 2 July 2019. This letter advised him of the compensation award and his right to appeal within 21 days from the date of the award. This letter also provided the telephone number of this court for him to call on any queries he may have had regarding lodging an appeal. Further, this letter required him to attend an appointment on 23 July 2019 when the assessor sought an order that he repay part of the award. Mr Richardson duly attended. The order was made.
Mr Richardson has not offered any explanation as to how the letter dated 6 March 2019 came to be delivered to him or by whom it was so delivered. Such explanation could verify his claim that he first received the letter on 2 July 2019. It might also be expected that such explanation would need to be provided by the person who facilitated delivery on 2 July 2019. Such explanation might or might not also lead to an explanation of what happened to the letter from the assessor dated 10 April 2018 giving notice of the compensation application.
Then, after the appointment referred to above at [60], by letter dated 23 July 2019, and addressed to him care of his parents' address, which Mr Richardson said was his postal address, he was formally advised that a compensation reimbursement order in the sum of $10,000 had been made against him, which he was required to repay at $5 per week. Although by s 55(2) of the Act, this reimbursement order was also open to be appealed by Mr Richardson, he has not appealed such decision.
The commencement of this appeal
Mr Richardson's right of appeal against the decision to make a compensation award, and the award itself, was required to have been commenced within 21 days from 6 March 2019 when the decision was made to make a compensation award and the amount of the award was determined: s 55(1). The appeal was not so commenced.
Notwithstanding that Mr Richardson's appeal is out of time, leave to allow that appeal may be granted if it is just to do so.
On 25 September 2019, Mr Richardson filed a proforma notice of appeal document with all details being written by hand. The decision appealed is the:
Award of $18,442.00 for PTSD.
The grounds of appeal recite:
Errors in psychiatric report/Contradictions in statements. Wrong address/No correspondence. Wasn't informed of proceedings.
This drafting is apparently Mr Richardson's own work, without legal assistance, and could have easily been attended to, without delay, on or shortly after either 6 March 2019 or 2 July 2019, especially if he had telephoned this court on the number provided to him by the assessor and enquired as to the requirements of lodging his appeal.
There are two parts to Mr Richardson's explanation for delay in filing his notice of appeal.
First, Mr Richardson claimed that he did not know of either the compensation award or his right of appeal until on or about 2 July 2019, when he received the letter dated 6 March 2019, and spoke by telephone to an unknown person at the office of the assessor. There is no record of such a conversation on the assessor's file. Mr Richardson did not suggest he telephoned this court to seek help.
Secondly, the delay from 2 July to 25 September 2019 is said to have been caused by Mr Richardson's erroneous belief that he needed to prepare his arguments for the appeal before he could file his notice of appeal. Consistent with this belief are other supporting affidavits sworn on 22 August and 19 and 25 September 2019. However, Mr Richardson has not stated from where he derived his erroneous belief. Had he contacted the court with respect to any query in lodging his appeal, then his erroneous belief could have been easily and quickly corrected without further delay.
Should Mr Richardson be granted leave to appeal out of time?
Mr Richardson's grounds of appeal, the merits of his appeal and the reasons for his delay, together with the same considerations as set out in Hansen v Bolton above at [14], are relevant to the issue of whether it is just to allow him an extension of time within which to appeal.
First, Mr Richardson swore, under oath, that the Warnbro address was an 'incorrect' or 'wrong' address. Then, at the hearing of the appeal, he at first denied, but later conceded, he had lived at this address in 2015. The police materials connect him to this address in 2006 and 2011.
Mr Richardson has not disclosed how he came to receive the assessor's letter dated 6 March 2019.
Further, this does not explain the delay from 2 July until 25 September 2019. The explanation he has given above at [69] is without any foundation and this is especially so given that the invitation to contact this court, in the event of any queries on lodging an appeal as set out above at [60], was not acted upon by Mr Richardson, who has been less than frank and fulsome on these matters.
Secondly, there is the concern that Ms Lawford may have dissipated the compensation award, which was to have been sent to her within six weeks after 6 March 2019, but only after the time period allowed for an appeal had elapsed: s 47(a). So far as is known, she has not been employed for many years. If she has spent all or most of the award, then she will be severely prejudiced in now having to find funds to repay the award, or so much as might be required if her award is reduced.
Thirdly, if Mr Richardson is denied leave to appeal out of time and his evidence and information is not accepted, then the award and reimbursement order may remain without him having had an opportunity to be heard on his evidence and information. Arguably, he would then have been denied the right to have been heard on the making of an award and its quantum. However, he was not a party to the compensation application as instituted by Ms Lawford. Had the assessor not thought he may be liable to have a compensation reimbursement order made against him, and had such order not been sought and made, then Mr Richardson probably would still not be aware of the application and the award.
Before further determining the issue of leave to appeal out of time, consideration should be given to the merits of the appeal and this, in turn, requires consideration of whether Mr Richardson should be allowed to provide further evidence and information in the appeal.
The appeal
This appeal operates as a fresh hearing of the application for compensation by Ms Lawford. This court is therefore bound to consider all aspects of her application, including the need to extend time for her application, which has already been allowed.
The decision in this appeal to make an award and the assessment of it is ordinarily based on the evidence and information that was in the possession of the assessor. At the hearing of the appeal, Mr Richardson provided affidavits and documentary materials which were not available to the assessor and which he now wants to be considered on appeal.
Should Mr Richardson be allowed to adduce further evidence?
In determining whether or not to allow Mr Richardson leave to adduce his further evidence and information, it is necessary to consider the legislative scheme of the Act.
First, a compensation application must be made in writing on an approved form and given to the Chief Assessor: s 11. The application need not be served on any other potential party, including in this case, Mr Richardson.
Secondly, for the purpose of deciding a compensation application, the assessor may give written notice of the application to any interested person: s 19(1)(b). This is what happened here and Mr Richardson was sent the letter dated 10 April 2018, referred to above [55], setting out the reason why he was an 'interested person'.
Thirdly, the assessor did not hear from Mr Richardson in response to her letter. She then determined to make her award solely on the uncontested evidence and information provided by Ms Lawford. In this circumstance, there was no need for her to conduct a hearing. However, had Mr Richardson responded to her letter and provided his written materials, and had the assessor deemed it necessary to do so, she may have conducted a hearing of the compensation application under s 24(1) and s 25 of the Act. Such hearing could then have resolved any matters of conflict between Ms Lawford and Mr Richardson and his witnesses.
Fourthly, on appeal under s 55, this court must decide the compensation application afresh, without being fettered by the assessor's decision: s 56(1).
Fifthly, the appeal must be decided solely on the evidence and information in the possession of the assessor. However, the court may receive further evidence and information: s 56(1).
In Underwood at [37], Gething DCJ ruled that:
As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial nature of the Criminal Injuries Compensation Act and the informal nature of a hearing before an assessor.
However, although the Underwood decision involved, as it did, an appeal by an offender, as is the case here with Mr Richardson, the beneficial nature of the Act is not such a relevant matter of consideration on an appeal by an offender. That is because the Act is not intended to benefit an offender. Rather, it is to benefit the victim of a crime by way of an expeditious and informal assessment providing only for limited compensation to be paid from the government's Consolidated Account so as to avoid a formal application to a court for compensation in circumstances of considerable financial cost and time delay, and where an offender is unlikely to be able to pay any award of compensation, or be insured therefor, in any event.
It follows that the court should not necessarily be as ready to receive further evidence and information on an appeal from an offender as it might from a victim seeking to introduce further evidence and information to, for example, clarify or update matters that were before the assessor and upon which, there might be some doubt.
Sixthly, by s 56(2) of the Act, this court on hearing an appeal is expressly excluded from exercising the powers open to an assessor to conduct a hearing under s 24(1) and s 25.
In legal dictionaries, there are many meanings attributed to the word 'hearing'. However, a hearing for the purpose of s 24 and s 25 includes a hearing which may be conducted to determine issues of fact and law, and sometimes with witnesses giving evidence, as provided by s 25(2).
In a matter such as the present with
Errors in Reports/Contradictions in (Ms Lawford's) statements
as relied upon by Mr Richardson as his ground of appeal, he has sought to rely on affidavit evidence by which he seeks to contradict Ms Lawford's statements and the facts underpinning Dr Ng's opinion and thereby reveal errors in his report. Ordinarily, a hearing is the only way to resolve any such conflict.
It follows that s 56(1) requires this court to decide the application afresh solely on the evidence and information that was in the possession of the assessor, provided that this court may receive further evidence and information. This proviso is then further qualified by the prohibition such that this court cannot conduct a hearing.
Seventhly, this court on appeal can only confirm, vary or reverse the assessor's decision, either in whole or in part: s 56(2)(b). The court is not empowered to send the matter back to the assessor to conduct a hearing.
In summary, Mr Richardson wants the evidence and information he has provided to be considered in circumstances in which he claimed to have been unaware of the compensation application until after the award was made. Notwithstanding doubt about that claim, the material will be received so as to afford procedural fairness to him, given his concerns with this matter proceeding without him being involved in the initial decision to make an award and the assessment of that award.
However, the practicality of this being an appeal means that this court cannot conduct a hearing to determine any matters of conflict which the new evidence and information might raise. Further, there will be a question of how much weight, or importance, can be attached to Mr Richardson's evidence and information, especially if it places this court, as a fact finder, in a position where it cannot conduct a hearing to resolve issues of fact arising from Mr Richardson's further evidence and information which may be in conflict with evidence and information provided by Ms Lawford.
In this regard, it may be necessary to consider various aspects of Mr Richardson's evidence and information including its relevance and the detail sought to be provided, its inherent likelihood or unlikelihood, the seriousness of the matters raised, the consequences that might flow from accepting or not accepting the evidence and information, whether it is exact or inexact, definite or indefinite, or whether it requires inferential reasoning to reach a conclusion and whether it is any way confirmed by other evidence which can be accepted, including documentary materials and their reliability.
Mr Richardson's affidavits
Mr Richardson swore his two affidavits on 22 August 2019 and 13 January 2020. Those affidavits cover a range of issues, many of which were repeated in his written submissions. It is therefore convenient to first deal with matters common to both the affidavits and the submissions.
Reasons for pleas of guilty - the breaching offences
Mr Richardson's first affidavit referred to his pleas of guilty to the 'two VRO breaches', although it seems from the context that he was actually referring to his breach of a violence restraining order and his breach of protective bail conditions. He said he entered these pleas without any legal advice or understanding of what his rights were.
Notwithstanding this claim of not having legal advice, he subsequently claimed, in the next paragraph of the same affidavit, that the Legal Aid duty lawyers at the time of 'these pleas' did not inform him that later, he could be 'sued' for these two offences. This inconsistency of being without, and then with, legal advice has not been explained.
Reasons for plea of guilty - assault
Mr Richardson also said that Ms Lawford threatened him that if he did not plead guilty to the assault charge, then she would make further allegations that he was in breach of a violence restraining order in place at that time. She has not had an opportunity to comment on this as she did not respond to Mr Richardson's appeal.
Further, Mr Richardson claimed, without explanation, that his children were in danger from Ms Lawford at that time of this plea to the assault charge due to her drug addiction, which was recognised by the Family Court. How it was so recognised is not known. Mr Richardson has not provided any written judgment with the reasons of that court. Ms Lawford has not had the opportunity to comment on this. However, it can be accepted that she has had illicit drug issues at various times.
Further still, Mr Richardson's claim in his first affidavit in respect of his plea to the assault charge, for which he was convicted on 8 November 2011, that he
agreed to plead guilty to what was written in the statement of material facts only to safely access my children, not to Victoria's outrageous false allegations
cannot be accepted. It cannot be seen how Mr Richardson's plea would assist to 'safely access' his children. If by this he meant that Ms Lawford would make false allegations of a breach of a violence restraining order, as set out above at [99], then he could have readily taken steps to safeguard against that, without having to wrongly admit an offence he claimed to have not committed. His claim that she had previously twice set him up for breaches of orders cannot be substantiated when regard is had to the individual convictions, as will be seen shortly. He also said that his legal representative for this matter refused to act on his plea of guilty and he inferred that he then entered his plea without representation.
Mr Richardson also claimed that nearly all of Ms Lawford's allegations from this assault were dismissed by the police as being untrue, such that it should not be considered as an assault at all. However, Mr Richardson pleaded guilty. This court cannot look behind Mr Richardson's convictions in the sense that this appeal cannot be used by way of a de facto appeal against conviction: Bentham v Wass [2004] WADC 47 [5]. This assault will be further considered below at [117] ‑ [123] inclusive.
Conviction 25 July 2008
As to the conviction on 25 July 2008 of two breaches of a violence restraining order referred to above at [2.1], Mr Richardson said that Ms Lawford's statement of effects provided to the assessor is incorrect in that she was not staying at the hotel with her children. It is true that at that time, she only had one child from a previous relationship and that that child lived with its father.
However, the reference to 'children' is an incorrect statement which does not go to the issue of Ms Lawford's state of mental health or its cause. In any event, on checking the statement provided to the assessor, it can be seen that it reads
I was staying in a motel with my children? at …
This appears to be a fairly typical method by which solicitors, who have taken instructions from a client to prepare a statement, require further instructions to complete that statement. Solicitors sometimes send that draft statement to the client for checking and further instructions, with the document containing a question mark at that part of it upon which the instructions are required.
However, it may be that here, the draft statement was not corrected and amended, as required, and that Ms Lawford just signed it, and the solicitors did not check it, before the statement was submitted to the assessor. This question mark has not been explained, but it may well be capable of such an explanation. Ms Lawford and her solicitors have not had the opportunity to so explain.
Further perusal of this same statement reveals that in respect of the alleged assault on 15 November 2008, the solicitors typed:
23. (Saw a doctor?)
This is not the only other example in the statement where further instructions were sought, but it is clearly a request for further instructions in the same manner outlined above.
Further, Mr Richardson alleged that Ms Lawford invited him to the motel and he was asleep in bed when arrested on the second breach of the restraining order. The statement of material facts refers to Mr Richardson 'laying on the bed', but not to him being asleep. There may or may not be any importance between being in or on the bed or being asleep. His explanation was that he thought the order had been revoked. He has not identified the source of information for revocation. He also said that she forced him into moving into her room so as to save money on two separate rooms. Forcing him, to save money, seems fanciful.
This breach occurred on two separate days. Police were called on each day by hotel staff; not Ms Lawford. He left before police arrived on the first occasion. The full circumstances are not known. Ms Lawford felt unsafe in his presence. In any event, Mr Richardson pleaded guilty to the offence and Ms Lawford has not had the opportunity to comment on his claims.
Conviction 27 July 2009
As to the second conviction on 27 July 2009 relating to the breach of protective bail conditions on 22 December 2008 referred to above at [2.2], Mr Richardson alleged that this incident, like the previous matter for which he was convicted, was a set up. In dealing with this matter, it is necessary to note that the forerunner to the breach charge was an alleged assault upon Ms Lawford by Mr Richardson on 15 November 2008, also referred to above at [2.2]. This will be dealt with below at [113] ‑ [116] inclusive.
Mr Richardson claimed that, on 22 and 23 December 2008, Ms Lawford went to his place of work at which she borrowed his telephone in order to call her own phone. It can be noted here that his claim relates to successive days; not the same day. He also said she convinced him to call the police on her behalf to drop the assault charge, as 'her mental state was of devastation'. He said this was 'cunningly manipulated'.
Ms Lawford has not had the opportunity to comment on these matters, but if she went to his place of work as he claimed, he would, no doubt, have been able to call work witnesses as to that fact. Further, Mr Richardson referred to the existence of security cameras at his place of work which, if his claim was true, could have provided film to prove that she did attend over two days, at his place of work. Further still, his and her telephone records would have shown that the calls were made on successive days and the locations from where those calls were made and where they were received, as being the same location.
However, material facts to which Mr Richardson pleaded guilty by way of breach of the protective bail conditions state that Mr Richardson telephoned Ms Lawford twice on 22 December 2008, at about 12 noon and 2.00 pm, requesting she ask the police to discontinue proceedings relating to his alleged assault upon her. These two telephone calls were specified in the material facts by their time and date. Ms Lawford said she received them at Perth and Stirling respectively. The material facts also stated that Mr Richardson made his call to police at Stirling on the same day, after his two calls which breached the protective bail conditions. This therefore contradicts his sworn claim as to the circumstances in which he said the offending calls were made over two days. The material facts also state that on 22 December 2008, Mr Richardson telephoned Stirling Police and insisted that Ms Lawford was going to drop the assault case. He requested that police contact her to arrange that it be discontinued.
Alleged assault 15 November 2008
The statement of material facts for the breach of protective bail conditions also records that Ms Lawford did not wish to withdraw her complaint of assault on 15 November 2008 causing 'actual' bodily harm.
Ms Lawford alleged that Mr Richardson slammed her head against a wall with violence and force resulting in bruising. Mr Richardson denied any such assault of Ms Lawford. He claimed the aggravated assault occasioning bodily harm charge was dismissed, not only because of lack of evidence, but also because Ms Lawford did not suffer an injury.
The alleged offence here was aggravated assault occasioning bodily harm, not aggravated assault occasioning actual bodily harm. It would seem therefore that the police must have seen some actual bodily harm in order to use the term 'actual' harm in the statement of material facts.
In the background of this matter is a history that Mr Richardson and Ms Lawford separated in early December 2008. His family then cared for their daughter. He said she was always wanting him to return to her. They reconciled in January 2009 until November 2009, with the plea to the breach occurring on 29 July 2009, during the period of that reconciliation. What happened to that assault charge is not known from the police documentation on file. It was probably discontinued with the consent of Ms Lawford, and probably by reason of the reconciliation. However, the police proceeded with at least the breach, being an offence relating to the administration of justice and therefore not capable of being discontinued with Ms Lawford's consent and as to which, Mr Richardson necessarily pleaded guilty. Ms Lawford has not had the opportunity to comment on the discontinuance.
Conviction 8 November 2011
As to the conviction on 8 November 2011 relating to an aggravated common assault on 12/13 July 2011 referred to above at [2.3], Mr Richardson said that whilst Ms Lawford was suffering a 'speed psychosis' and he was hiding from her with the children because of her erratic behaviour, she found him and punched him several times to the head. She also head-butted his lip. Mr Richardson said Ms Lawford claimed
Horrific violence from that night
and he continued
though [she] walks out without a scratch. The only injury that I recognise from that night is the indent on her ring finger caused from punching me in the head.
The statement of material facts provided by Mr Richardson to which he pleaded guilty details that Mr Richardson and Ms Lawford were residing together with their two children, then aged 3 years and 8 weeks respectively. They argued. Ms Lawford walked away from Mr Richardson. He approached her from behind and put his arms or hands around her throat causing her to fall forward. He fell on top of her. They then both stood up and continued arguing.
Even though the statement of material facts as provided by Mr Richardson at the hearing of the appeal recites that Ms Lawford did not receive any injuries, the police incident report, which he annexed to his first affidavit, indicated her injuries to have been 'bruising and soft tissue soreness' and also that she had 'minor injuries'. Mr Richardson claimed that the incident report was 'dismissed'.
However, the police photographs from this time reveal bruising to Ms Lawford's face, nose, neck, upper chest and both hands. He said these were
simply blurred images and no medical practitioner was consulted.
The fact remains that the photographs do reveal Ms Lawford's injuries. Mr Richardson's evidence and submissions on this matter cannot be accepted. Ms Lawford has not had an opportunity to respond to this claim and in particular, to advise whether or not she consulted a doctor or first aid officer.
The police incident report also indicates that Ms Lawford denied punching Mr Richardson as he had alleged, causing a smaller injury to the bridge of his nose. She did however admit to head-butting him in the face causing a small cut on the inside of his lip. She said this was by way of self-defence. Ms Lawford was cautioned by police for her offending.
It was Mr Richardson, not Ms Lawford, who, on appeal, sought to rely upon the police incident report, but only page 2 thereof, and the statement of material facts relating to his third conviction on 8 November 2011. Ms Lawford did not produce these documents in her materials for the assessor and yet, the detail from page 2 of the incident report is remarkably close to, and consistent with, Ms Lawford's explanation in her statement to the assessor of events on 12/13 July 2011.
It was also Mr Richardson who produced, on appeal, a copy of the psychological report to the Family Court dated 23 September 2015 containing his advice to the psychologist of his plea of not guilty to this assault charge, to which he now accepts that he pleaded guilty as outlined above. It would be consistent with his purpose in the Family Court proceedings to falsely insist upon his innocence of the assault charge, notwithstanding his conviction. This is another inconsistency. It is however, also consistent with his purpose in this appeal to now submit that page 2 of the police incident report was 'dismissed'. The court would be unlikely to have seen the incident report on a plea of guilty. Only the material facts are usually read to the court. Although a statement of material facts may be diluted by agreement for the purpose of obtaining a plea of guilty, the photographs cannot be so diluted and they too, were unlikely to have been provided to the court.
Alleged assault 2 January 2008
Mr Richardson also referred to an alleged incident on Wednesday 2 January 2008 resulting in Ms Lawford attending KEMH and then SCGH. He denied any assault and said that hospital records did not record any visible markings, bruising or swelling. This is true. In fact, staff at KEMH recorded that there were no signs of bruising on Ms Lawford's neck. X‑rays did not reveal any abnormality in her cervical spine.
Mr Richardson's explanation for this matter was that he received a telephone call at his place of work from Ms Lawford at SCGH. She told him she had had a fall. She sought money and cigarettes from him. He said he left his work to attend to her at the hospital. Hospital records indicate he attended at 11.30 am and again, before 12.25 pm. He was turned away on both occasions. She was discharged at 1.40 pm.
Contrary to Mr Richardson's explanation, the KEMH notes record Ms Lawford's claim that she was assaulted at home around midnight and that her partner was the offender. Ms Lawford was in a distressed condition. Consistent with her claim at least as to time, hospital records also report an ultrasound of her abdomen was taken at 3.28 am on 2 January 2008. She was then pregnant with her first child to Mr Richardson. How she was transported from their home in Dianella to KEMH is not known. At 6.05 am, St John's Ambulance took her from KEMH to SCGH. The same notes record that she felt unsafe to return home and wanted to leave her partner. She was in a distressed condition.
It is not possible to accept Mr Richardson's claim relating to this matter. On his version of events, he did not know Ms Lawford was at the hospital until he received her telephone call whilst he was at work. Ms Lawford must have left their home, where they were both residing, quite early that morning to have been at KEMH for an ultrasound at 3.28 am. Ordinarily, Mr Richardson would leave for work early each morning, but not this early.
Mr Richardson observed that people do fake neck injuries in attempts to defraud or be prescribed strong pain medication. He also said that, on this occasion, Ms Lawford was withdrawing from illicit drugs. Mr Richardson claimed Ms Lawford faked her injuries for the purpose of obtaining strong pain medication.
Ms Lawford was recorded in the emergency department notes as taking subutex for opiate dependence and as a former intravenous drug user with Hepatitis C. Whilst in hospital, she was prescribed once only medication of panadeine forte, nicotine patches and another drug the name of which is difficult to decipher, but it appears to be a form of morphine. She received two doses of diazepam. She has not had an opportunity to comment on Mr Richardson's claims about this incident.
Alleged assault on 2 March 2014
The details of this assault as alleged by Ms Lawford are set out above at [4]. As will be seen below at [146], Mr Richardson denied he decked her. He said details of this incident were 'white outed' from the copy statement of effects provided to him and so he has not had the opportunity to comment upon this. There have not been any independent materials filed with respect to this matter.
Findings on convictions and other unproved assaults
Mr Richardson:
1.contradicted himself as to not having, but then having, legal representation when pleading guilty on 25 July 2008 to breaching the domestic violence restraining order and on 27 July 2009 to breaching the protective bail conditions. These were not just separate offences. They were dealt with one year apart;
2.provided unsatisfactory reasons for pleading guilty on 8 November 2011 to the assault on 12/13 July 2011;
3.wrongly claimed Ms Lawford did not suffer an injury from the assault on 15 November 2008. Given that the statement of material facts refers to 'actual' bodily harm and therefore, the police must have observed some objective evidence before making such a comment which is consistent with the nature of the act causing her bodily harm and her bruising, as she claimed;
4.wrongly claimed Ms Lawford did not suffer more than an indent to her ring finger and that her injuries were dismissed by police as being untrue when the police incident report and photographs reveal more extensive injuries for the assault on 12/13 July 2011;
5.made claims relating to the incident on 2 January 2008 which are inconsistent with the hospital records detailing Ms Lawford first underwent ultrasound examination at 3.28 am that morning. The timing of that procedure is consistent with her claim of an assault, around midnight at her home. It is inconsistent with his claim of her suffering a fall after he went to work;
6.claimed that Ms Lawford faked her injuries on 2 January 2008 in order to gain strong pain medication. It was for the medical staff to determine the appropriate medical care required, including medications. The hospital records do not reveal any illicit drug problem. This claim does Mr Richardson no credit;
7.The truth of what occurred on 2 March 2014 cannot be determined solely on the papers. The physical consequences of the alleged assault would not seem to be of a lasting nature. Dr Ng has not commented on the mental consequences arising from this alleged offence, but he has commented on the effects of Mr Richardson's behaviour in general. The assessor has not made any award in respect of this alleged offence; and
8.denied Ms Lawford's claims of physical violence. He said, she has never had
A single scratch, bruise or mark
This is not true as variously detailed above and as seen in the photographs.
In coming to this view, it is necessary to view the matter in light of all known circumstances. Dr Ng's opinion was that Ms Lawford's pre‑relationship mental condition was exacerbated by Mr Richardson's criminal conduct and other domestic violence, whether verbal or physical. Ms Lawford referred to her past drug and alcohol use in her statement of effects. It is referred to in police incident reports. Her past intravenous drug use is referred to in the hospital reports. Dr Ng had these materials. He referred to her heroin use, but noted she denied drug use at the time of his report. There is no reason to not accept his report of her claim in this respect notwithstanding Mr Richardson's claims set out above at [199]. Even if she was using as alleged, it has not been shown by expert psychiatric evidence how this might change Dr Ng's opinion, if at all. Mr Richardson is not qualified to give expert evidence that her drug use, even if ongoing, has affected the state of her mental health in a manner contrary to Dr Ng's report.
Further, it is more likely than not that her present mental health injury has been materially contributed to by Mr Richardson's behaviour leading to his convictions.
Mr Richardson complained that when reporting on Ms Lawford's psychiatric injuries in the 'incident section' of his report, Dr Ng referred to his other misconduct, yet there is no mention within that section of his proved convictions, such that Ms Lawford's complaints are merely hearsay. Further, he claimed that Dr Ng does not say specifically Mr Richardson caused her post-traumatic stress disorder.
As to these matters:
1.[49.2] above is repeated;
2.Dr Ng noted Ms Lawford's
plausible history of being both physically and mentally traumatised in the course of her relationship with [Mr Richardson].
3.Dr Ng also noted Ms Lawford's pre-existing mental health issues and said that it was not entirely clear how emotionally stable she was at the time she commenced her relationship with Mr Richardson in 2005. Nevertheless, from the history provided, Dr Ng found that her relationship with Mr Richardson
would have more likely than not, significantly increased any pre‑existing depression and anxiety symptoms, and also would have had a negative impact on her self-confidence and self‑worth …
4.Dr Ng also found that Ms Lawford
developed psychiatric symptoms consistent with post-traumatic distress order … in the course of her relationship with (Mr Richardson), although it is not exactly clear when …
This all points to the relationship with Mr Richardson being the material contributor to Ms Lawford's present mental health condition requiring the assessor to disentangle, if possible, that part of her present mental health condition which was materially contributed to by Mr Richardson's offending. Given the size of the award, the assessor was so able to disentangle that contribution because, if she had not been able to do so, then Ms Lawford would have been entitled to compensation for the entirety of her mental health condition, in which case the award would have been in excess of $15,500: Curnow v Garnant (2012) 79 SR (WA) 240 [57].
No evidence of assaults
Mr Richardson claimed that there is no evidence Ms Lawford was assaulted, apart from her own evidence. This overlooks the 12/13 July 2011 assault to which he pleaded guilty, as to which, the statement of material facts indicates there was a witness, who was a neighbour. There are also photographs of the result of this assault. Further, findings of assault were open to the assessor as provided above at [130], yet neither the assault on 2 January 2008, nor the incident on 15 November 2008, or any other alleged assault, has resulted in a compensation award being made. The award here was based solely on the three proved offences. If any other assaults had been part of the assessment of the award, then the award might well have been greater.
Objections to Dr Ng's report
Mr Richardson claimed that although Dr Ng was not entirely clear how stable Ms Lawford was when they commenced their relationship, the father of her son thought she was unstable and using illicit drugs, but he has not indicated when this was. This is hearsay. It is not suggested that this father is a psychiatrist. Whatever he might say does not impact on Dr Ng's expert opinion.
Mr Richardson complained that Dr Ng only made enquiries of Ms Lawford when preparing his opinion. That is true to a certain extent however, he also had other materials, including some police incident reports, statements of material facts and the KEMH and SCGH records, together with Ms Lawford's three statements. There was no need or requirement for Dr Ng to search out any government department, DCP or Family Court reports, which were probably inaccessible by him in any event.
Mr Richardson complained that Dr Ng could not say when Ms Lawford's post‑traumatic stress disorder arose. There was however, no need for him to do so. Indeed, he was frank in saying that it was not exactly clear when she developed that disorder. It was sufficient that it developed during the course of their domestic relationship and that the disorder was materially contributed to by Mr Richardson's offending.
Mr Richardson complained that Dr Ng's opinion is based on hearsay and slander. However, the fact is that his opinion is based on Ms Lawford's information and the materials provided from the police and hospitals. Ms Lawford's presentation of information was a matter for Dr Ng to determine in his professional role as a clinical psychiatrist. His opinion was provided by way of expert opinion. It has not been contradicted by any other psychiatric opinion. Indeed, there is psychological support for it as set out above at [135], [136], [180] and [181]. Dr Ng's opinion is not displaced by Mr Richardson's further evidence and information. The admitted criminal record speaks for itself. If Dr Ng had insufficient information to provide an opinion, then it can be expected of a specialist psychiatrist from whom an opinion was sought that he would have said so.
Mr Richardson also said that Ms Lawford was untruthful when she advised Dr Ng that she does not have access to her two children with Mr Richardson. Dr Ng found that the lack of access to her children may have somewhat perpetuated her depression. Again, these are matters for which Ms Lawford has not been compensated. The learned assessor has disentangled these matters from the award.
Mr Richardson said that, during the course of their relationship, Ms Lawford was medicated with various antidepressants. Mr Richardson suggested that if Dr Ng had enquired of the medicos who prescribed those medications, then other factors would be found to have contributed to the deterioration of her mental health. Mr Richardson does not specify who those medicos might be or what those other factors are, other than to then go on and say it is the person closest to Ms Lawford who is generally the person she will believe is responsible for her symptoms. However, the fact remains that Ms Lawford was in a relationship with Mr Richardson from 2005 until at least 2011, if not 2014, and he has been convicted of the proven offences during that relationship. Dr Ng has provided his opinion about the cause of Ms Lawford's mental health issues by reason of Mr Richardson's conduct, in respect of some of which, he has been convicted.
Section 25
Mr Richardson also claimed that s 25 of the Act required him to be given notice, but he does not say of what it was that he was to be given notice. However, s 25 refers to a hearing before the assessor.
First, s 11 only requires that an application for compensation be in writing on an approved form and be given to the Chief Assessor of Criminal Injuries Compensation. It is not required be served on an offender. An offender is only given notice in circumstances as set out above at [55].
Secondly, s 25 only applies if and when an assessor deems it necessary to conduct a hearing of a compensation application under s 24. If so, then the assessor must then give notice to an interested person of the time and place of the hearing. However, in the circumstances as they were before the assessor, she did not deem it necessary to conduct a hearing, and there was no hearing, such that the assessor was not bound to notify Mr Richardson of something which did not occur.
Other matters raised by Mr Richardson's closing submissions
Mr Richardson also submitted that information should be obtained from the mental health ward of the Armadale Hospital relating to Ms Lawford's admission there in December 2018. Apparently, Ms Lawford told those treating her that Mr Richardson's home was the only safe place to be, such that she must have been cured by then of her post‑traumatic stress disorder. First, this is hearsay upon hearsay. Secondly, as already observed, one of the hallmarks of domestic violence is that victims frequently seek to return to perpetrators of such violence. Absent anything further, nothing can turn on this.
Mr Richardson referred to Ms Lawford's fear that if he were to learn of her claim for compensation, then she would:
no longer be welcome to live in my home like she used to. Her true repercussion was the fear of losing the privilege I've allowed her for being the mother of our daughters.
He also observed that in the past she had been aggressive towards him and never fearful of him.
The next matter raised by Mr Richardson related to the evidence and information he presented by way of affidavits to the effect that Ms Lawford has had access to her children, freedom and safety in Mr Richardson's surroundings and has used his house as a safe home since the end of their relationship.
First, the withdrawal by Mr Richardson of the privilege referred to above at [222], such that now Ms Lawford would not be welcome to live in his home once she lodged a compensation application and he found out about it, suggests a total lack of awareness of her mental frailty in terms of her fear of losing that privilege which he, as father to her children, would allow her, as the mother of his children, if she had not made such application. Mr Richardson fails to appreciate that this demonstrates his bullying behaviour and signifies his lack of understanding of her stress disorder and associated mental injury arising from their relationship and that part of that disorder was materially contributed to by his offending behaviour for which he was convicted and other parts of that disorder have been caused by his general behaviour, of which the withdrawal of the above privilege is but one example.
Another difficulty with these submissions at [222] and [223] is that they are based on conduct which post‑dates their relationship. Further, Ms Lawford has not had the opportunity to comment on these matters. Even if Ms Lawford has attended at Mr Richardson's home without apparent fear, that fact does not displace the expert psychiatric opinion of Dr Ng.
Mr Richardson noted that apart from the incident on 2 January 2008, Ms Lawford did not advise Dr Ng of any visits to hospital as a result of Mr Richardson's activities. He said that she claimed multiple hospital trips in Family Court proceedings. He complained that Ms Lawford says whatever is necessary for the occasion at hand. First, there is no information available as to what information about hospital visits may be ascertained from the Family Court file and, secondly, Ms Lawford and Dr Ng have not had the opportunity to comment on this claim.
Mr Richardson alleged that Ms Lawford provided untruthful statements to the assessor dated 2 June 2015 and on 23 November 2017 when she signed her applications for compensation. The relevant form completed by her advised of a $5,000 fine for providing false information. Mr Richardson seeks to implement that fine. This really demonstrates an appalling lack of compassion for the probably unemployed mother of his two small daughters when that mother has her mental health issues.
Mr Richardson further explained his delay in appealing in that solicitors required $20,000 from him for their services. He has not said when he attempted to instruct solicitors or what advice they may have given him about instituting an appeal.
Conclusion
As noted above at [181], the Family Court psychologist reported in 2015 by quoting from an earlier DCP report (date not known) that:
… the extent to which Mr Richardson is determined to make his case is demonstrated by his numerous recordings and photographs outlining concerning behaviour by Ms Lawford.
This appeal is another example of Mr Richardson demonstrating his determination by way of presenting numerous affidavits, materials and submissions to try and overturn Ms Lawford's compensation award and thereby to assert his dominance over her. Many of the matters set forth above demonstrate his behaviour and the denial by him, or his failure to appreciate, that his misconduct has had its own impact upon Ms Lawford's mental health.
There are therefore many reasons referred to above for not accepting the many claims by Mr Richardson and his witnesses outlined above. It is difficult to accept anything that Mr Richardson has to say unless it is corroborated. Further, there are many reasons, also referred to above, for finding that parts of Mr Richardson's affidavit material and submissions also underpin the factual basis of Dr Ng's psychiatric opinion.
Although the court is able to call for more information from Ms Lawford, to do so would potentially only compound contradictory versions of events, most of which have occurred after 2014, being the latest date for the separation of the parties, and which do not bear upon the issue arising from the application for compensation.
This court is not able to conduct a hearing which might be considered necessary to resolve any matters of conflicting evidence. However, most matters raised by Mr Richardson and his witnesses post‑date the separation of Mr Richardson and Ms Lawford and/or upon which she and Dr Ng have not had the chance to comment. It is not known how, if at all, resolution of various contested matters might impact upon Dr Ng's opinion which has not been contradicted by another psychiatrist. The opinion has not been shown to be based on any false premise. There is no other psychiatric opinion to contradict it.
Leave should be refused to Mr Richardson to bring this appeal out of time and the appeal should be dismissed, for the reasons outlined above.
Notwithstanding the findings above at [132], the assessor's award in the sum of $17,227, being $15,500 for Ms Lawford's injuries and loss of enjoyment of life and $1,727 for Dr Ng's report, should be confirmed. Further, an allowance of $1,215 can be made for Ms Lawford's counselling, after consultation with her general medical practitioner to obtain a mental health plan in order to obtain appropriate Medicare rebates. The allowance is calculated as the 'gap' amount after Ms Lawford has processed her accounts through Medicare or any private health insurance under a mental health plan.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
Associate to Judge Goetze7 MAY 2020
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