JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: S J R -v- J J C [2020] WADC 161
CORAM: SHARP DCJ
HEARD: 12 OCTOBER 2020
DELIVERED : 18 DECEMBER 2020
FILE NO/S: APP 79 of 2019
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: S J R
Appellant
AND
J J C
Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION
Coram: C HOLYOAK-ROBERTS
File Number : CIC 2285/2018
Catchwords:
Criminal Injuries Compensation - Appeal - Proved offences - Sexual abuse - Extension of time to bring compensation application appeal - Injury or loss - Amount of compensation - Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Extension of time to make an application for compensation granted
Appeal allowed
Compensation increased
Representation:
Counsel:
| Appellant | : | Mr J N Trigg |
| Respondent | : | No appearance |
| Amicus Curiae | : | Ms J J E Perera on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Stephen Browne Lawyers |
| Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
BAS v The Estate of NAS (Dec) [2000] WASCA 270
Bothma v Hildebrand [2019] WADC 92
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Commissioner for Consumer Protection v Murphy [2013] WASCA 89
Puterangi [2017] WADC 168
Re McHenry [2014] WADC 92
S v Neumann (1995) 14 WAR 452
SHARP DCJ:
Introduction
The appellant (Appellant) was the victim of sexual assault by the respondent (Respondent) in 2006, namely sexual penetration of a child under 13 years and indecent dealing with a child under 13 years. The Respondent was charged with and pleaded guilty to those offences.
The Appellant on 30 August 2018 applied for compensation under the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) for injuries suffered by her as a result of those offences. The Chief Assessor of Criminal Injuries Compensation (Assessor) considered the application and was satisfied that the Appellant had suffered injury and loss as a consequence of the commission of those offences. On 2 October 2019 the Assessor awarded the Appellant compensation of $21,215, made up of $20,000 for pain and suffering and $1,215 for future psychological treatment.
The Appellant appeals to this court the decision of the Assessor. The Appellant's notice of appeal was filed on 14 October 2019.
The Appellant was represented in her appeal by Mr J N Trigg. The Respondent did not appear. The Chief Executive Officer of the Department of Justice (CEO) appeared as amicus curiae and was represented by the State Solicitor.
At the conclusion of the hearing on 12 October 2020, I reserved my decision. This is my decision and the reasons for it.
Facts of the Respondent's offending
The Respondent pleaded guilty to one charge of sexual penetration of a child under the age of…
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- AGLC
- S J R v J J C [2020] WADC 161
- Case
- [2020] WADC 161
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were threefold. Firstly, whether the appellant should be granted leave to commence her compensation application out of time, pursuant to section 9(2) of the CIC Act. Secondly, whether the appellant had suffered an injury or loss that entitled her to an award of criminal injuries compensation. Lastly, if the appellant was entitled to compensation, what the appropriate amount of compensation should be.
The court examined the factors outlined in relevant case law to determine whether it was just to extend the time for the appellant to commence her compensation application. These factors included the history and background of the proposed application, the length and reasons for the delay, the nature of the proposed application, the consequences for the parties if the extension was granted or refused, and the prospects of the compensation application succeeding. The court found that the appellant's history, the nature of the offences, and the prospects of the compensation application succeeding supported granting the extension, and that there was no specific prejudice to the respondent in the delay. Therefore, the court granted the appellant leave to commence her compensation application out of time.
The court also found that the appellant had suffered an injury or loss that entitled her to an award of criminal injuries compensation. The court considered the evidence presented by the appellant and determined that she had suffered psychological harm as a result of the offences. Lastly, the court assessed the appropriate amount of compensation to award to the appellant, taking into account the nature and extent of the injuries suffered, and the impact on the appellant's life. The court ultimately determined the appropriate amount of compensation to be awarded to the appellant.
The court granted the appellant leave to commence her compensation application out of time, found that the appellant had suffered an injury or loss that entitled her to an award of criminal injuries compensation, and determined the appropriate amount of compensation to be awarded.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
However, there is in my view a distinction between a decision‑maker's decision on the one hand and the process of reasoning of that decision‑maker on the other. While I fully concede that I cannot give weight to the decision of the Assessor, I consider that I may take into account the Assessor's expressed process of reasoning, in the same way that I may give weight to the submissions of the parties: Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598, 603; Commissioner for Consumer Protection v Murphy [2013] WASCA 89 [50]. I set out below the issues which I consider arise in this appeal. Those issues are:1.Should leave be granted for the Appellant to commence her compensation application out of time pursuant to s 9(2) of the CIC Act?2.Has the Appellant suffered an injury or loss such that she is entitled to an award of criminal injuries compensation?3.If the Appellant is entitled to an award of criminal injuries compensation, what is the appropriate amount? Under s 9(1) of the CIC Act, an application for compensation must be made within three years after the date on which the offence to which it relates was committed or, if it relates to more than one offence, the date of the last of the offences to which it relates was committed. Section 9(2) of the CIC Act provides that an assessor, and so in this case the court, may extend this time 'if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose'. The Appellant must make out a substantial case for it being just for the court to exercise its statutory discretion to extend time: KBR v ADM [2018] WADC 120 (KBR) [14]. In Re McHenry [2014] WADC 92 [34] – [56], Herron DCJ identified a set of non-exhaustive factors which might be relevant when considering whether it is just to exercise that discretion. I respectfully agree with what his Honour said there and I accept and adopt the summary of those factors which was set out as follows in KBR at [16 ]:(a)the history 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 in 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. There is no doubt that the delay in commencing the Appellant's application for compensation, which should have been lodged on or before 27 May 2009, is significant. However, it is not uncommon for an extension of time to be granted in compensation claims arising from historical child sexual abuse. The Appellant was 8 years old when the Offences occurred and she would have been around 11 years old when the three year time limit expired. The court has not been provided with any explanation from the Appellant direct about the delay. However, having considered the Appellant's history, her application, the nature of the Offences and the prospects of the compensation application succeeding, I am in no doubt that an injustice will be suffered if an extension of time is refused. There is no specific prejudice to the Respondent in the delay.