SELIMOSKI
[2012] WADC 30
•6 MARCH 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SELIMOSKI [2012] WADC 30
CORAM: DERRICK DCJ
HEARD: 20 FEBRUARY 2012
DELIVERED : 6 MARCH 2012
FILE NO/S: APP 43 of 2010
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: SEVIM SELIMOSKI
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 000377 of 2009
Catchwords:
Appeals - Application to extend time for appealing against award of criminal injuries compensation
Criminal injuries compensation - Alleged offence - Further evidence admitted - Turns on own facts
Legislation:
Criminal Code (WA)
Criminal Injuries Compensation Act 2003 (WA)
Result:
Application for extension of time to commence appeal allowed
Appeal allowed
Compensation order made by Assessor varied
Representation:
Counsel:
Appellant: Mr D J Pratt
Amicus Curiae : Mr P D Spragg on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Evangel Legal
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
A v D (1994) 11 WAR 481
B v S (Unreported, WASC (Murray J), Library No. 950223; 10 May 1995)
B v W (1989) 6 SR (WA) 79
Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143
CMH v RLH [2002] WADC 89
Crumby v Kuru (1995) 13 SR (WA) 331
Dos Santos v Dos Santos [2000] WADC 256
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gullelo v Halloran [2008] WADC 145
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
M v J and J v J (Unreported, WASC (Scott J), Library No. 920598, 19 November 1992)
R v Forsythe [1972] 2 NSWLR 951
Re RT [2006] WADC 185; (2006) 47 SR (WA) 197
Re Tilbury [2010] WADC 46
RJE v Bandy (Unreported, WASC (Burt J), Library No 1365, 31 May 1974)
Rondas v Westall [2006] WADC 151; (2006) 45 SR (WA) 287
S v Neumann (1995) 14 WAR 452
DERRICK DCJ:
Introduction
The appellant has filed an undated notice of appeal (the notice) against a decision of the Chief Assessor of Criminal Injuries Compensation (the Assessor) awarding him criminal injuries compensation in the amount of $6,000. The notice was filed out of time. Accordingly the appellant requires leave to commence the appeal out of time.
On 13 April 2011 a judge of this court ordered that the application for leave to commence the appeal out of time (the extension application) be dealt with as a preliminary issue at the hearing of the appeal.
The extension application and the appeal came before me for hearing on 20 February 2012. I heard argument on the extension application and reserved my decision on the application. I then heard argument as to the merits of the appeal and again reserved my decision.
Factual background
On 8 September 2007 an attempted armed robbery was committed at the BP Express Service Station in Morley (the attempted robbery). The attempted robbery was investigated by the Western Australian Police Service (the police). The investigation did not, and has not, resulted in any person being charged with the attempted robbery.
On 19 December 2008 the appellant made an application pursuant to s 17(2) of the Criminal Injuries Compensation Act 2003 (WA) (the Act) for an award of compensation for injuries suffered by him as a consequence of the attempted robbery (the compensation application). The appellant was not legally represented at the time of making the compensation application.
In support of the compensation application the appellant provided to the Office of Criminal Injuries Compensation an undated letter addressed to 'To whom it may concern'. The appellant's letter was, so far as is relevant, in the following terms:
It was the 8th of September 2007. Approximately around 10.45 pm when I went to fill up petrol in my car at BP Morley Express Petrol Station corner of Wellington Street and Walter Road Morley. As I was about to pay after filling up petrol the doors were closed and I had to pay through the window front. I noticed a man with sunglasses, his skin colour was white and he was reasonably average height, medium built and wore a black beanie. He pulled out a gun at that moment and waved it at the front and demanded money from the guy at the till, he then kept looking at me and waved the gun. I was about less [than] a metre away from this guy with the gun. At the moment it didn't seem real for me but then I realized it was real and I thought how I could get out of this situation. As soon as he turned to look at the till I quickly ran around the corner without knowing what he was going to do. I noticed there was a car across the road and it was small and white. I was too scared to notice how it looked like.
If you need more information please contact me on my mobile…
Thank you very much.
Regards Sevim Selimoski
In the course of dealing with the compensation application the Assessor obtained documents from the police. The documents included the police incident report, the witness statements provided by the two attendants who were working at the service station at the time of the attempted robbery and a witness statement provided by a third person. The 'narrative' contained in the incident report described the attempted robbery in terms that were substantially consistent with the contents of the witness statements provided by the two service station attendants. Relevantly the narrative stated the following:
Offender is btb in company with 2 others when they have parked 'mid eighties' white holden commodore in carpark of Morley Recreation Centre, Wellington St, Morley.
Offender has walked across to night window at BP service station. He has waited for other customers to be served and allowed one customer to go in front of him leaving him alone at the counter when he was being served.
Offender asked for a packet of twisties and has paid for [and] received a packet of cheese twisties. Customer service officer went to give the offender his 10 cents change when the offender pulled out a black handgun and held it against the window. Offender said, 'Give us all your money' then 'Just give me the fucking money' and banged hard on the window...The offender turned and ran back to the vehicle.
Offender got back into car and vehicle left carpark and travelled north up Wellington Street.
...Firearm (unable to determine if real or not) has left mark on window. Offender has left smudge marks on window and counter.
Neither of the service station attendants referred in their statements to another customer being present at the time that the offender produced the gun.
The third person who provided a witness statement was a passenger in a tow truck which happened to be in the Beechboro area at around the time that the attempted robbery was committed. In her statement the witness states that while she was in the tow truck which was driving along Tonkin Highway near the intersection with Collier Road she saw three people, including two males, in a car. The witness provides in her statement a description of the car that she saw. The witness's description of the car is similar to the description given by the two service station attendants in their statements of the car that the offender used to leave the scene of the attempted robbery.
In the course of dealing with the compensation application the Assessor also obtained a letter from the appellant's general practitioner, Dr David Flynn, the principal of the Dalkeith Medical Centre, dated 24 February 2009. In his letter Dr Flynn said the following:
I refer to your letter of 7 January 2009 about my patient.
Mr Selimoski has been a patient at our practice here since 2001.
On 8 September 2007 he was held up at gunpoint at a service station in Morley. The circumstances evidently were that the assailant was pointing his gun at the service station assistant on the till demanding money. Then suddenly and unexpectedly he pointed the gun directly at Mr Selimoski at less than a metre away. Fortunately he was able to run and hide around the corner from the assailant and apparently he did not see him again.
Obviously this was a very distressing experience for my patient and it comes as no surprise that he is still suffering the aftermath of the incident. He has been seen by me on seven occasions since 8 September 2007. At all of these consultations he has mentioned the incident which has caused panic attacks requiring medication in the form of Alprazolam and nightmares in which the event comes back to haunt him. He thinks about the incident and the distress it causes him, has trouble sleeping and remains very frightened by it all.
Mr Selimoski suffers from hypertension (high blood pressure) and this has been aggravated by the incident, requiring higher dosage of medication to control it.
I believe that his symptoms will continue for the foreseeable future but hopefully slowly subside over time.
On 18 August 2009 the Assessor awarded the appellant compensation in the amount of $6,000. The compensation award was made pursuant to s 17(4)(a) and s 30(1) of the Act. In making the compensation award the Assessor stated that she was satisfied that the appellant had suffered injuries as a 'consequence of an alleged offence which occurred on 8 September 2007'. The Assessor was not requested to provide written reasons for making the compensation award.
On 18 June 2010 the appellant filed the notice pursuant to s 55(1) of the Act. The sole ground of appeal stated in the notice is as follows:
The learned Assessor made the said award without reference to any medical reports detailing the Applicant's assault caused condition, which reports were not provided due to the Applicant not having legal representation at the time of the making of the application and not being aware that such reports were necessary to support his claim.
Application for extension of time – applicable principles
Section 55(3) of the Act provides that an appeal against an assessor's decision as to the amount of a compensation award must be commenced within 21 days after the date of the decision. Section 55(4), which is the section pursuant to which the extension application is made, provides that if it is just to do so, the court may allow an appeal to be commenced after the 21 days and may do so even if the period has expired.
The 21‑day period for the commencing of an appeal by the appellant against the Assessor's decision expired on 8 September 2009.
In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 the court was concerned with an application to extend time within which to file a notice of appeal. The application to extend time was made pursuant to a provision of the High Court Rules which provided that the court 'may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require.' In dealing with the application McHugh J said that the grant of an extension of time under the rule was not automatic, that the object of the rule was to ensure that those rules which fix times for doing acts do not become instruments of injustice and that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties (480). His Honour said that this means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the time limit will work an injustice upon the applicant having regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application (480). His Honour said that when the application is for an extension of time in which to file an appeal it is always necessary to consider the prospects of the applicant succeeding on the appeal (480).
In my view the factors identified by McHugh J in Gallo v Dawson as being relevant to the determination of whether to grant an extension of time within which to appeal pursuant to the rule which his Honour was considering are, bearing in mind the similarities between the wording of that rule and the wording of s 55(4) of the Act, equally relevant to the determination of the extension application. Given that one of the factors is the prospects of the appellant succeeding on the appeal, I propose to deal first with the merits of the appeal and then to return to the question whether he should be given leave to appeal outside of the 21‑day period.
Nature of the appeal and powers on appeal
The appeal is a hearing de novo: the Act, s 56(1); Gullelo v Halloran [2008] WADC 145 [5]. I must decide the appeal 'without being fettered' by the Assessor's decision: the Act, s 56(1). Nonetheless, it is appropriate for me to have regard to the assessment made by the Assessor given that the Assessor is a specialist in the field of criminal injuries compensation: Crumby v Kuru (1995) 13 SR (WA) 331, 333; Hogben v Darcy [2009] WADC 63 [13].
I have a general discretion to receive and admit further evidence on the appeal: the Act, s 56(1). I should admit further evidence unless there is some reason why it would be unjust to do so: Chappell v Bowe [2006] WADC 29; (2006) 42 SR (WA) 143 [37]; Re Tilbury [2010] WADC 46 [3]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].
It is open to me to increase or decrease the compensation award made by the Assessor even though no cross appeal has been filed: Dos Santos v Dos Santos [2000] WADC 256 [3].
In deciding the appeal I may exercise any power of the Assessor under the Act other than a power under s 19(1)(b), s 24(1) or s 25, none of which is relevant in the present context: the Act, s 56(2)(a). I may confirm, vary or reverse the Assessor's decision either in whole or part: the Act, s 56(2)(b).
Jurisdictional limit
The maximum compensation that may be awarded in favour of a person for a single offence is $75,000: the Act, s 31(1).
The maximum compensation payable under the Act is merely a jurisdictional limit and is not reserved for the worst cases: S v Neumann (1995) 14 WAR 452, 463.
Assessment of compensation
Injury and loss
A victim of an alleged offence is entitled to compensation for any injury suffered as a consequence of the commission of an alleged offence and for any loss also suffered: the Act, s 3 (definition of 'offence'), s 30(1). An 'alleged offence' is defined in s 3 of the Act to mean a 'crime, misdemeanour or simple offence of which no person has been convicted.'
'Injury' is relevantly defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'. 'Loss' is defined in s 6(2)(b) of the Act to mean, so far as is presently relevant, expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim.
The phrase 'mental and nervous shock' includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as injury: M v J and J v J (Unreported, WASC (Scott J), Library No. 920598, 19 November 1992); B v S (Unreported, WASC (Murray J), Library No. 950223; 10 May 1995); S v Neumann (461).
Section 35(2) of the Act provides, in effect, that the court must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an alleged offence, or for any loss in respect of such shock, unless it is satisfied that:
(a)the victim also suffered bodily harm or became pregnant as a consequence of the commission of the alleged offence;
(b)the victim was the person against whom, or against whose property, the alleged offence was committed;
(c)a person other than the victim died or suffered injury as a consequence of the alleged offence and the victim was personally present when or immediately after the alleged offence was committed;
(d)immediately before the alleged offence was committed the victim was the parent or step-parent of the person who died as a consequence of the commission of the alleged offence; or
(e)immediately before the offence was committed the victim -
(i)was a close relative of a person who suffered injury or died as a consequence of the commission of the alleged offence; and
(ii)was living with that person.
General principles of assessment
The correct approach to adopt in fixing the appropriate amount of compensation is to apply ordinary tortious principles for the assessment of damages subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act, and subject also to the jurisdictional limit imposed by the Act: RJE v Bandy (Unreported, WASC (Burt J), Library No 1365, 31 May 1974, 3); M v J and J v J; A v D (1994) 11 WAR 481, 486 ‑ 487.
In assessing the appropriate amount of compensation I must focus solely upon the injury suffered by the appellant as a consequence of the commission of the alleged offence. Considerations of sympathy for the appellant are completely irrelevant: R v Forsythe [1972] 2 NSWLR 951, 953; B v W (1989) 6 SR (WA) 79, 89.
Causation
The onus is on the appellant to establish, on the balance of probabilities, a causal relationship between the commission of the alleged offence and the injury and loss for which compensation is sought: the Act, s 3 (definition of 'satisfied'); S v Neumann (463 ‑ 464).
It is not necessary for the appellant to establish that the alleged offence was the sole cause of any injury or loss. It is sufficient for the appellant to establish that the alleged offence materially contributed to any injury or loss: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673; S v Neumann (463 ‑ 464).
Further evidence
At the hearing of the appeal the appellant sought leave to adduce on the appeal further evidence in the form of an expert report prepared by Ms Janelle Stanbury, clinical psychologist, dated 26 October 2011. The report is addressed to the appellant's solicitors. The report contains a declaration by Ms Stanbury that she understands that her duty is to offer an expert opinion, that she has complied with that duty and that the opinions expressed by her in the report represent her 'true and complete professional opinion'. The report also contains a confirmation by Ms Stanbury that she has not entered into any arrangement by which the amount or payment of her fees is in any way dependent on the outcome of any claim made by the appellant.
The application to adduce the report of Ms Stanbury as evidence on the appeal was not opposed by the Chief Executive Officer of the Department of the Attorney General (the CEO). Moreover, I did not consider that there was any reason why it would be unjust to admit the report into evidence. I therefore made an order pursuant to s 56(1) of the Act admitting Ms Stanbury's report as evidence on the appeal.
In her report Ms Stanbury states that she interviewed the appellant on 23 August 2011 and 7 September 2011. She states that the appellant presented entirely appropriately and gave a clear and consistent account of the incident and its impact on him.
Ms Stanbury sets out in her report the facts of the attempted robbery. Ms Stanbury's statement of the facts is obviously based on what the appellant told her about the facts of the offence. It is apparent from Ms Stanbury's statement of the facts that the appellant provided to her an account of the attempted robbery that was substantially consistent with that which he had previously provided to the Assessor and Dr Flynn.
Ms Stanbury then sets out in her report the history provided to her by the appellant as to the effects of the attempted robbery on him. She states the following:
Mr Selimoski did not report recurrent disturbing memories, or images of the incident but described recurrent confusing thoughts about his reactions during the incident and his symptoms over the months that followed.
Mr Selimoski reported that in the days following the incident, he experienced feeling very nervous and "jumpy" when turning on light switches or when opening doors. He reported that this symptom has persisted.
He also reported attempting to watch television but not being able to focus on the images. He stated that he had an ongoing experience of derealisation described in his own words as a sensation of "an unreal feeling" and "being here but not being here, going on and on". He reported that he continues to experience feelings of being disconnected from people/events in the evenings on a weekly basis.
Mr Selimoski also stated that since the incident he has noticed a marked decrease in his ability to concentrate which affects his ability to organise and complete tasks.
Following the incident, Mr Selimoski described experiencing frequent nightmares that feature guns, being shot in the stomach, bloody scenes or being in mortal danger. He described these dreams as very frightening. He stated that he typically wakes in cold sweats and finds it difficult to return to sleep. He stated that at present he has nightmares less frequently but remains disturbed by them.
Mr Selimoski stated that since the incident he finds it difficult to identify what he is feeling stating, "it's like I feel nothing". He also reported that since the incident he prefers not thinking about or talking about the incident to avoid having feelings related to it. He also reported that he has consistently withdrawn from his wife, children, extended family and friends, stating that he "does not talk at all much" and "shuts down and keeps to himself".
He stated that since the incident he is generally very irritable and is quick to overreact and become angry over minor incidents. He stated that this causes him a great deal of distress as being a family man was the way he had defined himself in the past.
Mr Selimoski presented as dysthymic. He also stated that his "passion for life" has reduced dramatically and he has lost interest in activities that he previously found pleasurable including work, social interaction and family life.
Mr Selimoski did not report any sense of foreshortened future.
Ms Stanbury states in her report that the appellant did not report to her any previous psychological problems or any previous trauma in his life.
Ms Stanbury states in her report that from the appellant's reports to her he met the criteria for post‑traumatic stress disorder (PTSD). She states that he completed the PCL‑C‑Civilian Version which is a standardised self‑report rating scale for PTSD comprising 17 items that correspond to the key symptoms of PTSD. She states that the scale is designed to assess the severity of symptoms. She states that the appellant's responses indicated that he suffered from key symptoms associated with PTSD and that his total severity score was in the moderate range.
Ms Stanbury under the heading 'Discussion and opinion' expresses in her report the opinion that following the attempted robbery the appellant suffered a marked psychological reaction and that he meets the criteria for PTSD. She states that there is no indication of a continuation of any pre‑existing psychological condition. She states that anxiety in the form of persistent nightmares, avoidant/numbing behaviour and increased arousal do not appear to have been a part of the appellant's clinical picture prior to the incident. She therefore concludes that as a consequence of the attempted robbery the appellant has suffered PTSD to a moderate intensity which has persisted without significant improvement since September 2007.
Ms Stanbury states that the appellant requires cognitive behavioural therapy with a clinical psychologist. She considers 12 to 18 sessions 'should suffice' and that the cost of each session would be $180 to $220.
Appellant's submissions on merits of the appeal
The appellant submits that on the basis of the material before me I should be satisfied that he has suffered injury, namely PTSD, as a consequence of an alleged offence, namely the attempted robbery or some other offence constituted by the offender waving the gun at him or in his general direction.
The appellant submits that the information contained in Ms Stanbury's report establishes that the PTSD suffered by the appellant as a consequence of the attempted robbery is more severe than the condition which Dr Flynn in his report described the appellant to be suffering from. To use the words of the appellant's counsel, the Assessor could not have obtained from the report of Dr Flynn 'much of a flavour' of what has happened to the appellant as a consequence of his presence during the attempted robbery. The appellant therefore submits that the award of $6,000 made by the Assessor is inadequate to properly compensate him for his injury.
Decision on merits of the appeal
Offence committed
I am satisfied on the available material, as was the Assessor, that the attempted robbery was committed.
Appellant's presence during attempted robbery
I am satisfied on the available material, as was the Assessor, that the appellant was present at or near the night service window of the service station at the time that the attempted robbery was committed, that the offender, while looking at the appellant, waved the gun at the appellant or in his general direction, and that at the time that the offender engaged in this conduct he was approximately one metre away from the appellant.
During the hearing of the appeal counsel for the CEO highlighted the point that the two service station attendants do not make mention in their witness statements of seeing any other person at or near the night service window at the time that the offender produced the gun. Counsel suggested that there might be an issue as to the accuracy of the appellant's recollection as to what occurred to him. Counsel did not suggest that there is any reasonable basis for finding that the appellant has been dishonest so far as his account of his involvement in the attempted robbery is concerned.
In making my findings as to the presence of the appellant at the time of the attempted robbery, and as to what occurred in relation to him at that time, I have not overlooked the point that that the two service station attendants do not make mention in their witness statements of seeing any other person at or near the service window at the time that the attempted robbery was committed. However, I do not consider that the absence of any reference to another person in their witness statements provides a basis for rejecting the appellant's version of events as provided to the Assessor, Dr Flynn and Ms Stanbury. I say this for the following reasons.
First, the appellant's account of his involvement in the armed robbery is unchallenged and has remained consistent.
Second, the appellant's general description of the appearance and behaviour of the offender prior to the time that the appellant ran away is consistent with the description of the appearance and behaviour of the offender set out in the witness statement of the service station attendant who served the offender. Thus the appellant's recollection of the circumstances of the attempted robbery, to the extent that he witnessed the commission of the offence, appears to be substantially accurate.
Third, I think that it is inherently unlikely that the appellant might have been mistaken as to whether or not the gun was waved at him or in his direction by the offender while the offender was looking at him. This is something that one would expect to stand out in the appellant's mind.
Fourth, I do not think it surprising that the attendant who served the offender may not have noticed the brief presence of the appellant outside the service window. The attendant's attention was no doubt focussed on the offender and what he was doing.
Finally, it is clear from the statement of the second of the attendants that he was not actually at the service window at the time that the offender produced the gun, but rather at a different counter within the service station. Indeed, it appears from the statement of the second attendant that the first time he actually saw the offender was when the offender hit the service window which on the material before me appears to have occurred after the appellant had run off. In these circumstances it is unlikely that the second attendant would have had the opportunity to see the appellant for the brief period of time that the appellant was in the vicinity of the service window.
Injury suffered
Ms Stanbury does not in her report express any reservations about the honesty or reliability of the appellant's account of his symptoms. To the contrary, and as I have already stated, Ms Stanbury asserts that the appellant presented entirely appropriately and gave a clear and consistent account of the attempted robbery and its impact on him. In these circumstances I am satisfied, on the basis of Ms Stanbury's report, that as a consequence of the attempted robbery the appellant suffers from PTSD of moderate severity and that he has suffered from this condition since the date of the attempted robbery or some relatively short time thereafter.
Post‑traumatic stress disorder is a form of mental and nervous shock within the meaning of the Act: B v S; CMH v RLH [2002] WADC 89 [11]; Rondas v Westall [2006] WADC 151; (2006) 45 SR (WA) 287 [19]. It follows that I am satisfied that the appellant has suffered an injury within the meaning of s 30(1) of the Act as a consequence of the commission of the attempted robbery.
Section 35(2)
The only paragraph contained in s 35(2) which is potentially applicable to the appellant is paragraph (b). The question which I must therefore consider is whether the appellant was the person against whom an alleged offence was committed.
Section 392 of the Criminal Code (WA) (the Code) provides that a person is guilty of the crime of armed robbery if he or she steals a thing whilst armed and, immediately before or at the time of or immediately after doing so, uses or threatens to use violence to any person in order to obtain the thing stolen or to prevent or overcome resistance to the thing being stolen. Thus the violence or threat of violence which is an element of the offence need not be directed at the person from whom the thing is being stolen, although it must be used or made in order to obtain the thing or overcome resistance to it being stolen.
On the basis of the appellant's version of events, and taking into account what the other available material reveals as to the circumstances of the attempted robbery, I am satisfied that the conduct of the offender in waving the gun at or in the direction of the appellant amounted to a threat of violence made by the offender in order to prevent the appellant offering any resistance to the offender's attempt to steal money from the service station. Accordingly, I am satisfied that the alleged offence comprised of the attempted robbery was committed against the appellant within the meaning of s 35(2)(b).
Even if contrary to my above expressed conclusion the appellant was not for the purposes of s 35(2)(b) a person against whom the attempted robbery was committed, it is in my view clear on the available material that the offender did, in waving the gun at or in the direction of the appellant, commit at least two other offences against the appellant, namely being armed in circumstances likely to cause fear (the Code, s 68) and unlawful assault (the Code, s 313).
In summary, I find that the appellant has suffered mental and nervous shock, or more specifically PTSD, as a consequence of the commission of an alleged offence against him within the meaning of s 35(2)(b).
Adequacy of the compensation award
It remains for me to consider whether the award of $6,000 is inadequate.
Counsel for the appellant referred me to a number of decisions of criminal injuries compensation assessors which he submits demonstrate that the award of $6,000 made by the Assessor is inadequate. I have reviewed the decisions. The facts of each of the cases in question were quite different to the present case. I do not find them to be of any real assistance.
It is apparent from the report of Ms Stanbury that the appellant's PTSD symptoms are more extensive than those referred to by Dr Flynn in his report. For example, Dr Flynn's report does not make reference to the appellant's feelings of disconnection, decrease in ability to concentrate and organise tasks, withdrawal from family life, irritability and tendency to overreact to minor incidents. Further, the symptoms being experienced by the appellant cannot be described as transitory. To the contrary they have existed for some time. In short, it is in my view clear from Ms Stanbury's report that the psychological reaction suffered by the appellant as a consequence of the attempted robbery is more significant and severe than was reflected in the report prepared by Dr Flynn upon which the Assessor necessarily relied.
In these circumstances, applying ordinary tortious principles for the assessment of damages, I consider that the compensation award made by the Assessor is inadequate. In my view an appropriate compensation award in all the circumstances would be $8,000.
In arriving at the conclusion that the compensation award of $6,000 is inadequate I am not making a finding that the Assessor made an error. To the contrary, I consider that the material that was before the Assessor at the time that she made the compensation award did not justify an award in excess of $6,000.
In addition, I think it would be appropriate to make some allowance for the costs that the appellant will incur in undertaking appropriate psychological counselling for his condition. These costs clearly constitute 'loss' within the meaning of s 6(2)(b) of the Act. In my view it would be appropriate to make an allowance for him to undergo 12 sessions of counselling at a cost of $200. Accordingly, I would allow an amount of $2,400 for future treatment expenses.
Determination of application to extend time
I return now to deal with the extension application. I will do so by reference to the factors identified by Mc Hugh J in Gallo v Dawson.
In support of the extension application the appellant relies on an affidavit sworn by him on 9 August 2010 (the affidavit).
History of the proceedings and reasons for the delay
I have already referred to the history of the proceedings.
As to the reasons for the delay in the filing of the notice the appellant in the affidavit deposes to the following:
1.After receiving the Assessor's letter dated 18 August 2009 advising him of the compensation award he thought about the matter and decided to seek the advice of a solicitor. He contacted Mr Evangel, a solicitor from the firm Evangel Legal. He explained the matter to Mr Evangel. Mr Evangel informed him that he thought the award was low and that it would be worthwhile appealing the Assessor's decision. Mr Evangel referred him to his associate, Mr Smith. He contacted Mr Smith and discussed the matter with him.
2.Mr Smith informed him that in order to appeal the decision it was necessary for him to lodge an appeal notice. Mr Smith informed him that there was a filing fee that had to be paid and that he also had to pay a sum into court by way of security for the appeal (the deposit). He instructed Mr Smith that he could not afford either the filing fee or the deposit as his only income was Centrelink benefits. Mr Smith informed him that the court might waive the fees but that he had to complete an application form to waive fees and this form had to be filed and approved before the appeal could be lodged.
3.On 24 September 2009 he attended the offices of Evangel Legal. He completed and signed a District Court 'Application to Remit Fees' form (the form). He attached to the form a copy of his Centrelink benefits card.
4.In February 2010 Mr Smith contacted him. Mr Smith informed him that he had been advised by the court's registry that the court had misplaced the form and that he should send a copy to the court.
5.He was subsequently advised by Mr Smith that Mr Smith had sent another copy of the form to the court and had been advised by the court that as the copy of his Centrelink benefits card that had accompanied the form had expired he needed to provide a copy of his current card to the court. He provided Mr Smith with a copy of his current Centrelink card. He also advised Mr Smith of the current state of his finances.
6.In April 2010 he was informed by Mr Smith that the court had agreed to waive the payment of the filing fee but would not waive payment of the deposit. He informed Mr Smith that he could not afford the deposit. Mr Smith informed him that he would see if he could make some arrangement so that he did not have to pay the deposit. He was subsequently advised by Mr Smith that Mr Smith had been able to make some arrangement on his behalf and that the notice and deposit had been lodged.
It is clear from the affidavit that the appellant is responsible for some small portion of the delay in the filing of the notice. However, it is also clear from the affidavit that the vast majority of the delay is not attributable to any conduct on the part of the appellant. This is a factor that weighs in favour of allowing the extension application.
Nature of the litigation
The Act has a beneficial purpose: Re RT [2006] WADC 185; (2006) 47 SR (WA) 197; Re Tilbury [3]. This is a factor that supports the granting of the extension application.
Length of the delay
The length of the delay in this case was very significant. The notice was filed approximately nine months out of time. This factor clearly weighs against the granting of the extension application.
Consequences for the parties – prospects of success
The obvious consequence of refusing the extension application is that the appellant will not be permitted to appeal against the amount of the compensation award. Given the conclusion that I have reached as to the merits of the appeal an inability to appeal the Assessor's decision will significantly prejudice the appellant.
In the course of argument the appellant's counsel submitted that the fact that there is no respondent to the appeal means that there will be no person who is prejudiced if the application to extend time is allowed. I do not accept this submission. It overlooks the fact that the absence of any respondent means that the State will bear the burden of paying any compensation award. The fact that there is no respondent is not a factor that supports the granting of the extension application: Re RT [32].
Decision on application
There is an obvious public interest in ensuring that a person who wishes to appeal against a decision of an assessor of criminal injuries compensation does so in a timely fashion, that is, within the time limit prescribed by the Act. However, taking into account the fact that the very lengthy delay in filing the notice was in the main not due to the conduct of the appellant and my conclusions as to the merits of the appeal, I am of the view that it is just to allow the extension application.
Conclusion
For the reasons I have stated I allow the extension application and the appeal. I will make orders in the following terms:
1.The time for the commencement by the appellant of his appeal against the decision of the Assessor made on 18 August 2009 is extended to 18 June 2010;
2.The appeal is allowed; and
3.The Assessor's decision is varied by increasing the compensation award made by the Assessor from $6,000 to $10,400 comprised of:
(a)an award of $8,000 for injuries suffered by the appellant as a consequence of an alleged offence which occurred on 8 September 2007; and
(b)an award of $2,400 for expenses that are likely to be reasonably incurred by the appellant for treatment that the appellant is likely to need as a direct consequence of the injuries suffered by him.
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