JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SHEPHERD -v- SHEPHERD [2010] WADC 30
CORAM: WAGER DCJ
HEARD: 17 FEBRUARY 2010
DELIVERED : 17 MARCH 2010
FILE NO/S: APP 43 of 2009
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN: DAVID ANTHONY SHEPHERD
Appellant
AND
LARA MAREE SHEPHERD
Respondent
Catchwords:
Criminal injuries compensation - Appeal hearing de novo - Additional evidence and information - Principles relevant to assessment - Whether offender likely to benefit from award
Legislation:
Criminal Injuries Compensation Act 2003
Result:
Appeal dismissed
Award of $14,098.50 allowed
Representation:
Counsel:
Appellant: Ms D Chesworth
Respondent: Mr S Walker
Amicus Curiae : Ms S F Mateljan appeared for the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Perth City Legal
Respondent: Tyrone B Grantham
Amicus Curiae : State Solicitor of Western Australia
Case(s) referred to in judgment(s):
Chappell v Bowe [2006] WADC 29
Garton v McCormack (2002) 30 SR (WA) 307
Gullello v O'Halloran [2008] WADC 145
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
MJN v MAJS (2003) 35 SR (WA) 219
Re; Karra (1984) 2 SR (WA) 97
Reid v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 970170; 5 June 1997
RGE v Bandy, unreported; SCt of WA; Library No 1365; 31 May 1974
S v Neumann (1995) 14 WAR 452
WAGER DCJ: The appellant Mr Shepherd appeals against the criminal injuries compensation award of $14,098.50 (including $12,500 for injuries) made in favour of the respondent Ms Shepherd pursuant to s 12(3)(a) of the Criminal Injuries Compensation Act 2003 (the Act) in respect of his conviction for an offence of assault ("agg") against her contrary to s 313(1)(a) of TheCriminal Code.
In summary, the grounds of appeal are that the Chief Assessor was unaware that Mr Shepherd and Ms Shepherd were in a relationship at the time Ms Shepherd made a claim for criminal injuries compensation and at the time Ms Shepherd was granted the award of compensation (contrary to s 36 of the Act) and alternatively that the amount awarded was manifestly (excessive) in that the Assessor did not take into consideration Ms Shepherd's contributory behaviour.
At the commencement of the hearing Mr Shepherd applied for additional evidence to be considered at the appeal. I allowed the receipt of additional evidence in part. I provide the following reasons for allowing the additional evidence.
Pursuant to s 56 of the Act the appeal is a hearing de novo. The Court must decide the application afresh without being fettered by the Assessor's decision solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information.
Mr Shepherd sought to adduce additional evidence contained in his affidavit sworn 4 January 2010 in support of his assertion that the award made was contrary to s 36 of the Act. Mr…
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- AGLC
- Shepherd v Shepherd [2010] WADC 30
- Case
- [2010] WADC 30
- Decision Date
CaseChat Overview and Summary
The court held that the decision-maker had not had sufficient evidence to make a decision, and that the appeal should therefore be allowed. The court found that the decision-maker had not considered all of the relevant principles in making their decision, and had not considered whether the appellant would be able to benefit from the award. The court held that it was appropriate for it to consider additional evidence and information that had been presented in the appeal, and that it could take into account this new evidence when making its decision. The court found that there was sufficient evidence to show that the appellant would be able to benefit from the award, and that he was therefore eligible for compensation.
The court allowed the appeal and remitted the matter to the original decision-maker for reassessment in light of the new evidence. The court held that the decision-maker should consider all of the relevant principles, and should make a decision based on whether the appellant would be able to benefit from the award. The court held that it was appropriate for the decision-maker to take into account any additional evidence and information that had been presented in the appeal, and that it should make its decision based on all of the evidence before it. The court held that the appellant was eligible for compensation, and that the decision-maker should make a new decision in light of this.
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
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