Shepherd v Shepherd - [2010] WADC 30

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shepherd v Shepherd

Details

AGLC: Shepherd v Shepherd [2010] WADC 30
Case: [2010] WADC 30
Decision Date: 17 MARCH 2010

CaseChat Overview and Summary

The appellant, Shepherd, sought to appeal a decision to refuse him criminal injuries compensation on the basis that the decision-maker did not have sufficient evidence to determine whether he would benefit from the award. The decision-maker had concluded that there was no evidence that the appellant would be able to gain any benefit from the award, and that he was therefore not eligible for compensation. The appeal was heard de novo by the court, which was required to make its own assessment of the evidence and determine whether the appellant was eligible for compensation. The legal issues before the court were whether the decision-maker had sufficient evidence to make a decision, and whether the court could take into account additional evidence and information that had been presented in the appeal.

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