Suppressed
[2023] WADC 36
•28 MARCH 2023
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: AW (pseudonym initials) -v- CD (pseudonym initials) [2023] WADC 36
CORAM: BLACK DCJ
HEARD: 20 JANUARY 2023
DELIVERED : 28 MARCH 2023
FILE NO/S: APP 62 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
AND
IN THE MATTER of an Appeal by
BETWEEN: AW (pseudonym initials)
Appellant
AND
CD (pseudonym initials)
First Respondent
LA (pseudonym initials)
Second Respondent
EM (pseudonym initials)
Third Respondent
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram: C F HOLYOAK-ROBERTS
File Number : CIC 866 of 2020
Catchwords:
Criminal injuries compensation - Appeal - Whether appellant was engaged in criminal conduct - Factual findings after trial
Legislation:
Criminal Injuries Compensation Act 2003 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr C J Foyle |
| First Respondent | : | In person |
| Second Respondent | : | No appearance |
| Third Respondent | : | In person |
| Amicus Curiae | : | Mr C A Payne appeared on behalf of the Chief Executive Officer of the Department of Justice |
Solicitors:
| Appellant | : | Foyle Legal |
| First Respondent | : | Not applicable |
| Second Respondent | : | Not applicable |
| Third Respondent | : | Not applicable |
| Amicus Curiae | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennett v The State of Western Australia [2012] WASCA 70
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
JB v Ramljak [2022] WADC 110
KBR v ADM [2018] WADC 120
Lawless v The Queen (1979) 142 CLR 659
Phillips v Mettam [2022] WADC 49
R v Storey [1998] 1 VR 359
Re ATS [2019] WADC 76
Re Hondros [1973] WAR 1
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Underwood v Underwood [2018] WADC 13
BLACK DCJ:
Introduction
This is an appeal against a decision of the criminal injuries assessor (Assessor).
On 8 May 2020 the appellant applied for criminal injuries compensation (Application) pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (CIC Act). The Application related to injuries said to have been sustained as a consequence of a series of offences committed against the appellant during an incident that occurred on 12 June 2017. The Application was made within time.[1]
[1] CIC Act s 9(1)(a).
On 17 August 2021, the Assessor formally refused the Application.[2] The appellant appeals from the decision by notice of appeal dated 31 August 2021. This notice was filed within time.[3]
[2] Assessor's papers, page 2.
[3] CIC Act s 55(3).
The proven offences
The respondents were each convicted following a trial before a judge and jury that proceeded in the Perth District Court between 31 July 2019 and 12 August 2019 (the trial). CD (first respondent)[4] and EM (third respondent)[5] were each convicted of the following offences:
1.Deprivation of liberty (s 333 of the Criminal Code (WA)).
2.With intent to do harm, do an act causing bodily harm (s 304(2)(a) of the Criminal Code).
3.Assault occasioning bodily harm (s 317(1) of the Criminal Code).
[4] ts 881, Sentencing transcript on 24 September 2019 (24 September 2019).
[5] ts 825, Sentencing transcript on 20 September 2019 (20 September 2019).
The second respondent, LA, was convicted only of the deprivation of liberty charge.[6]
[6] ts 825, 20 September 2019.
The circumstances giving rise to the proven offences involved the abduction of the appellant by the third respondent and another person, possibly the first respondent. The appellant was then taken in the boot of a car to the business premises of the first respondent. There he was held, including in the boot, for a period of time during which time he was assaulted.[7] This included being repeatedly assaulted by the first and third respondents. The third respondent hogtied him with cable ties, doused his legs with accelerant, and briefly set him on fire.[8] He was later 'waterboarded'.[9]
[7] ts 836, 20 September 2019.
[8] ts 836, ts 838, 20 September 2019.
[9] ts 840, 20 September 2019.
The sentencing judge found that the appellant was taken and assaulted predominantly for the purposes of punishing him in relation to an incomplete drug deal.[10]
[10] ts 837, 20 September 2019.
The incident ended when the appellant was able to escape.
The nature of the appeal
The appeal is brought pursuant to s 55(1) of the CIC Act and is a hearing de novo.[11] The court may confirm, vary, or reverse the Assessor's decision, either in whole or in part.[12] The entirety of the issues and evidence must be considered independently of the decision of the Assessor.[13]
[11] Underwood v Underwood [2018] WADC 13 [19] (Gething DCJ) and the cases cited therein (Underwood).
[12] CIC Act s 56(2)(b).
[13] Re ATS [2019] WADC 76 [17] citing Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297 - 298.
Section 56(1) of the CIC Act provides that the court may decide the application solely on the basis of what was before the Assessor or may receive further evidence and information. Section 56(1) permits the receipt of 'further evidence' and the court is not limited by notions of 'fresh evidence'.[14]
[14] Lawless v The Queen (1979) 142 CLR 659.
In this appeal, in addition to the information that was before the Assessor, the appellant and the third respondent both sought to rely upon additional evidence and information.
The most significant aspect of this further evidence was the full transcript of the trial which I have read.
Summary of evidence of injury and loss
In his claim for injuries before the Assessor, the appellant sought to establish that he had suffered both physical and mental injury arising from the matters the subject of the trial and had sustained financial loss, both past and future.
In support of this claim the appellant relied upon, inter alia:
(a)a copy of his victim impact statement dated 20 February 2020;[15]
(b)a copy of a further statement by him dated 2 June 2021;[16]
(c)correspondence and notes by Kirsten Bouse of Perth Psychology Collective;[17]
(d)his relevant medical records from St John of God Midland Public and Private Hospital;[18] and
(e)his relevant medical records from Fiona Stanley Hospital.[19]
[15] Assessor's papers, pages 11 - 14.
[16] Assessor's papers, pages 9 - 10.
[17] Assessor's papers, pages 36 - 46.
[18] Assessor's papers, pages 47 - 91.
[19] Assessor's papers, pages 92 - 104.
Regarding loss, the appellant adduced evidence in the form of:
(a)an invoice from St John of God Hospital dated 23 November 2018 for $52.25 being fees for providing the appellant's medical records;[20] and
(b)his tax return information for several tax years.[21]
[20] Assessor's papers, pages 105 - 106.
[21] Assessor's papers, pages 107 - 144.
Issues in this appeal
I must consider two primary issues:
(a)whether an award of compensation can be made; and if so
(b)the appropriate quantum.
The question of whether an award of compensation can be made includes a consideration of whether the appellant is precluded from receiving an award of compensation by reason of s 39(1) of the CIC Act.
Appeal hearing
At the hearing of this appeal the appellant was represented by counsel. The first and third respondents participated in the appeal in person, although the first respondent was a passive participant.
The second respondent was notified of the hearing but chose not to attend nor otherwise participate in the proceedings.
Can an award of compensation be made to the appellant?
This Application was brought under s 12(1) of the CIC Act, namely that compensation was sought for injuries suffered as a consequence of the commission of a 'proved offence'. The term proved offence is defined in s 3 of the CIC Act to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'.
Before making an award under s 12 of the CIC Act, the court must be satisfied that:[22]
(a)the proved offence occurred;
(b)the claimed injury and any claimed loss has occurred; and
(c)the claimed injury and loss occurred as a consequence of the proved offence.
[22] CIC Act s 12(1), s 12(3) read together with Underwood [46] (Gething DCJ) ('… the scheme of the [Act] is that the Assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation').
There is little doubt here that a proved offence did occur and that there were at least some injuries to the appellant which were not insignificant.
In this matter however, there is a fundamental issue to be determined first by reason of the potential applicability of s 39(1) of the CIC Act.
Commission of a separate offence by the appellant
The Assessor at first instance disallowed the appellant's claim because she was satisfied that the appellant was injured as a consequence of the appellant committing a separate offence. In these circumstances she found that the appellant was precluded from receiving an award.[23]
[23] CIC Act s 39(1).
While I do not need to consider whether or not there was error by the Assessor in this or any other regard, I consider that on the facts of this matter it is necessary for me to decide if the appellant is precluded from receiving an award before I consider the balance of the appeal.
If I find against the appellant on the basis of s 39 of the CIC Act, then it would be unnecessary for me to further consider any of the remaining issues that were canvassed in the course of these appeal proceedings.
The legal principles of relevance to the application of s 39 of the CIC Act have been conveniently summarised by Prior DCJ in Phillips v Mettam as follows:[24]
1.In respect of the question whether the appellant was committing a separate offence, the civil standard of proof applies and there is no onus of proof on either party.
2.The gravity of the imputation of a criminal offence and the significance of its consequences, warrant the application of the principles enunciated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, following Briginshaw v Briginshaw.
3.There is no need for any causal connection between the injury for which the claim is made and any separate offence committed by the appellant. The only necessary connection between the injury and the separate offence is a temporal connection.
4.The temporal connection does not require the appellant's offence to be committed at the same instant in time as the offence giving rise to the appellant's injuries.
5.Whether there is a temporal connection requires judgement of all the facts and circumstances of the case to determine whether at the time the appellant was injured the appellant was committing a separate offence. This will include consideration of whether the appellant's separate offence and the appellant's injuries are part of the one incident.
(citations omitted)
[24] Phillips v Mettam [2022] WADC 49 [24].
Additionally, in relation to the temporal connection between offences, it has been held that where there is a 'clear hiatus' between the events constituting those offences, s 39 of the CIC Act does not necessarily preclude the making of an award.[25]
[25] KBR v ADM [2018] WADC 120 [69] ‑ [70]; Attorney General for Western Australia v Her Honour Judge Schoombee[2012] WASCA 29.
Wallace DCJ has also considered this issue in the matter of JB v Ramljak:[26]
… The temporal connection does not require [name]'s alleged criminal conduct and the offences giving rise to his injuries to occur simultaneously, but they do need to form part of one incident.24
(FN24: Hutchings v Lachlan [2012] WADC 89)
[26] JB v Ramljak [2022] WADC 110 [59].
Trial judge findings of fact
In order to apply these principles above to the circumstances of this case, it is necessary to have careful regard to the surrounding factual circumstances that gave rise to the appellant's injuries.
The Court of Appeal in Bennett v The State of Western Australia[27] provides guidance as to the proper way to determine the facts when there was a criminal trial. The following principles emerge:
1.The compensation assessment process under the CIC Act does not involve a re-litigation of the facts which led to the proved offence.[28]
2.A prior conviction is admissible in criminal proceedings as evidence of the material facts underpinning the elements of the offence the subject of that conviction, including where the conviction was obtained post trial.[29]
3.Where an accused has pleaded not guilty to a criminal charge and has been convicted after trial, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process.[30]
4.Where issues arise regarding the precise identification of the facts evidenced by the conviction, the record of the trial will provide the only reliable guide to that issue which will usually be established by the facts found by the trial judge in the case of a conviction after trial.[31]
[27] Bennett v The State of Western Australia [2012] WASCA 70 (Bennett).
[28] Underwood [46]; ReHondros [1973] WAR 1.
[29] Bennett [66] - [67] (Martin CJ).
[30] Bennett [109] - [110] (Buss JA); R v Storey [1998] 1 VR 359.
[31] Bennett [66] - [67] (Martin CJ).
The trial judge at the sentencing hearing made findings as to the following facts:[32]
[32] Full transcript of 20 September 2019.
1.The appellant had been involved in 'the drug world' as a user, dealer, and manufacturer.[33]
[33] ts 826, 20 September 2019.
2.The appellant knew all three accused before the night in question.
3.The appellant and the third respondent had used drugs and supplied drugs to each other on multiple occasions.
4.The entire incident was drug-related, and this was consistent with the appellant's evidence at trial.
5.The appellant owed money or drugs to the first respondent. This was because the day before the offences the appellant had met with the third respondent at a pub in Bassendean and had agreed to source 3.5 g of methylamphetamine for the third respondent.
6.The appellant was paid in advance for the full amount of the drugs he agreed to supply. Later that day he delivered only half the drugs, namely 1.75 g of methylamphetamine.
7.At the time of the offending against the appellant, he was attempting to source the remaining 1.75 g of methylamphetamine and so had been avoiding calls from the first and third respondent.[34] On the appellant's evidence, as he was being beaten, the first and third respondents told him he was being 'fined' for every time he did not answer their calls. Her Honour described this as a 'classic standover tactic'.[35]
8.Although her Honour was sceptical as to whether the drug transaction and consequent resultant punishment related only to such a small number of drugs, her Honour had no doubt that the incident was drug‑related and the appellant had displeased the first and third respondent.
9.The meeting had been set up for the purpose of taking the appellant by surprise and assaulting and bundling him into the boot and driving him, against his will, to the business premises, run by CD, in order to confront and punish him for what he had done wrong.[36]
10.When the appellant arrived at the meeting place the third respondent approached him and demanded to know why he had not been returning calls. He was then struck above the eye and to his mouth. This had the effect of dazing and disorientating him such that he could be successfully pushed into the boot of the Ford Falcon that he had turned up in. That was the beginning of the deprivation of liberty offence.
11.Notably in relation to the question of whether the appellant is precluded from an award by reason of s 39 of the CIC Act, the trial judge found, consistent with the appellant's evidence at trial, that the entire incident related to drugs and occurred while a drug deal was on foot.
[34] ts 882 - ts 883, 24 September 2019.
[35] ts 883, 24 September 2019.
[36] ts 829, 20 September 2019.
Further evidence by the appellant
In addition to the transcript of the appellant's evidence at trial, which was tendered by the third respondent, I have also had regard to two statements by the appellant in relation to this matter.
In particular, the appellant provided two statements to the Assessor with the initial statement being made on 20 February 2020 (first statement) and the second on 2 June 2021 (second statement). I note the following in relation to those statements:
1.Each of the statements provide a version of events that is different to that given by the appellant in his evidence at the trial.
2.In the first statement the appellant did not mention the reason for attending the scene at the time of the incident other than to cryptically state 'I was out meeting someone when I was suddenly approached by bikies'.
3.The Assessor then requested further information from the appellant. This was his opportunity to make plain the full circumstances giving rise to his injuries. It would be expected that this would be consistent with the evidence he had given at trial.
4.The appellant then provided the second statement. In this statement the appellant provided a version of events that baldly contradicted the evidence he had given at the trial. In particular at par 7, the appellant stated, 'I genuinely believed that I was going to meet up with EM to catch up and talk. I had no reason to think that this would be in relation to any criminal activity'. This stood in stark contrast to his sworn testimony.
5.The appellant's counsel accepted that his client had been 'flexible with the truth' in these statements.[37]
6.No explanation has been provided to the court as to why the appellant chose to lie to the Assessor. The fact that a person seeking compensation would decide to be anything other than honest and forthright regarding the circumstances that gave rise to his alleged injuries is concerning. The appellant has, through his own actions, significantly damaged his own credibility.
The significance of this is diminished however in this case given my findings in relation to s 39 of the CIC Act below.
[37] ts 50, Appeal transcript on 20 January 2023.
Application of facts to s 39 of the CIC Act
It is necessary for me to consider the temporal connection between the incomplete drug deal and the appellant's abduction and assault. This is because of s 39(1)(a) and s 39(1)(b) of the CIC Act.
In making my findings in this regard I must apply the civil standard of proof but with the application of the principles in Briginshaw.[38] I note there is no onus of proof upon any of the parties.
[38] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
In this case the evidence put before me including the appellant's sworn testimony, the trial judge's sentencing remarks and the trial transcript otherwise establishes the following:
1.The drug deal between the appellant and the third respondent was still ongoing and incomplete at the time the appellant sustained his injuries.
2.The appellant attended the place from where he was abducted because of matters arising out of the incomplete drug transaction.
3.The appellant had been ignoring calls from the first and third respondents while he was trying to source the balance of the drug. He was aware this was why the first respondent wanted to meet with him.
4.Whether or not there were other reasons or motives for what the respondents then did to the appellant, the trial judge found, and I accept, that the abduction and assaults that were committed against the appellant were punishment for him failing to return telephone calls and otherwise fulfil his obligations in relation to an outstanding drug transaction.
The following passage of her Honour's sentencing remarks are apposite here:[39]
I am satisfied this entire incident was drug related and that [AW] owed money to [CD]. [AW] described the incident as being drug related and he said he'd been avoiding your calls and [CD]'s calls. That was not something he volunteered to the police for fear of the consequences to himself. But in his evidence-in-chief he said it was drug related. He agreed, in cross-examination … with the proposition that only the day before [EM] had met him at a pub in Bassendean and asked him to source 3.5 grams of methylamphetamine. He'd given you a price of $1,100. He'd later delivered only half, being 1.75 grams, but claimed he wanted an extra $100 to source the other half. He agreed with those propositions, in cross-examination, he also agreed he was attempting to source the other half and that he would have been avoiding your calls.
[39] ts 827 - ts 828, 20 September 2019.
In my view, there was one incident involving the appellant's offence and the injuries then suffered by the appellant in the course of the respondents' offending. The appellant was part way through carrying out a drug deal and agreed to meet with the third respondent after ignoring his calls. He needed to explain why he had not completed the supply despite having been paid in advance and why he was not taking calls from the first and third respondents.
When he arrived at the scene he was immediately set upon, assaulted, and abducted as punishment for his conduct, being conduct that related to the separate offence the appellant was committing.
As I have observed, it is not necessary that there is a causal connection between the offence allegedly committed by the appellant and the offences giving rise to the injuries sustained by him. In this case however, there is a causal connection in the way explained by the trial judge's findings at [38] above. I adopt and agree with her Honour's observation that the entire incident was drug‑related.
I find that there is a temporal connection between the injuries and the separate offences. I note that while the offence committed by the appellant does not need to be committed at the same instance in time as the respondents' offending, the appellant's offence was a continuing one that was still on foot at the time he was first abducted and assaulted.
I have further considered whether it can be said that there is any hiatus between the events constituting the two sets of offences. There is not for the reasons given above.
There is an obvious disparity between the very small quantity of drugs involved in the appellant's offence and the very serious nature of the offences committed against the appellant. I note however that s 39 of the CIC Act does not allow me, where I am satisfied that s 39(1) applies to an application, to then exercise any discretion regarding the proportionality between the two sets of offending so as to decide if the appellant ought still to be compensated, at least to some extent. The terms of the provision are clear that if s 39(1) is made out then I 'must not' make an award of compensation in favour of the appellant.
This is a case where the punishment did not fit the crime. Nonetheless, having found that the appellant was committing a separate offence at the time he sustained injuries from a different offence, I must not make a compensation award in favour of the appellant.
Contribution by the appellant
Under s 41 of the CIC Act, in deciding whether to make an award or the amount of an award, it is mandatory to have regard to 'any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death'. A discretion then arises to either refuse to make an award or to reduce the amount that would otherwise have been awarded.
Having concluded that the appellant is barred from having a compensation award made in his favour by reason of s 39 of the CIC Act, it is not necessary for me to reach a concluded view in this respect.
The appellant was involved in the drug world generally and, at the time of the proved offences, owed money to the first respondent and had an arrangement to supply a quantity of methylamphetamine to the third respondent. These matters do in my view constitute a relevant behaviour, attitude, or disposition of the appellant, for the purposes of s 41 of the CIC Act. Had I made an award of compensation I would have reduced the amount that would otherwise have been awarded by reason of this provision.
Costs
I am empowered to award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed by the Criminal Injuries Compensation Regulations 2003 (WA).[40]
[40] CIC Act s 56(2)(d).
Given costs will usually follow the event the appellant is not entitled to any award of costs.
The only other legally represented party to these proceedings appeared as an amicus curiae. Accordingly, no award of costs ought be made.
Orders
1.The appeal is dismissed.
2.No costs order is to be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
Associate to Judge Black
28 MARCH 2023
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