Thomson v Francis - [2016] WADC 154

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: THOMSON -v- FRANCIS [2016] WADC 154

CORAM: EATON DCJ

HEARD: 12 OCTOBER 2016

DELIVERED : 2 NOVEMBER 2016

FILE NO/S: APP 82 of 2015

BETWEEN: ANGELA COLLEEN THOMSON
Appellant
AND
JOHNATHON KEITH FRANCIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :L V DEMPSEY
File No  :CI 002368 of 2014

Catchwords:

Criminal injuries compensation - Appeal from an award made by an assessor

Legislation:

Criminal Injuries Compensation Act 2003
District Court Rules 2005
Evidence Act 1906
Firearms Act 1973
High Court Rules 1952 (Rules of the High Court)
Misuse of Drugs Act 1981

Result:

Appeal allowed
Award quashed

Representation:

Counsel:

Appellant:     In person
Respondent:     Not applicable
Amicus Curiae                   :    Mr D Harrop appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant:     Not applicable
Respondent:     Not applicable
Amicus Curiae                   :    State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
Gleeson v Lee (1996) 18 SR(WA) 353

EATON DCJ: On 9 March 2014 Johnathon Keith Francis made application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003. The event giving rise to his application was said to have occurred on 4 December 2012 at Hammond Park, a suburb of Perth. In his application Mr Francis said that he was the victim of offences committed by two persons, namely, Angela Colleen Thomson, the appellant before me, and Ivan Lightbody. Both were charged with offences arising out of the incident at Hammond Park. They maintained pleas of not guilty. Both were committed to this court for trial and, at the conclusion of that trial, on 24 January 2014, were found guilty of doing bodily harm to Mr Francis with intent to do bodily harm to him and aggravated burglary. Judgments of conviction were recorded.
On 7 May 2014 both were sentenced by her Honour Judge Sweeney in this court. Ivan Lightbody was sentenced to a term of 2 years and 6 months' imprisonment in respect of count 1, an offence of doing bodily harm with intent to do so and to a term of 3 years' imprisonment in respect of count 2, an offence of aggravated burglary. The two terms were to be served cumulatively. Parole eligibility was refused. The total effective term of 5 years and 6 months was imposed with effect from 18 January 2014 to take into account time spent in custody on remand.
Ms Thomson was sentenced to a term of 18 months' imprisonment on each count, the term imposed in respect of count 2 to be served cumulatively upon that imposed in respect of count 1. The total effective term of 3 years was to take effect from 13 January 2014 to take into account time spent in custody on remand. She was made eligible for parole.
In his application Mr Francis claimed to have suffered injury and loss as well as loss of earnings and/or earning capacity.
On 28 July 2015 Ms L V Dempsey, Assessor of Criminal Injuries Compensation (the assessor), awarded Mr Francis an amount of $75,000 in respect of the injuries and losses suffered by him in consequence of the offences committed by Mr Lightbody and Ms Thomson.
On 9 November 2015 Angela Colleen Thomson, by notice of appeal dated 22 September 2015, appealed against the award made to Mr Francis. Her grounds of appeal, handwritten, were attached to her notice. They are as follows:
1.Johnathon Keith Francis was charged with an offence on the day that the crime took place. At the time of my offence he was committing a crime. He was charged with 58 grams of cocaine and a series of firearm related offences. Johnathon was given a custodial sentence.
2.Johnathon Francis owed me money from when he previously hired my escort services. This was all documented during my trial. On the day of my offence he offered me cocaine as payment. Johnathon admitted this in court under section 11. When I refused his offer I called in my co‑accused and that's when the offence happened.
3.I did not injure Johnathon until after he stabbed my leg which resulted in five stitches. He stabbed my co‑accused 14 times prior to me harming him.
4.Johnathon returned to work soon after the event. He lost his current job because he gave evidence against his boss. The cocaine found at the time of the offence previously belonged to Johnathon's boss and Johnathon made a statement to say that. Johnathon then got a new job but then quit because he wasn't handling the divorce he was then going through. He was then unable to work because he went to prison.
5.Johnathon's injuries have healed and he is not suffering from any permanent injuries as a result.
6.Johnathon continued to contact me after the event. He told me that he wants to marry me. I have phone records and witness. If he was traumatised by my actions then I don't believe he would want to continue a relationship with me.
7.I think it is likely that Johnathon Francis already suffered from mental illness prior to my actions. I would like the chance to prove this in court.
Section 55(1) of the Criminal Injuries Compensation Act 2003 provides that an interested person may appeal to this court against an assessor's decision:
(a)to make or to refuse to make a compensation award; and
(b)as to the amount of a compensation award.
The Act defines the term 'interested person' to mean, in relation to a compensation application or to a compensation award made on such an application the applicant, a person who an assessor thinks may become liable under Pt 6 to pay an amount to the State or the Chief Executive Officer of the relevant department. By letter of 24 June 2015 the assessor wrote to Ms Thomson informing her, inter alia, that any award paid to Mr Francis would be paid by the State which had a right to recover the amount paid from her. I am satisfied that she is an interested person and that she has a right of appeal.
Such an appeal must be commenced within 21 days after the date of the decision. If it is just to do so this court may allow an appeal to be commenced after that time and may do so even if the period has expired.
An appeal is to be conducted in accordance with the rules of this court. Regulation 50 of the District Court Rules 2005 deals with appeals to this court generally, stipulating that an appeal to the court must be by way of a reconsideration of the evidence that was before the primary court unless the parties otherwise agree and that, at the hearing of an appeal, a party must not adduce evidence that was not adduced in primary court except with the leave of the court, special grounds for doing so having been demonstrated.
Section 56 of the Criminal Injuries Compensation Act provides that on an appeal against an assessor's decision the District Court must decide the application to which the decision relates 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. It follows that I must deal with the appeal by deciding Mr Francis's application afresh without being fettered by the assessor's decision. I must do so on the evidence and information that was before the assessor or I may, in the exercise of my discretion, receive further evidence and information. It follows that on the hearing of an appeal from an assessor there should be no requirement for special grounds. Additional evidence or information may, in the discretion of the judge hearing the appeal, be admitted unless it would be unjust to do so.
As mentioned, on 24 June 2015 the assessor wrote to Ms Thomson advising that Mr Francis had applied for criminal injuries compensation. In particular, she was advised as follows:
If there are any matters you wish to be considered by the assessor prior to the making of a determination of the above application, you should write to this office within 21 days of the date of this letter giving full details.
The letter informed that, following consideration of the application the assessor would decide whether or not to hold a hearing and in the event of there being a hearing Ms Thomson would be advised.
There was no hearing. The award is dated 28 July 2015. The assessor did not publish reasons for her determination.
By letter of 24 July 2015 the assessor again wrote to Ms Thomson advising of the award of $75,000 and providing a copy of it. The assessor advised further that an interested person, dissatisfied with the decision, could appeal to the District Court and that an appeal must be lodged within 21 days of the date of the compensation award or decision.
The letters of 24 June 2015 and 24 July 2015 were forwarded to Ms Thomson at Bandyup Women's Prison. She was then serving the term of imprisonment imposed by her Honour Judge Sweeney.
By letter of 6 August 2015 Ms Thomson wrote to the assessor in the following terms:
I am writing in response to the compensation award for Johnathon Keith Francis (file CI/2014-002368) I would like to appeal the compensation amount at the District Court. Can you please respond to this letter so I know that this has reached you.
Kind regards,
Angela Thomson
Prisoner BWP
By letter of 7 August 2015 the assessor replied to Ms Thomson advising:
If you wish to appeal my decision, you must do so to the District Court within 21 days of my decision. Otherwise you need to seek an extension of time from the court.
In addition, she suggested that Ms Thomson contact the court by telephone.
By a further letter, received at the assessor's office on about 7 August 2015, Ms Thomson again advised that she was desirous of appealing the decision. In particular, she said:
I would like to mention that I believe, by law, he is not eligible for compensation because he was committing a crime at the time that the injuries/crime occurred. He was charged with about 2 ounces of cocaine in which he had in his possession with intent to sell or supply. He also obtained firearm charges. The police found this when they investigated my offence at his house immediately after the incident. … if Johnathon was lawfully able to claim compensation I do not believe that he should be entitled to this amount for the following reasons …
Ms Thomson then suggested that Mr Francis was able to return to work soon after the offence was committed and was dismissed from his employment for reasons not related to it. She referred also to Mr Francis's matrimonial difficulties and said that he continued to contact her with a view to being with her, rather than his wife, following the injuries being inflicted upon him.

The application for an extension of time within which to appeal

On 5 January 2016 Ms Thomson filed an affidavit sworn by her on 21 December 2015. She deposed to being aware that her appeal should have been filed within 21 days of the determination. By way of explanation she said that she was a sentenced prisoner, that she had sought advice from this court and the Legal Aid Commission and that it had taken some time to get an appointment with the latter. The court, she said, sent her some documents which she found difficult to understand. She concluded:
Given the difficulties I have had obtaining the appropriate advice and guidance, I would ask the court that the court and give me leave to apply out of time for this appeal for criminal injuries compensation.
In Gleeson v Lee (1996) 18 SR(WA) 353 Chief Judge Hammond said that an application for an extension of time in which to appeal a decision of an assessor should be determined according to four considerations. They are:
(a)the length of the delay;
(b)the reasons for the delay;
(c)whether there is an arguable case; and
(d)the extent of any prejudice to the respondent.
In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 McHugh J considered whether an application for an extension of time in which to file a notice of appeal ought to be granted (at 480). The applicant relied upon a rule (O 60 r 6) in the High Court Rules 1952 (Rules of the High Court) 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. He said that the object of the rule was to ensure that rules which fixed times for doing acts did not become instruments of injustice. He added that the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. With reference to the specific rule relied upon, McHugh J said that the discretion to extend time 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:
(a)the history of the proceedings;
(b)the conduct of the parties;
(c)the nature of the litigation;
(d)the consequences for the parties of grant or refusal of the application for an extension of time;
(e)the prospects of the appellant succeeding; and
(f)the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.
Part VI of the Act deals with recovery of compensation from offenders providing, in s 49, that the Chief Executive Officer of the relevant department may give an offender written notice requesting him or her to pay to the State as a lump sum the whole or part of the amount paid or payable under an award. It follows from the foregoing that Ms Thomson may be liable to pay the whole or part of the amount paid to Mr Francis under the award. The Act places no limitation on when recovery action might be taken. The assessor, in her letter of 24 June 2015, warned Ms Thomson of the State's right of recovery from her.
I am informed that the full amount of the award has been paid to Mr Francis.
Given that the award of compensation is dated 28 July 2015, it follows that the appeal should have been lodged on or before 18 August 2015. It is true that Ms Thomson, by letter of 6 August 2015, wrote to the assessor indicating an intention to appeal the award made in favour of Mr Francis. Within days Ms Thomson wrote again to the assessor quite clearly setting out her objection to the award based principally on her contention that, as a matter of law, Mr Francis was not entitled to compensation because he was himself committing a criminal offence at the relevant time.
The correspondence that passed between Ms Thomson and the assessor occurred when Ms Thomson was an inmate of Bandyup Women's Prison. Indeed, she remains, as at the present time, an inmate of that prison. She deposes to having sought assistance or advice from the registry of this court and from the Legal Aid Commission and as to having had difficulty in following the advice received.
In my view, as a sentenced prisoner, Ms Thomson was hindered in her ability to exercise her legal rights but gave every indication of an intention to do so. She clearly took steps to give effect to that intention. There is, in my view, a satisfactory explanation for the delay.
The documentations originating the appeal are a little confusing. There is a document entitled 'Appeal Notice' dated and signed by the appellant on 22 September 2015. Her handwritten grounds of appeal are similarly dated 22 September 2015. The appeal notice requires the appellant to stipulate the 'last date for appealing'. Ms Thomson has written '28/07/2015' which is, of course, the date of the actual award. In answer to the question 'Is an extension of time needed?' she replied 'yes'.
The notice of appeal is accompanied by a document entitled 'Application in an Appeal' in which Ms Thomson describes herself as the appellant and Johnathon Keith Francis as the respondent. Under the heading 'The applicant applies for –' Ms Thomson has written 'appeal criminal compensation claim'. That document is signed by Ms Thomson in person and is dated 29 September 2015. It does, however, on the reverse side bear an initial date stamp of 2 October 2015 and a stamp indicating filing on 9 November 2015 with the annotation by a member of registry staff 'waived prisoner'.
The foregoing suggests to me an understanding of the requirements of the Act but some confusion as to the process to be undertaken. The document entitled 'Application' may well have been, mistakenly, an application for an extension of time although it is not specified as such. In any event, the documents referred to above do tend to underline the difficulties that the appellant was facing in commencing her appeal. It is clear that she evinced an intention to do so at an early stage.
On 8 March 2016 Principal Registrar Melville made orders in chambers including an order that the Chief Executive Officer serve copies of the notice of appeal and associated documents by prepaid ordinary post to the address for Johnathon Keith Francis indicated in the assessor's papers.
On 23 March 2016 the State Solicitor for Western Australia filed a certificate of service of the documents to be served by ordinary prepaid post upon the respondent.
There has been no appearance by Johnathon Keith Francis.
I am of the view that, particularly having regard to s 39 of the Act that the appellant has an arguable case.
I do note that Johnathon Keith Francis, in his application for compensation, provided the assessor with, in addition to the relevant application form, a detailed account of the events at his home on 4 December 2012. In doing so he made no mention of cocaine, cannabis or firearms.
In all of the circumstances, I am prepared, because it is just to do so, to extend the time within which Ms Thomson may appeal to 15 November 2015.

The circumstances of the offending giving rise to the convictions

It is the case, as mentioned, that the assessor determined that there should not be a hearing and proceeded to deal with the application on the papers. She had regard to the materials provided to her by the applicant and access to all relevant files from the Office of the Director of Public Prosecutions. The latter included the transcript of the trial and the sentencing remarks of her Honour Judge Sweeney.
As mentioned, an appeal of this nature is by way of a reconsideration of the evidence that was before the assessor. The sentencing remarks made by Judge Sweeney provide, in my view, a reliable account of the circumstances of the offending.
Her Honour observed that the convictions arose out of the one event on the evening of 4 December 2012. Mr Francis, she found, made contact with Ms Thomson, who was then working as a prostitute, in late November 2012. His marriage of short duration had broken down. He initially engaged Ms Thomson's services on a commercial basis but clearly, having met her, became romantically inclined toward her. When the commercial arrangement came to an end Mr Francis sought to continue contact.
Judge Sweeney said:
I find his mindset was that he was looking for a sexual relationship of some sort with you, casual or otherwise, and hoped that you would be so attracted to him and have so enjoyed your time with him that he would cease being a real customer and begin being a boyfriend or something of that sort. You regarded him as having underpaid you on the first occasion and, given that you were motivated exclusively by money, that made him a lousy customer.
It is clear that Mr Francis pressed his attentions, in the form of text messages, upon Ms Thomson. They were unwanted.
Mr Lightbody was described by Judge Sweeney as being Ms Thomson's ex‑boyfriend and, at the material time, protective of her. He drove her to Mr Francis's home following communications between Ms Thomson and Mr Francis which suggested that she was taking an interest in Mr Francis on, perhaps, other than a commercial basis.

Judge Sweeney said:
I find, however, that while you were perhaps a little apprehensive about Mr Francis, you were not genuinely scared of him or you would not have initiated contact at all. I draw that inference against you both beyond a reasonable doubt that on the way to the job you and Mr Lightbody discussed Mr Francis in some detail and you informed Mr Lightbody about Mr Francis's creepy messages and the photographs he had sent to you dressed up as Zorro and the like and the fact that he clearly had access to guns. You may have shown Mr Lightbody one or two of the photographs but you certainly, at least, described them. I find that you regarded yourself as having been mistreated on the last occasion by being underpaid and if he again made money a problem you figured he should be dealt with and made to pay you.
As arranged, Ms Thomson arrived at Mr Francis's house on the evening of 4 December 2012. He began cooking a meal for two in his kitchen. Having done so, both sat down at an outside table to eat. During meal preparation and the meal Ms Thomson sent text messages to Mr Lightbody waiting outside. Those messages suggested that she was arranging for him to come onto the property and confront Mr Francis, with a view to making sure that Mr Francis paid for Ms Thomson's company on that occasion and, perhaps, the balance said to be outstanding from the earlier occasion.
As the meal continued Mr Lightbody climbed the back fence of Mr Francis's property, rushed at him and stabbed him behind the ear. That wound gave rise to count 1 in the indictment. Judge Sweeney was satisfied that Mr Lightbody brought the knife to the house and had it with him when he attacked Mr Francis. Her Honour said:
The point of the attack was to get the money that you felt he ought to have paid up front.
She continued:
Neither you nor Ms Thomson were to know that Mr Francis was, at that time, in fact, in possession of 2 ounces of cocaine. That played no part in your thinking on this night because you were unaware that he was in possession of such a large amount of drugs. It was most unlucky for him that an indirect consequence of this incident was that the police found those drugs.
Following the initial attack Mr Francis fought back and received a further wound at the base of the neck near his shoulder blade. The struggle between the two men moved inside with both men sustaining injuries as they contested possession of the knife. There was much bleeding.
Eventually Mr Francis gained the upper hand. Mr Lightbody suffered injury including a serious gash to his arm. The two men fell to the floor and, as they struggled, Ms Thomson took a vase and hit Mr Francis over the head with it. Momentarily subdued, he lost control of the knife. With Mr Francis threatening to kill them, Mr Lightbody and Ms Thomson managed to flee the house, taking the knife with them and scrambling over a side fence. They ran to Mr Lightbody's vehicle parked nearby. Mr Lightbody drove away while bleeding significantly. Ms Thomson attempted to summon an ambulance. The knife was dumped. Eventually, at a service station in Kardinya, they made contact with police and were taken to hospital.
Mr Lightbody received, amongst other wounds, a serious wound to his right wrist. A tendon was almost completely severed and had to be surgically repaired.
Ms Thomson had a wound to her right finger with nerve damage to the palm of that hand. A wound to the right thigh was sutured.
Following the departure of Mr Lightbody and Ms Thomson from his home Mr Francis went outside to the street where neighbours, alerted by the noise of the fracas, came to his assistance. Police and ambulance arrived. He was taken to hospital suffering multiple wounds. In particular, he had wounds to the back of his ear or the side of his head, behind his left shoulder, on his back, on the back and front of his left arm, to a finger and multiple lacerations on his scalp within his hairline. Finally, he had suffered a partially fractured skull which, the sentencing judge observed, may have been caused when he slipped and fell during the struggle or may have been caused by the blow struck by Ms Thomson with the vase. She was unable to determine which.
The foregoing account of what occurred on the night of 4 December 2012 at Hammond Park and the consequences for the three individuals involved, is based upon, in essence, the findings of the sentencing judge. That is the account upon which I will rely for the purposes of this judgment.

Section 39 of the Criminal Injuries Compensation Act 2003

The Act provides, in s 39, that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence; and that the injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person.
Ms Thomson clearly raises the impact of that section in her appeal. In fact, she made mention of the fact that, during the course of the trial, Mr Francis, when giving evidence-in-chief, sought the protection of s 11 of the Evidence Act 1906. That section provides that whenever, in any proceeding, a witness, declines to answer any question on the ground that the answer will criminate or tend to criminate the witness, the judge may, if it appears expedient for the ends of justice that the witness should be compelled to answer the question, tell the witness that, if the witness answers the question and other questions that may be put in a satisfactory manner, the judge will grant the witness a certificate. Such a certificate provides protection to the witness in that the answers given are not admissible in evidence in criminal proceedings against the witness other than on a prosecution for perjury committed in the proceeding.
In the course of his evidence-in-chief Mr Francis claimed privilege against self-incrimination when asked whether he provided Ms Thomson with anything at his home, other than a meal, on the night of 4 December 2012. In other words, he declined to answer the question and sought a certificate pursuant to s 11 of the Evidence Act. The trial judge, Judge Sweeney, agreed that he might be granted a certificate and directed him to answer the question and subsequent questions. He did so as follows:
Yeah. I had some cocaine at my house, a little bit of marijuana and yeah, I shared that with her while she was there.
He said that he gave her three lines of cocaine.
In cross-examination Mr Francis was asked as to the quantity of cocaine in his possession on 4 December. He replied:
Well, I'm not too sure on the amount cos I never knew what was there but the police found some cocaine there, yes.
He agreed that he was the only person living at that house at that time. He agreed also that police searched his house following the incident and found 57.6 g of cocaine inside a clipseal bag in a velvet pouch in a case under a sofa cushion and that he subsequently pleaded guilty to a charge of possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another.
It is the case that Mr Francis appeared before his Honour Judge Goetze in this court on 21 March 2014 charged with three matters. The first alleged possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another. The second alleged possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another. The third alleged possession of a firearm, namely, a .22 calibre self‑loading pistol while not being the holder of a license or permit under the Firearms Act 1973 entitling him to do so. There were alleged circumstances of aggravation in that the firearm was a handgun and that its number or identification mark had been defaced or removed.
All three offences were said to have been committed at Hammond Park on 5 December 2012. Mr Francis, upon arraignment, entered pleas guilty to counts 1 and 3 and was convicted of those counts. As to count 2, relating to possession of cannabis, he entered a plea of guilty to simple possession of cannabis. That plea was accepted by the State and he was convicted of simple possession of cannabis.
The facts as outlined by the prosecutor were that at about 4.00 pm on Wednesday 5 December 2012 officers attached to the Murdoch Detectives office executed a search warrant under the provisions of the Misuse of Drugs Act 1981 at 1 Plumwood Avenue, Hammond Park. That address, it was said, was Mr Francis's principal place of residence. He was the only person resident there at the time.
In the lounge room police found a case secreted underneath a cushion of a sofa. Inside was a clipseal bag. In that was a velvet pouch which contained 57.6 g of cocaine at 51% purity. The cocaine found was the subject of count 1.
Also inside the case was a clipseal bag containing 75.5 g of cannabis. That gave rise to count 2. In addition police found, a small metal grinder used to finely chop cannabis.
As to count 3, police found an unlicensed handgun of unknown make in the pocket of a military-style hunting vest in Mr Francis's bedroom. The serial number of the weapon had been removed.
Judge Goetze sentenced Mr Francis to 2 1/2 years' imprisonment on count 1, fined him $1,000 for count 2 and sentenced him to 6 months' imprisonment on count 3. The latter term was to be served concurrently with the term imposed with respect to count 1. The total effective term of imprisonment was, therefore, 30 months. He was made eligible for parole. He was declared to be a drug trafficker.

The impact of section 39 of the Act

It is clear that the legislature, in enacting s 39 of the Act, did not intend that a causal connection was required between the offence committed by the claimant for compensation and the offence giving rise to that person's injuries.
The effect of the section was considered in Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29. In that matter her Honour Judge Schoombee awarded an appellant $40,592 by way of compensation pursuant to the provisions of the Act. At the request of the Attorney General for Western Australia Justice Corboy granted an order nisi. The Attorney General sought an order that a writ of certiorari be issued quashing the award and order made by Judge Schoombee.
The assessor had advised the applicant of the provisions of s 39 of the Act, to the effect that compensation must be denied if the injury was suffered when the claimant was committing a separate offence. The applicant was invited to make submissions in that regard and did so. The assessor affirmed her provisional determination on the basis that she was satisfied that the applicant was committing an offence at the time she suffered her injuries. The applicant appealed to the District Court.
Her Honour Judge Schoombee took the view that the section imposed a requirement of some degree of causal connection between the separate offence committed by the applicant for compensation and the injuries suffered by her in consequence of the commission of an offence by another.
In the Court of Appeal, Martin CJ, with whom Newnes JA and Murphy JA agreed, found that s 39 of the Act did not require that there be a causal connection between the commission of the separate offence by the claimant and the injury which the claimant suffered. He said (at 46):
The District Court Judge misconstrued the statute which was the source of the court's jurisdiction and thereby misconceived the nature of the function which she was required to perform, and, in particular, proceeded on the mistaken view that unless a causal connection was established between SW's criminal conduct and the injuries for which she was claiming compensation, she was entitled to compensation. That misconception critically affected the appeal from the assessor and its outcome to such an extent that there can be little doubt that the error resulted in the court failing to discharge the jurisdiction conferred upon it by Part 7 of the Act.
The State Solicitor on behalf of the Chief Executive Officer of the Department of the Attorney General as amicus curiae in the matter before me, in written submissions, underlines the point as follows:
If a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, a compensation award cannot be made in favour of the person. … there is no requirement in s 39 of the Act that the disentitling offence be causally connected to the offence that causes the applicant's injuries … Whether there is sufficient temporal connection is a question of fact and degree. Where there is a clear hiatus between the relevant events constituting the offences there will be insufficient temporal connection between the events for s 39 to apply.
When giving evidence at trial Mr Francis was well aware of the right against self‑incrimination and, when asked about his possession of cocaine and supply of cocaine to Ms Thomson on the night of their meal at his home, he sought the protection of a certificate under s 11 of the Evidence Act. That was granted to him by the trial judge. As mentioned, he was subsequently convicted of possession of cocaine with intent to sell or supply it to another, of simple possession of cannabis and of being in possession of an unlicensed firearm while not being the holder of an appropriate licence, that firearm being a pistol with its serial number defaced of obliterated.
All that is required under s 39 is a temporal connection in that the injury was suffered when the person was committing a separate offence. If that be the case the assessor must not make an award in favour of the applicant. In my view, there can be no doubt that, firstly, Mr Francis was injured in consequence of the commission of an offence and, secondly, that the injury was suffered when he was committing a separate offence, principally, that he had in his possession, at that time, a significant quantity of cocaine, a prohibited drug, and that he supplied it to another, namely Ms Thomson. I am of the view that the temporal connection between the commission of the offences giving rise to his injuries for which he sought compensation and the commission by him of the offence of being in possession of a prohibited drug, namely cocaine, with intent to sell or supply it to another is well established.
It follows that it is my view that, in such circumstances, the assessor was precluded from making an award in his favour in any amount.
For the foregoing reasons I find that the appeal must succeed. Having reconsidered the application for compensation on the materials that were before the assessor the application for compensation is dismissed. The award is quashed.