Turner v Dinsdale - [2023] WADC 153

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   TURNER -v- DINSDALE [2023] WADC 153
CORAM:   MIOCEVICH DCJ
HEARD:   17 JUNE 2022
DELIVERED          :   21 DECEMBER 2023
FILE NO/S:   APP 79 of 2021
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   JAKE LEE TURNER
Appellant
AND
HARLEE DINSDALE
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R A CAPARARO
File Number            :   CIC 151/2020

Catchwords:

Criminal injuries compensation - Appeal - Assessor found appellant disentitled to compensation by arming himself with a baseball bat - Offences of going armed in public and possession of a weapon - Lawful authority to possess a baseball bat - Defence of duress - Lawful authority to arm oneself pursuant to s 244 and s 254 Criminal Code

Legislation:

Criminal Code Act Compilation Act 1913 (WA), s 1, s 31, s 32, s 36, s 64, s 68, s 244, s 248, s 254, s 445
Criminal Injuries Compensation Act 2003 (WA), s 3, s 6, s 12, s 39, s 41, s 55, s 56
Weapons Act 1999 (WA), s 4, s 8, s 9, s 25, s 31

Result:

Appeal allowed
Compensation award $75,000

Representation:

Counsel:

Appellant	:	Mr V G Kurup
Respondent	:	No appearance
Amicus Curiae	:	Mr Z R Clifford appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	CLP Legal Pty Ltd
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

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

Hall v Collins [2003] WASCA 74
Kittelty v Davies [2011] WADC 1
Kunakool v Boys (1987) 77 ALR 435
Lau v The State of Western Australia [2017] WASCA 16
Mackinlay v Wiley [1971] WAR 3
Marchesano v The State of Western Australia [2017] WASCA 177
MDC v BLR [2015] WADC 107
Morgan v Cramer [2019] WASC 68
Phillips v Mettam [2022] WADC 49
Re Puterangi [2017] WADC 168
Savic v Duric [2021] WADC 53
Underwood v Underwood [2018] WADC 13

MIOCEVICH DCJ:

This is an appeal against an assessor refusing an application for criminal injuries compensation.
The respondent was convicted after trial of committing an offence of doing an act as a result of which bodily harm was caused to the appellant.
The assessor found the appellant had committed an offence of going armed in public, by arming himself with a baseball bat prior to being shot by the respondent. The appellant was therefore found to be disentitled to compensation.
The appellant argues he was not committing an offence as he was acting in self defence and is therefore entitled to compensation.
This is a hearing de novo. For reasons that follow, I am satisfied on the balance of probabilities the appellant was not committing an offence and is entitled to compensation.

History of application

An application for compensation was made pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (CICA), on the basis that if the assessor of Criminal Injuries Compensation (the Assessor) was satisfied that there was a proved offence, then the appellant was entitled to compensation pursuant to that legislation - save for the exceptions set out in the CICA.
The appellant had applied for compensation for losses suffered by him as a result of an incident on 10 January 2017 where the respondent was charged with doing an act as a result of which bodily harm was caused to the appellant (Proved Offence). The respondent was convicted after trial and sentenced on 8 May 2018.
The appellant filed an application dated 27 December 2019 for criminal injuries compensation at the Assessor's office on 8 January 2020 (the application).
On 28 July 2021, the Assessor wrote to the solicitors for the appellant raising some issues and made a preliminary view that because the appellant was carrying a baseball bat when he was shot, it may preclude an award of compensation (CICA s 39) or warrant a significant reduction in any compensation (CICA s 41) because of a failure to call the police at an earlier opportunity. The offence identified by the assessor as precluding compensation was:
At the time of being shot, your client was carrying a baseball bat which was intended to cause fear which is an offence.
In response to the Assessor's query the solicitors for the appellant made further submissions and submitted a statement in response from the appellant giving an account of what took place on 10 January 2017. In essence the submissions were:
•A man is entitled to defend himself and his property.
•The appellant did not call the police earlier as he was waiting in his house for the trespassers to go away and he only exited when he sensed danger to his uncle who had just returned. It was not a planned event and the appellant was young, 20, with no experience of violence.
On 8 October 2021, the Assessor wrote to the appellant's solicitors formally refusing the appellant's application for compensation. The assessor stated:
For the reasons set out in my correspondence of 28 July 2021 I now formally refuse your client's application for compensation.
In doing so I find that your client was very much the author of his own misfortune and had he not exited the property at the time he did, in all likelihood he would not have been injured. The failure to call police, and the fact he waited a period of time before exiting the property to confront the offenders would suggest to me that another course of action would have been available to him. Furthermore, it is my opinion carrying a weapon is clearly an offence pursuant to section 39 of the Criminal Injuries Compensation Act 2003 and he freely admits he did so.
On 14 October 2021, the appellant's solicitors wrote to the Assessor asking for reasons for her decision.
On 26 October 2021 the solicitors for the appellant lodged a notice of appeal in the District Court through eCourts which was not recorded on the court system as having been filed.
On 15 November 2021 a fresh notice of appeal was filed together with an affidavit in support to explain why the appeal was filed out of time.
On 19 November 2021 an amended notice of appeal was filed.
On 31 January 2022 the Assessor provided her reasons for decision. In summary they were:
•by carrying the baseball bat the appellant was committing an offence contrary to s 68 of the Criminal Code (WA);
•s 254(2) of the Criminal Code gave rise to a potential defence to the appellant;
•the Assessor was satisfied that the appellant was authorised to prevent the offender and his acquaintance from entering the property, or to remove a person who wrongfully remains on or in the place;
•the defence was not open as there was no intention evidenced by the behaviour of either offender to enter the property and they remained on the roadway during the course of the altercation.
Further if incorrect in relation to s 39 of the CICA, compensation should be refused under s 41 because the appellant should have stayed inside the house and contacted the police.

The appeal to the District Court

The appellant filed an amended notice of appeal dated 19 November 2021. The ground of appeal is:
The Appellant is appealing against the refusal of the Assessor in making an award on appeal the grounds that the Appellant was the author of his own misfortune.
The appellant has filed submissions, as did the State Solicitor's Office acting on behalf of the Chief Executive Officer of the Department of Justice, appearing as amicus curiae.
The respondent did not appear or file submissions. The respondent was in prison at the hearing of the appeal on 30 May 2022 and 17 June 2022. The respondent was given the opportunity to appear via video link on 17 June 2022 but declined to appear.
I refer to the case of Phillips v Mettam [2022] WADC 49 and adopt the reasoning of Judge Prior as to the approach I need to take in deciding this case at [16] ‑ [18]:
16In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the Assessor's decision'. The appeal is a hearing de novo. I am to treat the appellant's applications as if each came before the court for the first time, save that the appellant has the right as well as the obligation to open the appeal. The appellant does not have to demonstrate an error on the part of the Assessor in order to succeed.
17The court must determine the appeal 'solely on the evidence and information that was in the possession of the Assessor or may receive further evidence and information'.
18It is open to the court to confirm, vary or reverse the Assessor's decision, either in whole or in part.

Issues arising for determination

The issues that arise for consideration in this appeal are:
1.Should the appellant be granted leave to commence the appeal out of time?
2.Was the appellant injured as a result of a proved offence?
3.Whether the appellant was committing a separate offence such that a compensation award is precluded by s 39(1) of the CICA?
4.Should compensation be refused under s 41 of the CICA?
5.What is the appropriate quantum of any compensation award?

Issue 1 - Extension of time

The last date for filing the appeal was 28 October 2021. The appellant's lawyer filed an affidavit setting out the reason for the delay, namely there was an issue with the lodging of the appeal in the eCourts portal on 26 October 2021.
After becoming aware of the problems with the lodgement of the first appeal, a new appeal was filed on 15 November 2021. Given the explanation, I am satisfied it is just to extend time for the filing of the appeal pursuant to s 55(4) of the CICA and I do so.

Issue 2 - Proved offence

Section 12 of the CICA authorises an assessor to award compensation if satisfied that the injury occurred as a result of a proved offence. Section 3 of the CICA defines a proved offence as one of which a person has been convicted. It is common ground the respondent was convicted after trial of one count of doing an act as a result of which bodily harm was caused to the appellant. The appellant's papers contain Burrows DCJ's sentencing remarks where her Honour found that the appellant was struck in the right thigh by one of the bullets fired by the respondent. It follows that injury occurred as a result of a proved offence.

Issue 3 - Was the appellant committing a separate offence?

Criminal Injuries Compensation Act s 39(1)

Section 39(1) of the CICA provides:
If an assessor is satisfied -
(a)that a person was injured as a consequence of the commission of an offence; and
(b)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.
The legal principles relating to the application of s 39(1) were summarised in Phillips v Mettam [24] as follows:
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.
(footnotes omitted)
The amicus curiae sets out three potential offences of the appellant which may bar him from compensation:
1.s 68 Criminal Code - going armed to cause fear;
2.s 8 Weapons Act 1999 (WA) - possession of a weapon; and
3.s 445 Criminal Code - damage property.

Facts

To determine whether the appellant committed a separate offence I must have regard to the evidence and information that was in possession of the Assessor and any further evidence or information I receive (s 56(1) CICA).
The amicus curiae has identified documents 7 ‑ 11, 27 and parts of 28 in the appellant's book of papers as not already being before the court. In my view there is nothing that would make it unjust to admit any of the named documents even though some of them are of little relevance.
The Assessor's reason for denying compensation was that the appellant had committed an offence and was the author of his own misfortune. The Assessor in refusing the application had before her the prosecution brief, indictment, amended indictments and certificate of final outcome from the Director of Public Prosecutions in relation to the offender. The transcript of trial was not before the Assessor.
On 17 June 2022 I indicated to the parties I was going to receive further evidence and information by way of the trial transcript and that both parties had leave to file further submissions. It was my view that if I was going to have to make a decision on whether or not the appellant had committed an offence I should have regard to the sworn evidence given by him and other witnesses at the trial.
The court provided both parties with the transcript of the evidence given by Jake Turner (the appellant), Griffin Jolly, Kevin Turner, Darryl Dodd, Hayden Freeman and Harlee Dinsdale (the respondent). The amicus curiae filed further submissions dated 28 June 2022 in relation to the evidence of the witnesses.
The sentencing remarks of Burrows DCJ (for the respondent) provide the basis for facts that can be accepted by me on the balance of probabilities (ts 659 ‑ ts 660):
I find that you went to the Ferguson Street house with Mr Mippy, knowing that Mr Mippy intended to confront at least one of the occupants of that house, namely Aaron Turner, and that you deliberately armed yourself with a handgun. I make no finding, and it is not necessary for me to do so, as to whether Mr Mippy knew you were armed before you drew the gun from your shorts.
When the car arrived at the house, Mr Mippy got out and approached the front of the property, where he remonstrated with the occupants in a loud and aggressive manner. A grey station wagon, being driven by Kevin Turner, with Griffin Jolly as a rear passenger, returned to the property.
Upon the return of that vehicle, several occupants of the house came out onto the front of the property armed with various instruments, including a baseball bat, in the case of the complainant Jake Turner, and a pick‑axe handle in the case of Darryl Dodd.
I find that other members of the group were armed with a machete and a meat cleaver, and that these objects were thrown in the direction where the Monaro vehicle was parked.
As members of the group with weapons approached you, you drew your firearm, at which time the group retreated towards the house, and started throwing objects, including the machete, meat cleaver and a yellow gas cylinder.
I accept the evidence of Mr Jolly, who was watching events from the backseat of the station wagon, that at the time you pointed the gun at members of the group, you were laughing. And I refer to transcript pages 229 and 230.
Once the firearm was drawn, you then discharged at least two shots from the roadway towards the driveway of number 28, well knowing that members of the Turner group were in that vicinity.
Mr Jake Turner, the complainant, was near the parked silver station wagon, hiding behind rubbish bins, when one of the bullets discharged from the gun struck him to the right thigh. The second bullet ricochet off the road and struck the rear bumper of the station wagon.
I find that when you discharged the firearm you did so with the intent to harm, by endangering the life, health or safety of members of the group who were at the front of 28 Ferguson Street. I do not find that you specifically intended to do bodily harm to Mr Jake Turner. The jury by it's verdict rejected your actions were lawful and that you were acting in self-defence.
And further at ts 660 referring to the appellant:
He is a young man who was fearful for members of his family who were returning from the bottle shop, namely Kevin Turner, Griffin Jolly and Kyle Turner. And he was fearful of them being set upon as they returned. And he left the shelter of his property armed with a baseball bat. He was confronted with a larger and older aggressor in the form of Mr Mippy, and was then shot by you.
This last comment by her Honour indicates to me that she accepted the evidence of the appellant as to what occurred on the day and that he was a witness of truth. Although all witnesses gave different evidence as to who was where and who did what, I find, on the balance of probabilities, I can accept as true and accurate the evidence of the appellant as to what occurred.
For the purposes of this appeal and upon reading of the sworn evidence at trial, I find the following facts proven on the balance of probabilities:
1.The appellant was in his house on the morning of the offence.
2.Mr Mippy turned up to the house with Mr Turner to confront one of the occupants of the house. Mr Mippy was outside behaving in a loud aggressive manner for about 10 minutes.
3.The appellant armed himself with a baseball bat to protect his house, himself and other occupants if Mr Mippy tried to enter.
4.A grey station wagon, being driven by Kevin Turner, with Griffin Jolly as a rear passenger, returned to the property and parked on the driveway.
5.Mr Mippy approached the car in a loud and aggressive way.
6.The appellant and others left the house. The appellant was armed with a baseball bat to protect the occupants of the house and car and to prevent Mr Mippy from entering the property. The appellant armed himself for self defence and to use the bat as a threat to get Mr Mippy to leave.
7.The appellant and Mr Mippy approached each other. The appellant never left his property. Mr Mippy was moving to go onto the property and may or may not have actually entered onto it.
8.On being confronted by the appellant and the other armed occupants of the house, Mr Mippy started to walk back and said 'pop them all'.
9.The appellant on hearing this started to back pedal towards the house. Shots were fired and the appellant ducked for cover behind bins. The appellant started throwing bricks in the direction of Mr Mippy, Mr Turner and the red car Mr Mippy had turned up in.
10.There is no evidence any of the bricks thrown by the appellant hit the car or in fact did any damage to the car.
11.The appellant was shot in the leg. He went to run away but blacked out.

Was an offence committed?

Section 68 Criminal Code - Going armed to cause fear

Section 68 of the Criminal Code states:
A person who is or pretends to be armed with any dangerous or offensive weapon or instrument in circumstances that are likely to cause fear to any person is guilty of a crime and is liable to imprisonment for 7 years.'
Section 68 of the Criminal Code has the following elements:
(a)identity;
(b)is or pretends to be armed;
(c)with a dangerous weapon;
(d)in circumstances likely to cause fear.

On the evidence the elements of the offence are made out as the appellant admits being in possession of an instrument with the intent of causing fear to Mr Mippy ie ‑ he left the house for self defence of others and also to prevent Mr Mippy from coming onto the property. He carried the bat for his and the occupants of the house and car's protection. He wanted Mr Mippy to be fearful of him so he would not assault him or the occupants of the house and car and would not enter the property and if he was on it to get him to leave.
Section 68(2) of the Criminal Code states:
It is a defence to a charge under subsection (1) to prove that the accused person had lawful authority to be armed in such circumstances.
The amicus curiae sets out three provisions of the Criminal Code that may provide a defence to the offence under s 64:
1.s 254(2) Criminal Code - use of force to prevent entry and remove people from a place;
2.s 244 Criminal Code - use of force to prevent home invasion; and
3.s 248 Criminal Code - self defence.
The appellant in their submissions just relies on s 248 - self defence and says the appellant is entitled to quiet and peaceable enjoyment of his property and entitled to defend his property and family.

Defences to going armed in public

Section 254(2) Criminal Code - Use of force to prevent entry and remove people from a place

Section 254 of the Criminal Code provides:
(1)For the purposes of this section and section 255, the term place means any land, building, structure, tent, or conveyance, or a part of any land, building, structure, tent, or conveyance.
(2)It is lawful for a person (the occupant) who is in peaceable possession of any place, or who is entitled to the control or management of any place, to use such force as is reasonably necessary -
(a)to prevent a person from wrongfully entering the place; or
(b)to remove a person who wrongfully remains on or in the place; or
(c)to remove a person behaving in a disorderly manner on or in the place; provided that the force used is not intended, and is not such as is likely, to cause death or grievous bodily harm to the person.
The appellant was in peaceable possession of the place (which includes the land). From the facts of the case I find the appellant approached Mr Mippy for a dual purpose:
(a)firstly, to prevent him from wrongfully entering the land or if he was actually on the land to get him to leave; and
(b)secondly, to protect himself, the occupants of the house and the occupants of the car that had just arrived.
The appellant arming himself with a baseball bat and approaching Mr Mippy, in the circumstances of this case is a threat to use force. In my view a threatened application of force is a use of force.
Was the use of force reasonably necessary? Mr Mippy was behaving in a loud and aggressive manner. He was there for over 10 minutes and not leaving. He approached the land only after the car arrived. I find the actions of the appellant in going out and confronting Mr Mippy whilst armed with a baseball bat to be reasonably necessary to remove and or prevent Mr Mippy from being on the land.

Lawful authority

Is s 254 a lawful authority? Justice Hall in the case of Morgan v Cramer [2019] WASC 68 discusses the distinction between lawful authority and lawful purpose or excuse at [30] - [43]. At [41] his Honour said:
The expression 'lawful authority' is not synonymous with 'lawful purpose' or 'lawful excuse'. Lawful purpose or excuse may be sufficiently proved though no lawful authority exists. The word 'authority' means, in this context, a 'derived or delegated power' or an 'authorisation'. An 'authorisation' is a 'formal approval or warrant'. Accordingly, in my view, lawful authority means an authority to do a thing which is provided by a written law or by somebody or person empowered by a written law to license, permit, or authorise the doing of the thing.
Section 254(3) states:
The authorisation conferred by subsection (2), as limited by the proviso to that subsection, extends to …
The words of the section itself confirm the use of the force under s 254(2) to be an authorisation and not a lawful purpose or excuse.
On the balance of probabilities I find the appellant had lawful authority under s 254 of the Criminal Code to arm himself with a baseball bat to prevent Mr Mippy from entering the land and if Mr Mippy was on the land to remove Mr Mippy from the land. Consequently, the appellant was not committing an offence of going armed to cause fear as he was authorised under s 254 to do so.

Section 244(1) Criminal Code - Use of force to prevent home invasion

Section 244 of the Criminal Code provides:
(1)It is lawful for a person (the occupant) who is in peaceable possession of a dwelling to use any force or do anything else that the occupant believes, on reasonable grounds, to be necessary -
(a)to prevent a home invader from wrongfully entering the dwelling or an associated place; or
(b)to cause a home invader who is wrongfully in the dwelling or on or in an associated place to leave the dwelling or place; or
(c)to make effectual defence against violence used or threatened in relation to a person by a home invader who is -
(i)attempting to wrongfully enter the dwelling or an associated place; or
(ii)wrongfully in the dwelling or on or in an associated place; or
(d)to prevent a home invader from committing, or make a home invader stop committing, an offence in the dwelling or on or in an associated place.
Section 244(3) states:
The authorisation conferred by subsection (1)(a), (b) or (d) extends to a person assisting the occupant or acting by the occupant's authority. …
The words of the section itself confirm the use of the force under s 244(1) to be an authorisation and not a lawful purpose or excuse.
The acts authorised by s 244 of the Criminal Code are broader in nature than those authorised by s 254(2) of the Criminal Code. A person is permitted under s 244 to use any force or do anything else the occupant believes on reasonable grounds, to be necessary. Such an authorisation would include a person arming themselves. There is no requirement that the arming of oneself be reasonable, just that the occupant believed it on reasonable grounds.
Associated place is defined in s 244(6):
In this section -
'associated place' means -
(a)any place that is used exclusively in connection with, or for purposes ancillary to, the occupation of the dwelling; and
…;
'place' means any land, building or structure, or a part of any land, building or structure.
From the facts of this case, the actions of Mr Mippy in going towards the car on the driveway would constitute him either wrongfully entering an associated place or attempting to wrongfully enter an associated place.
It is also a requirement that Mr Mippy be a home invader. Home invader is defined in s 244(2) as:
A person is a 'home invader' for the purposes of subsection (1) if the occupant believes, on reasonable grounds, that the person -
(a)intends to commit an offence; or
(b)is committing or has committed an offence,
in the dwelling or on or in an associated place.
The amicus curiae in their submissions at par 60 sets out the evidence in relation to the offence Mr Mippy was going to commit:
In his 2017 police statement the Appellant says that he left the house because Mr Mippy began to approach his uncle (Kevin Turner) who had returned in a car. [DPP File, pg 13(2017 Statement of Appellant [42]). These actions followed Mr Mippy yelling about wanting to fight. In his 2019 statement the Appellant said he was worried that the men were going to hurt his family. [Assessors Papers, p 12 (2019 Statement of Jake Turner [34]). See also Assessors Papers p 45 (2021) Statement of Jake Turner [2]-[5].
In this case there is ample evidence that the appellant (the occupant) believed Mr Mippy was going to commit an offence on an associated place, namely assault or threaten the occupants of the house or car.
On the balance of probabilities, I find the appellant had lawful authority, under s 244 of the Criminal Code to arm himself with the baseball bat as there were reasonable grounds for the appellant to believe that the actions he took in arming himself with a baseball bat and approaching Mr Mippy were necessary to either:
(a)prevent Mr Mippy from entering the land;
(b)cause Mr Mippy to leave the land if he was already on the land;
(c)to make effectual defence against violence threatened in relation to the appellant and his family by Mr Mippy who is -
(i)attempting to wrongfully enter the land; or
(ii)wrongfully remain on the land; or
(d)to prevent Mr Mippy from committing an offence of assault or threats on the land.
Consequently, the appellant was not committing an offence of going armed to cause fear as he was authorised under s 244(1) of the Criminal Code to do so.

Section 248 Criminal Code - Self defence

As I have already determined the appellant was lawfully authorised under s 244 and s 254 of the Criminal Code to arm himself with a baseball bat it is not necessary for me to decide whether he has a defence under s 248 of the Criminal Code, namely self defence. The use of s 248 as a defence to a charge under s 68 is problematic because self defence is only a defence to a harmful act committed by an accused. A harmful act is not an element of the offence of going armed in public. See Morgan v Cramer [16] footnote 6. Self defence is a lawful excuse provided for a harmful act and is not a lawful authorisation.

Section 8 Weapons Act - Other articles carried or possessed as weapons

Section 8 of the Weapons Act provides:
(1)Except as provided in subsections (3) and (5) and section 10, a person who carries or possesses an article, not being a firearm, a prohibited weapon or a controlled weapon, with the intention of using it, whether or not for defence -
(a)to injure or disable any person; or
(b)to cause any person to fear that someone will be injured or disabled by that use, commits an offence.
(2)A person is presumed to have had the intention referred to in subsection (1) if -
(a)the article was carried or possessed in circumstances that give reasonable grounds for suspecting that the person had the intention; and
(b)the contrary is not proved.
(3)A person does not commit an offence under subsection (1) if the person carries or possesses the article at the person's dwelling for the purpose of using it in lawful defence at the dwelling in circumstances that the person has reasonable grounds to apprehend may arise.
In this case the baseball bat is an article and it was being used by the appellant to cause Mr Mippy to fear that he would be injured or disabled. The intention was to defend himself, the occupants of the vehicle and house and to prevent Mr Mippy from coming on the land or getting him to leave.
Section 8(3) gives a defence to the possession of the baseball bat for the purpose of lawful defence but is limited to the possession being at the dwelling. Section 8(4) adopts the definition of 'Dwelling' in s 1 of the Criminal Code which defines dwelling as:
The term 'dwelling' means any building, structure, tent vehicle or vessel, or part of any building, structure, tent, tent, vehicle or vessel, that is ordinarily used for human habitation, and it is immaterial that it is from time to time uninhabited.
When armed with the baseball bat on his front porch (which was enclosed) the appellant was at his dwelling and was excused under s 8(3) for being in possession of the baseball bat in those circumstances. Once he had left the front porch and entered onto the land adjoining the house (or to use the definition of the Criminal Code, the associated place), he was no longer 'at the dwelling'. In my view the language of the section is clear and the protection afforded by s 8(3) did not apply once the appellant left the dwelling.

Lawful excuse

Justice Wheeler in the case of Hall v Collins [2003] WASCA 74 makes the observation that the meaning of the Weapons Act is tolerably clear but more plainly so when considered against the background of the pre-existing law to the Weapons Act. Her Honour briefly outlined that background at [7] - [10]:
7In the United Kingdom the closest analogous legislation appears to have been the Prevention of Crime Act 1953 which provided by s 1(1) that:
'Any person who without lawful authority or reasonable excuse, the proof whereof shall lie on him, has with him in any public place any offensive weapon shall be guilty of an offence.'
The question of whether a weapon might be carried for the purposes of defence was considered in Evans v Hughes [1972] 1 WLR 1452. The Divisional Court held that the fact that the carrier of a weapon intended to use it defensively did not prevent it from being an 'offensive weapon'. However, it could be a reasonable excuse for the carrying of an offensive weapon that the carrier was anticipating imminent attack and intended to use it for self-defence. In a consideration of earlier authority, Lord Widgery CJ at 1455 referred to and approved earlier decisions in which it had been said that 'reasonable excuse' was intended to refer to the circumstances 'immediately prevailing' at the time at which the weapon was carried. In the particular circumstances of that case, the defendant had been carrying an iron bar because he had been attacked by three men a week before, and was carrying it with the intention of using it for self‑defence should he be attacked again. The court considered that it might be open to the justices to find a reasonable excuse in those circumstances but that because of the length of time since the attack, the case was 'borderline'.
8A similar provision existed in South Australia in s 15 of the Summary Offences Act 1953 which provided that:
'(1) Any person who without lawful excuse -
carries any offensive weapon ... shall be guilty of an offence ...'
In Ford v Lindholm (1987) 45 SASR 445, this provision was considered by Millhouse J. His Honour in effect applied the English line of authority. He did so with some reluctance, in circumstances where the defendant in that case had been carrying two knives, one a Swiss Army knife and the other a short bladed knife. He used the knives partly for camping purposes but also explained that he carried them because he was involved in the live music industry, and that was an industry in which he considered it was desirable to carry them for personal protection.
9In considering the requirement for imminence of attack, Millhouse J suggested that the law 'has reached the edge of absurdity' (at 450). His Honour considered that most people would be surprised to be told that it was unlawful to carry anything for the purpose of using it for self-defence, and remarked that there was an argument that it was appropriate to permit law-abiding citizens to carry at least some items for that purpose.
10In Western Australia, prior to the Weapons Act 1999, the relevant provision was s 65(4a) of the Police Act 1892. That read:
'Every person who, without lawful excuse, carries or has on or about his person or in his possession any ... other article made or adapted for use for causing injury to the person or intended by him for such use by him ... '. [Commits an offence.]
When going through the history of the Weapons Act it appears there had been a defence to the charge of possession of a weapon where there was a threat of an imminent attack and the weapon was to be used for self defence from that attack. The basis of the defence relies on the use of the words 'without lawful excuse'. Those words are not contained in s 8 of the Weapons Act.
This problem was addressed in 'The Report of The Standing Committee on Legislation in Relation to The Weapons Bill 1998 - Report 44' where it said this at page 3:
Possessing an article for defence
Clause 8 substantially restricts the right to possess an article other than a weapon, such as a baseball bat or crowbar for defence. A person can carry or possess an article for defence only at a 'dwelling' and only for use in circumstances that the person has reasonable grounds to apprehend may arise
It is of concern that keeping an article for defence at places such as on a property but outside the dwelling, at a workplace or in a vehicle will become an offence. Similarly, picking up an article in an instinctive act of defence could become an offence. Confusingly, in many circumstances it will be legal under the Criminal Code to use an article for defence, while at the same time it is an offence under clause 8 to possess the article.
The defence to a charge under clause 8 should be broadened. This could be most simply done by allowing a person to possess or carry an article for defence where the person has a 'lawful excuse'. Alternatively, or in addition, the defence available for a person at a dwelling could be expanded to include other places, or by removing the limitation relating to 'reasonable apprehension'.
(original emphasis)
The issue was again raised in the Report of the Standing Committee at page 44:
The Attorney General comments as follows on this point:
'Hon JOHN COWDELL … For example, the owner of the local video shop that has been burgled half a dozen times has a baseball bat under the counter with clear intent, and if the police ask him why he has a baseball bat, is he gone?
Hon PETER FOSS: No. He does not have to say that it is for defence. He says it is for the purpose of preventing a commission of an offence … Section 243 [of the Criminal Code] states -
"It is lawful for any person to use such force as is reasonably necessary in order to prevent the commission of an offence; or to prevent any act from being done as to which he believes on reasonable grounds that would, if done, amount to an offence…"
That would apply to the person in the video shop. His lawful excuse is that his intent is to prevent the commission of an offence.'
The Attorney General's reading of the interaction between the Bill and the Criminal Code is questionable. It is correct that where the owner of the video shop uses reasonable force in defence of self, others or property, or to prevent the commission of an offence, the owner has a defence to a charge of assault under the Criminal Code does not give rise to a defence to a charge of possessing an article with intent to injure, under clause 8.
(original emphasis)
I have already found that the appellant was authorised by law to arm himself with the baseball bat under s 244 and s 254 of the Criminal Code. The question then becomes does such an authorisation provide a defence to a charge under s 8(1) of the Weapons Act? The wording of s 8(1) does not contain the terminology 'without lawful excuse' as is contained in s 7 or similar wording in the history of similar charges. In my view the wording of the Weapons Act is clear. If you possess an article in the terms prescribed by s 8(1) you commit an offence unless the Act provides otherwise.

Part V Criminal Code

Section 4 of the Weapons Act provides:
This Act is in addition to and not instead of any other written law relating to weapons.
Section 9 of the Weapons Act provides:
Sections 7(3) and 8(1) do not affect the operation of sections 25 and 31 of The Criminal Code.
Section 36 of the Criminal Code provides:
36.Application of Chapter V
The provisions of this Chapter apply to all persons charged with any offence against the statute law of Western Australia.
Chapter V of the Criminal Code deals with fundamental principles of when a person is criminally responsible for an offence. In my view the specific reference in s 9 of the Weapons Act to s 25 and s 31 of the Criminal Code does not affect the application of the whole of Chapter V of the Criminal Code to an offence under the Weapons Act. If Parliament wished to limit the application of Chapter V of the Criminal Code to s 25 and s 31, then it would have done so specifically, and not indirectly.

When the Weapons Act was introduced in 1999, s 31(3) of the Criminal Code provided that a person is not criminally responsible for an act done 'when the act is reasonably necessary in order to resist actual and unlawful violence threatened to him, or to another in his presence'. So in 1999 a defence of arming oneself in defence of an attack could arise under s 31(3) of the Criminal Code, which was specifically referred to by s 9 of the Weapons Act.
On 1 August 2008 the Criminal Code was amended and s 31(3) and s 31(4) were repealed and replaced by a new s 32 defence of duress. Section 9 of the Weapons Act was not changed to include the new s 32. In my view it was not necessary as s 36 of the Criminal Code still requires that s 32 of the Criminal Code applies to the Weapons Act.

Section 32 Criminal Code - Duress

The elements of duress have been stated and discussed in the cases of Lau v The State of Western Australia [2017] WASCA 16 [110] - [112] (Lau) (Buss P, Mazza & Mitchell JJA agreeing) and also Marchesano v The State of Western Australia [2017] WASCA 177 [108] - [115] (Marchesano).
Section 32 provides that, subject to s 32(3), an accused person is not criminally responsible for an act done or omission made under duress if:
(i)the accused believes a threat has been made by someone else to the accused or another person (s 32(2)(a)(i));
(ii)the accused believes the threat will be carried out unless an offence is committed (s 32(2)(a)(ii)); and
(iii)the accused believes doing the act or making the omission is necessary to prevent the threat from being carried out (s 32(2)(a)(iii)); and
(iv)the act or omission is a reasonable response to the threat in the circumstances as the accused believes them to be (s 32(2)(b)); and
(v)there are reasonable grounds for the accused's beliefs (s 32(2)(c)).

Meaning of 'threat'

'Threat' has its ordinary and natural meaning. It means any statement by words or actions, or both, which conveys an intention to kill or injure, or to cause loss or damage to another or his property. For the reasons already given I find Mr Mippy did threaten violence to the occupants of the house and the car which had just returned.

Meaning of 'an offence' - s 32(2)(a)(ii)

'An offence' in s 32(2)(a)(ii) means something which is punishable under the law of Western Australia. It is not essential that the 'offence' be identical to the charged offence: Lau [118(c)]. I find the appellant believed that unless he went outside with the baseball bat (the offence being the possession of the article with intent), Mr Mippy would carry out his threat of violence.

Act or omission - s 32(2)(a)(iii) and s 32(2)(a)(iv)

The 'act' or 'omission' in s 32(2)(a)(iii) and s 32(2)(a)(iv) which the accused did or made under duress must be an element of the charged offence: Lau [118(a)]. In this case the act is the possession of the article (the baseball bat), which is an element of the offence under s 8(1) of the Weapons Act.

'Necessary to prevent the threat from being carried out' - s 32(2)(a)(iii)

The word 'necessary' in s 32(2)(a)(iii) connotes the doing of an act or the making of an omission by the person that is essential (and not merely useful, convenient or expedient) to prevent the threat being carried out: Lau [118(d)]. For the reasons already given I find the actions of the appellant in arming himself in the way he did was necessary to prevent Mr Mippy from carrying out his threat.

Reasonable response to the threat - s 32(2)(b)

The test of what is reasonable is objective. However, it must be determined by reference to the circumstances in which the accused found himself at the relevant time, including what he knew or ought reasonably to have known. The accused's act or omission must be, objectively, a reasonable response by the accused in the circumstances as the accused, subjectively, believes them to be: Marchesano [124]. For the reasons already given I find the actions of the appellant reasonable in all the circumstances.
I would therefore find on the balance of probabilities that the appellant is not guilty of an offence under s 8(1) of the Weapons Act as he was acting under duress.
In this case there is the unusual feature that the actions of the appellant are positively authorised under the Criminal Code yet I have placed reliance on s 32 of the Criminal Code as a defence, to an offence, under s 8 of the Weapons Act. If I am wrong in my interpretation and application of s 32 of the Criminal Code to this case, there is an argument that s 31(1)(a) of the Criminal Code applies to an offence under the Weapons Act.

Section 31(1)(a) Criminal Code

I have already found that the actions of the appellant arming himself with the baseball bat were authorised by law under s 244 and s 255 of the Criminal Code.
Section 31(1)(a) of the Criminal Code provides:
A person is not criminally responsible for an act done, or an omission made, in any of the following circumstances -
(a)In execution of the law
In the case of Mackinlay v Wiley [1971] WAR 3, 10, Virtue SPJ noted that the execution of the law in s 31(1) of the Criminal Code refers to the discharge of a public or statutory duty, not to the performance of a contractual, and still less a moral, obligation.
In the case of Kunakool v Boys (1987) 77 ALR 435, 446 (French J), his Honour said the following in relation to execution and enforcement of laws:
Read according to the ordinary meaning of its words, para (b) protects the 'execution' and 'enforcement' of laws of the Commonwealth. The word 'execution' can be taken to bear the primary meaning given to it in the Shorter Oxford English Dictionary, namely: The action of carrying out or carrying into effect.' Applied to a law, this term will include the conduct of an official discharging a statutory duty.
In my view 'in execution of the law' is not limited to an official discharging a statutory duty, although it does include it. The wording of the section says 'a person' not an official. All that is required is a person carrying out or carrying into effect, 'a law'. The acts of the appellant were authorised under s 244 and s 255 of the Criminal Code. The appellant's authorisation to arm himself with a baseball bat under s 244 and s 255, was him carrying into effect the law under those sections allowing him to do so.
Such an interpretation would not appear to create any injustice. It would resolve the problems identified of being positively authorised under the Criminal Code for possessing the baseball bat yet guilty under the Weapons Act of possession of a weapon. On the facts of this case I would also find on the balance of probabilities that the appellant is not guilty of an offence under s 8(1) of the Weapons Act as he was acting with lawful authority under s 244 and s 255 of the Criminal Code and therefore not criminally responsible for that act pursuant to s 31(1)(a) of the Criminal Code.

Section 445 Criminal Code - Damaging property

In submissions the amicus curiae raised the possibility of the appellant committing the offence of damage by throwing a rock and hitting the car. The evidence of the appellant was that he did throw rocks, but there was no evidence he actually hit a car let alone damaged it even if he did. Accordingly I find on the balance of probabilities he is not guilty of this offence as there is no evidence for this offence.

Summary

In summary I am not satisfied on the evidence before me that the appellant was committing a separate offence when he was injured by the respondent. The provisions of s 39(1) of the CICA do not preclude the appellant from a compensation award in his favour.

Issue 4 - Should compensation be refused or reduced under s 41?

Section 41 of the CICA is in the following terms:
41.Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -
(a)must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and
(b)may, if he or she thinks it is just to do so -
(i)refuse to make a compensation award because of that contribution; or
(ii)reduce the amount that the assessor would otherwise have awarded.
The amicus submits that a question is raised as to whether compensation should be awarded or reduced because the appellant should have called the police during the period of time between the respondent arriving at the house and the appellant emerging from the house. The Assessor in their original decision on 8 October 2021 ([11] above) also took into account if the appellant had not exited the property he would not have been injured.
In dealing with s 41, Gething DCJ in Underwood v Underwood [2018] WADC 13 [139] (Underwood) stated:
Whether or not the respondent's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances: Re Richardson [2009] WADC 93 [81] (Yeats DCJ); Bodney v TheAssessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29] (Groves DCJ). In Richardson Yeats DCJ stated of CICA s 41 [81]:
The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.
I have set out above at [37] the material facts comprising the incident. The appellant was in peaceable possession of the house, Mr Mippy was loud and aggressive, had been outside for over 10 minutes wanting to fight. Mr Mippy started to approach the appellant's uncle when he had returned in his car. It was only at this time the appellant left the safety of the house to confront the respondent and Mr Mippy.
Whilst it can be seen from those facts the appellant may not have been injured if he had stayed inside his house, it is my view the appellant was entitled to act in the way he did to protect both himself, the other occupants of the house and those who had just returned in the car. The appellant could have rung the police earlier however it is also understandable that he did not do so where Mr Mippy and the respondent had made no motion to come onto his property. In these circumstances it is my view that it would be unjust to refuse or reduce the amount of compensation to be paid under s 41 where he was lawfully authorised to protect himself, others and the land he was on.

Issue 5 - Assessment of quantum of compensation

Both the appellant and the amicus in their submissions set out the general principles I need to follow in assessing compensation. In summary they are:
1.The burden is on the appellant to establish on the balance of probabilities that they have suffered the injury claimed, and that the injury was a consequence of the commission of the offence: CICA s 12(3)(a).
2.The maximum amount of compensation is a jurisdictional limit and is not reserved for the worst cases: Underwood [112].
3.The correct approach to adopt in fixing the appropriate amount of compensation is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' and the jurisdictional limit imposed by the CICA: Underwood [113].
4.General damages are ordinarily awarded to compensate for pain and suffering and other non‑pecuniary loss: Savic v Duric [2021] WADC 53 [51].
5.Injury is widely defined by s 3 of the CICA to mean bodily harm, mental and nervous shock, or pregnancy.
6.Loss is defined by s 6 of the CICA and includes expenses that are actually and reasonably incurred by or on behalf of the victim that arise directly from or that arise in obtaining any report from a health professional or counsellor in relation to any injury suffered by the victim.
7.The amount to be awarded is to be assessed solely on the basis of the injury suffered by the applicant. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: Underwood [115].

Medical expenses

Evidence has been produced in the form of invoices for the reports of Dr Williams and Dr Frederick Ng. I am satisfied that fees totalling $4,433 have been incurred in obtaining those reports.

Future medical expenses

The appellant also claims $4,450 for future medical expenses as outlined in the reports of Dr Ng and Dr Williams. I am satisfied that those future fees are reasonable.

Physical injury

Compensation is payable where a person has suffered injury in consequence of a proved offence. From Dr Williams' report dated 1 November 2019 (Appeal Book 225), the doctor noted the appellant was taken to Royal Perth Hospital on 10 January 2017, stayed in overnight but was discharged the next day with the bullet still in the leg. On 13January he returned to the emergency department as there was increased pain and swelling in his right thigh wound and inability to weight-bear and there was limited movement in his right leg. The appellant in their submissions at par 5 set out the physical injuries recorded in the medical records from Royal Perth Hospital as follows:
5.1.1A single gunshot wound to the right medial thigh;
5.1.2The bullet did not exit and was lodged in his right thigh;
5.1.3An x-ray taken shows that the bullet fragments were noted in the posterior mid thigh, with small fragments noted medially and a large 1 cm fragment laterally within the posterior soft tissues;
5.1.4Soft tissue emphysema was noted tracking inferiorly through to femoral supracondylar region;
5.1.5His injuries were cleaned and dressings applied;
5.1.6He was hospitalised for two days and discharged with oral antibiotics and arranged for dressings to be changed every day with assistance from Silver chain; and
5.1.7On 24 October 2017, he underwent surgery at Bentley Hospital for removal of the bullet fragments.
5.2The appellant was reviewed by Dr Desmond Willliams on 20 August 2019 and in his report dated 1 November 2019 Dr Williams noted the following:
5.2.1Muscle wasting of the right thigh and disturbance of the thigh contour;
5.2.2Restriction in movement of his right knee compared with his left knee;
5.2.3Entry wound in the abductor region of the upper inner right thigh and a surgical wound on the posterolateral thigh;
5.2.4The muscle contour disturbance creates a sharp prominence of muscle on the posterolateral aspect of the right knee;
5.2.5The posterolateral thigh wound measures 7cm and the wound in the abductor area has a diameter of 2.5cm x 2.5cm and is the site of the entry wound;
5.2.6The ultrasound report from Perth Radiological Clinic noted scarring at the exit wound area adjacent to the vastus lateralis muscle in the posterolateral thigh;
5.2.7The disturbance clinically of the muscle structures of the posterolateral aspect of the right knee suggests there has been a tear of the muscle with retraction creating a muscle prominence;
5.2.8The muscle damage to the right thigh resulting from the bullet wound to the right thigh interferes with the function of his right knee;
5.2.9The accompanying restrictions in his right knee will limit him with regards to jogging and running. He will also have difficulty in coping with stairs, ladders and irregular grounds;
5.2.10The Appellant be reviewed by a physiotherapist to draw up an exercise schedule to build up thigh muscles for a period of 6 months. He should have access to heated pool and join a group water aerobics class 3 times a week for six months.
5.2.11The limitations in his right lower limb function will restrict his ability to engage in recreational activities and employment;
5.2.12The appellant will have difficulties in coping with heavy construction work. Noting that the appellant's previous work was in labouring area with certificates in site work activities;
The appellant in his affidavit dated 12 December 2022 says he suffers from the following physical disabilities:
I walk with a limp.
Some nights I can't sleep as my right leg will be aching. There is a burning sensation. I have to get up and massage my right leg.
My right leg is weaker than my left leg.
Days when I do a lot of walking, I will experience pain at night.
When I drive, I have to straighten my leg after a while otherwise, the leg will stiffen up.
I am not able to play basketball which I used to play regularly before the incident.
The appellant in his affidavit refers to an attached statement dated 22 December 2022 where he says:
12.I keep getting a sharp pinching pain in my leg. I get daily pain in my leg. I am not taking any medication for it as I don't want to get addicted to any sort of medication.
…
15.The scars on my leg are permanent ...
…
20.Fragments from the bullet are still stuck in my leg and the doctors are not able to take them out. I have to live with not only the pain and trauma but bits and pieces still in my leg.
…
27.I used to ride my motorbike all the time before the incident, but since the incident, I get sharp pains and I am finding it really hard to stand for too long.
28My life has changed after the incident; I am unable to do any exercise as it gets really painful and I am not allowed to lift any weights or carry anything that weighs more than 5kg.
What can be seen from the above is the appellant has suffered an injury to his right thigh which has had a significant impact on his physical functioning, including walking with a limp, permanent scars, loss of full use of right leg, daily pain in the leg, inability to stand for prolonged periods of time and loss of ability to carry weights over 5 kg. I am satisfied the physical injuries suffered are solely as a consequence of the proved offence.

Psychiatric injury

The appellant was seen by Dr Ng on 24 June 2019 and 10 January 2023 for an independent medico legal report. Dr Ng is a consultant psychiatrist. In his original report Dr Ng's clinical assessment of the appellant was as follows (page 10):
Based on the history elicited, the mental status examination, having perused the documentation provided, taking into account the content of this report and from my clinical experience, I form the view that following the subject incident the basis of this claim your client developed either an unspecified trauma related disorder (DSM 5) with reported psychiatric symptoms resembling post-traumatic stress, or in the alternative the differential diagnosis of Post Traumatic Stress Disorder.
As a consequence of this the doctor opined that for the 12 months after the incident:
•the appellant's sense of personal well-being, self esteem and confidence would have been at least moderately to moderately severely impaired;
•the appellant's capacity to engage in general, social and recreational activities would have been at least moderately to moderately severely impaired.
•the appellant's capacity to engage with family and friends would have been at least moderately to moderately severely impaired.
At the time of the report it was opined that the appellant's above symptomology would be moderately impaired for the next 12 months.
In the new report dated 10 January 2023 Dr Ng formed the view that it was appropriate to revise his original opinion to the following:
Given the persistence and problematic nature of the various reported post trauma anxiety symptoms that your client reported to me then in 2019 and now in January 2023, I believe that it is appropriate to upgrade the ongoing psychiatric diagnoses to that of post-traumatic stress disorder (DSM-5-TR), currently to a moderate extent, chronic, persistent and problematic.
As a consequence of his currently reported psychiatric symptoms, your clients current capacity to engage in social interactions are currently at least moderately to moderately severely impaired, and his current capacity to engage in paid employment is currently moderately severely impaired and he is currently totally unfit to engage in any and all work whatsoever.
His ongoing psychiatric symptoms also at least moderately to moderately impairs his current capacity to enjoy his life, and to interact with others socially.
(original emphasis)

In coming to the above opinion the doctor had regard to a further statement of the appellant dated 22 December 2022 containing 34 paragraphs (referred to above in [102] - [103]). Some of the symptoms reported in that statement are:
•Fear of leaving the house is intense.
•Fear of crowds and getting out to public spaces.
•Lives in fear every day and cannot forget about what happened.
•Scared the offenders will show up at the front door.
•Very depressed and reminded of the incident every time looks at the scar.
•Isolates in room most of the time.
•Gets flashbacks and does not like to be in house alone.
•Wakes up some nights with a night terror and puts cloth and cover over head to calm down.
•Feels anxious and palms get cold and sweaty if leaves the house.
•Taken 3 - 4 years after the incident to start looking for a job. Has been for a few interviews but was unsuccessful as lacked confidence. Gets nervous of people around and at interviews.
•Has not overcome fear and is worried offenders will come back and might pull up and kidnap him.
Rather than getting better over time, the appellant's mental state has deteriorated. I am satisfied the psychiatric injuries suffered are solely as a consequence of the proved offence.

Loss of earning capacity

In his original statement of effects (Appeal Book 10) the appellant stated his life before the incident as follows:
7.Before this incident, I was a happy and healthy young man.
8.I was patient and calm.
9.I enjoyed playing sports, riding my dirt bike and being outside. I took pleasure in the simplest of things.
10.I also had confidence and self esteem.
11.I had goals in life.
12.I was trying to get all my certificates through Employment Plus. I was trying to get my warehouse certificate and my forklift driving certificate.
13.I wanted to start an apprenticeship in plumbing.
The appellant in his affidavit dated 12 December 2022 says he was not working at the time of the incident and was on New Start Allowance. In his further statement dated 22 December 2022 he states at pars 33 ‑ 34:
33.I was doing courses and certificates before the incident; I also have a white card. These were courses for landscaping, scaffolding and paving so that I can get a job in the industry. I am really upset by this as my career has now 'stalled'.
34.The drive and motivation to find work are really hard as I lost confidence.
The appellant in his affidavit dated 12 December 2022 deposes at par 12:
12.Now with my social anxiety, I am unable to do any meaningful work.
And in the further statement dated 22 December 2022 at par 24:
24.It took me 3-4 years after the incident to actually start looking for a job. I have been to a few interviews but was unsuccessful as I lack confidence. I get really nervous of people around and at interviews; I just feel I am being confronted although that is not the case.
Dr Williams in his report dated 1 November 2019 at par 8 stated:
… He will be limited with regard to coping with stairs, ladders and irregular ground ...
… I have noted his previous work broadly in the labouring area, with certificates in site work activities and he will have difficulties coping with heavy construction work activities. The question arises whether he should consider vocational assessment and some TAFE re‑training to build up lighter sedentary work capacities.
Dr Ng in his report dated 10 January 2023 stated '… his current capacity to engage in paid employment is currently moderately severely impaired and he is currently totally unfit to engage in any and all work whatsoever'.
There is ample evidence the physical and psychological injury has affected the appellant's capacity to work since the incident (10 January 2017) over six years ago. Loss of earnings and loss of earning capacity are compensable: Re Puterangi [2017] WADC 168 [90] (Davis DCJ). The general principles as to loss of earning capacity were set out in Kittelty v Davies [2011] WADC 1 [228] ‑ [229] (Derrick DCJ):
Loss of earning capacity – general principles
228In Australia a plaintiff is compensated for loss of earning capacity, not loss of earnings. An injured plaintiff recovers not merely because his or her earning capacity has been diminished but because the diminution of his or her earning capacity is or may be productive of financial loss: Graham v Baker (1961) 106 CLR 340, 347; Medlin v State Government Insurance Commission (1995) 182 CLR 1, 3 and 16: Husher v Husher [1999] HCA 47 [7]; (1999) 197 CLR 138, 143. It is necessary to identify both the capacity that has been lost and the economic consequences that will probably follow from the loss: Husher v Husher [7] 143. It is only when this has been done that it becomes possible to assess the sum that should be paid to the plaintiff to put him or her in the same position as he or she would have been in if the injury had not been sustained: Husher v Husher [7] 143.
229In assessing loss of earning capacity and the economic consequences that will probably flow from that loss, the past may provide important evidence: Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649, 658. What a worker earned in the past may provide useful guidance about what would have been earned if the worker had not been injured: Husher v Husher [8] 143. However, the enquiry is an enquiry about the likely course of future events and the evidence of past events does not always provide certain guidance about the future: Husher v Husher [8] 143. There may be many reasons why an injured plaintiff's past history provides little or no assistance in deciding what the plaintiff has lost through diminution of future earning capacity: Husher v Husher [8] 143.
The appellant was 19 at the time of the offence and from the above material I accept he had completed and was actively engaging in studies to enable him to work in the construction sector. But for the injuries there is no reason to think he would not at some stage have been employed. The appellant in their written submissions claim an allowance for loss of earning capacity and refers to a number of what they say are comparable cases. Apart from referring to what are said to be comparable cases there is no evidence before me as to what the appellant's earning capacity would be for his prospective work. The case most comparable is that of MDC v BLR [2015] WADC 107 (Braddock DCJ). That case involved a 19‑year old who was not working at the time of the offence but was seeking and had prospects of work. He was fit and wished to be employed. Her Honour at [85] ‑ [87] said this:
85I would expect that a 20 year old able-bodied man, but for the accident, would have obtained employment of some kind during the period from 20 April 2011 to the current time.
86He was completely unable to do so from the offences date for months by reason of his physical injuries. Subsequently, he has been handicapped by his post-traumatic stress disorder.
87In these circumstances, it is impossible to make a precise assessment of MDC's losses. I consider that a global award should be made to reflect his loss of earning capacity to date and in the next two years, allowing for periods of travel and casual employment. This is somewhat imprecise, but doing the best on a global basis I allow the sum of $50,000, taking into account he has not worked in the last four years, except in brief casual jobs and voluntary roles and requires psychological treatment.
In this case the period of time the appellant has been unable to work is over six years. From my reading of the case of MDC the $50,000 was for an approximate period of time of six years, made up of four years to the date of the award and two years from the date of the award. The appellant's physical deficits are permanent and his psychological deficits show no sign of abating. In my view it is unnecessary for me to consider an exact amount to be allowed for loss of earning capacity as it should be more than the $50,000 in MDC, which together with any award for physical and mental injury will exceed the statutory maximum of $75,000.
Having found that the injuries and loss relied upon by the appellant exist and are solely a consequence of the compensable offence and applying the usual tortious principles I find that any fair and reasonable award to compensate the appellant for pain and suffering, psychiatric injuries and loss of earning capacity caused by the respondent's offence of causing bodily harm to the appellant would exceed $75,000. Accordingly, the court should award compensation to the maximum allowed in the sum of $75,000.
It is not appropriate to make an order against the Chief Executive Officer who has appeared as amicus curiae. There will be no order as to costs.

Orders

1.The appeal is allowed.
2.I award compensation of $75,000 for the injuries and loss sustained by the appellant.
3.Within 21 days the appellant and the Chief Executive Officer are to destroy or delete all of the following documents that are in their possession:
(a)any copies of documents produced to the court by the Director of Public Prosecutions in relation to this appeal; and
(b)any copies of documents which contain materials produced to the court by the Director of Public Prosecutions in relation to this appeal.

4.No order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate to Judge Miocevich
21 DECEMBER 2023