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X v McAllister

X v McAllister

Case [2021] WASCA 3 8 January 2021

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   X -v- MCALLISTER [2021] WASCA 3
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   12 OCTOBER 2020
DELIVERED          :   8 JANUARY 2021
FILE NO/S:   CACV 152 of 2019
BETWEEN:   X
Appellant
AND
NORMAN ROBERT MCALLISTER
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor
ASSESSOR OF CRIMINAL INJURIES COMPENSATION
Referring Person

Catchwords:

Criminal injuries compensation - Statutory construction - Referral of several legal questions to the Court of Appeal pursuant to s 58 of the Criminal Injuries Compensation Act 2003 (WA) - Questions arising out of a compensation application by the claimant in respect of proven and alleged sexual offences committed by the respondent against the claimant

Legislation:

Criminal Code (WA), s 320, s 321A
Criminal Injuries Compensation Act 2003 (WA), s 3, s 5, s 12, s 16, s 17, s 30, s 31, s 34

Result:

Referred questions answered

Category: A

Representation:

Counsel:

Appellant	:	L B Black
Respondent	:	No appearance
Intervenor	:	C J Thatcher SC
Referring Person	:	No appearance

Solicitors:

Appellant	:	Percy Kakulas Gleeson
Respondent	:	No appearance
Intervenor	:	State Solicitor's Office
Referring Person	:	No appearance

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

Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334
Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425
De-Abreu v The State of Western Australia [2020] WASCA 145
Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566
DPP (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135
James v The Queen [2014] HCA 6; (2014) 253 CLR 475
JAW v The State of Western Australia [2013] WASCA 261
Pezzano v The State of Western Australia [2020] WASCA 181
R v Diaz [1982] WAR 60
R v Garlick [2006] VSCA 127
Re Section 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210
Stocker v Loeper [2001] WASC 176
Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377

JUDGMENT OF THE COURT:

Introduction

This matter concerns the referral of several legal questions from the Assessor of Criminal Injuries Compensation (Assessor) to the Court of Appeal. The referral is made pursuant to s 58 of the Criminal Injuries Compensation Act 2003 (WA) (Compensation Act).
The questions arise out of an application by the appellant (claimant) for criminal injuries compensation, in respect of proven and alleged offences committed by the respondent against the claimant.
The determination of the referred questions will affect the quantum of the statutory cap applicable to any compensation award that the Assessor may make in favour of the claimant under s 30 of the Compensation Act.

Background

On 18 January 2000, Dr Bredemeyer of the Child Sexual Abuse Unit of Princess Margaret Hospital interviewed the then 6 year old claimant and provided a report to the police.[1] Dr Bredemeyer stated, inter…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading X v McAllister

Details

AGLC: X v McAllister [2021] WASCA 3
Case: [2021] WASCA 3
Decision Date: 8 JANUARY 2021

CaseChat Overview and Summary

The matter before the court involved a compensation application by the claimant, X, against the respondent, McAllister, in respect of both proven and alleged sexual offences. The case was heard in the Supreme Court of Western Australia. The claimant sought compensation under the Criminal Injuries Compensation Act 2003 (WA). The court was tasked with interpreting the statutory provisions and determining the appropriate compensation for the claimant based on the established facts.

The primary legal issue was the interpretation of the statutory provisions of the Criminal Injuries Compensation Act 2003 (WA) concerning the compensation for proven and alleged sexual offences. The court had to determine whether the statutory framework allowed for compensation for alleged offences in addition to proven ones, and if so, what criteria should be applied to assess such claims. The court also needed to consider the scope and extent of the referral mechanism under section 58 of the Act, which permitted the referral of legal questions to the Court of Appeal.

The court carefully examined the statutory language and legislative intent behind the Criminal Injuries Compensation Act 2003 (WA). It found that the statutory provisions did not explicitly exclude compensation for alleged offences but also did not provide clear guidance on how to proceed with such claims. The court concluded that the referral mechanism under section 58 was intended to ensure clarity and consistency in statutory interpretation and to provide definitive answers on complex legal questions. Accordingly, the court referred several questions to the Court of Appeal for determination. The court did not make a final decision on the compensation claim itself but outlined the legal framework within which such a decision would be made.

Orders