X v McAllister
[2021] WASCA 3
•8 JANUARY 2021
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 alia, that the claimant had reported certain sexual conduct by the respondent, including:
[The claimant] told me that [the respondent] had put a stick in and out of her vagina. The stick was thin. She couldn't remember what the stick looked like. I asked her if she ever had blood on her pants and she said that she had blood on her pants on one occasion. This was after [the respondent] had put a stick in and out of her vagina. When I asked her if it hurt with his finger and the stick and his penis, she replied that it hurt a bit.
…
In summary [the claimant] is a 6 year and 8 month old girl who has given a detailed history of numerous incidents of sexual abuse perpetuated by [the respondent].
[1] Annexure RG-5 of Mr Guthrie's affidavit sworn 22 August 2019; BB 123 - 125.
On 19 January 2000, the respondent was charged by complaint made in the Perth Court of Petty Sessions. He was not charged with the alleged offence of sexual penetration with a stick, referred to in [4] above. He was, however, charged with committing the following five offences against the claimant, over a period between 1 December 1998 and 4 January 2000:[2]
1.Four charges of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA) (Code).[3]
2.One charge of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Code.[4]
[2] Notice of referral of legal issue to the Court of Appeal, 'How the issue arose', point 1; WB 2.
[3] Charge Nos 07958, 07960, 07961, 07962.
[4] Charge No 07959.
The Statement of Material Facts alleged the following conduct in respect of each count on the complaint:[5]
Charge 1On an unknown date between 1 December 1998 and 4 January 2000 at the claimant's home in Bassendean, the respondent sexually penetrated the claimant by performing cunnilingus.
Charge 2On an unknown date between 1 March 1999 and 4 January 2000 at the respondent's home in Bicton, the respondent indecently dealt with the claimant by rubbing his penis on the outside of the claimant's vagina.
Charge 3On the same date and at the same place as count 2, the respondent sexually penetrated the claimant by performing cunnilingus.
Charge 4On an unknown date between 1 March 1999 and 4 January 2000 at the respondent's home in Bicton, the respondent sexually penetrated the claimant by instructing the claimant to perform fellatio on him.
Charge 5On an unknown date between 1 March 1999 and 4 January 2000 at the respondent's home in Bicton, the respondent sexually penetrated the claimant by instructing the claimant to perform fellatio on him.
[5] Statement of Material Facts, annexure RG-4(b) of Mr Guthrie's affidavit sworn 22 August 2019; BB 24 ‑ 26.
On 9 May 2000, the respondent was committed to the District Court for trial for the above offences.[6]
[6] Agreed chronology, item 4; WB 46.
On 12 July 2000, the Director of Public Prosecutions signed an indictment alleging that the respondent had committed an offence contrary to s 321A of the Code (as it then was). The indictment charged the respondent with the following single count:[7]
Between 1 December 1998 and 5 January 2000, [the respondent] had a sexual relationship with [the claimant], a child under the age of 16 years.
[7] Annexure RG-4(d) of Mr Guthrie's affidavit sworn 22 August 2019; BB 28.
At this point, it may be noted that the effect of s 321A(1) ‑ (3) was, in broad terms, that:
1.A person who has had a 'sexual relationship' with a child under the age of 16 years is guilty of a crime.
2.For the purposes of s 321A, a person has a 'sexual relationship' with a child under the age of 16 years if the person, on three or more occasions on different days, does an act in relation to the child which would constitute a 'prescribed offence'.
3.A 'prescribed offence' is an offence involving sexual penetration of, or indecent dealing with, a child.
On 15 December 2000, before Charters DCJ in the District Court, the respondent pleaded guilty to the charged offence against s 321A of the Code.[8] Although Charters DCJ did not formally pronounce a judgment of conviction, the plea of guilty was converted into a judgment of conviction when the 'allocutus' in s 654 of the Code[9] was put to him and his counsel did not contend that a conviction should not be entered.[10]
[8] Notice of referral of legal issue to the Court of Appeal, 'How the issue arose', point 4; WB 2; Annexure RG‑4(e) of Mr Guthrie's affidavit sworn 22 August 2019, ts 9; BB 30.
[9] The allocutus asked whether there was any reason why sentence should not be passed. This provision was later repealed by s 24 of the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (WA).
[10] See Tihanyi v The Queen [1999] WASCA 226; (1999) 21 WAR 377 [8] - [9], [25] - [30].
There was a dispute between the Crown and the respondent as to the factual basis for sentencing. A trial of the issues commenced with the claimant's evidence being taken on 15 December 2000. The trial of the issues continued before Viol DCJ (who had access to a video of the claimant's evidence) on 15 January 2001. On 16 February 2001, Viol DCJ sentenced the respondent to a term of 5 years' immediate imprisonment, with eligibility for parole.
In his sentencing remarks, Viol DCJ noted that the respondent had admitted:[11]
1.kissing the claimant's vagina on one occasion;
2.leaving his hand on the claimant's vagina when she put it there on one occasion; and
3.tickling the claimant's vagina on a number of occasions when the claimant asked him to do so.
[11] Annexure RG-4(g) of Mr Guthrie's affidavit sworn 22 August 2019, ts 99 ‑ 100; BB 120 ‑ 121.
Viol DCJ also found that the respondent had:[12]
1.touched the claimant's vagina with his hands;
2.placed the claimant's hands on his penis;
3.licked the claimant's vagina with his mouth and/or tongue;
4.rubbed the claimant's body generally; and
5.placed his penis in and around the claimant's vaginal area.
[12] Annexure RG-4(g) of Mr Guthrie's affidavit sworn 22 August 2019, ts 99 - 100; BB 120 - 121.
It was not in dispute that the conduct admitted to by the respondent ([12] above) and found by Viol DCJ ([13] above) constituted prescribed offences for the purposes of s 321A of the Code.[13]
[13] Intervenor's submissions, pars 36 - 37; WB 19 - 20; appellant's submissions, par 21; WB 41.
The conduct admitted by the respondent, and found by Viol DCJ, did not include either the fellatio the subject of counts 4 and 5 in the complaint in the Court of Petty Sessions, or the alleged sexual penetration with the stick.
Section 320 and s 321A of the Criminal Code (WA)
At the time that the respondent committed the offence against s 321A of the Code, that provision was relevantly in the following terms:
321A.Child under 16: Sexual relationship with
(1)For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
(2)In subsection (1) the act referred to need not be the same act, or constitute the same offence on each of the 3 or more occasions.
(3)A person who has a sexual relationship with a child under the age of 16 years is guilty of a crime and is liable to imprisonment for 20 years.
(4)An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.
(5)In proceedings on an indictment charging an offence under subsection (3) it is not necessary to specify the dates, or in any other way to particulari[s]e the circumstances, of the alleged acts.
(6)An indictment for an offence under this section is to be signed by the Director of Public Prosecutions or the Deputy Director of Public Prosecutions.
…
(9)Upon an indictment charging a person with an offence under subsection (3), if the jury is not satisfied the accused person is guilty of that offence, the accused person may be convicted of one or more prescribed offences if the offence or offences are established by the evidence.
(10)If a person has been tried and convicted or acquitted on an indictment alleging the commission of an offence under subsection (3), that fact is a defence to any charge of an offence under this chapter alleged to have been committed against the same child during the period when it was alleged the sexual relationship with the child occurred.[14]
(11)In this section, 'prescribed offence' means -
(a)an offence under section 320(2) or (4) or 321(2) or (4); or
(b)an offence under s 320(3) or 321(3) where the child in fact engages in sexual behaviour.
(emphasis added)
[14] Section 321A(10) was repealed and replaced in 2008: s 10 of the Criminal Law and Evidence Amendment Act 2008 (WA); Western Australia, Government Gazette, No 64 (24 April 2008) 1559.
Relevantly for present purposes, s 320(2) of the Code provides that a person who sexually penetrates a child under the age of 13 years is guilty of a crime and is liable to imprisonment for 20 years. Section 320(4) of the Code provides that a person who indecently deals with a child under the age of 13 years is guilty of a crime and is liable to imprisonment for 10 years.
Pursuant to s 321A(9) of the Code, if the jury does not find a charge under s 321A proven, the jury is permitted to return verdicts of guilty with respect to one or more of the prescribed offences which are established by the evidence.
The claimant's application for compensation
On 25 November 2015, the claimant filed an application for criminal injuries compensation for the offences of indecently dealing with a child under the age of 13 years and sexually penetrating a child under the age of 13 years.[15]
[15] Annexure RG-2 of Mr Guthrie's affidavit sworn 22 August 2019; BB 12 ‑ 19.
On 13 November 2018, the Assessor amended the application pursuant to a notice of amended application.[16] The application was further amended on 3 May 2019.[17] The further amended application (Compensation Application) sought compensation in respect of the following offences:
1.The offence against s 321A of the Code of which the respondent was indicted and convicted in the District Court (s 321A Offence).
2.The four sexual penetration offences and the indecent dealing offence charged in the complaint against the respondent in the Court of Petty Sessions (Charged s 320 Offences).
3.Sexual penetration of the complainant with a stick on one occasion between 1 December 1998 and 4 January 2000 (Uncharged s 320 Offence).
[16] Annexure RG-6 of Mr Guthrie's affidavit sworn 22 August 2019; BB 126 ‑ 127.
[17] Annexure RG-7 of Mr Guthrie's affidavit sworn 22 August 2019; BB 128.
It is common ground that:
1.the Compensation Application proceeds on the basis that the respondent committed sexual acts against the claimant over a period exceeding one year; and
2.insofar as they may be considered 'offences' under the Compensation Act (this being a matter arising from the questions of law in these proceedings), the offences referred to in the Compensation Application are 'unrelated offences' for the purposes of s 34 of the Compensation Act.[18]
This common ground reflects the approach taken by McKechnie J in Stocker v Loeper to multiple counts of sexual offending against a single complainant, which we see no reason to doubt.[19]
[18] Intervenor's submissions, pars 22 ‑ 23; WB 15; appellant's submissions, pars 1 - 2, 5; WB 38 ‑ 39.
[19] Stocker v Loeper [2001] WASC 176.
The Assessor has conveyed a preliminary view to the effect that the compensation likely to be awarded exceeds the relevant statutory maximum applicable for a single offence of $50,000.[20]
[20] Notice of referral of legal issue to Court of Appeal, 'How the issue arose', point 7; WB 2.
The Compensation Act
A person who suffers injury as a consequence of the commission of a 'proved offence' or an 'alleged offence' is, in prescribed circumstances, entitled to apply to the assessor for compensation under the Compensation Act.[21]
[21] Sections 11(1), 12(1), 13(2), 14(2), 15(2), 16(2) and 17(2) of the Compensation Act.
The provisions setting out the circumstances in which compensation may be claimed apply, in effect, to two categories of persons. The first is the person who suffers injury and loss as a consequence of the proved or alleged offence. The second is a 'close relative' of the person who dies as a consequence of the proved or alleged offence. For present purposes, it is sufficient to focus on the scheme of compensation with respect to the former category - persons who suffer injury and loss as a consequence of the proved or alleged offence.
Offences, proved offences and alleged offences
An offence is defined under the Compensation Act to mean an 'alleged offence' or a 'proved offence'. A 'proved offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted'. An 'alleged offence' is defined to mean 'a crime, misdemeanour or simple offence of which no person has been convicted'.[22]
Application for compensation in respect of proved offences
[22] Section 3 of the Compensation Act.
Section 12 provides for an application for compensation in respect of a 'proved offence'. Section 12 provides, relevantly:
12.Proved offence
(1)A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.
…
(3)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence[.]
Application for compensation in respect of alleged offences
Sections 13 ‑ 17 of the Compensation Act provide for the right of a person to claim compensation for certain categories of alleged offences.
Sections 13 - 15 are not presently applicable. Section 13 allows an application to be made in respect of an 'alleged offence' of which the person charged is found not guilty other than on account of unsoundness of mind. Section 14 allows an application where a person is found not guilty of a 'charged offence' on account of unsoundness of mind. Section 15 allows an application where a person is charged with an alleged offence and is found to be mentally unfit to stand trial for the alleged offence.
Section 16 of the Compensation Act was the subject of debate in this appeal. Its proper construction is examined in [55] ‑ [89] below.
Section 16 provides, relevantly:
16.Alleged offence: charge not determined
(1)This section applies if a person is charged with an alleged offence and -
(a)the charge is withdrawn or a nolle prosequi is entered in respect of it or the prosecution of it is discontinued;
(b)the charge is dismissed without a finding as to whether the person charged is guilty or not guilty of it;
(c)the person is acquitted because the prosecutor does not adduce any evidence on the charge;
(d)the person dies before he or she is found guilty or not guilty of the charge; or
(e)for any other reason, the person is not brought to trial on the charge,
and -
(f)the person charged is not otherwise charged with the alleged offence or tried for it; and
(g)section 15 does not apply.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
…
(5)If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.
Section 17 deals with a circumstance where an alleged offence is committed but no person is charged with the alleged offence.
Section 17 provides, relevantly:
17.Alleged offence: no person charged
(1)This section applies if an alleged offence is committed but no person is charged with the alleged offence.
(2)A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.
…
(4)An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -
(a)if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence[.]
…
(5)If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.
Assessing compensation
Applications for compensation are dealt with in accordance with pt 3 of the Compensation Act. Section 18(1), which is contained within pt 3, provides that an assessor is required to determine applications having regard to the requirements of justice and the Compensation Act.
Part 4 of the Compensation Act addresses matters governing compensation awards. Section 30(1) of the Compensation Act confers on an assessor the power to make an award of compensation that is just for the injury and for any loss also suffered.
Sections 31 ‑ 34 of the Compensation Act impose caps on awards for compensation that may be made under the Compensation Act. The Compensation Act imposes caps in respect of a single offence (s 31), a single offence committed by multiple offenders acting in concert (s 32), multiple related offences (s 33), and multiple unrelated offences committed by one offender (s 34).
Relevantly for present purposes, s 31(1) of the Compensation Act effectively provides that, subject to s 34, the maximum amount that may be awarded under s 30(1) is $50,000 for a single offence committed between 1 July 1991 and the day before the Compensation Act came into operation (31 December 2003).[23]
[23] The Compensation Act commenced operation on 1 January 2004: Western Australia, Government Gazette, No 208 (30 December 2003) 5722.
Section 33(1) of the Compensation Act provides, relevantly, that two or more offences are 'related' to one another if the assessor is satisfied that they (1) were committed at approximately the same time, or (2) are related for any other reason.
Section 34 of the Compensation Act deals with two or more offences by the one offender which are not 'related', and provides:
34.Maximum for multiple unrelated offences by one offender
(1)This section applies to and in respect of a compensation application made on or after 23 September 2003.
(2)If as a consequence of 2 or more offences committed by one person that are not related offences within the meaning of section 33(1), another person -
(a)suffers injury; or
(b)suffers loss as a close relative of a victim who dies as a consequence of one or more of the offences; or
(c)suffers both injury as described in paragraph (a) and loss as described in paragraph (b),
the amounts awarded under section 30(1) and (3) in favour of the person for the injury described in paragraph (a) and any loss also suffered and for the loss described in paragraph (b) must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.
Recovery of compensation from offenders
Part 6 of the Compensation Act is headed 'Recovering compensation from offenders'. In general terms, s 49 provides, in effect, that subject to any order by an assessor to the contrary, the CEO may request the offender to reimburse the State for the whole or part of the compensation award where (1) a compensation award is made in respect of any injury or loss suffered as a consequence of an offence, and (2) a person is convicted of the offence. Section 50 provides, in effect, that an application may also be made by the CEO to the Chief Assessor for a compensation reimbursement order. Section 52 sets out the considerations to which an assessor must have regard in deciding whether to make a compensation reimbursement order. They are (in general terms) the extent to which the offender is responsible for the victim's injury or death, whether the behaviour of the victim precipitated or provoked the offence, whether any behaviour, condition, attitude or disposition of the victim contributed directly or indirectly to the victim's injury or death, the offender's means to satisfy such an order and the extent to which the offender is likely to be able to satisfy any such order within a reasonable time.
Assessor's power to refer questions of law to the Court of Appeal
Section 58 of the Compensation Act empowers the assessor to refer a question of law that 'arises in relation to a compensation application or the interpretation of this Act to the Court of Appeal for determination'.
Referred questions of law
The Assessor has referred the following questions of law for determination by this court, pursuant to s 58 of the Compensation Act:[24]
[24] Notice of referral of legal issue to the Court of Appeal, 'Legal issue referred'; WB 1 ‑ 2.
1.Can each of the three or more acts that could constitute a prescribed offence under s 321A(3) of the Code amount to a (separate) 'proved offence' under s 3 of the Compensation Act?
2.If the answer to question 1 is 'no', where an offender pleads guilty or is found guilty of an offence under s 321A(3) of the Code, does s 321A(10) of the Code preclude a finding (by the Assessor) that:
(a)the offender committed an 'alleged offence' against the same child during the period when it was alleged the sexual relationship with the child occurred under s 16 of the Compensation Act because, by the guilty plea or verdict, the offender was 'tried and convicted' of the s 321A(3) offence?
(b)the offender committed an 'alleged offence' against the same child during the period when it was alleged the sexual relationship with the child occurred under s 17 of the Compensation Act because, by the guilty plea, the offender was 'tried and convicted' of the s 321A(3) offence?
3.If the answer to question 2 is 'no', can each one of the three or more acts that could constitute a prescribed offence under s 321A(3) of the Code amount to:
(a)an alleged offence - charge not determined, under s 16 of the Compensation Act?
(b)an alleged offence - no person charged, under s 17 of the Compensation Act?
3.1In answering question three, does the definition of 'alleged offence' under s 3 of the Compensation Act require an analysis of the act or omission of the accused person to be considered, rather than any particular offence which such act or omission may constitute?
On 18 December 2019, the Attorney‑General (Intervenor) was granted leave to intervene in the proceedings.[25] The Intervenor and counsel for the claimant made submissions. There was no appearance by the respondent. The court acknowledges the assistance of both counsel's submissions.
[25] Order of Murphy JA dated 18 December 2019; WB 5.
Abstract nature of the referred questions
Statutory powers to refer questions of law to a court for determination are generally not construed so as to authorise courts to provide general advisory opinions on hypothetical or abstract questions.[26] The imperative for answers to be given by reference to facts which are clearly identified, and often established or agreed, was emphasised by the High Court in Bass, where it was observed:[27]
Courts have traditionally declined to state - let alone answer - preliminary questions when the answers will neither determine the rights of the parties nor necessarily lead to the final determination of their rights. The efficient administration of the business of courts is incompatible with answering hypothetical questions which frequently require considerable time and cause considerable expense to the parties, expense which may eventually be seen to be unnecessarily incurred.
[26] Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566 [12]; Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 [47]; R v Garlick [2006] VSCA 127 [30]; Director of Public Prosecutions (Cth) v JM [2013] HCA 30; (2013) 250 CLR 135 [40] - [41].
[27] Bass [49].
In the present case, the questions referred by the Assessor do arise out of the Compensation Application. They concern a controversy as to whether the claimant was entitled to apply for compensation for the offences identified in the Compensation Application, which will have a direct impact on the compensation cap which applies to the assessment of the compensation payable to the claimant. The facts which give rise to the dispute have been identified and are not in dispute.
However, the referred questions are posed in inappropriately abstract terms. For example, question 1 asks whether the three or more acts that could constitute a prescribed offence under s 321A(3) of the Code amount to a 'proved offence' under s 3 of the Compensation Act. That question is not directed to a particular offence or offences. Further, answering the question in its terms would not resolve any controversy as to the rights, duties or liabilities of the parties. The question asks whether a prescribed offence 'could constitute' a proved offence, rather than whether a prescribed offence does constitute a proved offence.
In our view, it is not appropriate for this court to answer the referred questions of law in the terms in which they have been asked. Rather, the questions should be answered only insofar as they relate to the particular offences which are identified in the Compensation Application.
Question 1: proved offences
There is no dispute that the s 321A Offence, of which the respondent was convicted, is a 'proved offence' for the purposes of s 12 of the Compensation Act.
The legal issue raised by referred question 1 is whether, on the proper construction of the Compensation Act:
1.the 'sexual relationship' offence, contrary to s 321A(3) of the Code, of which the respondent was indicted and convicted in the District Court was a singular 'proved offence' for the purposes of s 12 of the Compensation Act; or
2.whether each of the acts involving a prescribed offence, within the meaning of s 321A(1) of the Code, constituting in effect the 'sexual relationship', was itself a 'proved offence' for the purposes of s 12 of the Compensation Act.
In our view, the first of these constructions is plainly correct. The respondent was only convicted of one offence contrary to s 321A of the Code. Section 321A in its terms creates a single separate offence, albeit one defined by reference to acts which would each constitute a prescribed offence.[28]
[28] See, in a similar statutory context, Chiro v The Queen [2017] HCA 37; (2017) 260 CLR 425 [44].
Section 321A(9) of the Code provided for the only circumstances in which an accused person could be convicted of a prescribed offence on a charge of an offence under s 321A of the Code. Those circumstances could only arise where the accused person pleaded not guilty to the charge and the jury was not satisfied that the accused person was guilty of an offence against s 321A(3) of the Code. Neither event occurred in the present case. No judgment of conviction was entered against the respondent for any prescribed offence against s 320 of the Code.
In the present case, the s 321A Offence, of which the respondent was convicted, is a 'proved offence' which may be the subject of an application for compensation under s 12 of the Compensation Act. The other offences identified in the Compensation Application - being the Charged s 320 Offences or the Uncharged s 320 Offence - are not proved offences as the respondent was never convicted of them.
Given the above conclusion, nothing turns on whether Viol DCJ found the alleged conduct which constituted the Charged s 320 Offences to be acts which constituted the respondent's 'sexual relationship' with the claimant for the purposes of s 321A of the Code.
Question 2: effect of s 321A(10) of the Code
The Charged s 320 Offences and the Uncharged s 320 Offence are all prescribed offences allegedly committed in the period in which the indictment alleged that the respondent's 'sexual relationship' with the claimant occurred. Accordingly, if the respondent were now to be charged with the Charged s 320 Offences or the Uncharged s 320 Offence, he would have a defence to the new charge available to him under s 321A(10) of the Code. The issue raised by referred question 2 is whether s 321A(10) precludes a finding that the claimant is entitled to apply for compensation in respect of the Charged s 320 Offences under s 16 of the Compensation Act, and in respect of the Uncharged s 320 Offence under s 17 of the Compensation Act.
It is convenient to begin by considering the interaction of s 321A of the Code and s 16 of the Compensation Act in relation to the Charged s 320 Offences.
Structure of s 16 of the Compensation Act
Section 16(1) read (relevantly) with s 16(2)[29] of the Compensation Act sets up the circumstances in which a person who suffers injury as a consequence of the 'commission of the alleged offence' 'may apply' for compensation. Sections 16(1) and (2) ground, in effect, the entitlement to apply for compensation under s 16 of the Compensation Act.
[29] It is unnecessary to refer to s 16(3) of the Compensation Act which deals with compensation to relatives in a similar vein.
Section 16(4) of the Compensation Act conditions the power to make a compensation award in respect of a compensation application. By s 16(4), an assessor must not make a compensation award in respect of such a compensation application unless, relevantly, the assessor is satisfied that the claimed injury and claimed loss has occurred as a consequence of the 'commission of the alleged offence', ie, the alleged offence which is the subject of the application and to which s 16(1) applies.
Section 16(5) of the Compensation Act then operates as a brake on the payment of compensation. It does so by providing that, in a specified circumstance, the alleged offence 'is to be taken not to have been committed' for the purpose of s 16(4). The specified circumstance, contained in s 16(5), is where the assessor is satisfied that 'the person who committed the act or made the omission that constitutes the alleged offence' was, at the relevant time, 'not criminally responsible for it' (unless the person was not criminally responsible by reason of s 27 of the Code, which effectively provides for an insanity defence).
Accordingly, s 16 is concerned with providing for compensation, in respect of the 'alleged offence' the subject of s 16(1), where criminality is involved. That is consistent with the scheme of the Compensation Act as a whole, including the reference to 'victims of offences' in the long title to the Act. That is subject to a qualification, beneficial to an applicant for compensation, that criminality is not an integer in the entitlement to compensation where the person who was charged with or committed the alleged offence was, in effect, insane at the time of the commission of the alleged offence.
'alleged offence'
The above structure is inconsistent with the existence of a defence under s 321A(10) of the Code to a charge of an offence against s 320 of the Code meaning that no 'offence' or 'alleged offence' was committed. Section 16(5), and cognate provisions in other sections of the Compensation Act,[30] indicate that the fact that a person may not, for some reason, be criminally responsible for an offence, does not mean that no 'offence' or 'alleged offence' has been committed for the purposes of the Compensation Act. Rather, for example, an offence is 'taken not to have been committed' for the purposes of s 16(4) if the person who committed the act that constitutes the alleged offence shows that they were not, at the time of the act, criminally responsible for it.
[30] Section 13(5), s 15(5) and s 17(5) of the Compensation Act.
In the present case, s 321A(10) of the Code could not lead to a conclusion, under s 16(5), that the Charged s 320 Offences were taken not to have been committed for the purposes of s 16(4) of the Compensation Act. That is because s 16(5) looks to the criminal responsibility of the respondent at the time that the acts constituting the Charged s 320 Offences were committed. Section 321A(10) provided a defence to the Charged s 320 Offences only once the respondent was convicted of the s 321A Offence on 15 December 2000. Section 321A(10) does not affect the respondent's criminal responsibility for acts constituting those offences at the time that those acts were allegedly committed, being various unknown dates prior to 4 January 2000.
The Charged s 320 Offences are each crimes against s 320 of the Code. Section 321A(10) of the Code does not affect the respondent's criminal responsibility, at the time of the relevant acts, for the acts constituting those crimes. No person has been convicted of those crimes. Therefore, each of the Charged s 320 Offences is an 'alleged offence' and an 'offence' for the purposes of the Compensation Act. As noted at [90] below, a similar analysis applies in relation to the application of s 17 of the Compensation Act to the Uncharged s 320 Offence.
For these reasons, question 2 should be answered in the negative, in the manner set out at [94] below.
Question 3: application of s 16 and s 17 of the Compensation Act
Before turning to the critical terms of s 16 and s 17, we will refer to the directly relevant provisions for the charging and trial of indictable offences in 2000.
Provisions for charging and trying a person for an indictable offence
Under s 42 of the Justices Act 1902 (WA), proceedings before justices of the peace (constituting a Court of Petty Sessions) were generally commenced by a complaint. As the Charged s 320 Offences could not be dealt with summarily, the justices were required to adjourn the complaint for the prosecution to file and serve certain material, including a statement of material facts.[31] It appears that, in the present case, the respondent did not plead guilty, elected not to have a preliminary hearing, and was committed to the District Court for trial on the Charged s 320 Offences under s 101C(b)(iii) of the Justices Act.[32]
[31] Section 100 of the Justices Act.
[32] See the notations on the complaint: BB 21.
Under s 578 of the Code:
When a person charged with an indictable offence has been committed for trial, and it is intended to put him on his trial for the offence, the charge is to be reduced to writing in a document which is called an indictment.
The respondent was never indicted for the Charged s 320 Offences. Rather, the Director of Public Prosecutions presented an ex officio indictment under s 579 of the Code, charging the respondent with the s 321A Offence.
Section 594 of the Code made the following provision in relation to the effect of the indictment:[33]
Except as hereinafter stated, upon an indictment charging a person with an offence he may be convicted of any indictable ... offence under this Code … which is established by the evidence, and which is an element or would be involved in the commission of the offence charged in the indictment.
[33] The subsequent provisions of the Code provided for various alternative verdicts, none of which are presently relevant.
Under s 608 of the Code, the respondent could have applied to be brought to his trial on the Charged s 320 Offences and, if not brought to trial at the second sittings after his committal for trial, would have been entitled to be discharged in relation to the charges of those offences. There is no evidence that this ever occurred.
Section 612 of the Code provided:
At the time appointed for the trial of an accused person he is to be informed in open court of the offence with which he is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he is guilty or not guilty of the charge.
The trial is deemed to begin when he is so called upon.
As Kennedy J explained in R v Diaz,[34] the Code provided that a person's trial was deemed to begin when he or she was called on to plead to the indictment (s 612). An accused was required to plead to an indictment before he or she could be either acquitted or convicted and sentenced, so that the commencement of the accused's 'trial' was a necessary precursor to either event. Kennedy J held:[35]
By virtue of the provisions of s 612 of the Code, as soon as the accused is called upon to plead to the indictment the trial is deemed to have begun. That being so, in my opinion, the accused will then have been 'brought to his trial' within the meaning of the third paragraph of s 608. … Once the trial has begun, the court is empowered, pursuant to s 610, and whether a jury has or has not been sworn, to adjourn that trial. Whether an adjournment should be granted in any particular case is a matter for the discretion of the court, to be exercised in accordance with the normal principles. If the court should not be satisfied that the circumstances justify an adjournment, it can require the Crown either to proceed with the trial or to inform the court that it will not proceed further.
[34] R v Diaz [1982] WAR 60.
[35] Diaz (63).
Section 616 of the Code provided for the available pleas to an indictment, including in s 616(1), being that the accused may plead:
That he is guilty of the offence charged in the indictment, or, with the consent of the Crown, of any other offence of which he might be convicted upon the indictment[.]
In the present case, the respondent's trial on the indictment charging the s 321A Offence began when he was called to plead to the indictment on 15 December 2000. The respondent pleaded guilty to the s 321A Offence charged in the indictment, and did not seek to plead guilty to any other offence.
Elements to be established before s 16 applies
We then turn to consider the application of s 16(1) of the Compensation Act in relation to the Charged s 320 Offences in the above statutory and factual context. As noted, the Charged s 320 Offences are each 'alleged offences' for the purposes of s 16 of the Compensation Act. It is clear that s 15 of the Compensation Act (dealing with a situation where a person is mentally unfit to stand trial) does not apply. In that context, there are three cumulative elements which must be established before s 16(1) will apply in relation to the Charged s 320 Offences:
1.The respondent must have been charged with the Charged s 320 Offences;
2.At least one of the requirements of s 16(1)(a) - (e) must be satisfied; and
3.The respondent must not have been 'otherwise charged with the [Charged s 320 Offences] or tried for [them]', within the meaning of s 16(1)(f) of the Compensation Act.
The respondent was charged with the Charged s 320 Offences
The respondent was charged with the Charged s 320 Offences when the complaint alleging those offences was made under s 41 of the Justices Act. The first element referred to at [73] above is satisfied.
The requirements in s 16(1)(a) and s 16(1)(e) were satisfied
The requirements of both s 16(1)(a) and s 16(1)(e) of the Compensation Act were satisfied in the present case. The prosecution of the charges for the Charged s 320 Offences was discontinued when the Director of Public Prosecutions elected not to present an indictment charging the respondent with those offences after he had been committed to the District Court for trial on those offences. Further, as he was never called upon, under s 612 of the Code, to plead to an indictment charging him with the Charged s 320 Offences, the respondent was never 'brought to trial' on those charges. Therefore, the second element referred to at [73] above is satisfied in either or both of these ways.
Meaning of the phrase 'otherwise charged with the alleged offence'
In s 16(1)(f) of the Compensation Act, the phrase 'the person is not otherwise charged with the alleged offence' refers, in its context, to the person who has been charged with the alleged offence with the results referred to in s 16(1)(a) ‑ (d), or with the result in s 16(1)(e), not being separately or subsequently ('otherwise') charged with that alleged offence.
Both in 2000 and at present, the relevant statutes distinguish between the offences charged in an indictment and alternative offences of which an offender may be convicted on an indictment. Further, conviction of an available alternative offence is not automatically open. An accused person may only plead guilty to an alternative offence with the consent of the Crown or prosecutor.[36] If the accused pleads not guilty then, in cases other than homicide, whether a judge leaves an alternative verdict is a matter for the discretion of the trial judge, depending on the particular circumstances of the case.[37] In this context a person cannot be said to have been 'charged' with an offence, for the purposes of s 16 of the Compensation Act, simply because the offence is a statutory alternative verdict on an indictment charging the person with some other offence.
When a person is 'tried for' the alleged offence
[36] As to the current position, see s 126(1)(f) of the Criminal Procedure Act 2004 (WA).
[37] JAW v The State of Western Australia [2013] WASCA 261 [35]; James v The Queen [2014] HCA 6; (2014) 253 CLR 475; De-Abreu v The State of Western Australia [2020] WASCA 145 [96]; Pezzano v The State of Western Australia [2020] WASCA 181 [118].
Section 16(1)(f) of the Compensation Act refers to a person being 'tried for' an alleged offence. That is in contrast to s 16(1)(e), which refers to a person being 'brought to trial on the charge' of an alleged offence. The language used in par (e) is apt to refer to the beginning of a process, while the language used in par (f) is apt to refer to a process which has been completed.
Whether a person has been 'tried for' an offence, like the question of when a trial begins, must be answered in, and by reference to, the statutory context in which the question arises.[38]
[38] Re Section 46L of the Criminal Appeals Act 2004 (WA); Ex parte Commissioner of Police [2020] WASCA 210 [105].
Section 16(1)(a) - (e) of the Compensation Act identifies the ways, other than those referred to in s 15, in which the prosecution of a charge may conclude other than by the entry of a judgment of conviction or a judgment of acquittal after the determination of whether or not the accused is guilty of the charged offence. The focus of s 16, read as a whole and in the context of the Compensation Act as a whole, is upon the circumstance where the process of the criminal law begins with a charge but does not reach the point where there is a verdict of guilty or not guilty for the alleged offence with which the person has been charged, in circumstances other than those provided for in s 15.
In that context, as counsel for the claimant submitted, the concept of being 'tried for' an offence in s 16(1)(f) involves a process which concludes either in:
1.a judgment of conviction of the offence, where s 12 of the Compensation Act will apply in relation to the proved offence; or
2.a judgment of acquittal of the offence, where s 14 of the Compensation Act will apply if the person is found not guilty on account of unsoundness of mind and s 13 will apply otherwise.
If a person who has neither been convicted nor acquitted of an offence could be said to have been 'tried for' that offence, the result would be a lacuna in the operation of the Compensation Act which Parliament could not have objectively intended. Together, s 13 ‑ s 17 of the Compensation Act cover all alleged offences (ie, all cases where no person is convicted of the offence). The structure of the Compensation Act counts strongly against the reference to a person being 'tried for' an offence encompassing a situation where the person has neither been convicted nor acquitted of that offence.
Senior counsel for the Intervenor postulated an example where a person is charged in the Court of Petty Sessions with (1) assault occasioning bodily harm (s 317 of the Code), and (2) unlawfully doing grievous bodily harm (s 297 of the Code), both offences evidently arising from a single act committed against a single victim. The person is only indicted for an offence against s 297 of the Code but, ultimately, the prosecution accepts a plea of guilty of an offence against s 317 of the Code.[39]
[39] The Code makes provision for the conviction of a person with an alternative offence other than the one charged in specified circumstances: see, eg, s 10A and s 10B of the Code. Section 126(1)(f) of the Criminal Procedure Act provides:
126. Pleas available to charges
(1) If under this Act an accused may or must plead to a charge, the accused may -
…
(f)plead guilty to the charge or, with the prosecutor's consent, to some other offence of which the accused might be convicted instead of the charge.
Senior counsel for the Intervenor submitted that, with respect to the example postulated, the effect of s 16(1)(f) is that:[40]
You can't go back and say, 'Well there's a conviction for assault occasioning bodily harm, but there is an unresolved charge for assault occasioning grievous bodily harm and I am entitled to compensation for both of them'. The end result … is that if you are looking essentially at the conduct that constitutes the alleged offence, if it starts off as one charge and ultimately ends up as another charge then it's still part of the same continuum. It's not a separate matter.
[40] Appeal ts 12.
We agree that the Compensation Act would not allow double compensation to be claimed in the postulated example, although we reach that conclusion by a different pathway from that suggested by the Intervenor. In the postulated example, a single act constitutes more than one offence, only one of which is prosecuted to conviction. The offence against s 317 of the Code would be a 'proved offence' for which compensation could be claimed under s 12 of the Compensation Act. The assessor would make an award of compensation for injury and loss resulting from that offence. Assuming the offence against s 297 of the Code to be an alleged offence for which compensation could also be claimed, the compensation would be assessed by reference to the same injury or loss resulting from the act constituting both offences. Subject to the statutory cap, the award of compensation that the assessor 'is satisfied is just for the injury and for any loss suffered' under s 30(1) of the Compensation Act will not be materially different (unless additional injury or loss results from the s 297 offence). The two offences would be related offences, so the applicable 'cap' under s 33 of the Compensation Act would not increase.
The respondent was not 'otherwise charged with' or 'tried for' the Charged s 320 Offences
Therefore, in the present case, the respondent was only ever charged with the Charged s 320 Offences on a single occasion, when the complaint referred to at [5] above was made. He was not 'otherwise charged' with the Charged s 320 Offences, for the purposes of s 16(1)(f), when the Director of Public Prosecutions presented an indictment charging him with the s 321A Offence. That is so even though s 321A(9) would have enabled a jury to have convicted the respondent of the Charged s 320 Offences if:
(a)he had pleaded not guilty to the s 321A Offence;
(b)the jury was not satisfied that he was guilty of the s 321A Offence;
(c)the Charged s 320 Offences were established by the evidence; and
(d)the trial judge had exercised his or her discretion to leave the Charged s 320 Offences as alternative verdicts for the jury.
Further, the respondent has not been 'tried' for the Charged s 320 Offences, for the purposes of s 16(1)(f) of the Compensation Act, in circumstances where:
1.the events referred to in (a), (b) and (d) of [86] above (which would have resulted in a verdict of guilty or not guilty and a consequent judgment of conviction or acquittal on the Charged s 320 Offences) have not occurred; and
2.the respondent did not, with the Crown's consent, plead guilty to the Charged s 320 Offences under s 616(1) of the Code.
As the respondent was not 'otherwise charged' with or 'tried for' any of the Charged s 320 Offences within the meaning of s 16(1)(f) of the Compensation Act, the third element referred to at [73] above is satisfied.
Section 16 applies to the Charged s 320 Offences
Thus, the requirements of s 16(1) being satisfied, s 16 of the Compensation Act applies to allow the claimant to claim compensation for injury or loss suffered as a consequence of the Charged s 320 Offences. Section s 321A(10) of the Code does not preclude the Assessor from being satisfied that the claimed injury and loss occurred as a consequence of the commission of those alleged offences.
Application of s 17 to the Uncharged s 320 Offence
A similar analysis applies in relation to the application of s 17 of the Compensation Act to the Uncharged s 320 Offence. The Uncharged s 320 Offence is an alleged offence, as it is a crime of which no person has been convicted. No person has been charged with the Uncharged s 320 Offence, as the charging of the respondent with the s 321A Offence did not constitute charging him with the Uncharged s 320 Offence. Having regard to s 17(5) of the Compensation Act (in materially the same terms as s 16(5) of that Act), s 321A(10) of the Code does not preclude the Assessor from being satisfied, under s 17(4)(a), that the claimed injury and loss occurred as a consequence of the commission of that alleged offence.
Conclusion as to the application of s 16 and s 17 of the Compensation Act
It follows from the above analysis that s 16 of the Compensation Act applies to the Charged s 320 Offences, each of which can be an alleged offence for the purposes of that section. Section 17 of the Compensation Act applies to the Uncharged s 320 Offence, which can be an alleged offence for the purposes of that section.
Whether the claimant suffered 'loss and damage' as a consequence of these alleged offences will be a matter for the Assessor to determine, having regard to s 16(4)(a) and s 17(4)(a) in relation to the Charged s 320 Offences and the Uncharged s 320 Offence respectively.
It follows from the above answers that, if the Assessor is satisfied that the claimant suffered injury and loss as a consequence of the commission of one or more of the Charged and Uncharged s 320 Offences, as well as suffering injury or loss as a consequence of the commission of the s 321A Offence, the maximum amount of compensation that can be awarded under s 34 of the Compensation Act will be $100,000.[41]
[41] See s 31 of the Compensation Act.
Answers to referred questions of law
For the following reasons, the referred questions should be answered as follows:
Question 1The Charged s 320 Offences and the Uncharged s 320 Offence are not proved offences within the meaning of the Compensation Act, as no person has been convicted of any of those offences.
Question 1 is otherwise inappropriate to answer.
Question 2(a) Section s 321A(10) of the Code does not preclude the Assessor from finding that:
(a)the respondent committed alleged offences against the claimant constituted by the Charged s 320 Offences; or
(b)the claimant's claimed injury and loss occurred as a consequence of alleged offences constituted by the Charged s 320 Offences,
for the purposes of s 16 of the Compensation Act.
Question 2(a) is otherwise inappropriate to answer.
Question 2(b) Section s 321A(10) of the Code does not preclude the Assessor from finding that:
(a)the respondent committed an alleged offence against the claimant constituted by the Uncharged s 320 Offence; or
(b)the claimant's claimed injury and loss occurred as a consequence of an alleged offence constituted by the Uncharged s 320 Offence,
for the purposes of s 17 of the Compensation Act.
Question 2(b) is otherwise inappropriate to answer.
Question 3Section 16 of the Compensation Act applies to allow the claimant to claim compensation for injury or loss suffered as a consequence of alleged offences constituted by the Charged s 320 Offences.
Section 17 of the Compensation Act applies to allow the claimant to claim compensation for injury or loss suffered as a consequence of an alleged offence constituted by the Uncharged s 320 Offence.
Question 3 is otherwise inappropriate to answer.
Question 3.1 Question 3.1 is inappropriate to answer.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell8 JANUARY 2021
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