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  • February 17, 2017

Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal

Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal

In Robinson [2017] WADC  18, the District Court of Western Australia, on Appeal, confirmed that the claimant (Mr Robinson) was not entitled to compensation as a result of injuries sustained in an alleged assault.

The person said to be responsible for the alleged assault (DC) was interviewed by the police but was never charged with any criminal offence.  In that regard Mr Robinson alleged that as a result of the alleged assault he was injured and made an application to the Office for Criminal Injuries Compensation under Section 17 of the Criminal Injuries Compensation Act 2003 (WA) (Act).

After perusal of the claim material, the relevant assessor refused Mr Robinson’s application and found that although he had been involved in an incident with DC and suffered injuries, the assessor was not satisfied on a balance of probabilities that the alleged offence occurred and the application was therefore accordingly refused.

As a result of the assessor’s refusal Mr Robinson appealed on the basis that the assessor had erred in concluding that there was sufficient evidence for the perpetrator to raise a defence of self-defence and that there was further sufficient evidence for the assessor to refuse the application.

His Honour Troy  DCJ  indicated that it was necessary for Mr Robinson to establish under the Act to the required degree of satisfaction, namely on a balance of probabilities, that he had been injured as a consequence of the commission of an alleged offence and in so doing it was necessary that he negative the existence of the defence reasonably open to DC, namely that of self-defence.

Unfortunately for Mr Robinson, he gave two mutually inconsistent statements, one in the form of a statutory declaration to the Western Australian Police and the other in the form of details as to how he came to be injured within the body of the application for criminal injuries compensation.

Find out more about criminal injury compensation. 

The Court indicated that if DC satisfies the individual onus in relation to self-defence, then the burden would be on Mr Robinson to negative this defence by excluding at least one of its elements on a balance of probabilities. The Court then methodically analysed each of the elements of the defence of self-defence and came to the conclusion that Mr Robinson failed to exclude all the relevant elements.

The Court stated that an award for compensation cannot be made under Section 17(2) of the Act if the person who committed the act, in this case DC, that constitutes the alleged offence, was, at the time of the act not criminally responsible for it.

If the person who committed the act that constitutes the alleged offence is not criminally responsible for that act, the alleged offence is taken not to have been committed for the purposes of Section 17(4) of the Act.

In the circumstances the Court concluded that the assessor was correct to order that the application of Mr Robinson should be refused on the basis that the assessor was not satisfied that Mr Robinson was the victim of an unlawful assault.

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