Criminal Injuries

A victim of any criminal action, or a close relative of a deceased victim of a criminal act has a right to seek compensation in terms of the Criminal Injuries Compensation Act 2003 (WA) (Act).

Find out everything you need to know at our Criminal Injuries page here. 

Second bite at the cherry for historical domestic violence abuse 900 577 aelegal

Second bite at the cherry for historical domestic violence abuse

NARRIER [2021] WACIC 6

This case was a Criminal Injuries Compensation (CIC) claim brought by the victim who was the victim of multiple historic domestic violence offences committed by the offender.

The best way to approach this case is to understand the powers and limitations on time and compensation provided for in the Criminal Injuries Compensation Act 2003 (Act). The relevant powers and limitations are stated in the sections below:

S 9: A compensation application must be made within 3 years after the date on which the offence to which it relates was committed; or if it relates to more than one offence, the last of them was committed. However, an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so.

s 12: A person who suffers injury because of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.

s 17: If an alleged offence is committed but no person is charged with the alleged offence, then the person who suffers injury because of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.

s 31: The maximum amount that may be awarded for a single offence is limited in the manner as specified below:

  1. 22 January 1971 to 17 October 1976 (indictable offence: $2 000  – simple offence: $300)
  2. 18 October 1976 to 31 December 1982 $7 500
  3. 1 January 1983 to 31 December 1985 $15 000
  4. 1 January 1986 to 30 June 1991 $20 000
  5. 1 July 1991 to 31 December 2003 $50 000
  6. 1 Jan 2004 onwards $75,000

s34:  If two or more offences are committed by one person that are not related offences, and another person suffers injury the amounts awarded must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed.

s 38: An assessor must not make a compensation award in favour of a victim if the assessor is of the opinion that the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence.

This case involved 17 incidents which occurred over a long period commencing in 1992 and ending in 2002.

The application was filed on 8 February 2017. This was approximately 14 years after the last offence was committed on 20 December 2002. The assessor had initially rejected this claim as she was not satisfied it was just for her to extend the time pursuant to section 9(2). The application had been brought approximately 11 years out of time.

This refusal went on appeal and the District Court of Western Australia and the court was of the view that the reasons advanced for the delay were sufficient to grant the victim leave to obtain compensation. The matter was then referred back to the CIC assessor for quantification. This case was that assessment of quantum.

The assessor found that the offences involved serious and serial abuse of the victim by the offender which often resulted in the offender being treated in hospital.

Of these 17 incidents only 4 were proved offences as contemplated in s12 of the Act and the balance were alleged offences as contemplated in s17 of the Act. The reasons generally advanced for not pressing charges against the offender, and these were accepted by the assessor, were that the victim feared further abuse. The assessor decided that the offender was thus not excluded from compensation by s38.

Pursuant to sections 31 and 34 of the Act, maximum that could be awarded to the applicant was $100,000. This is because the offences occurred between 1 July 1991 to 31 December 2003 and the maximum that could be awarded for a single offence is $50 000 (s31). The maximum amount that can be awarded if two or more offences are committed by one person must not in aggregate exceed twice the maximum amount that may be awarded for the last one of the offences to be committed (s34).

The assessor considered the available evidence including the victim’s psychological injuries as detailed in the psychiatrist, Dr Ng’s report, and her numerous physical injuries. She assessed the victim’s injuries in the sum of $67,500 based on the individual circumstances of each incident and the overarching psychological trauma. She also awarded the victim $1,617 for the cost of the reports and $2.50 for transport which totals $69,119.50.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Reintroducing evidence after a plea of guilty 900 577 aelegal

Reintroducing evidence after a plea of guilty

Izzo [2001] WACIC 4

Background

The victim applied for compensation in respect incidents that occurred on three different dates:

  1. Offence that occurred on 6 January 2018
  2. Offence that occurred on 7 January 2018
  3. Alleged offence which   occurred   on   6 December   2017 (incidents)

The victim and the offender had known each other for a period of about 8 years and had been involved in a sexual relationship.

The victim had terminated the relationship, but the offender had repeatedly contacted and communicated with the victim by way of telephone calls, social media, and text messaging. He threatened to harm and injure the victim, her family, and friends if she did not continue the relationship. The offender refused to accept that the relationship had been terminated.

On 6 January 2018, the offender met with the victim in Ellenbrook, and he told her that he had a gun. He opened the boot of his car and showed her what she believed to be the handle of a rifle.

On the 7th of January 2018, the offender drove to the victim’s home and had in his possession a folding pocketknife. He knocked repeatedly on the rear garage, front door, and window shutters she refused to let him inside telling him she was scared. The offender, in anger, punched the window security shutters near the front door causing them to be dented. He threatened to jump the rear fence and force his way into the house.

Police were called and arrested the offender and found the pocketknife nearby.

The offender pled guilty to:

  1. threats to endanger or harm any person and pursues another to intimidate;
  2. stalking in a manner reasonably expected to intimidate and does intimidate;
  3. threats to injure, endanger or harm any person; and
  4. being in possession of an article with intent to cause fear that someone will be injured or disabled

The above was contained in, and the offender pled guilty to, a Statement of Material Facts (SMF). This is a prosecution document that is issued to an accused at the time of being charged with an offence.

On 6 December 2017, the offender came to the home of the victim whilst drunk. He then threatened to kill the victim, a third party and then turn the gun on himself. He refused to leave the home of the victim and told her that he would organise for her to be tortured by having 20 men rape and then kill her.

Order

The victim was compensated by way of the following orders:

  1. $47,420 made up of damages as follows:
  • $20,000 for psychological injuries;
  • $20,000 to loss of earning capacity;
  • $5,000.00 to future treatment; and
  • $2,740 to medical reports.
  1. The sum of $47,420 was apportioned as follows:
  • $31,614 to the proved offences
  • $15,806 to the alleged offences
  1. pursuant to section 45(1)(b) of the Act limited recovery from the offender to the sum of $30,000 under Part 6 of the Act.

It was presumably order 3 that caused the offender to request reasons from the Assessor.

Discussion

The important aspect of the case was that the offender had made submissions to the Assessor following a notice issued by the Assessor pursuant to section 19 of the Act, advising him of the applicant’s application in relation to the proved offences and inviting submissions.

The offender provided submissions that included his version of the incidents. These were predictably exculpatory, and the question was whether the Assessor could take notice of these.

The short answer was “no” because they went beyond the facts contained in the SMF to which the offender pled guilty. The Assessor stated that she was bound by Underwood v Underwood [2018] WADC 13 [53 to 63] and held that “Where the facts set out in the SMF and the offender’s submissions differed, I must accept the facts as pleaded in the SMF. Accordingly, despite the detail provided in the offender’s submissions, I placed no weight on the offender’s version of events as contained in those submissions.”

The Underwood decision has complexities of its own and draws upon the decision of Bennett v The State of Western Australia [2012] WASCA 70. Both cases dealt exclusively with the issue of whether the offender can introduce evidence beyond the material facts to which the offender pled guilty. Neither was a case in which the victim sought to introduce such evidence. Strangely, the Court in the Underwood matter then went into this latter issue and said that as a matter of procedural fairness the victim could not go beyond the material facts to which the offender pled guilty. This is a somewhat unusual position to adopt since the victim is not party to such a guilty plea. It is a fundamental rule of procedural fairness that both parties be heard.

However, the Court in the Underwood case enunciated seven principles guiding the admission of evidence beyond those contained in the guilty plea. These can be summarised as follows:

  1. the offender cannot re-litigate the facts which led to the proved offence
  2. a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence
  3. a plea of guilty necessarily means that all relevant defences have been conceded as not applying
  4. a claimant for criminal injuries compensation cannot re‑litigate the facts which led to the proved offence
  5. where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the only reliable guide to that issue will usually be the facts admitted for the purposes of sentence
  6. a plea of guilty does not constitute an admission of all the facts stated in the State’s witness statements, or otherwise contained in the brief (nor visa versa)
  7. both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To stay or not to stay – the Court answers a historically sexually abused plaintiff 900 577 aelegal

To stay or not to stay – the Court answers a historically sexually abused plaintiff

UGLE -v- MASTERS [2021] WADC 8

This was a historic child sexual abuse action against the defendant. The plaintiff alleged that he had been declared a neglected child, taken from his parents, committed to the care of the Child Welfare Department, and housed at a Mission (Mission) between 1960 and 1966. The defendant was the assistant superintendent in charge of the Mission at the relevant time. The Plaintiff alleged that while he stayed at the mission, he was in the care of the defendant between 1960 to 1964, and that the defendant indecently dealt with him on two separate occasions.

The defendant applied for the setting aside of the writ of summons and a permanent stay of the main action, based on the fact that the alleged offending occurred 56 years ago, being a significant delay.

The Court stated that it is a fundamental principle that a plaintiff is entitled to have his or her action tried in the ordinary course of the procedure and business of the court. However, the court may stay such an action if there are exceptional circumstances that make it in the interests of the administration of justice to do so. The burden of proving these exceptional circumstances rests on the defendant and that there are no closed set of cases which bind the court. However, one set of cases where the court will generally grant a stay of proceedings is where the proceedings or there continuance would be vexatious or oppressive and, another set of cases is when the continuation of the matter would bring the administration of justice into disrepute amongst right-thinking people. Oppressiveness will be found where the effect of the proceedings is seriously and unfairly burdensome, prejudicial, or damaging. Courts will generally be more inclined to grant a stay in criminal than in civil matters.

The court then considered the impact of the 56-year delay in bringing the application and outlined the obvious difficulties involved such as the loss of evidence and fading of memories. The court then noted the removal by the legislature of any limitation period for the bringing of historic child sexual abuse actions by introducing s6A (5) of the Limitation Act 2005. The court held that the public interest factors that underpin the removal of the limitation period by the legislature are of such a compelling nature that the removal of the limitation period was intentionally made retrospective by Parliament. The court also noted the compelling interests of claimants in having the opportunity to present their allegations in court by providing both therapeutic benefits and a sense of closure.

The court stated the most important factor was that the Defendant received a fair trial. A fair trial however was not a perfect trial and the court held that a trial is fair if the defendant has the ability to give instructions, to decide what defense will be relied on and to make the defendant’s version of facts known to the court and his counsel.

The court considered several earlier decisions dealing with stays of action and concluded that he medical evidence that was provided showed that the defendant had suffered from a stroke and cognitive impairment. Furthermore, that attending a court hearing may potentially precipitate a life-threatening stroke and that any significant stressor, for example, having   to   face   a   court   hearing, would carry a significant chance of causing another stroke. The court held that none of the evidence suggested that the defendant would not be able to provide proper instructions to his legal representatives and that his frailties could be accommodated in a non-threatening manner.

The application for a stay was thus refused and the mater continues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Stiletto attack 900 577 aelegal

Stiletto attack

ROBERTS [2021] WACIC 3

On a September evening in 2017, festivities commenced at the Harness Horse of the Year Awards at a Perth hotel. After the awards were concluded the party moved to a local Casino and restaurant. During the evening, much alcohol appears to have been consumed by some of the persons present and, as is not infrequently the case, physical violence followed.

The applicant and her boyfriend had an argument. She later tried to talk to him and presumably continue their discussion when the offender, for reasons that are unclear, took it upon herself to physically stop the applicant from reaching her boyfriend. A scuffle of some sort broke out between the two women when the offender phoned another friend reporting to him that the applicant had assaulted her. This information appears to have been incorrect and as the friend hurried over to the offender they became involved in some form of physical fight.

The offender and the applicant then left the scene of this fight and moved out of sight of the others. The offender then ran up to the applicant and struck her with a stiletto shoe to the right side of the applicant’s forehead. The applicant stumbled and fell to the ground (offence).

The applicant was taken by ambulance to Royal Perth Hospital where hospital records indicated that she sustained a 3cm laceration which required sutures.

A charge of assault was laid by the applicant against the offender who was later charged with Unlawful Wounding pursuant to the Criminal Code Act Compilation Act 1913. The matter was heard at trial in the Magistrates Court. The offender proffered self-defence as a defence to the charges, but the magistrate rejected her version, and was convicted.

The applicant then filed a criminal injuries compensation claim pursuant to s12 of the Criminal Injuries Compensation Act 2003 (ACT). S12 provides that a person who suffers injury because of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.

The applicant described how she has been psychologically injured by the assault. She indicated that she feared going out for fear of being attacked by the offender again. She stated that she had become hypervigilant and could not relax and enjoy herself. She further explained that she had been left with a scar on her forehead. This made her feel self-conscious and feared being judged by others. Consequently, she felt that she needed to cover the scar with make-up and stated that she wanted to have surgery to reduce the appearance of the scar. In support of her claim, she filed a report from an Aesthetic and Reconstructive Plastic Surgeon.

The assessor stated that s30 of the Act sets out the general powers of an assessor, which includes the power to award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered. She also stated that the ordinary tortious principles for assessment of damages are generally employed in assessing the amount of compensation under the Act.

The assessor held that S41 is a two-step process. First, to determine whether the applicant contributed to her injuries, and if so, second, to determine if it is just to reduce or refuse the award. This contribution requires a causal nexus between the applicant’s conduct and the injuries sustained. It was held that the causal nexus was absent and therefore s41 did not avail the offender.

The assessor made an award to the applicant of an amount of $27,033.25.

Something fishy about this claim! 900 577 aelegal

Something fishy about this claim!

Parke [2021] WADC 1

In this case the applicant alleged that he had been assaulted and suffered mental and nervous shock and physical injuries. He sought compensation pursuant to the Criminal Injuries Compensation Act 2003 (Act).

The case was unusual in that there was oral evidence led before the assessor of several witnesses including the applicant, his son in law and policemen.

The applicant stated to the police that he had travelled from Geraldton to Perth to collect some fish for his daughter’s boyfriend. He was driving his wife’s vehicle and arrived in Midland at around 4.00 pm. He then stopped in Midland to go to the bathroom. He could not recall where in Midland he stopped, nor did he know if he went to a public toilet or used bushland. He stated that when he returned to the car, he saw that the window was smashed and that he was then approached by three men whose identity was unknown to him. Two of the men hit him and he fought back. One of the men then struck him to the head and face several times with a metal device. He was robbed of his wallet and phone during the incident.

He then drove to the Swan Districts Hospital where a CT scan revealed complex and comminuted fractures through the nasal bones, nasal septum extending into maxilla on the left side.

After hearing evidence, the assessor concluded that the applicant had suffered injuries but that they were not sustained in the manner alleged by him. Rather she concluded as follows:

  1. The applicant was not alone, as he had alleged in his report to the police, when the incident occurred, but was with his son-in- law.
  2. That he had travelled to Midland and there became involved in a dispute with three men, and that they did assault him.
  3. The applicant’s injuries were accurately recorded in the CT scan performed at Swan Districts Hospital.
  4. That he reported the incident to Joondalup Police Station, but only reported the various items taken from him but did not lay a formal charge of assault.
  5. The applicant later reported the assault to Geraldton Police, but that the reason for doing so was so he could claim criminal injuries compensation. This was on the advice of his counsellor.
  6. Police intelligence showed that the applicant travelled to Perth approximately every 10 days in a blue Mazda Hatch to pick up drugs and returned to Geraldton where the drugs were then sold. This business commenced prior to the assault.
  7. That during the incident his son-in-law was involved in a drug transaction.
  8. Whilst there was a strong suspicion that the applicant was transporting drugs on the day, there was insufficient evidence to be satisfied that the applicant was committing an offence under the Misuse of Drugs Act 1981, in relation to the supply or purchase of drugs.
  9. There was a similar strong suspicion that the applicant was aware of, or potentially involved in, his son-in-law’s attempt to purchase drugs, and therefore committing an offence under the Misuse of Drugs Act 1981 in relation to the supply or purchase of drugs. However, there was insufficient evidence to be satisfied the applicant was committing an offence.

This case raised three important legal points:

  1. The applicant’s application was lodged pursuant to s17 of the Act which provides for compensation to be awarded for an alleged offence committed against a victim where no person is charged. The assessor held that she was unable to make an award of compensation for an alleged offence unless she is satisfied that the claimed loss and injury occurred, and that it did so because of an alleged offence. She found the applicant to be a very poor witness and she was unpersuaded that an alleged offence was committed pursuant to the Act. Therefore, no compensation was payable.
  2. S38 of the Act provides that an assessor must not make a compensation award in favour of a victim if the assessor is of the opinion that the victim did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence. The assessor found that the applicant did not assist in the identification, apprehension, or prosecution of the offenders on at least three occasions. These were (1) when he failed to report the assault to the police on 2 April 2015 when at the hospital; (2) when he failed to report the assault to police on 4 April 2015 when he reported the theft of his wallet and phone; and (3) when he failed to advise the police that Mr Scott was with him when the incident occurred. Therefore, no compensation was payable.
  1. S39 of the Act provides that if an assessor is satisfied that a person was injured because of the commission of an offence but 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. There was insufficient evidence that the applicant was committing offences in relation to the supply or purchase of drugs as contemplated in the Misuse of Drugs Act 1981, and therefore this ground did exclude the applicant from receiving compensation. For the reasons set out in 1 and 2 above the applicant was excluded from receiving compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Double trouble: offender fails on appeal twice 900 577 aelegal

Double trouble: offender fails on appeal twice

John Charles Couper v Yvonne Mary Alexander [2020] WADC 56

This case was an appeal from the decision of an assessor of criminal injuries compensation.

Ms Alexander (Alexander) was the victim of two offences and was awarded the sum of $25,627.55 for injuries and losses suffered. Both offences were committed by her husband at the time, Mr Couper (Couper). The award was made on 12 March 2019 and the written reasons for the judgement were provided on 17 May 2019.

The first offence was committed on 14 January 2013 (the first offence) for which she was awarded $12,500 and the second offence which was committed on 14 February 2012 (the second offence) for which she was awarded $13,127.25.

The First Offence

On 14 January 2013 at about 6.10 pm Couper arrived home late from work. Alexander questioned him about his whereabouts. Couper attempted to avoid the confrontation by going out twice that night. Eventually, when he went to bed Alexander joined him and again began questioning him.  This resulted in the accused leaving the bedroom to try and sleep in the spare room. Alexander then followed Couper into the spare bedroom. Couper then struck Alexander in her face with his left palm.  Alexander started to walk backwards through a sliding door and fell to the floor. Couper then kicked Alexander three time in the buttocks, leaving noticeable bruising. Couper then packed his bags and left his home.

Couper was subsequently charged with the offence of aggravated assault in the Magistrates’ Court on 10 September 2013. He pleaded guilty to the charges.

Alexander brought her application pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (Act), which authorises an assessor to award compensation if satisfied that the injury occurred because of a proved offence. Section 3 of the Act defines a proved offence as one of which a person has been convicted.

This application was dated 3 October 2016 and the offence committed on 14 January 2013. S 9 of the Act provides that an application for compensation is to be made within three years after the date the offence, or in the case of more than one, the date of the last offence. The assessor and the court have a discretion to extend time if ‘it is just to do so’.

The application should have been filed by 14 January 2016.

The Second Offence

On 14 February 2012 at around 7:30 pm Couper and Alexander were at their home in Greenwood when they became involved in an argument. They moved their argument to the shed outside the house. Couper opened the shed door and struck Ms Alexander to the face with his hand. The blow knocked her off balance and she fell onto a stack of house bricks.

Alexander reported the incident to the police approximately eight days later. Couper was not convicted of this offence.

This second incident came to light because of the investigatory efforts of the assessor. When the assessor discovered this second (but earlier incident) the assessor corresponded with the solicitors for Alexander and invited them to file this second application.

The second application was brought pursuant to s 17 of the Act. This section authorises the assessor to award compensation if satisfied that the claimed injury and any claimed loss occurred because of the commission of an alleged offence where no person has been convicted.

The application for this offence should have been filed by 15 February 2015 but was only filed on 25 July 2017.

Extension of time

Pursuant to s 9 of the Act, an application for compensation is required to be made within three years after the date the offence but the assessor and the court have a discretion to extend time if ‘it is just to do so’. The court and the assessor accepted the following reasons as sufficient to grant the extension of time: Alexander had been suffering from anxiety, depression and post-traumatic stress disorder and had received extensive treatment. She had consulted her solicitors in August 2015. She was then advised of the three-year limitation period and time was spent gathering the evidence.

The appeal

Couper filed a notice of appeal on 2 April 2019 listing the following grounds:

  1. The assessor has awarded damages to the applicant for an unspecified alleged incident which supposedly occurred on 14 February 2012 of which he was unaware. (Second Offence)
  2. The assessor has not taken into consideration the evidence which he had provided on 24 April 2018 in determining the award of damages. (First Offence)

Both grounds of appeal failed.

First ground of appeal

The court found that Couper had no standing to file an appeal because s 55 of the Act provides that only an “interested person” may appeal to the District Court against an assessor’s decision. An interested persons includes (a) the applicant [to a compensation application]; or (b) a person who an assessor thinks may become liable under Part 6 to pay an amount to the State; or (c) the CEO.

Pursuant to Part 6, s 49 of the Act only a person who has been convicted of an offence is potentially liable to pay to the State a lump sum. Therefore, in relation to this offence he was not an interested person and therefore had no standing to appeal.

Second ground of appeal

Couper attempted to introduce evidence that Alexander had contributed to her own injuries and misfortunes by confronting and provoking him during the arguments. Pursuant to s 41(a) of the Act behaviour such as provocation, where a victim acts wrongfully so as to deprive an offender of self-control and induce the offender to commit an offence against the victim in the heat of the moment may be considered by the assessor and the court. However, the court held these factors could not be considered in this case because Couper had pleaded guilty to the offence of aggravated assault. The facts were put before the magistrate, and not disputed by his counsel, and further, his counsel had submitted that Couper took full responsibility for his actions.

Unfortunate chase leads to compensation 900 577 aelegal

Unfortunate chase leads to compensation

CHASE -v- FRANCIS [2020] WADC 34

The applicants were Mr and Mrs Chase who claimed compensation because of the death of their 15-year-old son (deceased). Their claim was pursuant to s35 of the Criminal Injuries Compensation Act 2003 (Act) for mental and nervous shock. S35(2) only permits parents, close relatives, and partners to claim for mental and nervous shock if the victim of the crime dies. However, from a policy perspective the Act does not permit compensation if the victim himself was committing a crime at the time of his injury or death. This is pursuant to s35(3) and s39 of the Act (bar to compensation).

In this case the deceased was riding a motorcycle, and the respondent, Jude Francis, was pursuing the deceased, in his car, believing him to be a thief who had stolen his motorcycle. He wanted to stop the respondent and retrieve his motorcycle. The respondent was mistaken since the motorcycle was not his although it was a similar model.

The respondent was driving a Mercedes Benz motorcar when he saw the respondent riding the motorcycle. He gave chase and the deceased, not knowing why he was being chased then tried to escape. The pursuit escalated and ended when the deceased, fearing for his safety, raced into an intersection, and collided with the side of a Mitsubishi SUV. He sustained critical injuries and was taken to the Royal Perth Hospital where he later succumbed to them a day later.

The conduct of the respondent throughout was reprehensible and callous. He pursued the deceased at speed and, after he saw the collision, stopped, and checked the identifying stickers on the motorcycle. Satisfied that the motorcycle was not his he then left the scene of the collision. He left the deceased without any medical attention, nor did he later report the accident. The respondent did not have a valid driver’s licence because his had been suspended for nine months. It had been suspended because he had previously been found to be driving with a suspended driver’s licence.

The respondent was then convicted of three criminal offences namely:

  1. Causing death by threat pursuant to s272 of the Criminal Code Act Compilation Act 1913; and
  2. failing to stop and ensure assistance where the driver is involved in an incident occasioning bodily harm pursuant to s54 of the Road Traffic Act 1974; and
  3. failing to report a collision pursuant to s56(1) of the Road Traffic Act 1974.

However, the applicants were not awarded any compensation because the assessor was of the view that when the deceased was injured, he was committing separate offences, namely:

(a) riding his motorcycle when he was unable to be licensed, in contravention of s 49 of the Road Traffic Act 1974 (WA); and

(b) riding an unlicensed motorcycle in contravention of s4 of the Road Traffic (Vehicles) Act 2012 (WA).

It was this refusal that led to the appeal. The court held that there were three issues that it needed to resolve:

  1. Was the Deceased acting under duress or because of an emergency when he committed the Separate Offences?
  2. Did the death occur when the Deceased was committing one or more of the Separate Offences for the purposes of s 39(2) of the Act?
  3. Was the outcome of the second issue different for the application of s35(3) of the Act?

Issue 1.

The court held that although the victim had initially been committing offences, once he started to race away from the respondent, he was no longer committing an offence but was acting under duress. Therefore, the bar to compensation did not apply.

Issue 2.

This raised the interesting question whether there must be a causal connection between the offence committed by the victim and the injury, or whether there need only be a temporal link for the bar to apply. The court did not decide the issue but appeared to favour the approach in the case of Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29.

The court stated that s39(1) only requires that there be a temporal connection between the offending behaviour of the claimant, and the suffering of the injuries caused by the separate criminal offence for the bar to apply. There need not be a causal connection.

The court also noted that a temporal connection did not mean that the bar to compensation would only arise if the crime and the injury occurred at the same instant. In this case the effluxion of time between the time the chase started, and the fatal collision was short. But the court held that because the chase changed the legal nature of the deceased’s conduct (he was now acting under duress) and the temporal link was broken. Therefore, the bar did not apply.

As an aside, the court stated that for the bar to apply it is not necessary for the death to occur at the same time as the victim’s offence. It is sufficient that the injury, which causes the death, was linked in time to the offence committed by the victim for the bar to apply.

Issue 3.

The court held that the likely correct interpretation of s35(3)(b) of the Act is that in the case of the death of the victim the bar to compensation only applies to a claim by an injured person, not a claim by a close relative where a person has died.

The court therefore ordered that the victims receive compensation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

The consequences of being convicted of an offence for Criminal Injury Compensation claims 900 577 aelegal

The consequences of being convicted of an offence for Criminal Injury Compensation claims

The consequences of being convicted of an offence for Criminal Injury Compensation claims

AA -v- ARW [2020] WADC 131

In September 2015 the offender was convicted of one count of carnal knowledge of a girl under the age of 13 years, two counts of attempted carnal knowledge of a girl under the age of 13 years and four counts of indecent dealing with a child under the age of 14 years (Offences). These convictions were unsuccessfully taken on appeal by the offender.

These offences involved the child sexual abuse of a stepdaughter by her stepfather between 1975 and 1982. In November 2017, the victim filed an application for criminal injuries compensation.

Compensation was claimed pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (CICA) on the basis that they were ‘proven offences’ for the purposes of the CICA application.

One of the interesting aspects of this judgment was the issue of times limits in child sexual offences matters.

Pursuant to s9 of CICA the time limit for making a compensation application is 3 years after the date on which the offence to which the application relates was committed, or if it relates to more than one offence, the last of them was committed. However, an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.

These offences had been committed some 40 years prior to the application. The court referred to the matter of KBR where Gillan DCJ identified the following non-exhaustive list of factors which might be relevant to the exercise of the court’s discretion:

(a) the history and background to the proposed application; and

(b) the length of the delay; and

(c) the reasons for the delay; and

(d) the nature of the proposed application; and

(e) the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent; and

(f) the prospects of the compensation application succeeding; and

(g) whether injustice will be suffered if an extension of time is refused.

The court held that in this matter that because of the  relationship of authority between the victim and the offender, her role in the prosecution of the offender, her personal circumstances, the significant psychological impact that the abuse had had on her, and the recent conclusion of the criminal appeals it was appropriate to permit the late filing of the application.

It should be noted that in Western Australia if a series of sexual offences are committed by the same person but at different times they are deemed not to be ‘related’ for the purposes of a CICA application.

The maximum amount that a victim may be awarded varies depending on the date that the offence was committed. The relevant dates are as follows:

22 January 1971 – 17 October 1976 $2,000
18 October 1976 – 31 December 1982 $7,500
1 January 1983 – 31 December 1985 $15,000
1 January 1986 – 30 June 1991 $20,000
1 July 1991 – 31 December 2003 $50,000
1 January 2004 – present $75,000

The offences were committed between 1976 and 1982 and were deemed to be unrelated. Pursuant to s34 of CICA the maximum that may be awarded for multiple unrelated offences by one offender is twice the maximum. The victim was found to be entitled to the maximum compensation for each offence because of the severity of the acts. The total of her compensation was therefore $7,500 per offence subject to a maximum of $15,000. This award was made in February of 2020.

Part of the assessor’s order was that the offender was obliged, pursuant to CICA s 45(1)(b), to pay the sum of $14,000 to the State of Western Australia.

The offender then, in an effort to avoid this obligation, appealed against the decision of the assessor on the basis that the case against him was fabricated and that he had been wrongly convicted of an offence that he did not commit.

Therefore, the question before the court was whether the offender could have a new or fresh hearing, to prove his innocence, in the CICA forum. In other words, was the assessor able to look behind the curtain of the conviction or was the assessor bound by the decision of the criminal court. The court held that upon a proper construction of the Act this was not possible. The only avenue open to the offender was to challenge the decision of the assessor to grant permission to file the application after the three-year limitation period and/or to challenge the amount of the award. In CICA matters an appeal is a hearing de novo and for the reasons stated above the court found that the assessor’s decision was reasonable and did not interfere with it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

An issue of trust – can the District court dissolve an existing trust 900 577 aelegal

An issue of trust – can the District court dissolve an existing trust

LEVI JAKE SAUNDERS by his Next Friend CLAIRE MARIE MATTHEWS -v- TURNER [2020] WADC 133

The plaintiff was injured in a car accident in 2008 when he was 9 years old. His injuries were severe and included an acquired brain injury. In 2014 the District Court approved the compromise of the plaintiff’s claim in the amount of $7,000,000 plus trustees’ fees in the sum of $1,268,813 and costs to be taxed if not agreed.

The Judgment placed the judgment sum in a trust (Court Trust) the trustee of which was a private trust company (Trust Company).

In order to maximise the tax efficiency of the trust it was necessary for the Trust Company to apply to the State Administrative Tribunal (SAT) of Western Australia pursuant to the provisions of the Guardianship and Administration Act 1990 to be appointed as an administrator of the plaintiff’s estate. This enabled them to place the funds in a superannuation fund. A Guardian was also later appointed to the plaintiff.

Following a breakdown in the relationship between the Trust Company and the plaintiff’s mother there were a number of applications brought to SAT but the position of the Trust Company as the limited (and amended) administrator of the plaintiff’s estate in relation to his superannuation investment remained until 9 April 2019. SAT then set the administration order aside because there was no evidence to rebut the presumption of the plaintiff’s capacity. The guardianship order had been revoked at an earlier date.

The $7,000,000 was still in the superannuation fund but not under the supervision of a SAT administrator, nor under the supervision of the District Court as part of the Trust Fund.

Nonetheless, the plaintiff applied to court to set the Trust Fund aside. The question which arose was whether the District court has the jurisdiction to set aside a trust which it had created and if so, what factors should it consider.

The court stated that it had the power create a trust of monies recovered by a person under a disability pursuant to O 70 r 12 Rules of the Supreme Court 1971 (WA) but there is no corresponding express power to terminate the trust. The question thus arose whether there was an implied power to terminate the trust. The court looked at several decisions that had considered the matter but found a relevant old case where it was the held that:

If such an action had been brought in the Supreme Court, this Court would have all the powers conferred by s 16 and s 23 to make provision for the representation and protection of the interests of infants and disabled persons. Indeed, that is the purpose which authorises the rules contained in O 70, including the provisions obliging a disabled person to sue by a guardian ad litem, requiring prior approval of any compromise of a disabled person’s claim before it will be binding, and then stipulating for the control of moneys recovered by payment to a trustee appointed by, and subject to the direction of the court. This jurisdiction and these powers are, therefore, all ancillary to a claim directly within the civil jurisdiction of the District Court and no issue can possibly arise that, not being ancillary to the principal claim, they are outside the scope of that court’s equity jurisdiction such as led to the decision in Commercial Developments Pty Ltd (t/as Don Rogers Motors Pty Ltd) v Mercantile Mutual Insurance (Workers Compensation) Ltd (1991) 5 WAR 208.”

It is debatable whether that decision was binding on the District Court since that matter was heard in the Supreme Court and its remarks about the District Court were in passing.

The court went on to find that the findings of SAT regarding the plaintiff’s disability were not relevant to an application to terminate the trust. The court again relied upon the old case and found that it was obliged to decide the controversy in accordance with equitable principles to do justice in a particular case. The court then heard evidence from the plaintiff himself and from experts and concluded that the court should exercise its power to terminate the Court Trust.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

A Case of a Worker Betting on the Wrong Horse 900 577 aelegal

A Case of a Worker Betting on the Wrong Horse

KREMER -v- SANDFIRE RESOURCES NL [2020] WADC 130

On 2 November 2015, the Defendant company, Sandfire Resources, hosted a Melbourne Cup event at their DeGrussa copper and gold mine some 900km North East of Perth. As part of this event, the employees were encouraged to engage in various team activities. The final such activity was a relay race in which the participants were required to run around a cricket field with a wooden ‘hobby-horse’ between their legs. The Plaintiff, Mr Kremer, was a participant in this race and alleged that as he and another co-worker were rounding a left-hand turn, the co-worker tripped him from behind, causing him to fall on his outstretched arm and suffer injury.

It was alleged by the Plaintiff that the Defendant was negligent for its failure to provide adequate supervision of the attendees, failure to provide adequate supervision of the race, and failure to conduct any or any adequate risk assessment. The Plaintiff further alleged that the Defendant was vicariously liable for the negligent actions of the co-worker who tripped him.

The operative issue before the court was whether the co-worker intentionally or otherwise tripped the Plaintiff, or if he merely fell over his own feet or his wooden hobby-horse. The court was presented with many various accounts of the incident from multiple witnesses, each with varying degrees of accuracy and credibility. The judge, Troy DJC, was required to make a determination of the facts in the face of conflicting evidence. The principle the judge needed to consider was whether the evidence in favour of the Plaintiff went beyond reasonable speculation and guesses, and whether he was actually persuaded as to the probability of a fact being true.

He said “The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. No court should act upon mere suspicion, surmise or guesswork in any case.” In personal injury cases, the ultimate burden of proof rests with the Plaintiff to prove that the injury suffered occurred as a result of the Defendant’s conduct.

With this in mind, the judge concluded that the evidence before him was not strong enough to persuade him that the Plaintiff had been tripped. Multiple witnesses said that he was not tripped, the Plaintiff never made any assertions to friends that he was tripped, and he merely recorded that he had ‘fallen’ on his workers’ compensation claim form.

In the absence of being tripped, the Judge found that the Plaintiff did not have a case against the Defendant, saying that the Defendant had done everything that could be expected of a company organising such an event. No amount of training or supervision would have prevented the injury from occurring.

Furthermore, the judge found that even if the co-worker had tripped the Plaintiff, the Defendant would not have been vicariously liable for the actions of the co-worker. This is because the act of tripping the Plaintiff during the event was entirely unconnected to the co-worker’s employment.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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