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. 

After Dark Stroll Turns Deadly 960 577 aelegal

After Dark Stroll Turns Deadly

ROWE -v- ROSE [2018] WADC 38

At approximately 10.00 pm on 20 May 2013, the Defendant drove her motor vehicle from her home and turned into Preston Point Road, Bicton, driving in an easterly direction. Her motor vehicle struck Mr Prime on the roadway as he was walking his dog. There were no eyewitnesses.

Mr Prime died one week after he was struck by the Defendant’s motor vehicle.

It is alleged that Mr Prime’s death was caused by the negligent driving of the Defendant. The defence denies that any negligence on the part of the defendant caused his death and alleges that Mr Prime’s own negligence contributed to his death as he should have been keeping a proper lookout.

At the time of the motor vehicle accident, Mr Prime was wearing dark clothing, including a hoodie. He had consumed two or three Corona beers that evening. He more probably than not had another beer in his hand at the time. Subsequent tests indicated he had an ethanol reading of 0.12% and a blood alcohol content of 0.1%.

The Defendant was the only witness able to give any evidence of the motor vehicle accident. In cross-examination, she maintained that her car’s bonnet would have blocked her view up the road. She disagreed with the proposition that the roadway was level or very close to level.

After multiple expert analyses were tendered in evidence, the Court concluded that “It is reasonable, in all the circumstances, and in the absence of other evidence or explanation….that the defendant’s failure to perceive and detect Mr Prime as a pedestrian sooner than she did and to take steps to avoid her motor vehicle crashing into him, caused or materially contributed to that crash and his death”.

As the sole provider and carer for Mr Prime’s two children, Mr Prime’s partner and the children were awarded compensation pursuant to the Fatal Injuries Act.

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.

Applicant’s Award Lowered on Appeal 960 577 aelegal

Applicant’s Award Lowered on Appeal

(Underwood v Underwood [2018] WADC 13)

On the 1st of December 2015, an argument took place at a residence in Safety Bay, during which the appellant slapped the respondent across the face once with an open palm and also kicked her left leg once. The respondent sustained bruising and swelling to the left side of her face and bruising to her left leg. An ambulance attended the scene and conveyed her to the Rockingham Hospital. In the same incident, the appellant kicked a third party in the testicles for which she was charged with a common assault. The appellant pleaded guilty to the assault and was sentenced on 2 March 2016.

The respondent lodged a Criminal Injuries Compensation claim and the Criminal Injuries Compensation Assessor awarded the respondent $16,221 for her injuries, to which, the appellant appealed and contended that the determination was manifestly excessive.

During the appeal the Court had to determine 6 key points, namely:

  • to what extent is an applicant for criminal injuries compensation permitted to adduce evidence going beyond the facts on which the offender was convicted?
  • has the psychological report relied on by the respondent based on impermissible factual material?
  • has the respondent proven that her psychological injuries were suffered as a consequence of the commission of the assault on her by the appellant?
  • has the respondent proven that she sustained an aggravation to a pre-existing back injury?
  • what award of compensation was appropriate?
  • Should any award of compensation be reduced due to the respondent’s behaviour pursuant to s 41 of the Criminal Injuries Compensation Act 2003?

After coming to a determination on these points during trial, the judge found that “the two injuries I have found the respondent to have sustained as a consequence of the commission of the Assault are PTSD and an aggravation of her pre-existing degenerative back injury. As to the former, the PTSD symptoms resolved with treatment with a few months, and there is no further treatment required. At to the latter, it is clear from the evidence that the respondent’s pre-existing back injury had required intervention prior to the Assault and would in any event have required intervention after the Assault.  So, the extent of the aggravation was not significant…” and awarded $5,000 for non-economic loss and $1,221 for medical expenses and a medical report.

The Court concluded that none of the grounds raised by the appellant had merit, except for the fact that the award was excessive considering the available medical evidence and proceeded to vary the Assessor’s award from $16,221 to $6,221, with costs of the Appeal.

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 Major Win After a Tough Few Years 960 577 aelegal

A Major Win After a Tough Few Years

MAJOK v KORYIOM [2017] WADC 157

The appellant, who is now 27 years old, was seriously assaulted by the respondent on 13 April 2013. The respondent was convicted after trial, on 6 May 2014, of the offence of doing grievous bodily harm (the offence).

On 23 June 2014 the respondent was sentenced for the offence to a term of imprisonment of 6 years, backdated to 13 April 2013 with eligibility for parole. The findings of fact by the sentencing judge included that while the appellant and the respondent were at a friend’s house, the appellant was physically assaulted by the respondent and then taken into the back-garden area of the house adjoining the carport, where “for no reason that can be discerned” the respondent used an accelerant spray of some kind and set the appellant alight. His clothing caught fire, he lost consciousness, but regained same a little time later and felt that he was burning. The appellant suffered serious burns to his body, in particular his left forearm, hand and right chest, which required skin grafts, and he has been left with permanent scars.

The appellant made an application for criminal injuries compensation pursuant to the Criminal Injuries Compensation Act 2003 (the Act) in respect of his injuries and consequent losses. On 18 November 2016, the Chief Assessor of Criminal Injuries Compensation (the assessor) awarded Mr Majok criminal injuries compensation in the sum of $23,100. That sum included $1,100 for medical report fees.

On 1 December 2016, the appellant filed a notice of appeal against the decision of the assessor on the ground that the award of compensation made to him was “so manifestly inadequate as to constitute an error of law”.

The claimed inadequacy in the award to the appellant related to three areas:

  • the physical injuries suffered by the appellant, in particular the scarring to his hands, left forearm and chest;
  • the mental or nervous shock he suffered as a consequence of the offence; and
  • the failure of the assessor to allow any award for past loss of earnings or future loss of earning capacity.

The appellant also sought the cost of future medical treatment, based on the new evidence from his treating doctor.

In the findings the presiding Judge stated, “… the pain and suffering and residual scarring alone are enough for me to conclude that the award of damages of $22,000 is inadequate…”

The court stated that it was satisfied that the appellant has suffered and still suffers from mental and nervous shock within the meaning of the Act, namely PTSD, depression and anxiety and somatic delusions, as a result of the offence and the injuries he received.The court indicated that it had no doubt that the assault on the appellant and the burns he suffered during the offence would have been a very traumatic experience.

The Judge concluded “… for the reasons which follow I consider that the award of damages to Mr Majok was manifestly inadequate. I have allowed the appeal and assessed Mr Majok’s damages as the maximum allowable under the Act of $75,000.”

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 Few Quiet Drinks Turns into a Life Changing Situation 960 577 aelegal

A Few Quiet Drinks Turns into a Life Changing Situation

RE PIGGOTT [2017] WADC 150

Mr Piggott and Mr Benjamin Browne were involved in an incident at Mr Browne’s residence. During the incident Mr Browne struck Mr Piggott and Mr Piggott sustained grievous bodily harm. At the time there were four adults at the residence. Mr Browne’s wife, Mrs Taryn Browne, says she was inside. His brother, Mr Nathan Browne, says he was around the corner relieving himself. Mr Browne and Mr Piggott both give vastly different accounts of what occurred.

Shortly after the incident Mr Piggott left the residence and was spoken to by ambulance officers. The police spoke to Mr Piggott and Mr Browne on the night in question. Mr Piggott was taken to hospital, treated and then discharged. About a week later he underwent surgery to his injuries.

Initially he did not make a formal complaint to police, but later on Mr Piggott applied for compensation under s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). An assessor of Criminal Injuries Compensation (Assessor) refused the application as the Assessor was not satisfied on a balance of probabilities that an alleged offence occurred. Mr Piggott appealed to the District Court of Western Australia against that decision.

The issues on appeal were as follows:

  • whether the court was satisfied on the balance of probabilities that an alleged offence was committed against Mr Piggott;
  • whether Mr Piggott was engaged in criminal conduct at the time he sustained the alleged injury;
  • whether Mr Piggott, by his behaviour, contributed to the alleged injury; and
  • if the court was satisfied that it was appropriate to make an award, the amount of the award to be made.

Multiple witnesses were called to recollect their version of events, including ambulance and police officers who attended the incident, with different versions provided.

As to whether an alleged offence had been committed, the judge on appeal found that he was “… not satisfied that it is more likely than not that the grievous bodily harm was unlawfully caused. Mr Piggott has to satisfy me that the bodily harm was unlawfully caused and all I am able to say is that there was a verbal confrontation then a physical confrontation between the two men resulting in Mr Browne causing grievous bodily harm to Mr Piggott. In light of the intoxication of both men, the fact that both have, in my view, changed aspects of their evidence so that it fits with other evidence, and the defects in their evidence I am not able to say exactly what occurred in the physical confrontation.

As to whether Mr Piggott was engaged in criminal conduct at the time of the injury, the judge on appeal stated that “if the court is satisfied that Mr Piggott’s behaviour contributed to the alleged offence, the court may either refuse to make a compensation award or reduce the amount that would otherwise have been awarded” and went on to find that he was “ not satisfied it is more likely than not that Mr Browne was not acting in self-defence nor satisfied that it is more likely than not that his acts were not retaliation which went beyond self-defence in response to Mr Piggott’s assault and therefore the application ought be dismissed.”

 

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.

Man’s Compensation Increased on Appeal 960 577 aelegal

Man’s Compensation Increased on Appeal

On 28 May 2011, the Appellant was at home reading the newspaper. Three men, forced their way into the house.  There had been a history of animosity between the Appellant and one of the three men. An altercation occurred and the three men assaulted the Appellant.

The Appellant made a claim for criminal injuries compensation.  In his application, he claimed that he had suffered physical injuries in the form of bruising and swelling to his back and behind his right ear.  The Appellant also claimed that he suffered Post-Traumatic Stress Disorder (PTSD) as a result of the attack on him.  His claim for criminal injuries compensation also included a claim for loss of earning capacity arising from the alleged PTSD.

In April 2016, the Chief Assessor of the Office of Criminal Injuries Compensation (Chief Assessor) awarded the Appellant the sum of $24,601 for injuries sustained in the assault, medical reports and future psychological treatment expenses but no economic loss.

The Appellant appealed against this assessment on the grounds that the Chief Assessor failed to give sufficient weight to the evidence of psychological trauma and failed to give consideration to any economic loss.

Pursuant to provisions in the Criminal Injuries Compensation Act 2003 (WA) (the Act), the District Court must decide the application on appeal afresh on the evidence and information that was in the possession of the Chief Assessor but may also receive further evidence and information.  The District Court is not fettered by the Chief Assessor’s decision.

The Appeal began in January 2017.

The Appellant presented additional documentation on the hearing of the appeal.  This additional documentation consisted of the following:

  • Income tax returns and notices of assessment;
  • Payment summaries from the Australian Taxation Office;
  • A facsimile from the Department of Human Services to the Appellant’s legal representatives containing Centrelink claim history and payment information;
  • Records from the Sir Charles Gairdner Hospital; and
  • An affidavit of the Appellant.

Although the Chief Assessor was not prepared to allow any award for loss of earnings because in her opinion the Appellant’s capacity to work was influenced by many non-compensable stressors. She was further not provided with sufficient information to enable her to make any proper estimate of the contribution, if any, of the incident to his loss of earnings. On the subsequent information provided the Appellant would have earned approximately $50,000 per annum in the two years following the incident.

Based upon the above, the Appellant’s award was increased to the maximum sum allowable in terms of the act, namely $75,000.

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.

Assessors Refusal Of Award For Compensation For Lack Of Proof Of Alleged Offence Is Confirmed On Appeal 960 568 aelegal

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.

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.

CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00 1024 683 liz-birdbrain

CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

CRIMINAL INJURIES VICTIM RECEIVES FULL AWARD OF $75 000.00

In the matter of Taylor v Paindelli  [2016] WADC 160, the Court on appeal from an award made by the Criminal Injuries Compensation Assessor, dismissed the appeal of Mr Taylor and confirmed that Mr Paindelli was  entitled to compensation of $75 000.00 as awarded by the Assessor.

The basic findings of fact were that on Thursday, 15 July 2010, Mr Paindelli was outside a nightclub in Fremantle, where he had been drinking and was heavily intoxicated. A verbal altercation broke out between Mr Taylor and a female friend of Mr Paindelli. Mr Paindelli criticized Mr Taylor for the manner in which he had spoken to the female friend, whereafter Mr Taylor punched Mr Paindelli in the face with a clenched fist. At that stage, Mr Taylor walked away, went to a nearby rubbish bin, removed a glass bottle, smashed it and walked towards Mr Paindelli striking him in the face. Mr Paindelli fell to the ground and whilst he lay there, Mr Taylor struck him again several times to the face and walked away.

As a result of the aforementioned attack, Mr Paindelli suffered multiple facial lacerations with a temporary complete loss of vision in his left eye due to a dilated non-reactive pupil and a prolapsed iris.  Mr Taylor was left with residual ophthalmic, cosmetic and psychological injuries.

In the Appeal, Mr Paindelli provided the Court with a further affidavit which in terms of the relevant legal principles the Court had a general discretion to receive and admit.  The affidavit was duly presented and admitted by the Court. In his affidavit Mr Paindelli stated that after having a discussion with his General Practitioner there was a possibility that he may require laser surgery to improve his vision and further facial surgery to reduce the size of the scar tissue on the inside of his cheek. In this regard the Court was of the opinion that there was no expert evidence to support those statements, either as to the need for the surgeries or when they would occur. No significant weight was placed by the Court in that regard. With regards to his psychological injuries, a clinical psychologist report was presented wherein it was indicated that Mr Paindelli suffered several psychological symptoms prior to the assault consistent with post-traumatic stress disorder (PTSD).  The Court concluded that it accepted the evidence of the Clinical Psychologist and found that Mr Paindelli had suffered PTSD previously but also as a result of the offence, that there were symptoms which would be ongoing and permanent, in the sense that they will continue for the foreseeable future. However the Court was of the opinion that the Psychological injury was only mild because Mr Paindelli has been able to cope for some years without medication that are commonly prescribed for anxiety and depressive type symptoms and because he was able to cope without clinical treatment.

In calculating the general damages, the Court came to the conclusion that an appropriate award for lost earning capacity (past and future), pain and suffering and loss of amenities of life, should be assessed in the order of $125 000.00. This was because in the Court’s view, Mr Paindelli’s economic, ophthalmic and psychological injuries should not attract significant awards but were it not for the scarring the Court would only have allowed a modest award for pain and suffering and loss of amenities of life. However, the Court considered the scarring to be cosmetically serious, which will permanently inform his psychological health and impair his happiness in most domains.  The Court on Appeal, confirmed the award of the Assessor in the sum of $75 000.00, being the maximum allowed pursuant to the Criminal Injuries Compensation Act.

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.

No award to victim of crime due to his involvement in a separate crime 960 540 liz-birdbrain

No award to victim of crime due to his involvement in a separate crime

No award to victim of crime due to his involvement in a separate crime

In the matter of Thomson v Francis [2016] WADC 154, the District Court of Western Australia quashed an award of an Assessor of Criminal Injuries Compensation to the value of $75,000 and dismissed Mr Francis application for compensation outright.

In December of 2012, Mr Francis was attacked by Ms Thomson and her partner and sustained various severe injuries. Both Ms Thomson and partner were arrested, tried and convicted of various offences and sentenced to respective jail terms. During the trial Mr Francis gave evidence for which he sought the protection of section 11 of the Evidence Act 1906, which provides that a witness may decline to answer questions which may incriminate him unless a judge provides a certificate protecting him from prosecution for having committed an offence. This was duly granted and Mr Francis, in evidence, admitted to having committed three separate offences, whilst in the presence of Ms Thomson and her partner.

Section 39 of the Criminal Injuries Compensation Act 2003 (Act) provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. Mr Francis admitted being in possession of cannabis, cocaine and a self-loading pistol (without the adequate licence) at the time of his assault by Ms Thomson and partner.

In analysing section 39 of the Act, the Court indicated that it was clear that the intention of the legislature (in enacting that section) did not intend that a causal connection is required between the offence committed by a claimant for compensation and the offence giving rise to that person’s injuries. The court indicated that all that was required is a temporal connection in that the injury was suffered when the person was committing a separate offence. If that be the case, the assessor may not make an award.

In the circumstances the court concluded that because Mr Francis was committing an offence (unrelated to his attack) at the time he was assaulted, there was a temporal connection between the commission of the offences giving rise to his injuries and the commission of his offences for being in possession of the drugs and unlicensed weapon.

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