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  • September 16, 2020

Compensation Reduced on Appeal

Compensation Reduced on Appeal

Compensation Reduced on Appeal 900 577 aelegal

NAGEL -v- TAHERE [2020] WADC 110

This case was an appeal from a decision of an assessor of Criminal Injuries Compensation (assessor) pursuant to the Criminal Injuries Compensation Act 2003 (Act). The Assessor assessed compensation in the amount of $7,500 in favour of Mr Tahere (respondent) because of an assault by Mr Nagel (appellant). However, pursuant to s 45(1)(b) of the Act, it was ordered that only $5,000 may be the subject of proceedings under part 6 of the Act (decision). This part of the Act  provides that if a compensation award is made in respect of any injury and a person is convicted of the offence,  then, subject to any order made under section 45(1), the CEO may give the offender written notice that requests the offender to repay to the State as a lump sum, the whole, or such part as is specified in the notice, of  the amount paid or payable under the award. The CEO is the chief executive officer of the department of the Public Service. In other words, the State recovers the compensation paid to the victim from the wrongdoer.

The respondent alleged that the appellant and a young woman came to his home on High Street, Fremantle. They knocked on his door and asked for medication belonging to the father of the woman. The respondent refused and the woman attempted to force her way in, a scuffle broke out which led to the appellant punching the respondent on the lip.

The appellant pleaded guilty to the charge on the above facts as put forward by the respondent.

However, after the award was made the appellant appealed the decision pursuant to s 55 of the Act and attempted to adduce new evidence on appeal in the form of four letters. The court held that in CIC matters the appeal is a fresh hearing and it is necessary for the court to determine all matters relating to the Application. It further held that the court has the power to receive additional evidence pursuant to s 56(1) of the Act but that the matter is to be determined on the facts on which the appellant was sentenced and were admitted, and it is therefore not re-litigated. However, it was open to the appellant to introduce more contextual information which is not inconsistent with the material facts comprising the elements of the offence, including that all relevant defences that have been conceded do not apply. It was on this basis that one of the four letters was admitted.

The admitted letter disclosed that the respondent had been involved in a physical altercation with the young woman when the appellant punched him to help her escape.

The court then re-assessed the respondent’s damages using a medical report from a Psychiatrist which had been filed. The respondent was found to suffer from an Adjustment Disorder, but that his symptoms did not meet the criteria for a Major Depressive Disorder, Post-Traumatic Stress Disorder or an exacerbation of a pre-existing mental disorder. The assault in question was found to only be a 10% contributor to the respondent’s condition, 90% was caused by an earlier assault.

The court awarded the respondent $5,000 of which $2,000 was subject to a s 48 of the Act (see below) reduction and only $3,000 was therefore the subject of these proceedings.

S 48 provides that if a compensation award made in favour of a victim who has suffered injury includes an amount in respect of treatment related expenses then the amount is not to be paid unless the Chief Assessor is given evidence that the expenses have been reasonably incurred by or on behalf of the victim for treatment of that the victim and was required as a direct consequence of the injury suffered by the victim in consequence of the commission of the offence to which the award relates.

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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