• November 24, 2020

Double trouble: offender fails on appeal twice

Double trouble: offender fails on appeal twice

Double trouble: offender fails on appeal twice 900 577 aelegal

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.

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