(RE RC [2026] WADC 93)
Background
The appellant sought criminal injuries compensation for injuries arising from two alleged assaults, by her former partner, which occurred on 20 August 2020 (August incident) and 19 October 2020 (October incident).
The Assessor refused the application under s 38 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) on the basis that the appellant had failed to assist police in identifying, apprehending or prosecuting the offender. The appellant appealed to the District Court.
Extension of time for the August incident
Under s 9(1) of the Act, an application normally has to be made within three years of the offence. The Court can extend the time if it is “just to do so”. The appellant was late in lodging her August claim. However, the Court extended time for the August incident. The October application was lodged in time.
August incident
The appellant alleged that the offender struck her with a wooden stick. Although she did not report the August incident to police, she attended Royal Perth Hospital on the day, and medical records recorded a possible fracture to her left arm. The later medical evidence showed a left olecranon fracture, with an approximate 1 cm displaced fracture fragment and soft-tissue swelling. The court considered the contemporaneous medical records against the injuries and considered it to be consistent with her having been struck on the left elbow. The court found, on a balance of probabilities, that the alleged offence occurred. The Court accepted that the injury constituted bodily harm and was caused by the August assault.
The appellant was diagnosed as meeting the DSM-5 criteria for PTSD and the Court considered that the PTSD was caused by the August and October incidents together with the offenders ongoing physical and psychological abuse.
The critical s 38 issue – failure to report the August incident
Section 38 prevents an award where the victim failed to do something that they ought reasonably to have done to assist authorities. The Court emphasised that the assessment is directed to the particular applicant and her circumstances, rather than asking what an abstract “reasonable person” would have done. The appellant accepted that she did not report the August assault to police. She explained that:
- she was in a family violence relationship with AO;
- she had been assaulted by him on numerous occasions;
- she was extremely frightened of him;
- she feared being seriously harmed or killed if she reported him; and
- her conduct was affected by fear, trauma and continuing violence.
The Court accepted that this was a legitimate fear of reprisal and found that the continuing domestic violence created a genuine and serious fear that reporting the August assault would result in further serious harm. Consequently, the appellant’s failure to report the August incident was reasonable in the circumstances. Therefore, s 38 did not prevent an award of compensation for the August incident.
October incident
The position concerning the October assault was different as the offender was charged with aggravated assault occasioning bodily harm, with the domestic relationship constituting the aggravating circumstance. The Court was satisfied that the October assault had occurred. The offender was subsequently charged, but the prosecution was discontinued because the appellant failed to attend court to give evidence. The prosecution considered that it had no case without her evidence.
The appellant relied on her general fear of the offender as the explanation for failing to attend court, however the court did not infer that the fear which existed during the relationship remained operative in December 2022 and concluded that there was no reasonable basis established for the appellant’s failure to attend court and give evidence.
Accordingly, s 38 applied and prevented an award of compensation for the October incident.
Assessment of compensation
Although the Court found that the appellant was entitled to compensation for the August incident, it did not determine the amount and considered that further evidence was required to fairly determine the extent of the compensable psychological injury attributable specifically to the August incident. The matter was therefore remitted to the Office of Criminal Injuries Compensation for assessment of the quantum.
Key principles from the case
This is a useful WA authority on s 38 of the Criminal Injuries Compensation Act 2003, particularly the distinction between a reasonable failure to report an offence because of active family-violence fear, and an unexplained later failure to participate in the prosecution after the abusive relationship has ended.
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.