A v D

1. In considering the matter I have had regard to the documents that were before the assessor being:

(1) Ms Wakelin's application for criminal injuries compensation with annexures:

(b) Victim impact statement and bundle of photographs;

(c) Medical notes from the Goldfields Physiotherapy Clinic and Perth Shoulder Clinic and medical report from Dr Lewis Blake dated 30 May 2017 (the Blake report);

(2) Correspondence between the assessor and Ms Wakelin's lawyers;

(3) Freedom of Information Act 1992 (WA) documents received from WA Police and forwarded to the assessor on 12 September 2017.

1. Ms Wakelin sought to adduce further evidence on the appeal pursuant to s 56(1) of the Act. As I heard the matter afresh I admitted further evidence being:

(1) Statement of Shea Wakelin 5 November 2018;[11]

(2) Letter to Tindall Gask Bentley Lawyers from Mr Anderson at WA Police and attachment entitled figure 1 dated 25 June 2018;

(3) Email from Mr Anderson of WA Police to Tindall Gask Bentley Lawyers dated 25 June 2018;

(4) Amended figure 1 with handwritten notations and agreed calculations of sick leave benefits and medical expenses.[12]

Compensation for an alleged offence: no person charged

1. Ms Wakelin's claim is brought under s 17 of the Act which applies where an alleged offence is committed but no person has been charged with it. If Ms Wakelin suffered injuries as a consequence of the commission of the alleged offence she may apply for compensation for that injury and any loss suffered.[13] I must not make a compensation award unless I am satisfied that the claimed injury and any claimed loss occurred as a consequence of the commission of the alleged offence.[14]
2. I am satisfied on the balance of the probabilities of the following facts in relation to the circumstances giving rise to the claim. At around 3.44 am on 12 June 2014 Ms Wakelin was on duty as a police officer when she was tasked to attend a domestic disturbance in Kalgoorlie with a colleague. On arrival at the premises it appeared that there were two woman fighting inside. Ms Wakelin and her partner looked through the front window to see NM behaving in an erratic manner, throwing herself around the room and screaming. She was undressed on her lower half and wearing a hooded top on her upper half. The other woman who was present told the police officers that NM was 'on a bad trip'. I conclude that this was a reference that the other person believed that NM was badly affected by illicit drugs, possibly hallucinogenic in nature. NM then ran into a window causing it to smash. Ms Wakelin and other police officers immediately entered the property in order to restrain NM to prevent her from further injuring herself. She was not arrested.
3. While being restrained NM thrashed around with her body for a considerable period of time. Ms Wakelin held and lay on NM's lower legs and also put trousers on her. NM threw Ms Wakelin off her on a number of occasions and exhibited tremendous strength. Ms Wakelin was involved in assisting to restrain NM for approximately one hour. Paramedics who attended twice injected NM with sedatives in order that she could safely be restrained and taken to hospital. The first injection did not work. At hospital NM was given a further three or four injections to again sedate her.
4. NM was not charged with any offence. Ms Wakelin submits that although not charged, NM committed an offence against her being either obstruction, assault or assault of a public officer. None are offences requiring any specific intent to be proved on the part of NM.
5. To prove she was assaulted Ms Wakelin must prove the elements of the offence being, firstly identity; secondly application of force; thirdly lack of consent; and finally that the assault was unlawful. The additional elements that Ms Wakelin was a public officer and performing a function of her office must be proved for the more serious offence of assaulting a public officer.
6. I am satisfied that NM was the person who applied force to Ms Wakelin by struggling against restraint and thrashing about over approximately one hour. It was a continuing application of physical force.
7. I am not satisfied on balance that lack of consent is proved. Ms Wakelin chose to lie on NM's legs and attempt to restrain her. She did so for good reason but it could not be said that she was not consenting to the application of force that resulted. This is not a case where it is alleged that NM struck a blow or applied force beyond that which Ms Wakelin consented to by her own actions.
8. Failure to prove any element is fatal and accordingly it is not necessary for me to consider whether the other elements of assault are proved. I am not satisfied on balance that NM committed any offence involving the element of assault.
9. I turn then to consider offences of obstruction. Under the Criminal Code s 172 relevantly requires proof of four elements, firstly identity; secondly the person obstructed is a public officer; thirdly at the time of the commission of the offence the officer was acting in the performance of her functions; and finally that the conduct complained of obstructed, prevented, hindered or resisted the officer in the performance of her functions.[15] The criminal responsibility provisions of the Criminal Code must also be negatived.
10. Counsel for the amicus also identified s 580 of the Mental Health Act 2014 (WA) (MHA) which provides that it is an offence to obstruct or hinder a person in the performance of a function under the MHA without reasonable excuse. The offence confines the third element to the performance of functions under the MHA and has an additional element that the Criminal Code offence does not, requiring rebuttal of any reasonable excuse raised by a defendant.
11. I will deal firstly with obstruction under the Criminal Code. I am satisfied on balance that identity is proved and that Ms Wakelin was a police officer and thus public officer at the time of the incident.
12. I will deal with the fourth element next. Obstruction will be established if NM objectively did any act which made it more difficult for Ms Wakelin to carry out her duty.[16] The acts of NM in physically thrashing around and struggling against restraint over the course of approximately one hour did make Ms Wakelin's job more difficult. NM both hindered and obstructed Ms Wakelin.
13. Turning to the third element namely, whether Ms Wakelin was performing a function of her office. Section 35 of the Criminal Investigation Act 2006 (WA) relevantly provides that:

(1) A police officer who reasonably suspects that any of the following is occurring or is just about to occur in a place ... may enter the place ...in order to prevent it -

1. that involves or is likely to involve the use of violence against a person; or
2. that is likely to cause a person to use violence against another person; or

(d) an act by a person that will or is likely to cause serious and unlawful damage to property.

1. I have not been able to find any authority on the meaning of s 35(1)(a) but in my opinion what the section requires is that, provided a police officer forms a reasonable suspicion that a person is likely to use violence against either themselves or another person they may enter a place without warrant to prevent it. Common sense also dictates that where they reasonably suspect it might be about to occur, police officers should have the power to enter premises to prevent people self-harming.
2. In her statement Ms Wakelin says that her colleagues and she entered the property 'in order to restrain NM to prevent her injuring herself further'. NM had just thrown herself violently against a window, breaking it. I accept that evidence and also infer that police wanted to prevent any breach of the peace or further property damage. I am satisfied on balance that Ms Wakelin and other officers were exercising their powers under s 35 at the time of entering the premises and attempting to restrain NM.
3. In lying on NM's legs and attempting to restrain her with the assistance of others, Ms Wakelin used force that was entirely reasonable in all of the circumstances and in doing so acted bravely and as one would expect a police officer would.
4. In his supplementary submissions, counsel for the amicus helpfully set out the powers a police officer has in dealing with people under the MHA. As I have concluded that Ms Wakelin was exercising her powers under the Criminal Investigation Act, it is not necessary for me to consider further the potential application of the MHA or the offence of obstruction in s 580.
5. The next question is whether NM is criminally responsible for her acts of obstruction.
6. The effect of s 23A of the Criminal Code is that NM would not be criminally responsible if her acts of obstruction occurred independently of the exercise of her will. There is an evidential presumption, borne from ordinary and universal experience that an act done by a person who is conscious is a willed act.[17] In the absence of any medical or psychological evidence displacing the presumption, I am satisfied on balance that the defence of unwilled act is not reasonably open and NM's acts were willed acts.
7. Section 27 of the Criminal Code provides that if a person was in such a state of mental impairment as to deprive her of the capacity to understand what she was doing or the capacity to control her actions or the capacity to know that she ought not do those things she would not be criminally responsibly pursuant to s 27. However, the section does not apply to a case of a person who has intentionally caused himself to become intoxicated or stupefied from drugs.[18] Also, NM is presumed to have been of sound mind.[19]
8. In my view NM was suffering from a condition which was characterised by a disturbance of mood, volition and orientation and it impaired her behaviour and possibly her judgment at the time Ms Wakelin was dealing with her. The reasonable inference I can draw from the evidence of her friend is that NM was voluntarily intoxicated and was 'on a bad trip'.
9. There is insufficient evidence from me to conclude whether NM was deprived of any of the capacities referred to in s 27. There is no evidence before me of any pre-existing condition or of NM's presumed recovery. Accordingly I am unable to conclude that she suffered from any underlying pathological infirmity or mental illness that might account for her behaviour. On balance I think she was experiencing some form of drug induced psychosis.
10. In in my opinion the effect of s 28(2) in this case is that s 27 does not operate to relieve NM of criminal responsibility.
11. Although I might not be persuaded to the criminal standard, on balance I am satisfied that the elements of the offence of obstruction under the Criminal Code are proved.
12. If I am wrong about that and s 27 would relieve NM of criminal responsibility then the effect of s 17(5) of the Act is that I would still regard the offence as having been committed for the purposes of determining Ms Wakelin's application for compensation.

1. At the hearing of the appeal counsel suggested that I might next approach the matter by resolving the deduction issue under s 42 of the Act and the amount in dispute raised by the appeal grounds and written submissions before proceeding with a full assessment of the claim. This was the approach adopted by Derrick DCJ in Cooper v Smith[20] and also by the assessor. If Ms Wakelin received sick leave and medical expenses paid by her employer in relation to her injury totalling more than the maximum amount of compensation payable under the Act of $75,000,[21] then applying the reasoning in Baker v His Honour Judge Stone of the District Court of Western Australia[22] and Cooper v Smith she would be precluded from receiving further compensation.
2. Ultimately it was not necessary for me to resolve the issue regarding the amount in dispute as after a brief adjournment of the hearing so that counsel could speak to WA Police they agreed that some of the information provided to the assessor concerning Ms Wakelin's medical expenses and sick leave was wrong. The total of both amounts provided to the assessor was $86,098.16 whereas the agreed and correct figure is: $20,260.97 for sick leave and $48,170.76 for medical expenses being a total of $68,431.73. This leaves a difference of only $6,568.27 which might be awarded to Ms Wakelin if I decide a compensation award should be made.
3. The correct approach to making a compensation award under the Act was considered by the Court of Appeal in Baker v His Honour Judge Stone of the District Court of Western Australia. The court said that the location of the provision prohibiting the making of a compensation award in pt 4 of the Act 'tends to confirm that the assessor is not required to consider the question of deductions under s 42 unless and until he or she has determined whether or not a "compensation award" should be made and if so the amount of any such award'.[23]
4. The court went on to say that the

broad structure for payment of compensation under the Act involves, first, the determination of whether, and if so in what amount, a 'compensation award' may be made; secondly, the deduction of the amounts from that 'compensation award' required under s 42; and thirdly, the payment or 'awarding' of an amount of compensation under the Act.[24]

1. Accordingly, whilst it was quite proper for Derrick DCJ to approach the matter before him in the way that he did because the s 42 deduction in his case was greater than the jurisdictional limit, this matter is different. The agreed s 42 deduction here is less than the jurisdictional limit and whilst it is very tempting to simply award the relatively small amount of compensation still available to Ms Wakelin if I am satisfied an award should be made, that is not what the Act requires. Whilst Ms Wakelin's total damages would clearly exceed $75,000 I am still required to undertake a full assessment.

Did Ms Wakelin suffer injury as a consequence of the alleged offence?

1. Injury is defined in s 3 of the Act to include 'bodily harm'. Generally, supporting medical evidence from an appropriately qualified medical practitioner is required to prove an injury.[25]
2. A person who suffers injury 'as a consequence of' the commission of a proven offence may apply for compensation.[26] There must be a causal relationship between the injury and the offence.[27] The onus is on the appellant to prove the link on the balance of probabilities.[28] Whether a causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense'.[29] It is sufficient that as a matter of ordinary common sense and experience, the proved offence should be regarded as having materially contributed to the harm, in the sense that the contribution was not negligible.[30] 'The fact that other unconnected events may also have had some relationship with the occurrence is not material if the criminal act was a cause even if not the sole cause'.[31] Where there are non-compensable co-existing causes and the evidence establishes they did contribute to the injury or loss, the award of compensation should be reduced to take account of that chance.[32] On the other hand, if it is not possible to disentangle the consequence of those non-compensable co-existing causes from the consequence of compensable causes, the appellant is entitled to compensation for the full injury and loss suffered provided it is established that the proven offence contributed materially to her injury or loss.[33]
3. Ms Wakelin says and I accept that she was thrown off NM a number of times whilst trying to restrain her. I accept that she told her colleagues she was injured in the incident.
4. In her occupational safety and health report prepared after the incident Ms Wakelin said she was in pain the following day 13 June 2014 and saw her general practitioner who prescribed painkillers and physiotherapy and referred her for a CT scan at Kalgoorlie Regional Hospital.
5. The focus of Ms Wakelin's initial treatment was on her back injury. That responded to physiotherapy and her back symptoms resolved by December 2014. There was an unfortunate delay in Ms Wakelin's shoulder being treated and it was only in December 2014 that she had an MRI scan of her shoulder. Prior to that she had one cortisone injection under ultrasound.
6. In January of 2015 Ms Wakelin saw Mr Grant Booth, orthopaedic surgeon, presenting with generalised motion impairment and positive signs for impingement and bursitis. Mr Booth performed a decompressive acromioplasty and bursectomy in March 2015 after which Ms Wakelin suffered frozen shoulder syndrome. In May 2015 she was diagnosed with ulnar neuropathy.
7. In September 2015 Ms Wakelin aggravated her shoulder injury during the arrest of another individual and required a further MRI scan. She underwent further shoulder surgery in March 2016 and subsequent to that also suffered a complicating AC joint arthropathy and sensory impairment of the right C8 nerve.
8. Dr Blake examined Ms Wakelin on 3 May 2017 by which time she had recovered fully from her back injury (following physiotherapy) but continued to suffer generalised mild impairment in the middle of her right shoulder. Her grip strength in her dominant right hand was significantly less than her left (20 kgs compared to 35 kgs) indicating a significant reduction of strength in her right arm.
9. Ms Wakelin, in speaking to me during the course the hearing of her appeal, also confirmed that the loss of strength in her right arm is the most significant residual injury she has following the 12 June incident.[34] She also confirmed the location and size of the five scars she has on her right shoulder following the keyhole surgery she underwent.[35]
10. Ms Wakelin also suffered an unrelated right knee injury whilst working in Fitzroy Crossing in October 2016.
11. In her victim impact statement Ms Wakelin describes the impact of her physical injuries in some detail. I accept what she says, including that her shoulder and neck pain over the course of 2014 and 2015 was considerable, that her movement was restricted, that she had difficulty attending to tasks of daily living without the assistance of her partner and that she suffered discomfort trying to sleep because of pain.
12. Apart from the pain and discomfort she has endured Ms Wakelin has been psychologically affected by the consequences of her injury and her continuing symptoms. She lost a great deal of confidence in her ability and had feelings of low self-worth. Mr Blake who is not a psychologist but is a medical doctor says that Ms Wakelin experiences secondary emotional and confidence impairment which erode her work capacity and that she needs support in order to regain her confidence and self-esteem. Her counsel confirmed though that no claim is made for mental and nervous shock and the evidence of her psychological state is to be considered in the context of assessment of pain and suffering in general damages.
13. In conclusion, I am satisfied on balance that Ms Wakelin suffered bodily harm as a consequence of the alleged offence being:

(a) Right shoulder injury involving a partial thickness tear of the supraspinatus tendon, together with a subacromial bursitis and impingement syndrome. Post-operatively, but still consequential of her original injury she suffered frozen shoulder syndrome and AC joint arthropathy;

(d) Five small 1 cm scars on Ms Wakelin's right shoulder being the result of the shoulder surgery she had.

1. I am also satisfied on balance that Ms Wakelin has a degree of permanent impairment as a consequence of her injuries, being a reduction of function in her right shoulder, significant impairment of right arm and grip strength and vulnerability to further injury.
2. In my opinion, Ms Wakelin's knee injury does not create any issue of disentanglement. Her September 2015 shoulder injury has no doubt aggravated her symptoms, and perhaps her disability, but there is no evidence upon which I could proceed to attempt a disentanglement of the two injuries and thus I will assess damages on the basis of the total injury.

1. The correct approach to adopt in assessing the amount of compensation under the Act is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of 'injury' and 'loss' in the Act and to the jurisdictional limit of the Act.[36] In assessing the amount of compensation which should be awarded, I must have regard solely to the injury suffered by Ms Wakelin in consequence of the commission of the offence. The amount is not fixed as punishment of NM or as an expression of sympathy for Ms Wakelin.[37]

1. Although there is limited utility in comparing other awards of compensation or damages for personal injuries as each case is different,[38] I have reviewed the decisions of this court in matters bearing some similarity including in Cooper v Smith[39], Pond v The Assessor of Criminal Injuries Compensation[40] and Williams v The Assessor of Criminal Injuries Compensation[41].
2. In my view an appropriate award of general damages is $17,000.

1. Loss of earnings suffered by Ms Wakelin as a 'direct consequence' of the injury suffered by her are compensable.[42] Loss of earnings includes loss of capacity.[43]
2. Counsel have agreed that the appropriate calculation for past economic loss, paid as sick leave, is $20,260.97.
3. Ms Wakelin also claims an additional amount of $1,629.60 for loss of shift penalties and overtime. In principle those amounts are recoverable.[44]
4. Counsel for the amicus argued that Ms Wakelin's calculation did not take account of the period of time where she was not working for reasons other than her shoulder injury and the appropriate amount for loss of shift allowance was $729 less tax.
5. Ms Wakelin's counsel agreed with this approach and allowing for notional tax at 30% the amount I would allow for loss of shift penalties and overtime is $510.30.
6. Ms Wakelin's total award for economic loss is $20,771.27.

1. Loss under the Act includes actual and reasonable medical expenses arising from the injury.[45]
2. Ms Wakelin claims past medical expenses in the amount of $48,170.76 which were paid by WA Police. Counsel for the amicus agrees that is the appropriate amount. No claim is made for future treatment. I allow $48,170.76.

1. Loss relevantly includes the expenses actually and reasonably incurred by, or on behalf of, a victim in obtaining any report from a health professional or counsel in relation to the injuries suffered.[46]
2. I allow $1,797.26 for the cost of Dr Blake's report.

1. The compensation award that Ms Wakelin is entitled to is:

1. Having calculated the compensation award I must next allow for the jurisdiction limit of $75,000. The compensation award exceeds the limit by $12,739.29. The award will accordingly be reduced to $75,000.[47]
2. I must next deduct from a compensation award any amounts that Ms Wakelin received by way of compensation or damages for the injury or loss.[48] As a police officer, Ms Wakelin was entitled to payments of her medical expenses in respect of work-related injury by the Commissioner.[49] She was also entitled to paid sick leave.[50] Medical expenses and sick leave paid by the Commissioner under the Police Force Regulations 1979 (WA) and the relevant industrial award are 'compensation' for the injury or loss to which they relate for the purposes of s 42(3) and must be deducted from any award criminal injuries compensation.[51]
3. As discussed above, counsel agreed that the amounts paid by the Commissioner for medical expenses and sick leave totalled $68,431.73.

1. After deductions the total amount of compensation that Ms Wakelin can be awarded under the Act is $6,568.27.
2. Accordingly, I allow the appeal, set aside the decision of the assessor to refuse Ms Wakelin's application and award her $6,568.27 in criminal injuries compensation under the Act.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Letter from the assessor Ms Holyoak-Roberts to Tindall Gask Bentley Lawyers dated 5 June 2018.

[2] Criminal Injuries Compensation Act s 56(1).

[3] Criminal Injuries Compensation Act s 56(2)(b).

[4] Gullelo v Halloran [2008] WADC 145.

[5] DR v CD [2018] WADC 148.

[6] Criminal Injuries Compensation Act s 3, s 17(4).

[7] Green v Lee (1996) 17 SR (WA) 93, 97; Robinson [2017] WADC 18 [22].

[8] Criminal Injuries Compensation Act 2003 (WA) s 3; BAS v The Estate of NAS (Dec) [2000] WASCA 270 [11].

[9] Nominal Defendant v Owens (1978) 22 ALR 128, 132 - 133; Lloyd v Small (1996) 16 SR (WA) 111.

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47 [46].

[13] Criminal Injuries Compensation Act s 17(2).

[14] Criminal Injuries Compensation Act s 17(4)(a).

[15] Hayward-Jackson v Mason-Walshaw [2012] WASC 107.

[16] Hinchcliffe v Sheldon [1955] 3 All ER 406; Cumby v Rhodes (Unreported, WASC, Library No 5367, 29 May 1984).

[17] R v Falconer [1990] HCA 49; (1990) 171 CLR 30, 40.

[20] Cooper v Smith [2017] WADC 82.

[21] Criminal Injuries Compensation Act s 31(1).

[22] Baker v His Honour Judge Stone of the District Court of Western Australia [2015] WASCA 56.

[23] Baker v His Honour Judge Stone of the District Court of Western Australia [41].

[24] Baker v His Honour Judge Stone of the District Court of Western Australia [42].

[25] Re Hojetzki [2009] WADC 77 [48].

[26] Criminal Injuries Compensation Act s 12(1).

[27] Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666, 673; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [21].

[28] TAW v NJS [2011] WADC 187 [85].

[29] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413; Fagan v The Crimes Compensation Tribunal (673); RLG v SG [2010] WADC 132 [12].

[30] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620; March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 and 522; Lyle v Soc [2009] WASCA 3 [40].

[31] Fagan (673); VPAN [2011] WADC 40 [83].

[32] Malec v JC Hutton Proprietary Limited [1990] HCA 20; (1990) 169 CLR 638; TAW v NJS [84].

[33] Bonnington Castings Limited v Wardlaw (620); Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168; TAW v NJS [85].

[34] Section 18 of the Act requires informality in approach and provides that an assessor is not bound by the rules of evidence or procedure and may inform themselves in any manner they see fit.

[35] District Court appeal hearing ts 28.

[36] M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992); RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974).

[37] B v W (1989) 6 SR (WA) 79, 89.

[40] Pond v The Assessor of Criminal Injuries Compensation [2006] WADC 140.

[41] Williams v The Assessor of Criminal Injuries Compensation [2000] WADC 278.

[42] Criminal Injuries Compensation Act s 6 and s 12(1).

[45] Criminal Injuries Compensation Act 2003 (WA) s 6(2)(a).

[46] Criminal Injuries Compensation Act 2003 (WA) s 6(2)(a).

[47] Baker v His Honour Judge Stone of the District Court of Western Australia.

[48] Criminal Injuries Compensation Act s 42(3).

[49] Western Australia Police Industrial Agreement 2014 cl 35; Police Force Regulations reg 1306.

[50] Western Australia Police Industrial Agreement 2014 cl 33(4); Police Force Regulations reg 1304.