A v D

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Refusal of compensation - Application of s 36 - Whether any award would benefit offender - Additional evidence and information - Principles relevant to assessment - Turns on its own facts

Criminal Injuries Compensation Act 2003 (WA)

Ms L J Italiano appeared on behalf of the Chief Executive Officer of the Department of Justice

A v D (1994) 11 WAR 481

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29

Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408

Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613

Dos Santos v Dos Santos [2000] WADC 256

DR v CD [2018] WADC 148

Guy v Hampson [2019] WADC 19

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)

Hinchcliffe v Hinchcliffe [2010] WADC 78

Husher v Husher [1999] HCA 47; (1999) 197 CLR 138

James v Northern Territory of Australia [2012] NTSC 51

MBP v LKP [2018] WADC 65

Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221

Quine v Keerasawat [2014] WADC 150

Re ATS [2019] WADC 76

Re HCM [2018] WADC 20

Re Robinson [2017] WADC 18

Re TLJ [2016] WADC 74

S v Neumann (1995) 14 WAR 452

Shepherd v Shepherd [2010] WADC 30

Underwood v Underwood [2018] WADC 13

1. On 10 October 2017, the appellant made an application under s 12 and s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act) in respect of injuries and losses suffered as a result of three proved assaults (the s 12 incidents) and four alleged assaults (the s 17 incidents) committed upon her by the respondent between 30 January 2014 and 26 March 2016.
2. The appellant applied for compensation. Her application was refused on the basis that the assessor was satisfied, for the purposes of s 36 of the Act, that there was a relationship or connection between the appellant and respondent, and by reason of the relationship or connection any money paid under an award was likely to benefit or advantage the respondent. The decision was initially communicated by letter dated 19 December 2019, with written reasons for the decision of the assessor provided on 27 March 2020.
3. On 23 January 2020, the appellant filed a notice of appeal against the decision of the assessor. The ground of appeal is that the assessor failed to give sufficient weight to the appellant's evidence regarding s 36 of the Act.
4. The appeal raises four issues:
   1. whether the appellant should be granted leave to appeal out of time;
   2. whether the compensation can be awarded in respect of each of the s 12 incidents and/or in respect of each of the s 17 incidents;
   3. whether the appellant is disentitled to compensation on the basis that there is a relationship or connection between the appellant and respondent such that money awarded as compensation is likely to benefit or advantage the respondent; and
   4. if the appellant is entitled to compensation, the quantum of the award.
5. The appellant filed further evidence which she sought leave to rely upon at the hearing of the appeal, namely:
   1. the appellant's affidavit filed 9 November 2021 (Affidavit); and
   2. the documents contained in the appellant's appeal book, filed 10 November 2021 (Appeal Book).
6. None of these documents, save for the appellant's statement of effects dated 23 August 2017, were before the assessor.
7. It is a matter of discretion to admit further evidence on an appeal under the Act. At the commencement of the hearing I allowed receipt of the additional evidence at pars 4(a) and 4(b). My reasons for doing so are that the evidence relates directly to the question to be determined by the court under s 36 of the Act as to whether the parties are in a relationship and whether the respondent is likely to benefit from any award. There is no reason in this case why it would be unjust to admit the evidence.[1]
8. A notice to produce issued to the Commissioner of Police on 12 August 2021 has resulted in the court receiving documents produced by the Commissioner on 23 August 2021. The appellant did not seek to rely upon these additional documents in the hearing of the appeal. The documents are relevant to issue 3. They are police records of the appellant and respondent being seen together in 2020 and 2021. A summary of the contact revealed by those documents appears in the submissions of the amicus. In light of that summary, which is accepted as accurate by the appellant,[2] it is not necessary for the court to receive these additional documents in evidence in order to determine the issues in the appeal.

Relevant legislative provisions and general principles applicable to the appeal

1. Section 55(1) of the Act gives a right of appeal to this court against an assessor's decision to refuse to make a compensation award. An appeal must be commenced within 21 days after the date of the assessor's decision: s 55(3). If it is just to do so, this court may allow an appeal to be commenced after the 21 days even if the period has expired: s 55(4). The appeal is to be conducted in accordance with the Rules of the court: s 55(5).
2. On appeal the court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that then was in the possession of the assessor, or may receive further evidence and information: s 56(1). The court may exercise any power of an assessor under the Act: s 56(2). The court may confirm, vary or reverse the assessor's decision, either in whole or in part.[3]
3. Authority of this court, which I accept and I adopt, suggests that the appeal should be determined without regard to the assessor's reasons and instead, the court is to independently review the evidence.[4]
4. Section 12 of the Act relevantly provides:
   1. Proved offence

(1) A person who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss also suffered.

...

(3) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -

(a) if the application is made under subsection (1) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence;

1. Section 3 of the Act defines 'proved offence' to mean a crime, misdemeanour or simple offence of which a person has been convicted.
2. The court can only make an award if it is satisfied on the balance of probabilities that the claimed injury and any claimed loss occurred and such injury or loss was a consequence of the commission of the proved offence: s 12(1). The words 'as a consequence of' require a causal relationship or connection.[5] The causal relationship is a question of fact to be resolved as a matter of commonsense.[6] It is sufficient that, as a matter of ordinary commonsense, the offences should be regarded as having 'materially contributed' to the harm.[7]
3. 'Injury' is defined to mean bodily harm, mental and nervous shock, or pregnancy: s 3.
4. 'Loss' in the case of a victim who is injured means expenses that have been incurred arising from the injury, expenses that are likely to be incurred for treatment of the injury, loss of earnings and loss due to damage to personal items that the victim was wearing at the time of the injury: s 6.
5. Section 17 of the Act relevantly provides:
   1. Alleged offence: no person charged

(1) This section applies if an alleged offence is committed but no person is charged with the alleged offence.

(2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.

...

(4) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -

(a) if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;

(5) If an assessor is satisfied that the person who committed the act or made the omission that constitutes the alleged offence was, at the time of the act or omission, not criminally responsible for it, the alleged offence is to be taken not to have been committed for the purposes of subsection (4) unless the person was not criminally responsible for it by reason of The Criminal Code section 27 or the Criminal Investigation (Covert Powers) Act 2012 section 27, 31 or 34.

1. An 'alleged offence' means a crime, misdemeanour or simple offence of which no person has been convicted: s 3.
2. The court must be satisfied that an alleged offence occurred in the manner described by the appellant, and it must be more probable than not that the alleged offending occurred.[8]
3. The court must feel an actual persuasion that the offence occurred, and such a conclusion should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact.[9]
4. Section 36 of the Act provides:
   1. No award if compensation likely to benefit offender

An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion -

(a) that there is a relationship or connection between the person who committed the offence and the victim or close relative; and

(b) that by reason of the relationship or connection any money paid under the award is likely to benefit or advantage the person who committed the offence.

1. Section 36 is one of the provisions in the Act which limits the circumstances on which compensation is available.[10] If s 36 applies, it precludes compensation from being awarded.[11]

Should the appellant be granted leave to bring the appeal out of time?

1. The last date for commencing the appeal was 9 January 2020. The notice of appeal was filed on 23 January 2020, 14 days out of time.
2. An affidavit has been filed by Ms Levy, a solicitor employed by the Kimberley Community Legal Service.[12] Ms Levy deposes that she first spoke with the appellant on 22 January 2020 by telephone. Ms Levy's office is in Kununurra. The appellant was in Broome using her sister's mobile phone and said she had no fixed address. Instructions were taken and the notice of appeal filed one day later.
3. The court should grant an extension of time if it is just to do so. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.[13] In this case the delay was short. It was in circumstances where the appellant is an Aboriginal woman who speaks English as a second language. Her first language is Kukatja. She lives for the most part in the remote community of Mulan, near Balgo in the East Kimberley. The appellant moves between Mulan, Balgo, Halls Creek and Broome where her sister lives.[14] In January 2020, she had no fixed place where she was living and had to borrow a telephone to contact her lawyers. Upon receipt of instructions, the lawyers immediately lodged an appeal the following day. There is no prejudice occasioned to the respondent by the delay.
4. In my view, the appeal has merit, the delay is not lengthy and the reasons for the delay are adequately explained. Leave to appeal out of time is therefore granted.

Can compensation be awarded in respect of each of the s 12 incidents and/or in respect of each of the s 17 incidents?

Section 12 incidents

1. The appellant made an application in respect of three proved offences under s 12 of the Act.

1. On 7 May 2014 the respondent was convicted of the offence of assault occasioning bodily harm committed in circumstances of aggravation against the appellant which occurred on 30 January 2014.
2. The facts in respect of this incident are set out in the statement of material facts. Between 4.00 pm on 29 January 2014 and 12.30 am on 30 January 2014, the appellant and respondent had been drinking and were intoxicated. They began arguing. The respondent punched the appellant to the left side of her face with his right fist causing bruising to her left cheek and two small lacerations to her nose and upper eyelid. The appellant was taken to the Halls Creek District Hospital and then conveyed to the Kununurra District Hospital. The appellant sustained bruising to her left eye, cuts to her nose and upper eyelid. The primary diagnosis at the Halls Creek District Hospital was facial bruising: 'fractured zygoma'. The presenting problem was recorded as 'an assault by her partner last night in an ethanol fuelled altercation'.[15]
3. In the appellant's statement of effects she describes lots of bruising to her left eye and cuts to her nose and upper eyelid. In her witness statement[16] she states that the punch caused her to bleed into her shirt and that her eye and cheek felt sore and swollen up.
4. I am satisfied that the respondent punched the appellant's face and that punch caused bruising to her left eye, cuts to her nose and upper eyelid. No fracture to the zygoma was substantiated in the medical notes.

1. On 7 July 2014 the respondent was convicted by the Kununurra Magistrates Court of common assault in circumstances of aggravation against the appellant which occurred on 14 June 2014.[17]
2. The police statement of material facts states that between 8.30 pm and 9.30 pm on 14 June 2014 the appellant and respondent were at their home address in the Mulan Aboriginal Community.
3. Also present in the house were the appellant's sister and her two young children. An argument took place between the respondent and appellant over cigarettes which resulted in the respondent pushing the appellant to her chest. The appellant left the house and tried to use the public payphone to call 000. On her way to the phone box the respondent pulled the appellant's hair in an attempt to stop her. He then slapped her twice to the face causing the appellant to fall to the ground, hurting her knee. He then grabbed her by the hair and dragged her away. The appellant got free, called 000 from the payphone and the police attended.
4. In her statement of effects the appellant claims that she got a cut and grazes to her knee, injured head and bleeding lip.[18]
5. In her witness statement the appellant said she had a cut on her leg from where she fell over and got dragged, a sore head and some blood on her lip.[19]
6. I am satisfied that the act of the respondent in slapping the appellant to the face caused her to fall to the ground hurting her knee. The act of slapping caused a bleeding lip and a sore face. The act of pulling her by the hair caused a sore head. The act of dragging her caused a sore knee.

1. On 22 April 2016 the respondent was convicted in the Broome Magistrates Court of committing aggravated assault occasioning bodily harm against the appellant which occurred on 4 April 2016.
2. The police statement of material facts states that between 6.00 pm and 7.00 pm on Monday, 4 April 2016 the appellant and respondent were camping on a vacant block at what was then the Kennedy Hill Aboriginal Community in Broome. They became involved in an argument. The respondent punched the appellant with a closed fist to the face causing minor swelling below her right eye. The respondent later struck the appellant with an unknown object to her left forearm causing a fracture to the radius and ulna. The appellant was conveyed to Broome Hospital where she received treatment.
3. In her statement of effects the appellant says that she was hit with a stick or pole on the same place as her arm had been broken before. This is a reference to the incident of 13 July 2015 which is the subject of a s 17 application in respect of which the respondent was never charged. I will return to this incident shortly in these reasons. The appellant said her arm was badly bruised, she was in a lot of pain and had to keep going back to the hospital.
4. The Broome Hospital Emergency Department notes record the appellant attending Broome Hospital on 4 April 2016, 7 April 2016, 8 April 2016 and 12 April 2016. She presented with pain in her left forearm on each occasion.[20]
5. The hospital notes of the 4 April 2016 attendance[21] state that the appellant presented to hospital with a deformed left arm and swelling to the right side of the face. Further notes record grazing above the right eyebrow and swelling to right cheek. They also state that the appellant appeared to have a new fracture distal to the plate on the ulna, however that was not where the maximal tendonitis was on presentation.
6. The appellant told hospital staff that she was assaulted with a stick, punched to the face and kicked to the stomach. The assault was recorded as an alleged domestic violence incident. In the photographs taken by police in relation to this incident, a large stick can be seen lying on the ground. X-rays were taken. The fractures seen were considered by the orthopaedic registrar at Fiona Stanley Hospital, who was consulted by phone, to be old and not the result of the alleged trauma on 4 April 2016.[22]
7. I am satisfied that the appellant was struck by the respondent with a stick causing bruising to her left arm at the location where her arm had previously been fractured. She also suffered bruising and swelling to the right side of her face.
8. I am satisfied that the injury to the face was as a result of the respondent striking the appellant to the right side of her face which is confirmed by the witness statement of Ms S who saw the respondent stand up and punch the appellant to the side of the head.[23]

Section 17 incidents

1. The remainder of the appellant's claim is brought pursuant to s 17 of the Act.

1. The appellant claims in her statement of effects that the respondent hit her over the head with a stick and she needed staples.[24] The Broome Hospital Emergency Department notes record that the appellant was 'sitting with family hit over head with stick' and that there had been an 'argument amongst some girls in the park'. The respondent is not mentioned. The appellant is described as being very teary and upset.[25]
2. The Broome Hospital Emergency Department notes record that the appellant had a large laceration to the right side of her head which was actively bleeding[26] and that she required five staples to close the wound.[27]
3. There is no record of police being involved and no reference to this incident in the Affidavit.
4. I am satisfied that, based on the appellant's statement of effects, that the respondent did hit her over the head with a stick causing a laceration to her head which required staples. In reaching this conclusion, I have taken into account that the respondent hit the appellant with a stick on 4 April 2016 causing bruising to her arm. I am also satisfied he hit her to the arm with a stick during the 13 July 2015 incident which I will deal with shortly.
5. The respondent's tendency to use a stick as a weapon to assault the appellant on two occasions after this incident is a matter I can take into account when assessing the likelihood that he assaulted the appellant in the manner alleged. That the appellant made no mention of the respondent as her assailant to hospital staff does not cause me to doubt her uncontradicted evidence that it was the respondent who assaulted her.

1. The appellant claims in her statement of effects that the respondent stabbed her in the foot with a knife.[28]
2. The Broome Hospital Emergency Department notes record:[29]

Watching movie last night ~ midnight. Alleges partner stabbed her [with] long sharp knife. Walked from Forrest St this am.

1. The appellant claims in her statement of effects that she got two puncture wounds whereas the Broome Hospital Emergency Department notes record:[30]

Small puncture wound to the top of Ⓛ foot. Nil bleeding. Small area of swelling noted. Nil other injuries.

1. The notes also record in the nursing staff records:[31]

D/W pt domestic violence situation; not ready to talk to police yet about pressing charges 'will think about it'. Advised pt she needn't put up with such behaviour from partner.

1. I am satisfied from the statement of effects and hospital notes that one small puncture wound to the top of the left foot was sustained as a result of the respondent stabbing the appellant with a knife to the top of her foot.

1. In her statement of effects the appellant states she was in Broome as she was three weeks pregnant and due to have an amniocentesis. The respondent went to hit her in the stomach with a metal pole. She put her arm down to protect the baby and he badly broke both bones in her arm.[32]
2. The police incident report for the matter records that the appellant reported a broken arm to the police and the police asked her to roll up her sleeve exposing a broken left forearm. She said she fell over. After further questioning she stated that her partner, the respondent, broke it. The respondent was arrested and cautioned. He denied assaulting the appellant. The appellant changed her account several times whilst a statement was obtained. She said that the respondent may have hit her with a steel bar and she did not know if her arm broke when he kicked her and she fell over.[33] The respondent was not charged with any offence.
3. The Broome Hospital Emergency Department notes record:[34]

Partner attempt to hit [with] metal bar in abdomen. Pt states protected abdo [with] arm + Partner hit bar.

1. It is clear that when the police spoke to the appellant the respondent was present. The fact that the appellant changed her story when speaking to the police does not amount to a failure to report or assist police such that provisions of s 38 of the Act arise. In this case, the respondent had a history of violence towards the appellant. Both parties were intoxicated when the police spoke to the appellant. The appellant readily identified the respondent as her assailant when she spoke to the police and detailed the assault by her partner with a metal bar to hospital staff consistent with her statement of effects.
2. At Broome Hospital an X-ray was taken that showed fractures to the midshafts of the radius and ulna and a fracture of the second metacarpal neck. An old healed fracture of the distal ulna was noted.[35] The appellant was transferred from Broome Hospital to Kununurra District Hospital. The Kununurra Emergency Department notes record the appellant's diagnosis as a fracture midshaft of the radius and ulna.[36]
3. The appellant claims in her statement of effects that her left arm is now very bowed. She says it has been getting worse but especially after the respondent hit her 'a couple of times' when the plates were in her arm, referring to the subsequent assaults to the arm on 13 March 2016 and 4 April 2016. She states that her arm has lost strength, it cramps up and it causes her hand to cramp and hurt and has impacted on her ability to work as an aged care worker.
4. In her Affidavit, the appellant says her left arm still causes her pain which she thinks is getting worse. She has to rub it all the time because it is sore and it keeps her awake at night. A photograph of her left arm is annexed to the Affidavit as EM1. The photograph clearly shows that the left arm is bowed and there is a significant surgical scar evident.
5. I accept the account given by the appellant in her statement of effects and Affidavit and to police and hospital staff that she was struck to the arm with a metal bar when attempting to protect her unborn child as being the cause of her injuries. The blow was of sufficient force to break both the ulna and radius and a bone in her hand. The account given to police of being pushed and falling is explicable in the context of the appellant being in fear of the respondent who was nearby. It is inconsistent with the severity of the injuries sustained.
6. I am satisfied that, as a result of a direct assault by the respondent to the appellant's left arm with a metal bar, he caused the appellant to suffer two fractured bones in her left arm and one in her hand, the effect of which is continuing and significant.

1. The appellant claims in her statement of effects that the respondent hit her on the left arm. The police handover summary to Broome Hospital records:[37]

Presented to Broome Police Station stating she had been hit in the arm. Arm is bent appears broken, unsure if old injury. Heavily intoxicated.

1. The Broome Hospital Emergency Department notes noted:[38]

? hit across arm this evening by unknown object. Obvious deformity. ? old ? new fracture. Observed to use arm feely [sic] to get some tissues at triage

L) forearm palpitated. Tender to palpitation on lateral aspect of arm. States partner kept hitting her on that arm this evening.

Arm not hot to touch. Nil redness evident. Nil breakdown of old scar line.

1. This event occurred two weeks before the incident on 4 April 2016. It is the second in the series of three incidents involving assaults to the appellant's left arm. Whilst she claims no specific injury resulting from the assault, I am satisfied the appellant suffered a sore left arm. I am further satisfied that as a result of the accumulation of the blows to the left arm on 13 July 2015, 23 March 2016 and 4 April 2016, all of which were struck by the respondent, the appellant has suffered a significant injury to her left arm, the effect of which is significant and ongoing and has impacted on her ability to work.
2. I am satisfied that compensation can be awarded in respect of the s 12 incidents and in respect of each of the s 17 incidents.

Does s 36 preclude an award of compensation?

1. It is necessary to outline the background to the relationship between the appellant and respondent. The appellant was born on 26 May 1978. She has spent the majority of her life living in the Mulan community near Balgo, which is her family's country. Her first partner passed away in 2003. She had two children with that partner, now aged 22 and 20. She met the respondent in about 2010. They have a child who was born in January 2016. After commencing the relationship with the respondent, the appellant started drinking alcohol. The couple separated whilst the appellant was pregnant with her youngest child.
2. It is clear from the documents before the assessor, the police incident reports and subsequent documents lodged with the court in response to a notice to produce issued to the commissioner dated 12 October 2021, that the parties continued to have intermittent contact until 25 February 2021. This contact is detailed in submissions of the amicus as follows:[40]

III Evidence before the Court

Relationship or connection

1. In addition to the evidence provided by the Appellant, the following evidence is before this Court in relation to whether there is a relationship or connection between the Appellant and the Respondent.
2. On 27 November 2016 the Respondent described the Appellant as his 'partner' to police, and on 29 November 2016 the Appellant described the Respondent as her 'partner' to police.
3. On 15 December 2016, [CW] visited the Appellant and the Respondent in Mulan Community. Both separately stated that they were not in the same community. It 'was ascertained that [the Respondent] and [the Appellant] are not residing in the same house'.
4. On 15 December 2016 police responded to an incident after receiving a call in which the caller stated 'that her partner [the Respondent] has been hitting her and dragging her'. When police attended they observed the Appellant and the Respondent 'at the house together and all appeared fine'.
5. On 31 January 2017 case manager [CW] overheard an argument between the Appellant and the Respondent, that the parties later stated was about the Appellant cooking for the Respondent.
6. On 20 February 2017 [RF], who had known the Appellant for six months and assisted her to get work, signed a statement. [RF] stated 'I am aware that [the Appellant] no longer is in a relationship with [the Respondent]. He now no longer lives in Mulan. On 2 occasions [the Appellant] has phoned me to get the Police because [the Respondent] has come around to work and she wanted him removed'.
7. On 22 February 2017, case manager [CW] received a phone call from the Respondent asking for information that had already been provided to the Appellant.
8. On 23 February 2017, case manager [CW] 'attended the home of [the Respondent] and [the Appellant]'.
9. On 23 March 2017 the Appellant deposed in an affidavit that she had 'told [the Respondent] that she no longer want[ed] to live with him' and that because of the violence, she was 'no longer in a relationship with [the Respondent]'.
10. On 28 March 2017 case manager [CW] spoke with a witness who stated that the Appellant previously told her 'that she believed [the Respondent] was having an affair and she was worried about this'.
11. By 20 April 2017, an interim violence restraining order protecting the Appellant had been served on the Respondent.
12. On 26 May 2017 [MS] received an email stating that the Appellant 'waited for [the Respondent] for most of the day, and as soon as he was released, she walked straight up to him ...'.
13. On 30 May 2017 case manager [MS] received information that the Respondent was ' "doing the right thing" and staying away from [the Appellant]'.
14. On 1 June 2017 the Appellant called police 'and said that she was being punched by her partner [the Respondent]'.
15. On 6 June 2017 police attended an incident and observed the Appellant and the Respondent asleep together on the back landing of a house.
16. At some time on or after 16 June 2017, police attended an incident and received information that earlier in the week the Appellant had removed a VRO protecting her from the Respondent, but subsequently there were two violent incidents and the Appellant wanted to get another VRO in place. The Appellant stated that on 15 June 2017 the Respondent had 'punched her after they had an argument over jealousy issues'. At around 12.30pm on 16 June 2017, the Appellant and the Respondent were both in the living room of a unit.
17. On 19 June 2017 police attended an incident and the Appellant informed them that the Respondent had 'coerced her out of the place she was staying'. The Appellant had returned to the place where she was staying without the Respondent.
18. On 8 August 2017 case manager [MS] spoke with the Appellant who stated that '[the Respondent] has a new girlfriend and that she is now living in Fitzroy Crossing'.
19. On 21 August 2017 police received a call from a woman who stated 'that she was assaulted by her partner last night'. When police attended they located the Appellant who 'told police that she had been hit last night by her partner [the Respondent]'.
20. On 13 October 2017 police received a call during which the caller 'state[d] her husband [was] beating her' and that 'her ex partner [the Respondent] had assaulted her'. At the time of the call the caller was outside the Respondent's house.
21. On 20 October 2017 police attended an incident during which witnesses observed that the Appellant had gone to the Respondent's house that morning.
22. On 26 April 2018 a case manager spoke with the Respondent who 'advised that both he and [the Appellant] will return to the Mulan Community' and 'that he and [the Appellant] plan not to drink and commit themselves to having regular contact with [their son]'.
23. On 7 May 2018 case manager [KT] spoke with the Appellant who indicated that 'she would tell [the Respondent] that they need to stop fighting, drinking and that [the Respondent] will stop smoking (gunja?)'.
24. On 3 September 2018 case manager [MR] spoke with the Respondent who 'agreed he and partner, [the Appellant], will have to be sober all the time, no domestic violence reports before contact [with their son] could occur'.
25. On 24 December 2018 both the Appellant and the Respondent referred to each other as their 'partner' when speaking with police. The Respondent also stated that the Appellant had 'just returned from Broome and was blaming him for being with other women whilst she was away.'
26. On 4 January 2019 the Appellant stated to police that 'she didn't want to be with [the Respondent] anymore'.
27. On 9 January 2019 police attended an incident after receiving a call from a caller who stated that the Respondent had been following her. Subsequently a witness confirmed that the Appellant had been attending the address where the Respondent was and arguing with him.
28. On 8 March 2019 the Appellant stated to police that 'she wanted a break from [the Respondent]'.
29. On 15 April 2019 police attended an incident and observed the Respondent in his bedroom attempting to sleep and the Appellant in another bedroom attempting to collect her belongings.
30. On 24 April 2019 police attended an incident during which the Appellant described the Respondent as her partner.
31. On 30 April 2019 police attended an incident. During the incident, the Respondent described the Appellant as his wife and stated that she 'had become argumentative over Jealousy while intoxicated'. A witness 'observed [the Appellant] following [the Respondent]' to the childcare centre where the incident occurred.
32. On 20 August 2019 police attended an incident. During the incident, the Respondent shouted 'We'be going home' to the Appellant, Appellant 'made multiple demands for Police to let [the Respondent] stay with her at the address, and then for Police to take [the Respondent] away from the address. [The Appellant] was told to stop attempting to speak with [the Respondent] but continued to walk up to the Police pod and verbally abuse and converse with [the Respondent]', and the Respondent 'denied any fighting with [the Appellant'... Stated he just wanted to go home to sleep wither [sic] her.'

1. Further, in respect of the period December 2020 - 25 February 2021, the submissions of the amicus note the following:[41]
   1. There is further evidence before the Court, produced by the Commissioner of Police pursuant to a notice to produce issued on 12 August 2021, which suggests the Appellant and the Respondent have been in contact more recently than 2020. The Statement of Facts for Brief No ******2-1 states that on 25 February 2021 the Appellant and the Respondent 'had been drinking together that morning at [a house] in Pensioner Units, and had a verbal argument'.
   2. The Appellant's evidence is that, after staying with her at her sister's house sometime in 2020, the Respondent went back to prison. It is not clear when in 2020 this occurred. In the further evidence before the Court produced by the Commissioner of Police, Detected Incidents Report ****** **** ***14 records that on 11 December 2020 police attended a unit in Broome, and were greeted by a [SM]. Inside the unit police observed the Appellant and the Respondent lying next to each other on a mattress. It is possible that it was around 11 December 2020 when the Respondent stayed at the Appellant's sister's house.

1. Those submissions were accepted as being an accurate record of contact between the appellant and respondent by the appellant's counsel at the hearing of the appeal for the period 27 November 2016 to 25 February 2021.[42]
2. The appellant has provided evidence that was not before the assessor. That evidence can be summarised as follows:
   1. After separating from the respondent when pregnant with her son in 2016 she saw him sometimes.
   2. She visited the respondent in prison in 2018 to talk about divorcing him and to tell him about his aunty dying. She did not want to visit him but felt obliged to for cultural reasons.
   3. When the respondent was released from prison the appellant was living in Broome. The respondent went to Halls Creek where he got culturally married to another woman.
   4. After a time the respondent returned to Broome and kept 'bothering' the appellant by coming to her sister's house, humbugging her for money and following her and her family in the street. This frightened the appellant and she told him to leave her alone.
   5. On one occasion the respondent tried to steal her key card and she reported him to the police. She called the police a lot to stop the respondent bothering her.
   6. She did not walk alone out of fear. She tried to avoid seeing the respondent alone.
   7. The respondent stayed at her sister's house for a couple of days in 2020 against the appellant's wishes. He went back to prison after that.
   8. The respondent is currently in prison. She does not want to see him when he is released.
3. It is necessary for me to determine whether, at the time of the hearing of the appeal, there remains a relationship or connection between the appellant and respondent.
4. At the hearing of the appeal, counsel for the appellant characterised the relationship as 'not necessarily a voluntary one but one in which there is, from time to time, contact'.[43]
5. It is clear from the evidence that there has been ongoing contact between the appellant and respondent from 2016 until 25 February 2021. It is also clear that a number of those contacts were unwanted by the appellant.
6. I accept the respondent has entered into a new cultural marriage with another woman. I also accept that there have been incidents where, contrary to the desires of the appellant, the respondent has made contact with her against her will and humbugged her, sung out her name in the street and come around to her sister's home in Broome when she had been staying there. I find the appellant has sought assistance from the police to stop this type of conduct and has obtained at least one restraining order in the past. I classify that conduct as involuntary contact with the respondent by the appellant.
7. The appellant's evidence is that when the respondent is released from prison she intends to relocate to Balgo from Halls Creek. Balgo is her family's country and not the respondent's. She is actively seeking assistance from her solicitors to obtain a restraining order. In terms of the child, he is with relatives in State care living in the Balgo community.
8. The evidence of the appellant, which I accept, is that she does not wish to have any form of relationship with the respondent going forward.
9. I accept the appellant's evidence that she has every intention of avoiding the respondent in the future and has no plans to cohabit with him. There is no evidence before me that the couple have in fact lived together since 2016. There have been incidents when the police have attended and found them sleeping in the same room in Broome at the appellant's sister's house, but not cohabiting.
10. I adopt the view expressed by her Honour Wager DCJ[44] that it is unnecessary for me to determine the precise nature of the relationship between the parties. I accept the appellant has a connection with the respondent which has been marred by domestic violence over a number of years. They have a child together. That in itself is sufficient to constitute a connection between the appellant and respondent. As was stated by his Honour Southwood J in James v Northern Territory of Australia:[45]

It is a notorious fact that many women who are in violent relationships experience great difficulty getting away from their violent partners for a variety of reasons including fear, lack of finances and lack of economic capacity. They remain trapped with little assistance available to them to extricate themselves from such a relationship. In Central Australia and elsewhere they continue to suffer horrendous violence which degrades and humiliates them and places a significant burden on scarce medical resources and on law enforcement resources.

1. I am satisfied, based on the appellant's evidence, that there is currently no relationship between the parties and that the appellant has no intention of recommencing it or continuing in the future. I do, however, consider the fact that the respondent, when released from custody, is likely to return to Halls Creek, the nearest town to Balgo, and that there is likely to continue to be contact between the pair when the appellant comes to town unless the appellant obtains a restraining order.
2. For the purpose of the first limb of s 36, I find there is a relationship or connection.
3. In this case the appellant relies on the second limb of s 36 that the respondent is not likely to benefit in any way from an award of compensation.
4. The word 'likely' has been considered in the Northern Territory in James.[46] In that case, s 41 of the Victims of Crime Assistance Act 2006 (NT) was considered. Section 41 provides that an assessor may reduce an award after taking various matters into account including, relevantly, whether the award is likely to benefit the offender because of a relationship or connection between the applicant and the offender. The language is similar to the language used in s 36 of the Act, however, in the Northern Territory, there is a discretion available to the assessor. The word 'likely' in the Northern Territory provision is construed as meaning more probable than not. Consideration of whether an award is likely to benefit an offender because of the relationship between the parties involves assessing the information in a commonsense manner to determine if the benefit is more likely than not. Where parties are cohabiting as husband and wife, that may give rise to an inference that an award is likely to benefit the offender if such a relationship is intrinsically a sharing relationship.[47] 'Benefit' has its ordinary meaning, it is a wide expression meaning advantage, profit or gain.[48] If the parties lead evidence to show that an award will be used in a way that does not benefit the offender then, despite the existence of a relationship, s 36 does not preclude an award being made.[49] For the purpose of s 36 of the Act, I adopt and apply these meanings attributed to the words 'likely' and 'benefit' in James.
5. The appellant has deposed that she does not want the respondent to get any of the money and she would not spend any of it on him.[50] She has described the ways that she would spend an award of compensation[51] as follows:
   1. Education and clothes for her youngest son.
   2. A 4WD vehicle for herself.
   3. A vehicle for her eldest children.
   4. A plane ticket to Perth to visit and care for her elderly mother.
   5. Furniture for her mother.
   6. Toys for her nieces.
   7. Clothes for her nieces.
   8. Clothes for herself.
   9. Psychological counselling to address the mental harm caused by the offending.
6. I accept the appellant's evidence in this regard. There is no evidence before me the financial affairs of the appellant and respondent are in any way co-mingled. They are not living together in a domestic relationship. This is not a case where it would be reasonable to expect that, in the context of a couple who are cohabiting in a spousal or de facto relationship, the receipt by one party of money would give rise to a benefit to the other party.[52] On one occasion when the respondent attempted to humbug the appellant for her key card, the appellant telephoned the police for assistance.[53]
7. As Southwood J observed in James,[54] while women who are victims of domestic violence may be in a vulnerable situation, they do not lack capacity or integrity. The assumption that anything they say about their future plans is inherently unreliable, is invalid.
8. I accept and endorse his Honour's comments in that regard. I am satisfied that none of the appellant's intended dispositions will benefit or advantage the respondent in any way and I am consequently satisfied that the second limb of s 36 does not apply in this case. It therefore follows that an award of compensation is not precluded.

1. As to the physical injuries sustained by the appellant, I am satisfied that:

On 30 January 2014, the appellant suffered bruising to the left side of her face, and cuts to her nose and upper eyelid.

1. On 14 June 2014, the appellant suffered a cut knee, a sore head and a bleeding lip.
2. On 1 October 2014, the appellant suffered a large laceration to her head requiring staples.
3. On 10 February 2015, the appellant suffered a small puncture wound to her left foot and some swelling.
4. On 13 July 2015, the appellant suffered fractures to the midshafts of the radius and ulna and a fracture of the second metacarpal neck.
5. On 23 March 2016, the appellant suffered a sore left arm.
6. On 4 April 2016, the appellant suffered bruising to her left arm and to the right side of her face.

1. Where a person suffers injury as a result of two or more offences committed by the same offender and the offences are not otherwise related as defined in s 33 of the Act, specifically, that they did not occur at the same time or are not otherwise related, then the maximum sum that can be awarded pursuant to s 33(1) and s 34(2) of the Act is $150,000. In this case each of the s 12 and s 17 incidents occurred on different days. They are separate and distinct and not related.

1. I am satisfied that each of the injuries sustained by the appellant outlined in [92] above amount to bodily harm within the definition of s 3 of the Act.
2. The correct approach in determining the appropriate amount of damages for compensation 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 the jurisdictional limit imposed by the Act.[55]
3. In assessing the amount of compensation which should be awarded, regard is to be held solely to the injuries suffered in consequence of the commission of the proved offence or alleged offence and not the seriousness of the offence. The amount is not to be fixed as punishment to the offender or as an expression of sympathy for the victim.[56]
4. In this case the most significant physical injury and disability suffered is that to the appellant's left arm.
5. I am satisfied that the appellant continues to suffer from[57] severe bowing in her left arm, constant pain and cramps in her left arm, pain and cramps in her left hand, the loss of strength to her left arm and scarring which has resulted in permanent disfigurement.
6. The initial injury to her arm sustained on 13 July 2015 was in circumstances where the appellant was endeavouring to protect her unborn child. It required her to be flown to Kununurra and to undergo surgery with the insertion of a plate. The injury and its aftermath would have been distressing to the appellant. The psychological symptoms that have been reported by Ms Bradbury, clinical psychologist, which I will deal with shortly, are consistent with the traumatic nature of the injury. The injury itself was exacerbated by two further assaults on 26 March 2016 and 4 April 2016 to the same location on the arm.
7. In this case it is appropriate to make a global award of compensation in respect of the bodily injuries and the psychological harm.

1. The definition of 'injury' in s 3 of the Act includes bodily harm and mental or nervous shock. Mental or nervous shock means that any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or associated with the commission of the offence.[58]
2. Compensation for mental and nervous shock suffered as a consequence of the commission of an offence or for any loss in respect of such shock must not be awarded unless the victim has also suffered bodily harm as a consequence of the commission of the offence: s 35(2)(a).
3. Mental or nervous shock is not a mere emotional reaction but something of a more enduring character which may, both in a legal sense and common parlance, would be described as an injury.[59]
4. The appellant was interviewed by Ms Robyn Bradbury, clinical psychologist, on 30 March 2021. Ms Bradbury's report dated 20 April 2021 was not before the assessor. Ms Bradbury describes the appellant as fearing for her life when she was in the relationship with the respondent. The repeated physical abuse led to the use of alcohol to diminish and numb her fears. She describes the appellant as having significant scarring which makes her self-conscious and also is a visual reminder of the physical assaults upon her, particularly her bowed left arm which is painful and a constant reminder which continues to cause issues in the appellant's everyday life including pain and cramping while carrying things.
5. An assessment of the appellant's emotional state was conducted using a range of culturally appropriate measures including the DASS-42 (Depression Anxiety Stress Scales) which measures stress, anxiety and depression; the Kessler Psychological Distress Scale plus a K10+, a culturally appropriate measure of depression; the Rosenberg Self-Esteem Scale, a measure of self-regard; the Social Avoidance and Distress Scale, a measure of avoidance of social contact; the PTSD Checklist 5 (PCL-5) based on DSM-5, a measure of post-traumatic stress disorder and the Impact of Events Scale (IES-R), a further measure of the symptoms of post-traumatic stress disorder (PTSD).
6. Ms Bradbury diagnosed the appellant as suffering from severe depression and anxiety and PTSD. These symptoms affect the appellant's everyday life and have significant impact on how she feels about herself and how she functions in society. They affect her capacity to make and form relationships and to continue with connections with her loved ones.
7. In Ms Bradbury's opinion the appellant experienced and continues to experience psychological harm because of the offences. The appellant suffers from symptoms of intrusion, avoidance and arousal. She also experiences severe depression and severe anxiety. These symptoms affect all aspects of her everyday life. The appellant is unable to stop thinking about what happened to her. She blames herself for what has happened to her and has a profound sense of shame. She demonstrates social alienation and disengagement.
8. In Ms Bradbury's opinion there are no other factors or events which have contributed to the appellant's present condition. She considers the appellant would benefit from ongoing psychological therapy to assist her to deal with the symptoms of PTSD and depression and anxiety on a weekly basis for one year and then fortnightly for one year. The costs of psychological therapy is $265 per hour. The total cost of psychological therapy would be $22,308.00 including GST.
9. The psychological report demonstrates that the symptoms reported by the appellant are consistent with the trauma of the offences and the physical injuries caused therefrom. I am satisfied that the diagnosis of PTSD serves to establish the nexus between the appellant's symptoms and her physical injuries.
10. In this case the appropriate award of damages in respect of the bodily harm and mental and nervous shock is $100,000.

1. The appellant has deposed that after her arm was broken in 2015 she worked on and off at the old people's home in Mulan community helping with cooking meals. She was employed by the Wirrimanu Aboriginal Corporation. She deposed that she would get paid about $400 every two weeks. She stopped working in the middle of 2017 because of the pain in her arm and because she could not carry heavy things with it. She is now on a disability pension for her arm. Annexed to her Affidavit was a printout of the payroll from the Wirrimanu Aboriginal Corporation confirming the appellant worked for that corporation between 12 December 2016 to 12 May 2017. She worked for an hourly rate of $22.
2. In assessing loss of earning capacity and the consequences that will probably flow from that loss, the past may provide important evidence but the inquiry which must be undertaken about the likely course of future events and evidence of past events does not always provide certain guidance about the future.[60]
3. When a loss of earning capacity is proved, the damages to be assessed is essentially a matter of judgment and often cannot be proved by precise figures.[61]
4. I am satisfied, based on the appellant's evidence, that she has suffered loss of earning capacity as a result of the injury to her arm and the consequential psychological harm, in particular, her ability to concentrate, her inability to think clearly and her reluctance to go out because of being self-conscious about the scarring to her face and to her arm. As Ms Bradbury reports the appellant is limited in her daily activities, including being unable to work and to make friends like she used to due to her severe depression. She cannot hold her youngest child comfortably because of the injuries to her arm. All of those factors render the appellant unable to perform her previous employment in aged care which has a social and physical element to it.
5. I make a global award of $10,000 in respect of loss of earning capacity in this case.

Compensation for future treatment and psychological report

1. The appropriate award for future psychological therapy is $22,308. Section 48 of the Act will apply to that award in that an amount is not to be paid unless the Chief Assessor is given evidence that the expenses have been reasonably incurred for the treatment required as a direct consequence of the injury.
2. I also allow as a compensable loss the fee paid by the appellant's solicitors for the provision of the expert report of Ms Bradbury in the sum of $2,288 pursuant to s 6(2) of the Act. I order this amount be reimbursed to the Kimberley Community Legal Services.

1. The appeal is allowed.
2. I make the following award in favour of the appellant:

1. The orders are as follows:
   1. The appeal is allowed.
   2. The decision of the Chief Assessor refusing compensation is set aside.
   3. The sum of $134,596 is awarded to the appellant, inclusive of the amount of $22,308 which is subject to s 48 of the Criminal Injuries Compensation Act 2003 (WA) as compensation for injuries and losses.

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

[1] Re HCM [2018] WADC 20 [13]; Underwood v Underwood [2018] WADC 13 [37]; Re Robinson [2017] WADC 18 [8]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [9].

[2] Submissions amicus, 19 November 2021, pars 22 - 25.

[3] Dos Santos v Dos Santos [2000] WADC 256 [3]; Nguyen v The Assessor of Criminal Injuries Compensation [2000] WADC 221 [40].

[4] Guy v Hampson [2019] WADC 19 [14]; DR v CD [2018] WADC 148 [10] - [16].

[6] Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413.

[7] Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620.

[8] Re TLJ [2016] WADC 74 [51].

[9] Re ATS [2019] WADC 76 [31]; Quine v Keerasawat [2014] WADC 150 [63] - [70].

[10] Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [42].

[11] Attorney General for Western Australia v Her Honour Judge Schoombee [42].

[12] Affidavit of Hannah Caroline Levy filed 8 April 2020.

[13] MBP v LKP [2018] WADC 65 [34] - [36].

[14] Affidavit of appellant filed 9 November 2021, pars 2, 5, 15, 21.

[15] Appeal Book, Annexure N, Halls Creek District Hospital medical discharge summary; Appeal Book, Annexure F, Kununurra District Hospital Emergency Department notes record the appellant presenting with left face swelling.

[17] Assessor's papers, 14 June 2014, page 20.

[19] Assessor's papers, 14 June 2014, page 5.

[20] Assessor's papers, 4 April 2016, pages 2 - 14.

[22] Appeal Book, Annexure O, pages 54 - 56.

[23] Assessor's papers, 4 April 2016, page 21.

[25] Assessor's papers, 1 October 2014, page 4.

[26] Assessor's papers, 1 October 2014, pages 2 - 4.

[27] Assessor's papers, 1 October 2014, page 5.

[29] Assessor's papers, 10 February 2015, page 4.

[30] Assessor's papers, 10 February 2015, page 3.

[31] Assessor's papers, 10 February 2015, page 3.

[34] Assessor's papers, 13 July 2014, page 3.

[35] Assessor's papers, 13 July 2014, page 6.

[38] Assessor's papers, 23 March 2016, page 2.

[39] Assessor's papers, 23 March 2016, page 3.

[40] Submissions dated 23 July 2021, pars 109 - 140.

[41] Outline of further submissions dated 19 November 2021, pars 22, 25.

[44] Shepherd v Shepherd [2010] WADC 30 [38].

[45] James v Northern Territory of Australia [2012] NTSC 51 [22].

[46] James v Northern Territory of Australia [40].

[49] Shepherd v Shepherd [43] - [47].

[50] Affidavit of appellant filed 9 November 2021, par 37.

[51] Affidavit of appellant filed 9 November 2021, pars 39 - 46.

[53] Affidavit of appellant filed 9 November 2021, par 19.

[55] Underwood [112] - [113].

[57] Affidavit of appellant filed 9 November 2021, pars 23 - 25.

[58] Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) [5] (Burt CJ).

[59] S v Neumann (1995) 14 WAR 452, 461 (Murray J).

[60] Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, 143 [8] (Gleeson CJ, Gummow, Kirby & Hayne JJ).

[61] A v D (1994) 11 WAR 481, 489 (Pidgeon J).