MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal - Extent to which an applicant for compensation is permitted to adduce evidence going beyond the facts on which the offender was convicted - Aggravation of pre­existing injuries

Criminal Injuries Compensation Act 2003

Amicus Curiae : Ms E O'Keefe appeared on behalf of the Chief Executive Officer of the Department of Justice

Amicus Curiae : State Solicitor for Western Australia

AH v RW [2016] WADC 114

ALD v NCD [2012] WADC 45

Armstrong v Saxby [2016] WADC 87

B v B [2004] WASC 6

B v T [2011] WADC 98

B v W (1989) 6 SR (WA) 79

Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377

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

Bennett v The State of Western Australia [2012] WASCA 70

Bentham v Wass [2004] WADC 47

Bodney v The Assessor of Criminal Injuries Compensation [2000] WADC 214

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

Cahill v Smith [2015] WADC 148

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Curnow v Garnant [2012] WADC 72

Dincer v Giancristofaro [2015] WADC 49

Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673

Fairhead v Quartermaine [2010] WADC 1

G & N v R [2006] WADC 208; (2006) 48 SR (WA) 301

Gabriel v Kyanga [2011] WADC 218

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Garton v McCormack (2002) 30 SR (WA) 307

Gleeson v Lee (1996) 18 SR (WA) 353

Gullelo v Halloran [2008] WADC 145

Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5

Hogben v Darcy [2009] WADC 63

Houlahan v Pitchen [2009] WASCA 104

Hutchings v Lachlan [2012] WADC 89

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

JY [2013] WADC 187

KMA v DFS [2010] WADC 6

Krukiewicz v Hayes [2004] WADC 242

Labib v Histon [2017] WADC 39

Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352

Lyle v Soc [2009] WASCA 3

M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)

Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; (1990) 169 CLR 638

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

McDavitt v McDavitt [No 2] [2013] WADC 198

MDC v BLR [2015] WADC 107

MJN v MAJS (2003) 35 SR (WA) 219

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72

Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118

Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164

Re AK [2016] WADC 156

Re Faengsungnoen [2012] WADC 59

Re Hondros [1973] WAR 1

Re Karra (1984) 2 SR (WA) 97

Re Krispyn [2011] WADC 161

Re McHenry [2014] WADC 92

Re Richardson [2009] WADC 93

Re Tilbury [2010] WADC 46

Re Utting [2011] WADC 10

Reed v Assessor Criminal Injuries Compensation (Unreported, WADC, Library No 970170, 5 June 1997)

Reed v Reed [2002] WADC 11

RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3

Robertson v Baker [2014] WADC 14

Robinson [2017] WADC 18

Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190

S v Neumann (1995) 14 WAR 452

Scott v Kevill (2002) 28 SR (WA) 226

Shepherd v Shepherd [2010] WADC 30; (2010) 71 SR (WA) 143

Simonsen v Legge [2010] WASCA 238

St George Club Ltd v Hines (1961) 35 ALJR 106, 107; [1962] ALR 39

State of Western Australia v Collard [2015] WASCA 86

SW v BB [2010] WADC 86

T v Curnuck [2004] WASC 139

TAW v NJS [2011] WADC 187

Taylor v Paindelli [2016] WADC 160

Townend v McAlindon [2017] WADC 63

Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720; (1976) 10 ALR 303

VPAN [2011] WADC 40

Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Winiarczyk v Tsirigotis [2011] WASCA 97

1 By notice of appeal filed 18 July 2017 the appellant appealed against an award of criminal injuries compensation made on 8 June 2017 by a criminal injuries compensation assessor (Assessor). The Assessor awarded the respondent $16,221 (Determination). The Determination related to an assault in Safety Bay on 1 December 2015 (Assault). The appellant pleaded guilty to the assault and was sentenced on 2 March 2016.

2 The appellant says that the Determination is manifestly excessive. More specifically, she says that the materials before the Assessor impermissibly go behind the facts on which she was convicted. She also says that the respondent has not established that the aggravation to a pre-existing back injury which she says she sustained in the Assault was in fact caused by the Assault. Finally, she says that the award should be reduced as a result of both the condition and behaviour of the respondent pursuant to Criminal Injuries Compensation Act 2003 (WA) (CICA) s 41.

3 For the reasons which follow, I do not consider that any of the specific grounds raised by the appellant have merit. I have, however, assessed the amount of compensation to which the respondent is entitled at $6,221, an amount lower than that awarded by the Assessor.

4 The background facts are taken from the amended statement of material facts for the Assault, and which formed the facts on which the appellant was sentenced. As I have already noted, there is an issue as to the extent to which the respondent can rely on additional factual material, so I will defer consideration of the other material relied on by the respondent until this issue is determined.

5 The appellant is the respondent's daughter-in-law. On 1 December 2015 the appellant had recently separated from the respondent's son, Graham. They had been married for the preceding five years. At the time, Graham was living at a house on Costa Rica Place in Safety Bay (Safety Bay House) with the couple's two children.

6 A verbal argument took place between the appellant and Graham about Graham taking property from the house. The appellant was not happy that Graham was taking property that she believed was hers. Graham told the appellant he was leaving. He then telephoned the respondent and asked her to come and collect him from the Safety Bay House.

7 When the respondent arrived she remained outside the house. She was confronted by the appellant who told her to leave as she was not welcome.

8 An argument took place. The appellant slapped the respondent across the face once with an open palm, and also kicked her left leg once.

9 The respondent received bruising and swelling to the left side of her face and bruising to her left leg. An ambulance attended and conveyed her to the Rockingham Hospital. In the same incident, the appellant kicked Graham in the testicles for which she was charged with a common assault.

10 The appellant was subsequently charged with one count of aggravated assault occasioning bodily harm against the respondent. On 2 March 2016 she appeared in the Rockingham Magistrates Court. She pleaded guilty and was convicted. At the same time, the appellant pleaded guilty to the common assault against Graham. The appellant was placed on a 12-month community based order in relation to both offences.

11 By letter dated 25 October 2016 from her lawyers, the respondent applied for criminal injuries compensation arising from the Assault. In addition to the application form, the following materials were submitted on behalf of the respondent:

• A victim impact statement (which was prepared for the sentencing hearing on 2 March 2016, but which from the transcript of this hearing, does not appear to have been given to the Magistrate).
• A statement by the respondent dated 2 December 2015.
• An unsigned statement of Ronald William Pease (who witnessed the Assault).
• Four coloured photographs of the respondent's injuries.
• Medical notes obtained from the Rockingham Kwinana Hospital.
• A report dated 8 August 2016 by Michelle Stickle (a psychologist).
• A report dated 6 October 2016 by Dr David Holthouse (a neurosurgeon).
• A tax invoice from Ms Stickle for her report.
• A tax invoice from Dr Holthouse for his report.

12 The respondent only claimed non-economic loss and the medical report fees. The non-economic loss was in relation to an aggravation to a pre-existing back injury and psychological injuries. A sum of $25,000 was suggested by her lawyers for non-economic loss, along with $1,221 for the report fees.

13 The Assessor sent a letter dated 1 March 2017 to the appellant informing her that the respondent had made an application for criminal injuries compensation. The letter also invited the appellant to provide to the Assessor written notification of any matters she wished to be considered by the Assessor in the making of a determination. The appellant filed an affidavit in the appeal sworn 9 October 2017 in which she stated that she did not receive this letter. I accept this evidence.

14 The Assessor made an award dated 8 June 2017 in the amount of $16,221 (being the Determination). Written notice of this award was provided to the appellant and respondent. By letter dated 8 June 2017 to the respondent's lawyers, the Assessor advised that the claim had been assessed as $15,000 for injuries and $1,221 for reports.

15 No party requested the Assessor to provide written reasons pursuant to CICA s 27.

16 The appeal was commenced by appeal notice filed 18 July 2017. It was not commenced within 21 days after the date of the Determination, as required by CICA s 55(3). The appellant thus requires, and has sought, leave to commence the appeal out of time.

17 On 22 September 2017, the respondent filed a notice of respondent's intention, stating an intention to argue that the Assessor's decision be upheld on the same grounds relied on by the assessor, though noting that she will be prejudiced by the appeal.

18 In hearing this appeal, the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision': CICA s 56(1). The court may determine the appeal 'solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information': CICA s 56 (1). It is open to the court to confirm, vary or reverse the assessor's decision, either in whole or in part: CICA s 56(2)(b).

19 The appeal is a hearing de novo: Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude); Robinson [2017] WADC 18 [7] (Troy DCJ). Notwithstanding CICA s 56(1), it is nonetheless appropriate to have regard to the assessment made by the Assessor as a specialist tribunal in the field of criminal injuries compensation: Hogben v Darcy [2009] WADC 63 [13] (Goetze DCJ); Robinson [9]. However, the appellant does not have to demonstrate an error on the part of the Assessor in order to succeed: Gullelo [5].

20 Both the appellant and the respondent sought to rely on material in addition to that before the Assessor. They each need leave to do so.

21 Submissions were filed on behalf of the Chief Executive Officer of the Department of Justice on 22 November 2017.

22 I also received submissions on behalf of the appellant dated 29 November 2017. In summary, the appellant says that:

• The court should place minimal weight on the psychological report relied on by the respondent as it was based on information provided by the respondent that does not reflect the facts of the offence of which the appellant was convicted.
• In any event, the psychological report fails to distinguish between the psychological impact of the Assault and the psychological impact of the marital custody dispute between the appellant and Graham.
• The respondent has not proven that any aggravation of a pre-existing back injury was caused by the Assault.
• Any award of compensation should be reduced due to the respondent's condition, in particular her pre-existing back injury, pursuant to CICA s 41.
• Any award of compensation should be reduced due to the respondent's behaviour leading up to the Assault, again pursuant to CICA s 41.
• The respondent should pay the appellant's cost of the appeal.

23 Any reduction made to an award of compensation under CICA s 41 must be applied after the jurisdictional limit: Baker v Assessor of Criminal Injuries Compensation (1998) 20 SR (WA) 377, 381 (Sadleir DCJ); Reed v Reed [2002] WADC 11 [24] (Deane DCJ). Accordingly, I need to first assess the damages to be awarded, and then consider the application of CICA s 41.

24 On the materials before the court, and submissions made, ten issues arise for determination:

• Should the appellant be given leave to commence the appeal out of time?
• Should the parties be given leave to adduce further evidence?
• To what extent is an applicant for criminal injuries compensation permitted to adduce evidence going beyond the facts on which the offender was convicted?
• Was the psychological report relied on by the respondent based on impermissible factual material?
• Has the respondent proven that her psychological injuries were suffered as a consequence of the commission of the Assault?
• Has the respondent proven that she sustained an aggravation to her pre-existing back injury as a consequence of the commission of the Assault?
• What award of compensation is appropriate?
• Should any award of compensation be reduced due to the respondent's pre-existing medical conditions pursuant to CICA s 41?
• Should any award of compensation be reduced due to the respondent's behaviour pursuant to CICA s 41?
• What order for costs should be made?

Should the appellant be given leave to commence the appeal out of time?

25 The appeal was required to be commenced within 21 days after the date of the Determination: CICA s 55(3). If 'it is just to do so, the District Court may allow an appeal to be commenced after the 21 days, and may do so even if the period has expired': CICA s 55(2).

26 A discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties, and may be exercised in favour of an appellant where strict compliance with the rules will work an injustice upon the appellant: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459 (McHugh J); Re McHenry [2014] WADC 92 [24] (Herron DCJ).

27 The principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered by that court in Simonsen v Legge [2010] WASCA 238 [8] (Judgment of the Court):

The relevant matters to consider when a party seeks to extend the time for filing its notice of appeal include the following:

(a) on the expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for an extension of time is granted: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459;

(b) the grant of an extension of time under the rule is not automatic; the object of the rule permitting extensions of time is to ensure that the rules which fix time for the doing of acts do not become instruments of injustice; and the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Gallo v Dawson (459);

(c) nevertheless, the rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time, there must be some material upon which the court can exercise its discretion: Gallo v Dawson (459);

(d) there are, generally, at least four major factors to be considered, although they are not necessarily exhaustive in each case:

(iii) the prospects of the applicant succeeding in the appeal; and

(iv) the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198; In de Braekt v Powell [2007] WASCA 55 [11]; [2007] WASCA 55; (2007) 33 WAR 389;

(e) other factors may include whether the delay was intentional, or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay is that of the litigant or of its lawyers with which the litigant should not be saddled: City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120 [33];

(f) the length and reasons for the delay must be addressed by the applicant and the cogency of the explanation increases as the period of the extension sought increases: Girando v Girando (1997) 18 WAR 450, 454;

(g) in relation to the third matter referred to in subpar (d) above, the time for appealing will not be extended unless the proposed appeal has some prospect of success; the converse of that proposition is not that time must be extended if an appeal has any prospect of success, but rather, the fact that an appeal has some prospect of success is a factor which is to be taken into account, together with all other relevant factors: City of Canning v Avon Capital Estates (Australia) Ltd [17]; and

(h) similarly, it is not the law that, whenever an applicant demonstrates an arguable case, or even a strongly arguable case, in the absence of significant prejudice suffered by the respondent, an extension of time should be granted: City of Canning v Avon Capital Estates (Australia) Ltd [16].

28 These principles are apposite to an appeal to the District Court from the Magistrates Court: see for example, Dincer v Giancristofaro [2015] WADC 49 [8] - [11] (Bowden DCJ); Armstrong v Saxby [2016] WADC 87 [39] - [40] (Gething DCJ). They are also apposite to commencing an appeal from a decision of a registrar: Labib v Histon [2017] WADC 39 [41] (Gething DCJ). In my view, they are also apposite to an appeal from a decision of a criminal injuries compensation assessor. The factors are an elaboration of the factors traditionally applied in appeals under the CICA: Gleeson v Lee (1996) 18 SR (WA) 353, 354 - 355 (Chief Judge Hammond).

29 As to the length of the delay, the 21 day time period expired on 29 June 2017. The appeal was commenced on 18 July 2017, some 19 days out of time.

30 However, within this time, the State had paid out compensation in the amount of the Determination to the respondent's lawyers.

31 As to the reasons for the delay, the appellant filed an affidavit in support of her application for leave to appeal out of time dated 9 October 2017. As I have mentioned, in it she says that she did not receive a copy of a letter from the Assessor dated 1 March 2017 informing her that the respondent had made an application for compensation, and inviting her to contact the Assessor. The first time she became aware that an award had been made in favour of the respondent was on 8 June 2017 when she received notification from the Office of Criminal Injuries informing her that the Determination had been made. In response she applied for Legal Aid to fund an appeal. She was told on 29 June 2017 that her application had been refused. It took her some days to find the funds to engage a lawyer to prosecute the appeal.

32 As to the prospects of success in the appeal, as the court is required to decide the application to which the decision relates afresh, this factor has less significance in the context of an appeal under the CICA. Nonetheless, on the face of the papers, the Determination is arguably excessive.

33 As to the prejudice to the appellant, if the appellant is not granted leave to file the notice of appeal out of time, she would suffer prejudice, as if a reimbursement order is made, she would have lost the opportunity of having the compensation award reduced on the bases identified: B v T [2011] WADC 98 [71] - [72] (Schoombee DCJ).

34 As to the prejudice to the respondent, the respondent filed an affidavit in response dated 20 November 2017. So far as it is relevant, the respondent states that she would be prejudiced if the application is awarded as she has put aside the incident and sought to move on. She says that reopening the application has caused anxiousness and further prejudice, and resulted in loss of wages and expenses in travelling. The respondent's oral submissions to the court were to the same effect, being that having to go through the facts of the Assault again was re-traumatising her.

35 In my view, it is just to allow the appeal to be commenced out of time. The time delay was not significant, and an acceptable explanation has been provided. The fact that the appellant did not receive the Assessor's letter dated 1 March 2017 should be given some weight as it means that the appellant has not, to date, had the opportunity to have the factual material she considers relevant taken into account in assessing the appropriate amount of compensation.

Should the parties be given leave to adduce further evidence?

36 Both the appellant and the respondent sought to rely on further evidence and information beyond that in the possession of the Assessor. The court has the power to permit this: CICA s 56(1). There is no requirement for a party to file an application pursuant to District Court Rules 2005 (WA) r 51 as the power to receive the evidence is in CICA s 56(1): Cahill v Smith [2015] WADC 148 [8] (Wager DCJ).

37 As the appeal is a fresh hearing, further evidence should be admitted unless there is some reason why it would be unjust to do so, especially given the beneficial purpose of the CICA and the informal nature of a hearing before an assessor: TAW v NJS [2011] WADC 187 [17] (Bowden DCJ); Hinchcliffe v Hinchcliffe [2010] 78 [9] (Stevenson DCJ); Re Tilbury [2010] WADC 46 [3] (Martino DCJ); Taylor v Paindelli [2016] WADC 160 [7] (McCann DCJ).

38 The appellant sought to rely on three additional documents, being:

(a) the initial statement of material facts relating to the assault on 1 December 2015;

(b) the amended statement of material facts relating to the assault on 1 December 2015; and

(c) the transcript of the proceedings in the Rockingham Magistrates court on 2 March 2016.

39 By affidavit filed 28 November 2017, the respondent placed before the court a statement relating to the Assault from Ronald Pease, signed 14 January 2016. She also annexed her statement signed 2 December 2015. These documents were already before the court in the Assessor's file (which included the police brief).

40 The respondent filed a further affidavit sworn 1 December 2017 in response to the submissions filed on behalf of the appellant. In this affidavit, the respondent attaches photographs of her injuries. These were already before the court in the Assessor's file. She also responds to some matters in the appellant's outline of submissions.

41 As I have already noted, the appellant did not have the opportunity to place factual material before the Assessor. She should have that opportunity, so I will receive her additional evidence.

42 The respondent's additional evidence was essentially responsive. To the extent that it was not already before the court in the Assessor's file, she should be entitled to so respond. So I will receive her additional evidence.

To what extent is an applicant for criminal injuries compensation permitted to adduce evidence going beyond the facts on which the offender was convicted?

43 The appellant in essence submits that the respondent impermissibly went beyond the facts on which the appellant was convicted:

1. It is further specifically submitted that the facts to which the Appellant entered a plea of guilty is of high relevance in the circumstances therein that any evidence by any party which is incompatible with the facts to which the Appellant indeed entered her plea of guilty must be deemed to actually have been rejected by the Court for the purposes of the finding. This is submitted on the basis that the Appellant pleaded guilty to a very specific set of facts. By pleading guilty to a very specific set of facts the Appellant admitted that very specific set of facts and effectively denied any aspects which was contrary to the facts indeed submitted.
2. It is submitted that the State by accepting the amended facts for the purposes of a plea of guilty accepted that the Appellant can only be sentenced on the facts indeed admitted as any other evidence which was contradictory to the facts that the plea of guilty was entered into had not been admitted and could not be used for the purposes of the sentencing.
3. It is specifically submitted that any facts which do not appear in the facts to which the Appellant has indeed pleaded guilty to are facts unproven by the State by virtue thereof that such evidence has never been tested or indeed put to the Court for consideration. In this specific case it is specifically mentioned that there is no fact put to the Appellant for the purposes of the Appellant's plea that anything may have occurred during the incident that could have injured the Respondent's back....

1. It is specifically respectfully submitted that it would be an abuse of process for the Court hearing a criminal injuries compensation appeal to go behind a conviction at least in relation to the facts relied upon by a party that are inconsistent with the conviction. It is specifically submitted that the factual basis which the Appellant admitted and which the Appellant is convicted on is substantially different from the factual basis propounded by the Respondent in her Application and in her Victim Impact Statement and in her communications with the Psychologist for the purposes of treatment/psychological report.
2. It is further submitted that as the State accepted the amended Statement of Material Facts, those are the facts of conviction and only those are the facts of conviction and that indeed any witness statements or evidence which contradicts the facts accepted as the only facts of conviction should be discarded as unproven and on that basis not be allowed for the purposes of consideration. On this basis the witness statement attached to the Respondents application should be struck out and not considered as inconsistent and unproven.

44 The appellant submits that to the extent that documents such as the hospital records contain material which differs from the factual admissions founding the conviction, they should, in effect, be disregarded.

45 The respondent's claim is based on 'the commission of a proved offence': CICA s 12(1). The term 'proven offence' is defined to mean 'a crime, misdemeanour or simple offence of which a person has been convicted': CICA s 3.

46 In relation to a claim of this kind, the scheme of the CICA is that the Assessor starts from the basis of the proved offence, and then proceeds to determine causation and assess compensation. The CICA does not contemplate that the assessment process will involve a re-litigation of the facts which led to the proved offence: Re Hondros [1973] WAR 1, 3 (Jackson CJ). The court 'will not look behind the offender's conviction in the sense that it will not permit it to be challenged as and by way of a de facto appeal against conviction': Bentham v Wass [2004] WADC 47 [5] (Nisbet DCJ); Scott v Kevill (2002) 28 SR (WA) 226 [7] (Yeats DCJ).

47 However, in Bentham, Nisbet DCJ went on to immediately add that [5]:

[T]he court is obliged to look at the circumstances of the offences and the conviction by reason of the provisions of s 25 of the Act. This is because the court is required to "... have regard to any behaviour, condition, attitude or disposition of the applicant or deceased person which contributed, directly or indirectly, to the injury or loss suffered by him or to his death, as the case may be, and may reduce the amount which he would otherwise award by such percentage as he thinks just."

His Honour was referring to Criminal Injuries Compensation Act 1985 (WA) s 25 which, as is apparent from the passage quoted, is in substantially the same terms as CICA s 41. Indeed, in the present appeal, the appellant seeks to rely on material in addition to that in the statement of material facts to support the conclusion that it is just that any award be reduced on the ground of the respondent's behaviour.

48 Guidance as to the scope of the facts relating to the conviction which may not be controverted may be gained from the decision in Bennett v The State of Western Australia [2012] WASCA 70. The accused was charged with possessing quantities of methylamphetamine, MDMA and cannabis with intent to sell or supply. The issue in relation to the methylamphetamine and MDMA was whether the accused was in possession of the drugs. The issue in relation to the cannabis was whether the accused, who admitted possession of it, had an intention to sell or supply. The prosecution sought to lead evidence of five prior convictions of the accused for being in possession of prohibited drugs with intent to sell or supply. At a pre-trial hearing the evidence was ruled admissible. He was convicted after trial.

49 There were two issues in the appeal. The first was whether the evidence of the prior convictions was admissible. The Court of Appeal held that it was pursuant to Evidence Act 1906 (WA) s 31A: Bennett [23] - [41] (Martin CJ, with whom Buss JA agreed on this point and Mazza JA agreed generally).

50 The second issue was whether evidence of the fact that the accused had previously been convicted of charges of possession of prohibited drugs with intent to sell or supply was admissible as evidence of the facts comprising the elements of those offences, in particular where the appellant pleaded not guilty and was convicted after trial. The Court of Appeal held that it was admissible.

51 Martin CJ firstly dealt with a plea of guilty [49]:

[T]he appellant in this case accepts (properly) that if the conviction is obtained on a plea of guilty, the plea can be taken to be an admission of the facts constituting the elements of the offence. Accordingly, evidence of a conviction on a plea of guilty can be led as evidence of an admission against interest by the accused.

52 In relation to a plea, the Chief Judge concluded [66] - [67]:

[A] prior conviction is admissible in criminal proceedings as evidence of the material facts underpinning the elements of the offence the subject of that conviction irrespective of whether the conviction was obtained after trial or on a guilty plea.

In some cases, issues may arise as to the precise identification of the facts evidenced by the conviction. In such cases, the record of the trial will provide the only reliable guide to that issue which will usually be established by the facts admitted for the purposes of sentence (in the case of a guilty plea), or the facts found by the trial judge for the purposes of sentence (in the case of a conviction after trial).

53 Buss JA delivered separate reasons, coming to the same conclusion, summarising the position in the following terms [109] - [110]:

Where an accused has pleaded not guilty to a criminal charge and has been convicted after a trial, the facts implicit in the verdict of guilty cannot be controverted during the sentencing process. The trial judge must sentence according to those facts. Usually, the facts implied by the verdict will be clear. See R v Storey [1998] 1 VR 359, 366 (Winneke P, Brooking & Hayne JJA & Southwell AJA).

Similarly, a plea of guilty to a criminal charge necessarily involves an admission by the offender of each of the elements of the offence, including all of the essential facts necessary to constitute the offence. See R v Hill [1979] VicRp 33; [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ). The plea also negatives all defences. See Schugman v Menz [1970] SASR 381, 381-382, 386 (Bray CJ). A plea of guilty does not, however, constitute an admission of all of the facts stated in the State's or Crown's depositions or witness statements. See Hill (312)

54 Where there has been a trial, his honour developed the position in a series of six propositions [126] - [133]:

First, the doctrine of res judicata applies in criminal proceedings.

Secondly, res judicata is applicable to a judgment of acquittal and a judgment of conviction entered by a court of competent jurisdiction after a plea of guilty or a trial.

Thirdly, any such judgment of acquittal or conviction binds the parties to the criminal proceedings in which the judgment was entered; that is, the accused and the State or the Crown (as the case may be).

Fourthly, res judicata requires that, as between the accused and the State or the Crown (as the case may be), the judgment of acquittal or conviction is incontrovertible unless and until it has been set aside or quashed by a court of competent jurisdiction.

Fifthly, in the case of a judgment of conviction, the matters which are incontrovertible between the accused and the State or the Crown (as the case may be) are the fact of the conviction and the material facts comprising the elements of the offence the subject of the conviction.

The fact of the conviction may be proved by the mechanism provided for under s 47 of the Evidence Act 1906 (WA).

The material facts comprising the elements of the offence the subject of the conviction may be proved by tendering the relevant part of the record of the earlier proceedings. Proof of the fact of the conviction may also constitute some evidence of those material facts.

Sixthly, if any other facts or circumstances relating to the previous conviction (beyond or apart from the fact of the conviction and the material facts comprising the elements of the offence) are admissible in evidence at a later criminal trial (for example, as 'propensity evidence' under s 31A of the Evidence Act), then those facts or circumstances must be proved in the ordinary way; for example, by calling oral evidence from witnesses who are able to give relevant direct or circumstantial evidence. Such other facts or circumstances are not incontrovertible.

55 For the purposes of the present appeal, I draw seven principles from the decision in Bennett which are relevant by analogy to the context of the CICA. The principles only address a plea of guilty as that is all I need to determine. The principles take the position as set out at [54] above as being well settled law.

56 First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.

57 Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.

58 Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.

59 Fourth, a claimant for criminal injuries compensation cannot re-litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant's right to claim criminal injuries compensation is 'the commission of a proved offence': CICA s 12(1). The evidence of a 'proved offence' must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.

60 Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the 'only reliable guide to that issue' will 'usually be' the facts admitted for the purposes of sentence: Bennett [67]. This will ordinarily be able to be discerned from the transcript of the sentencing hearing.

61 Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State's witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State's witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.

62 Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.

63 The consequences of these principles in the present case are twofold. The first is that, within the limits of the second and third principles, the appellant may introduce evidence and other material to support the contention that any award of compensation be reduced pursuant to CICA s 41. As quoted above, this is long established. The second is that in deciding the respondent's application 'afresh' as directed by CICA s 56(1), I must be conscious to ensure that the decision is not based on factual material which is inconsistent with the material facts comprising the elements of the offence.

Was the psychological report relied on by the respondent based on impermissible factual material?

64 The appellant asserts that the report by Ms Stickle, the respondent's psychologist, was based on impermissible factual material in that the respondent seeks to rely on facts which are inconsistent with the material facts comprising the offence.

65 The main material fact which the appellant has raised in the appeal is the nature of the assault. The description of the assault I have set out above ([8]) is based on the amended statement of material facts, being that:

A verbal argument took place between the accused and the victim which resulted in the accused slapping the victim to the left side of her face one time only with an open palm. She also kicked her one time to the left leg.

A verbal argument took place between the accused and the victim which resulted in the accused punching the victim to the left side of her face several times with a closed fist. She also kicked her several times to the left leg.

67 At the sentencing hearing, the prosecutor read out the amended statement of material facts.

68 The magistrate in her sentencing comments referred to the fact that there was an amendment to the statement of material facts which had been accepted by the prosecution. As to the factual finding, her honour stated: 'Upon the attendance of the mother-in-law, you asked her to leave, and then, essentially attacked her, slapping her and kicking her'.

69 So the material facts comprising the offence are that the appellant slapped the respondent across the face once with an open palm, and also kicked her left leg once.

70 The next three material facts comprising the offence are that:

(a) the respondent received bruising and swelling to the left side of her face and bruising to her left leg;

(b) the injury received by the respondent was such as to constitute bodily harm, that is, it was an injury any bodily injury which interfered with the respondent's health or comfort (CC s 3); and

(c) the appellant was not able to rely on any defences which apply to an assault, for example provocation (Criminal Code (CC) s 246), self-defence (CC s 248) or defence against a home invader (CC s 244).

71 The final material fact that comprises the conviction is that the assault occurred in circumstances of aggravation. There are two circumstances of aggravation within CC s 221(1) which are apparent on the sentencing transcript. The first is that the respondent was of or over the age of 60 years. The second is that the appellant was in a 'family and domestic relationship with the victim': CC s 221(1)(a). The phrase 'family and domestic relationship' in CC s 221(1)(a) has the same meaning as it has in section 4 of the Restraining Orders Act 1997 (WA) (ROA) s 4: CC s 221(2). That section defines the phrase to include 'a relationship between 2 persons ... who have, or had, an intimate personal relationship, or other personal relationship, with each other': ROA s 4(1)(f). The term 'other personal relationship' means a 'personal relationship of a domestic nature in which the lives of the persons are, or were, interrelated and the actions of one person affects, or affected, the other person': ROA s 4(2). The relationship between the appellant and respondent is that of daughter and mother-in-law, which would satisfy the definition. The magistrate also made the observation that the assaults arose in a domestic situation.

72 The respondent's version of the events is set out in a statement dated 1 December 2015, which was part of the materials provided by her lawyer to the Assessor. It is in the following terms:

I received a call from Graham (our son), @ 1202hrs, asking if he could stay with us as Sarah his wife had decided to move back into the house and kick him out, as she wanted to look after the kids now.

I said that was fine we had the room.

Graham rang again @ 1538hrs letting me know that Sarah was not allowing him to leave till she had checked everything he had packed in case he was taking something that belonged to her. He would get to our place as soon as he could.

Graham rang @ 1552hrs and asked me to pick him up as Sarah was not allowing him to drive the car; I said I would be there in 15 minutes.

I arrived @ 1610, parked the car on the road outside 7 Costa Rica Place Safety Bay, opened the back of my car, said hello to Kieran Sarah's son, and Arya, then stood near my car whilst Graham started putting his clothes into my car.

Whilst Graham was loading his belonging [sic] Sarah was continually yelling and swearing at him in front of the children (Kieran aged 8yrs and Arya aged 2yrs). Graham went into the house and I waited near my car for him, at this stage Arya had an umbrella that she was showing me, when Sarah grabbed it from her folded it up and threw it at me, I brushed it aside. Sarah then said I was lucky that it didn't hurt me, but she would do more damage to me with the brick which she threatened to hit me with. I said enough Sarah I'm ringing the police. Sarah said go ahead as she had already rang them because she alleged Graham had sworn at her in front of the children.

I rang the police @1616hrs to report the assault and the threat of assault, I was informed the police had received the work order and would be there when they could.

After this call I stood near my car, Sarah was yelling that she loves goading me as I was a good target because I don't react no matter what she says and that was fun to her.

Graham continued to load the car; Sarah continued to abuse him, swearing at him saying she was glad her children won't turn out like him but more like her. At this time I reminded her that the children were there and they were hearing her swearing at both Graham and I.

Sarah reacted by rushing over to me shoving me against my car screaming at me, and kicking my left leg.

Graham stood between Sarah and I and the neighbours came over saying they had seen that attack and they were calling the police.

Sarah moved away picked up Arya and a weight that was on the lawn and stated that she was going to laugh big time as she threatened to throw the weight.

Graham approached her trying to calm her down, he managed to get Sarah to drop the weight, as he was doing that Sarah than punched Graham in the stomach and kicked him in the groin whilst still holding Arya. I yelled to Graham not to hit her in defence, I looked over to see the neighbours, when Sarah suddenly punched me in my left temple making me fall back across my car and collapse to the ground, I looked up and Sarah was standing over me with Arya in her arms screaming at me to get off her property. At all times I was on either on the verge or the kerb near my car, at no stage was I any further than 1 metre from my car.

Graham and the neighbours rushed to my aid, I just kept repeating to Graham 'don't hit her back, where are the kids'. They [sic] and moved me from there to the front lawn of their place.

They then again rang the police and ambulance. Saying to me they are witnesses to what happened.

The neighbours cared for me till the ambulance came, Sarah took the children into the house, Arya was screaming my name she very upset with what she had seen and wanted to come to us.

I was taken to Rockingham hospital arriving approximately 1730hrs.

73 Significantly, the respondent refers only to one kick to the left leg and one punch to the left temple. So the difference between the material facts on which the proven offence is based and the version of events provided by the respondent is whether the blow by the appellant's hand to the respondent's face was with a closed fist or open palm. I do not consider this difference to be in any way material.

74 Equally significant is the fact that the respondent reported the events in the same terms to her psychologist, Ms Stickle:

... Sometime after this Sarah Underwood reportedly returned to the family home, however on the 1st December 2015, Mrs Underwood received a phone call from her son Graham saying that Sarah Underwood had forced him out of the home, and wouldn't let him take any of his possessions or cars. Mrs Underwood reported that when she went around to their house to pick her son up, Sarah Underwood threw an umbrella at her like a spear, screamed abuse at Mrs Underwood and her son, kicked her in the leg and finally punched Mrs Underwood in the head, all while holding her two year old daughter Aria. After being punched in the head, Mrs Underwood reported that she lost consciousness for a few minutes. Mrs Underwood reported that some neighbours witnessed this and came to her aid. The police and an ambulance were called. Mrs Underwood was taken to hospital and kept under observation for 6 hours, where she was told nothing was broken and she was allowed to return home. Mrs Underwood alleged that an old back injury had been aggravated by the attack, and that she suffered a sore shoulder.

75 So I do not consider that Ms Stickle's report is based on facts which are materially inconsistent with the material facts comprising the offence.

Has the respondent proven that her psychological injuries were suffered as a consequence of the commission of the Assault?

76 As set out above ([ ]), the respondent claims that she suffered psychological injuries as a consequence of the commission of the Assault.

1. In this matter the circumstances are that there was a long previous existing stress or circumstantial stress on the Respondent causing a mental impact on her which is based on the Family Law proceedings between the Appellant and the Respondent's son which predated the incident and in which the Respondent substantially involved herself. It is further submitted that a lot of the mental anguish and potential damage which the Respondent may have suffered is directly attributable to the Family Court proceedings between the Appellant and the Respondent's son and the high likelihood that the care of the children would be awarded to the Appellant ...

1. The main objection to a finding of psychological injury to the Respondent is firstly the fact that everything that Ms Stickle finds in her Psychological report is based purely on the communication with the Respondent and there is no proof of any external verification of the Respondent's statements. It is further of high relevance that the Stickle Report still finds the Respondent suffering anxiety and depressive symptoms but that those ongoing symptoms were concerning ongoing conflict between her son and the Appellant over the custody of her daughter and it is submitted that these symptoms would have been prevalent before the incident as well as this was an ongoing matter at that time already.

78 The primary evidence relied on was Ms Stickle's report. The relevant part reads as follows:

1. Diagnosis and Opinion on Cause of Psychological Condition

Mrs Underwood reported that after being assaulted by Sarah Underwood, she experienced re-experiencing phenomena regarding the alleged assault in the form of flashbacks and intrusive images, intense psychological distress at exposure to internal or external cues that symbolize or resemble the traumatic event (sees her granddaughter's distressed face as her mother punches Mrs Underwood), and physiological reactivity upon exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event (tearfulness, nausea, racing heart when she sees something that reminds her of Sarah Underwood or the attack). Mrs Underwood also reported that she persistently avoided stimuli associated with the trauma, including thinking or talking about the trauma, avoidance of places that she believes Sarah Underwood frequents, and she is unable to recall what happened after she was punched in the head. Mrs Underwood also reported difficulty staying asleep (waking several times a night), difficulties concentrating, hypervigilance, and she reported that she was more emotional and more generally fearful than she normally was before the assault. Mrs Underwood also reported feeling really anxious that she may not see her grandchild again, and reported a feeling of hopelessness. Mrs Underwood reported that the trauma had affected her social life, as she was isolating herself socially, and that it has affected her and her husband financially, as Mrs Underwood has had to go back to work after being retired to help pay her son's and her own lawyer's fees. Mrs Underwood reported that she had to obtain a Violence Restraining Order against Sarah Underwood as she had been sending her abusive text messages and phone calls. Mrs Underwood's Violence Restraining Order against Sarah Underwood was granted. Mrs Underwood reported that having to go to court and recount everything that happened would lead her to become tearful and extremely anxious. In my opinion, Mrs Underwood met all the criteria that are consistent with the diagnosis of PTSD. She did not meet the criteria for a depressive disorder. Mrs Underwood reported that she had a good and uneventful childhood, and that she had suffered no psychiatric disorders prior to the alleged attack by Sarah Underwood. It is my opinion that Mrs Underwood's PTSD symptoms were the result of the alleged attack by Sarah Underwood.

79 Ms Stickle goes on to report that she developed and executed a treatment plan with the respondent, which resulted in the respondent's PTSD symptoms resolving. However, she also reported that, as at the date of her report (16 August 2016), the respondent was still suffering from some anxiety and depressive symptoms as a result of the fact that the appellant and Graham were then still involved in a custody dispute over their daughter. Ms Stickle opined that, in the context of the ongoing conflict between the appellant and Graham, 'any further incidents may well exacerbate her current anxiety and depressive symptoms or lead to a recurrence of PTSD'. At the point at which the report was written, the respondent did not require any further treatment.

80 The affidavits filed in the appeal by the respondent and her brief comments to the court on the hearing of the appeal are to the effect that the ongoing need for her to refer back to the events of the Assault are reactivating some of the psychological symptoms for which she sought treatment from Ms Stickle. However, she did not adduce any evidence or other material to the effect that she was undergoing further treatment for PTSD.

81 Save for the statements of material facts and the transcripts of the sentencing hearing, the appellant did not seek to provide to the court any factual material contrary to that submitted to the Assessor or lead any other evidence.

(a) the respondent suffered PTSD as a consequence of the commission of the Assault;

(b) the symptoms of PTSD identified by Ms Stickle are separate and distinct (to the extent that psychological symptoms can ever be) from the more general symptoms of the ongoing anxiety and depressive symptoms which the respondent reported;

(c) the respondent received treatment for the PTSD which addressed the symptoms; and

(d) she does not appear to have any ongoing symptoms of the PTSD, at least not symptoms requiring treatment.

83 The next issue which arises is whether PTSD is an injury for the purposes of the CICA. The term 'injury' in CIC Act s 12, 16 and 30 includes 'mental and nervous shock': CICA s 3. This phrase contemplates the impact of the offence on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5 (Burt J); KMA v DFS [2010] WADC 6 [24] (Sweeney DCJ). It refers to 'mental or emotional harm as opposed to physical injury or bodily harm': S v Neumann (1995) 14 WAR 452, 461 (Murray J). It must be of an enduring character so as to amount to an injury, as opposed to a mere emotional reaction: Neumann, 461; KMA [24]; AH v RW [2016] WADC 114 [63] (Braddock DCJ); Townend v McAlindon [2017] WADC 63 [46] (Sleight CJDC). For example, mere fright, humiliation or anguish are seen as emotional reactions, whereas ongoing distress and disgust are seen as compensable: KMA [24].

84 The PTSD suffered by the respondent, as described above, falls within the definition of 'mental and nervous shock' in CICA s 3, and thus the definition of 'injury' in the CICA.

85 'An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied ... that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of a proved offence': CICA s 12(3). By CICA s 3, 'satisfied' means 'satisfied on the balance of probabilities'.

86 I do not think that it is useful to refer to the concept of onus of proof in the context of the CICA: Hutchings v Lachlan [2012] WADC 89 [37] (Commissioner Gething). The CICA is essentially neutral as to the onus of proof on the claimant and the offender; the 'onus', if there is one, is on the assessor to be 'satisfied' of the relevant matters. The failure of the assessor to be satisfied of a matter may operate to the advantage of the claimant or the offender depending on the context. For example, in CICA s 12, if the assessor is not satisfied that 'the claimed injury and the claimed loss occurred and did so as a consequence of the commission of a proven offence', the claim will fail, to the benefit of the offender. In CICA s 39 (1) (b), if the assessor is not satisfied 'the injury was suffered when the person was committing a separate offence', a barrier to an award of compensation is removed to the benefit of the claimant and the detriment of the offender.

87 The words 'as a consequence of' require a causal relationship or connection: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673 (Mason & Wilson JJ); Townend [36]; T v Curnuck [2004] WASC 139 [27] (Barker J); B v B [2004] WASC 6 [14] (Barker J). Whether that causal relationship exists is 'essentially a question of fact, to be resolved as a matter of common sense': Bennett v Minister of Community Welfare [1992] HCA 27; (1992) 176 CLR 408, 412 - 413 (Mason CJ, Deane & Toohey JJ); Fagan (673) (Mason & Wilson JJ); Townend [35]; ALD v NCD [2012] WADC 45 [47] (Commissioner Gething). It is sufficient that, as a matter of ordinary common sense and experience, the assaults should be regarded as having 'materially contributed' to the harm, in the sense that the contribution was not negligible: Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613, 620 (Lord Reid); March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ), 522 (Deane J); Lyle v Soc [2009] WASCA 3 [40] (Steytler P); ALD [47].

88 'The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause': Fagan (673); Fairhead v Quartermaine [2010] WADC 1 [16] (Deane DCJ); Townend [35]; VPAN [2011] WADC 40 [83] (Sweeney DCJ); ALD [49].

89 If it is possible to do so on the evidence, the assessor is required to attempt to distinguish between the degree of the injury caused by the commission of the compensable offence (or offences) and the degree of the injury caused by the non-compensable offence (or offences): McDavitt v McDavitt [No 2] [2013] WADC 198 [23] (Davis DCJ).

90 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: Malec v JC Hutton Pty Ltd (No 2) [1990] HCA 20; (1990) 169 CLR 638, 645 (Deane, Gaudron & McHugh JJ with whom Brennan & Dawson JJ agreed); MJN v MAJS (2003) 35 SR (WA) 219 [52] (Martino DCJ); TAW [83] (Bowden DCJ); Townend [39]. On the other hand, if it is not possible to disentangle the consequences 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: Bonnington Castings (620); Watts v Rake [1960] HCA 58; (1960) 108 CLR 158, 160 (Dixon CJ); Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, 168 (Barwick CJ, Kitto & Taylor JJ); TAW [84]; MJN [47] - [52]; Townend [40].

91 I find that the PTSD suffered by the respondent was at the very least materially contributed to by the Assault, and was thus an injury suffered 'as a consequence of' the Assault. The PTSD is, as I have found, separate and distinct from the more general symptoms of anxiety and depression which appear to have predated the Assault, and to be continuing after the resolution of the PTSD symptoms. The respondent is entitled to compensation for her PTSD symptoms.

Has the respondent proven that she sustained an aggravation to her pre-existing back injury were suffered as a consequence of the commission of the Assault?

92 As set out above ([12]), the respondent also claims that she suffered an aggravation to a pre-existing back injury as a consequence of the commission of the Assault.

93 The primary evidence relied on was the report from Dr Holthouse. Dr Holthouse reports that in September 2015 he administered epidural injections and facet joint injections to the respondent for bilateral pain in her back, radiating down her left leg. She had some improvement as a result of the injections.

94 The respondent then saw Dr Holthouse in January 2016, being after the assault. She complained of significant back pain following the assault. Dr Holthouse then reports that the respondent had ongoing treatment to the date of the report, being 6 October 2016. He concluded:

As such, I believe that this lady certainly has significant ongoing degenerative disease. It is difficult for me to ascertain exactly what percentage of her ongoing back pain would be caused by an aggravation. At this stage I am also unable to determine whether or not the symptoms currently portrayed by the patient are related to her aggravation. It is possible that she did have some aggravation of her lower back symptoms as a result of an assault, but overall it is likely that this lady would have and will need further treatment for her degenerative disease.

95 The appellant's submission is to the effect that it is not permissible to draw an inference of causation from a statement that the aggravation was 'possible'. I agree, though with a caveat. The test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. Specifically, in the context of this case, the respondent must do more than merely show that it was possible that the Assault aggravated the pre-existing injury to her back: St George Club Ltd v Hines (1961) 35 ALJR 106, 107; [1962] ALR 39, 41 (Judgment of the Court); Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 [80] (Spigelman CJ), [201] (Stein JA). Further, mere proof of default followed by injury does not show that the default caused the injury: St George Club (107).

96 The caveat is that evidence of possibility is nonetheless relevant, and may be used with other evidence as the basis for an inference of causation. Causation may be proven by inference: Seltsam [98]. 'Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves': Jones v Dunkel [1959] HCA 8; ([1959] HCA 8; 1959) 101 CLR 298, 309 (Menzies J). In order to draw an inference, I must be satisfied that the circumstances raise a more probable inference in favour of what is alleged; 'where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference': Luxton v Vines [1952] HCA 19; [1952] HCA 19; (1952) 85 CLR 352, 358 (Dixon, Fullagar & Kitto JJ); Chamberlain v The Queen (No 2) [1984] HCA 7; ([1984] HCA 7; 1984) 153 CLR 521, 536 (Gibbs CJ and Mason J); Robinson v The Owners of Reflections Waterfront Apartments West Tower Strata Plan 58085 [2017] WASCA 190 [47] (Reasons of the Court). Evidence of possibility, in particular medical possibility, is admissible as part of the factual basis for an inference: Seltsam [79], [89], [153]. Evidence of the sequence of events may also be called in aid of drawing an inference which, according to the expert medical evidence, is open: Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 724 - 725; (1976) 10 ALR 303, 311 - 313 (Mason J).

97 There are two additional areas of evidence that were in the materials given to the Assessor which are relevant to whether an inference of causation may be drawn.

98 The first is the evidence of the circumstances of the Assault. The respondent describes being hit (to use a neutral term) in her left temple, making her fall back across her car and collapse to the ground.

99 The photograph of the respondent's injuries shows her to have a significant bruise in the area of her left temple, extending towards her eye, indicating the force of the blow.

100 The respondent's lawyers provided the Assessor with witness statements from both Ronald and Robyn Pease. Mr and Mrs Pease live in a neighbouring house to the Safety Bay House, and were witnesses to the assault. In his witness statement, Mr Pease says that he saw the appellant punch the respondent, and the respondent 'fell back onto the bonnet of the car, making a loud noise'. Mrs Pease's statement is to the same effect.

101 The appellant did not place before the court any contrary evidence.

102 For the reasons set out above, I am constrained to proceed on the basis that the appellant slapped the respondent once to the left hand side of the face. This is notwithstanding the evidence in the witness statements of Mr and Mrs Pease that the Assault was more extensive. I do, however, find that the blow had significant force to it, sufficient to leave a distinctive bruise and sufficient to cause the respondent to fall back across her car and fall to the ground. I further find that this sequence of events is one that had the real potential to cause an injury to the respondent's back.

103 The second area of evidence is the evidence of the injuries which the respondent says she sustained.

104 In her victim impact statement (which was provided to the Assessor), the respondent states that, immediately after the Assault, she was 'in extreme pain' in her back and that her face was really hurting.

105 The ambulance Patient Care Record was provided to the Assessor. This records the respondent as complaining of, among other things, right sided lumbar pain.

106 In the records of the Rockingham Kwinana Hospital, the presenting problems included complaints of a painful back. Specifically, the respondent reported pain in the back travelling to the right leg, with pins and needles. On examination, there was tenderness in the lower spine. She was not able to raise her right leg fully due to the pain. She was given pain relief. The respondent underwent a lumbar spine x-ray, as well as a CT scan to the head and cervical spine. No fractures or dislocations were identified, though the disc degenerative change was noted in the report of the x-ray. She was released after some hours in observation.

107 I find that immediately after the assault the respondent experienced pain to her back, radiating down to her right leg.

108 The issue is then whether the respondent has established a sufficient evidential basis for a finding that as 'a consequence of' the Assault she sustained an aggravation to her pre-existing degenerative back injury. In summary, I have found that:

(a) the slap by the appellant to the respondent's head had significant force to it, sufficient to leave a distinctive bruise and sufficient to cause the respondent to fall back across her car and fall to the ground;

(b) the sequence of events in (a) is one that had the real potential to cause an injury to the respondent's back;

(c) immediately after the Assault the respondent experienced pain to her back, radiating down to her right leg; and

(d) from a medical perspective, it is possible that the Assault caused some aggravation of her lower back symptoms.

109 These facts are an ample basis for me to form a reasonable and definite inference that the Assault caused some aggravation of the respondent's pre-existing lower back symptoms.

110 Save to find that the respondent's pre-existing degenerative disease to her back would have required further treatment in any event, I am not able to make a specific finding as to the extent of the aggravation.

111 The general power of an assessor is contained in CICA s 30. It provides that 'on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered': CICA s 30(1).

112 As the offences occurred after 23 September 2003, the maximum amount of compensation payable for a single offence is $75,000: CICA s 31 (1). The maximum in CICA s 31 (1) is a jurisdictional limit and is not reserved for the worst cases: Neumann 463 (Murray J); TAW [21]; B v B [13].

113 The correct approach to adopt in assessing the amount of compensation under the CICA 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 CICA, and to the jurisdictional limit of the CICA: M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992) (Scott J); RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974) 3 (Burt J); Re Utting [2011] WADC 10 [6] (Braddock DCJ); Robertson v Baker [2014] WADC 14 [12] (Stone DCJ).

114 The main contention identified by counsel for the appellant is in the following terms:

The main contention on this basis is that the offence for which the Appellant was indeed convicted had a factual set of components to which the Appellant pleaded guilty which was a substantial diminishment in scale of the severity of the offence for which the Appellant was initially charged. It is therefore submitted that the assessment having been made, based on the facts of the original Statement of Material Facts as propounded in the Application by the Respondent is indeed correct as it is an assessment based on a higher level of culpability and increased scale from the offence for which the Appellant was indeed convicted as based on the facts underlying the conviction.

115 However, the matters identified by counsel for the appellant, in particular the level of culpability and severity of the offending, are not relevant. Rather, the amount awarded is to be assessed solely on the basis of the injury suffered by the respondent. The amount is not to be fixed as punishment for the appellant as offender or as an expression of sympathy for the respondent as victim: B v W (1989) 6 SR (WA) 79, 89 (Williams DCJ); G & N v R [2006] WADC 208 [8]; (2006) 48 SR (WA) 301 (Goetze DCJ).

116 The respondent claimed two forms of compensation. The first was for non-economic loss. The second was for the medical report fees.

117 The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the plaintiff and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118, 125 (Barwick CJ, Kitto & Menzies JJ); Houlahan v Pitchen [2009] WASCA 104 [107] (Newnes JA with whom Pullin & Miller JJA agreed); Winiarczyk v Tsirigotis [2011] WASCA 97 [71] (Judgment of the Court). The amount must be proportionate to the situation of the particular plaintiff: Houlahan [107]; Winiarczyk [71].

118 In assessing mental and nervous shock, the court must attempt to make a distinction between direct 'impact damage' and further damage that may be suffered by such things as the reaction of the victim's family and friends, court proceedings or public attention: Bandy (3); Re Karra (1984) 2 SR (WA) 97, 100 - 101 (Heenan DJC); Garton v McCormack (2002) 30 SR (WA) 307 [15] (Yeats DCJ); Shepherd v Shepherd [2010] WADC 30 [20]; (2010) 71 SR (WA) 143 (Wager DCJ).

119 The two injuries I have found the respondent to have sustained as a consequence of the commission of the Assault are PTSD and an aggravation of her pre-existing degenerative back injury. As to the former, the PTSD symptoms resolved with treatment with a few months, and there is no further treatment required. At to the latter, it is clear from the evidence that the respondent's pre-existing back injury had required intervention prior to the Assault, and would in any event have required intervention after the Assault. So the extent of the aggravation was not significant.

120 In these circumstances, the appropriate award for non-economic loss is $5,000.

121 As to the medical report fees, the respondent claims medical report fees of $1,221 for the reports of Ms Stickle and Dr Holthouse.

122 The 'loss' which the respondent may claim includes 'expenses actually and reasonably incurred by or on behalf of the victim... that arise in obtaining any report from a health professional or a counsellor in relation to ... the injury suffered by the victim': CICA s 6(2). The medical report fees claimed fall within this description, and should be allowed.

123 Subject to the application of CICA s 41, I assess the compensation to which the respondent is entitled at $6,221.

Should any award of compensation be reduced due to the respondent's pre-existing medical conditions pursuant to CICA s 41?

124 The appellant says that the fact of a pre-existing medical back condition and the inconclusivity of the back injury report is a relevant aspect to be taken into consideration for the purposes of CICA s 41.

In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor -

(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and

(b) may, if he or she thinks it is just to do so -

(i) refuse to make a compensation award because of that contribution; or

(ii) reduce the amount that the assessor would otherwise have awarded.

126 As counsel for the CEO points out in her written submissions there are two lines of authority in the District Court as to whether the CICA s41 applies to the pre-existing injuries of an applicant for criminal injuries compensation.

127 The first line of authority is that CICA s 41 was not intended to deal with pre-existing injuries and medical conditions. Rather, it is concerned with factors which contribute to the offence, not the consequent injury or loss suffered as a result of the offence. To the extent that there are pre-existing injuries and medical conditions, these are dealt with by applying ordinary tortious principles. The cases in this line of authority are: MDC v BLR [2015] WADC 107 [65] (Braddock DCJ); Re AK [2016] WADC 156 [194] (Schoombee DCJ); JY [2013] WADC 187 [14] (Sleight DCJ); Curnow v Garnant [2012] WADC 72 [65] (Commissioner Gething); SW v BB [2010] WADC 86 [103] (Schoombee DCJ).

128 The second line of authority is that pre-existing and subsequent injuries and medical conditions which have contributed to, or exacerbated, the applicant's injury must be taken into account in accordance with s 41 of the Act. Under this approach, the discretion under s 41(b) of the Act (to, if it is just to do so, refuse to make a compensation award or reduce the compensation award by reason of that contribution) may be guided by common law principles so that an applicant is not awarded compensation for injuries arising otherwise than out of the commission of an offence. This is said to be consistent with the purpose of the Act to provide for the payment of compensation to victims of offences in some, but not all, circumstances. The cases in this line of authority are: McDavitt [34]; Reed v Assessor Criminal Injuries Compensation (Unreported, WADC, Library No 970170, 5 June 1997) 22 - 23 (Viol DCJ); Krukiewicz v Hayes [2004] WADC 242 [25 - [26] (HH Jackson DCJ); Shepherd [27] - [29]); Gabriel v Kyanga [2011] WADC 218 [36] (Scott DCJ); Re Faengsungnoen [2012] WADC 59 [53] (Bowden DCJ); Re Krispyn [2011] WADC 161 [18] (Curthoys DCJ).

129 In SW v BB, Schoombee DCJ reviewed the legislative history of CICA s 41 and observed [97] - [101]:

Section 41, as it now reads, was first introduced in very similar terms as s 27 in the Criminal Injuries Compensation Act 1982. The 1982 Act was a new Act which replaced the Criminal Injuries (Compensation) Act 1970. The 1982 Act included the words 'behaviour, condition, attitude or disposition' of the applicant, whereas the 1970 Act had only referred to the 'behaviour' of the applicant in a similar section.

In the second reading speech of the Bill preceding the 1982 Act the Minister said the following about cl 27:

'Clause 27 allows the assessor to apportion responsibility between the victim and the assailant and to reduce the amount of compensation which otherwise he might have awarded by the extent to which the victim himself contributed to his injuries or loss.'

The reference in the second reading speech to "apportion responsibility" and "the victim himself contributed" seems to indicate that the legislature had some morally reprehensible conduct at the time of the offending in mind and not a pre-existing condition for which the victim may carry no responsibility. Further, the fact that the reference to "behaviour, condition, attitude or disposition" was an expansion of the word "behaviour" used in the 1970 Act seems to indicate that the section was meant to deal with a victim's conduct relevant to the offence, with what I have described as "contributory conduct", and not with a pre-existing medical condition which contributes to the injury.

The purpose of the section was to apportion responsibility to the applicant for his or her behaviour, condition (in the sense of mental disposition) attitude or disposition (in the sense of frame of mind or mood), which contributed to the offence and therefore the injury. There is no indication that the section was also meant to apply where a pre-existing medical condition contributed to the injury, but no reprehensible conduct by the victim was involved at the time that the offence was committed.

As the Act is legislation which has a beneficial purpose (see Bird v The Commonwealth (supra) at 9) s 41 should be interpreted to the effect that the words "condition" or "disposition" do not refer to a pre-existing physical or mental illness or disability, but only to a condition or disposition which was relevant to the commission of the offence and therefore contributed to the injury of the victim.

130 I note her Honour went on to consider the authorities on causation which I have dealt with above: SW [103] - [106]. Those authorities provide a framework for a court to deal with a situation in which the injuries the subject of the CICA claim have multiple causes, including pre-existing physical or mental illnesses or disabilities. This analysis is part and parcel of the inquiry in CICA s 30 as to whether the injuries were suffered 'as a consequence of' the commission of the proven offence. Moreover, the award of compensation pursuant to CICA s 30 is 'such compensation that the assessor is satisfied is just for the injury'. It would not be just to award compensation for injuries which were an identifiable exacerbation of a pre-existing injury, in line with the common law principles which I have summarised. Applying these principles, before considering the application of CICA s 41, I have come to an award of compensation which I consider to be just, having taken into account the respondent's pre-existing injuries. Although as a matter of strict statutory interpretation it may be open to the court to look again at the claimant's pre-existing injuries for the purposes of CICA s 41, there seems little utility in doing so. Axiomatically, I cannot imagine a circumstance in which I would reduce an award of damages which I have assessed to be just (taking into account the impact of pre-existing injuries and medical conditions) on the basis that it would be just to do so (taking into account the impact of the same pre-existing injuries and medical conditions). On this analysis, it does not make any practical difference as to which interpretation is adopted.

131 In this appeal, as I have already taken into account the pre-existing medical injuries and medical conditions of the respondent in assessing the amount of compensation which is just for the purposes of CICA s 30(1), I do not find any basis to conclude that it would be just to reduce that compensation pursuant to CICA s 41 on the basis of those same pre-existing medical injuries and medical conditions.

Should any award of compensation be reduced due to the respondent's behaviour pursuant to CICA s 41?

132 The appellant submits that the presence of the respondent at the scene of the Assault aggravated the situation and that her behaviour is something that may, and should, be taken into account pursuant to CICA s 41.

133 In the plea in mitigation before the magistrate, counsel for the appellant stated that:

The situation - it's admitted. There was a verbal altercation concerning him taking certain property, and the situation escalated. There was, really, no reason for the estranged husband to actually call his mother to attend upon the premises, and with respect, that was probably more done out of the viewpoint of, basically, moral support for him, but it did end up aggravating the situation. The estranged husband did have his own vehicle basically on the premises.

There was no reason for him to be fetched from the premises, but the accused here has cooperated throughout. She has basically participated in a video record of interview basically at earliest possible date we dealt with pleas of guilty in the circumstances, and though the - it is a serious offence, the assault, specifically upon victim number 1, the mother-in-law - no. We are dealing with somebody with some psychological explanation for - which mitigates the circumstances.

We're also dealing with somebody who has never previously had any convictions, or even any problems with the police concerning any violence-related offences, and as the report can be seen, a lot of her anxiety actually sprouts from being exposed to domestic violent situations in youth and in a previous relationship. To a great extent, it is submitted to the court that was is set out in the pre-sentence report as a version of the accused is an accurate and understandable version.

It does not excuse, effectively, what she did, and, therefore, a plea of guilty was entered. But it does mitigate and explain it to a large extent. I would, therefore, suggest to the court that an appropriate sentence in the circumstances would either be a sentence of a fine payable in the circumstances, or a community-based order in the circumstances.

In any event, on this particular evening and in the context that I've just referred to, you and your ex-husband were arguing as regards these matters. It is the case that he then called his mother to come to the situation. I accept what your counsel says that he had a car there, and it doesn't seem that there as any reason from him to do that. And it does seem that that was somewhat inflammatory to the situation in terms of your reaction to her attendance.

The situation - it's admitted. There was a verbal altercation concerning him taking certain property, and the situation escalated. There was, really, no reason for the estranged husband to actually call his mother to attend upon the premises, and with respect, that was probably more done out of the viewpoint of, basically, moral support for him, but it did end up aggravating the situation. The estranged husband did have his own vehicle basically on the premises.

There was no reason for him to be fetched from the premises, but the accused here has cooperated throughout.

135 In written submissions, counsel for the appellant developed the argument in these terms:

It is further submitted that a relevant aspect is that there was no justifiable reason for the Respondent to have been at the relevant premises where the incident for which the Appellant was convicted occurred and it is submitted that the Respondent was only there to indeed place psychological pressure on the Appellant which she knew was undergoing psychological counselling.

136 I do not consider that the observation by the magistrate constitutes a finding as to a material fact comprising the offence. It was thus open to both the appellant and the respondent to adduce evidence or other material in the appeal on this issue. Moreover, the magistrate did not have the benefit of any evidence from the respondent.

137 I have set out above ([69] - [71]) the material facts comprising the offence. Save for an implicit finding that the respondent did not act in a way that would have given rise to a defence to an assault, the material facts are silent as to the background to the attendance of the respondent at the Safety Bay House. As I have stated, the plea neither constitutes an acceptance or a denial of the remainder of the material comprising the State brief.

138 The assessor, and the court, has the benefit of a written statement by the respondent, which I have quoted above ([72]). The assessor and the court also have the signed witness statements from Mr and Mrs Pease. These statements are essentially consistent with the respondent's version of events that the appellant was the aggressor. Although the appellant did not have the opportunity to place her version of events before the Assessor, she did have the opportunity to place her version of events before the court. She did not do so. There is thus no evidential basis for the factual assertions made by counsel for the appellant. For these reasons, I accept the version of events in the respondent's statement.

139 Whether or not the respondent's behaviour, condition, attitude, or disposition will preclude or reduce any award of compensation is a matter of fact and degree to be determined in light of the particular circumstances: Re Richardson [2009] WADC 93 [81] (Yeats DCJ); Bodney v The Assessor of Criminal Injuries Compensation [2000] WADC 214 [27] - [29] (Groves DCJ). In Richardson Yeats DCJ stated of CICA s 41 [81]:

The use of words 'if he or she thinks it is just to do so', requires the Court to consider all the circumstances and to make a judgment ensuring that justice is done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.

140 There is nothing in the respondent's version of events suggesting any behaviour whatsoever that contributed, directly or indirectly, to her injury. To the contrary, she acted in a restrained and appropriate manner. There is no basis whatsoever to apportion to her any responsibility for the injury. I do not think that is it just to either refuse to make a compensation order, or reduce the amount I would have otherwise ordered.

141 On appeal, the Court may award costs against an unsuccessful party and in favour of a successful party in accordance with the scale of costs prescribed in the Criminal Injuries Compensation Regulations 2003 (WA) (CICR).

142 As the appellant has been substantially successful in the appeal, I am of the preliminary view that costs should follow the event: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [67] - [68] (McHugh J); State of Western Australia v Collard [2015] WASCA 86 [25] (Judgment of the Court).

143 The appellant was represented by a legal practitioner. In this instance, the regulations fix the costs at a maximum of $180 for preparation and a maximum of $180 for each day of a substantive or interlocutory hearing: CICR reg 5. My preliminary view is that the appellant is entitled to costs in these two maximum amounts, totalling $360.

144 I will hear from counsel for the appellant and the respondent on the issue of costs.

145 If I were to remain of my preliminary view, the appropriate orders would be:

1. The award of the Assessor dated 8 June 2017 be varied from $16,221 to $6,221.
2. The respondent pay the appellant's costs of the appeal fixed at $360 within seven days of receipt of the award in order 1.