AJC v Lewis

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation appeal - Alleged offence - Long delay before complaint to police - Compensation refused for applicant's failure to do an act which he ought reasonably have done to assist in the identification, apprehension or prosecution of the person who committed the offence - Whether applicant's failure to make a complaint was reasonable - Turns on own facts

Criminal Injuries Compensation Act 2003 s 38

Amicus Curiae : Mr S R Pack appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

AJC v Lewis (2003) 35 SR (WA) 94

Anderson v The Assessor of Criminal Injuries Compensation [1999] WADC 120

G P W [2005] WADC 48

Harding [2004] WACIC 66

Hinchcliffe v Hinchcliffe [2010] WADC 78

Holbrey v Assessor of Criminal Injuries Compensation [2001] WADC 129

Jansen (1996) 15 SR (WA) 216

KCR [2009] WACIC 6

Kirkham [2008] WACIC 27

Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Martin v Martin [2015] WADC 138

Pollock v Wellington (1996) 15 WAR 1

Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370

Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240; [2000] WADC 143

Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245

Re Collard [2018] WADC 1

Re Willington [2005] WADC 30

Sullivan, [2017] WADC 17

Wall v Chief Executive Officer [2000] WADC 320

Woodruffe v Northern Territory of Australia [2000] NTCA 8

1 DAVIS DCJ: Mr Iaria has appealed a decision made on 27 March 2017 by the Chief Assessor of Criminal Injuries Compensation (the assessor) to refuse his application for criminal injuries compensation under the Criminal Injuries Compensation Act 2003 (WA) (the Act).

2 Mr Iaria had applied for compensation under s 17 of the Act for injuries and loss suffered by him as a result of an alleged assault by an unknown assailant on 13 June 2014. Unfortunately, Mr Iaria did not report the alleged assault to police until almost 21 months later, on 10 March 2016.

3 The assessor was of the opinion that Mr Iaria did not do everything reasonably required of him to assist in the identification, apprehension and prosecution of the unknown assailant. Applying the principles under s 38 of the Act, the assessor refused to make a compensation award.

The Assessor erred in concluding that s 38 of the Criminal Injuries Compensation Act applied and that the appellant did not do everything reasonably required to assist the identification, apprehension and prosecution of the person who committed the alleged offence.

5 The appeal is a hearing de novo. I must determine Mr Iaria's application afresh without being fettered by the determination of the assessor, and I may confirm, vary or reverse the assessor's decision in whole or in part: s 56.

6 For the following reasons I confirm the assessor's decision and dismiss the appeal.

Principles relevant to s 38 of the Act

7 Section 38 provides, relevantly, that an assessor must not make a compensation award in favour of an applicant if the assessor is of the opinion that the applicant 'did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence'.

8 The section requires a factual determination as to whether there was a failure by the applicant to do any act or thing and if so, whether that failure was reasonable in the circumstances: Re Collard [2018] WADC 1 [22] - [23].

9 The determination of whether the applicant's failure to do any act or thing was reasonable focuses on the applicant and what 'he' ought reasonably to have done, and not the hypothetical reasonable person. Although the ultimate test is what was objectively reasonable in all of the circumstances, the test to be applied is by reference to what could reasonably be expected of the applicant at the particular time: Martin v Martin [2015] WADC 138 [63] - [65]; Hinchcliffe v Hinchcliffe [2010] WADC 78 [62]; Prideaux v Chief Executive Officer (2000) 24 SR (WA) 240; [2000] WADC 143 [15].

10 So two inquiries must be made. First, was there a failure by the applicant to assist in the identification, apprehension or prosecution of the offender? Secondly, if there was a failure, was that failure reasonable in the circumstances, taking into account the particular circumstances of the applicant to determine what was reasonable for him to do?: Re Collard [23]; AJC v Lewis (2003) 35 SR (WA) 94 [33] (Martino J).

11 Section 38 is a means of ensuring, amongst other things, that criminal injuries compensation claims are genuine and that offenders are brought to justice. It aims to ensure that the authorities are not prevented from investigating the factual circumstances of an alleged offence: Hinchcliffe [58]; Ransfield v The Assessor of Criminal Injuries Compensation [2000] WADC 245 [23] - [31].

12 A recent analysis of the authorities from this court where s 38 (or its equivalent under the Criminal Injuries Compensation Act 1985, s 24) has been applied to preclude a person from claiming compensation was undertaken by Goetze DCJ in Re Collard [27], which I respectfully adopt and reproduce:

1. Where an applicant refused to sign a police witness statement ostensibly because he did not wish to be seen by his acquaintances to be co-operating with the police: KCR [2009] WACIC 6.
2. Where an applicant refused to provide police with details of the whereabouts of a witness known to the applicant. This failure was held to be unreasonable as it led to the cessation of the investigation: Ransfield v The Assessor of Criminal Injuries Compensation [27] - [30].
3. Where the applicant refused to co-operate with police by refusing to give a statement, indicating that he wanted no further action taken and that he would not attend court to assist in any prosecution: Kirkham [2008] WACIC 27.
4. Where, on application for compensation under s 16 and s 17, the applicant failed to provide police with information to identify or assist in the investigation of an alleged offender whose assault upon the applicant may have caused the injuries which had been the subject of other proceedings and which had been discontinued against other offenders: Harding [2004] WACIC 66.

13 To this list of authorities I would add the following:

1. Where the applicant was assaulted while in prison on remand and made no complaint at all to the police. It was held that even if it was understandable that he may have had a reasonable apprehension of further violence whilst in prison, upon his release he could have reported the matter with relative impunity: Wall v Chief Executive Officer [2000] WADC 320.
2. Where the applicant was struck by his wife and waited 9 1/2 years before reporting the matter to the police, and then the report was not made to Western Australian police, but to police in another State (Tasmania). His explanation for not reporting the incident was that he did not wish to cause trouble with his then wife and in his words he 'let it go'. However, he had separated from his wife in about 1995 and did not report the matter until 2003. There was found to be no reasonable acceptable reason why a complaint was not made in 1995 when the relationship came to an end: Re Willington [2005] WADC 30.
3. Where the applicant claimed that he had reported the matter to police two weeks after the alleged assault, when police officers came to his home regarding an unrelated matter. On the account given by the applicant he was told by the police that a complaint was not necessary, and that the alleged assailant was being prosecuted by police for other matters and was likely to be deported to New Zealand. The applicant also claimed he had a fear of his assailant. The applicant's account was rejected and it was found that he had, 'for reasons best known to him' chosen not to make a complaint and thus initiate an investigation: Sullivan [2017] WADC 17.

14 Goetze DCJ in Re Collard [29] also summarised the authorities where the applicant's failure to do an act or thing has been held to be reasonable in the circumstances, so as not to preclude the applicant from an award of compensation:

1. Where the applicant and the alleged offender were in prison together and the applicant withdrew his complaint against the alleged offender by reason of fear of violence being perpetrated against him: Anderson v The Assessor of Criminal Injuries Compensation [1999] WADC 120.
2. Where the failure to provide a statement or co-operate with the police did not affect the police investigation, as the police were otherwise able to investigate the matter by other means: Jansen (1996) 15 SR (WA) 216.
3. Where the applicant's failure to assist police in a television interview was thought to be reasonable where to do so would have left him open to reprisals: Lewington v The Assessor for Criminal Injuries Compensation [2005] WADC 200.
4. Where the applicant's fear of the offender (the applicant's de facto partner) and indifference to breaching the law were circumstances which prevented the applicant from reporting the offence: Woodruffe v Northern Territory of Australia [2000] NTCA 8 (14 July 2000).

1. Where the applicant was struck by an unknown assailant in a lonely, dark place at night, and there were no witnesses to the assault. He did not report the assault until 16 months later. It was found that due to his particular character and make-up which induced him to 'bear out [his] misadventure with the least possible inconvenience to anyone', and his 'particular background and experience of life', it did not occur to him that the police should have been notified: Prideaux.
2. Where the applicant, the victim of an alleged assault, had a long history of mental health issues. There was medical evidence that the head injury he suffered in the assault had produced a change in his personality and behaviour which could have contributed 'to a significant degree' to an aggravation of his pre-morbid (that is, before the head injury) personality, to the point where he was less likely to co-operate with the police who were investigating the assault. It was held that 'it would be to judge the appellant too harshly to say that his lack of co-operation with the police was an act of unreasonableness rather than a sequelae of his head injury': Holbrey v Assessor of Criminal Injuries Compensation [2001] WADC 129.
3. Where the applicant was assaulted by her ex-husband. Her relationship with the alleged offender was noted to have been characterised by abuse and assault. She initially made a complaint to police, but then asked to withdraw it. She was distraught and upset and didn't really know what she was doing when she made the statement withdrawing her complaint. She was frightened and intimidated by the conduct of the alleged offender. She was concerned not only for her own safety but also for the safety of her three infant children. Given her long history of abuse, her conduct was found to be not unreasonable: G P W [2005] WADC 48.
4. Where the applicant initially assisted in the identification, apprehension and prosecution of the alleged offenders who had assaulted him (and were known to him), but he later requested to withdraw the complaint for fear of retribution being perpetrated against his partner and children. His aunty, at whose home the assault had occurred and who herself had been assaulted - the applicant had gone to her aid before he, too, was assaulted - also feared retribution: Re Collard.

16 I should also mention Hinchcliffe, another case where the applicant was a victim of domestic violence. Throughout her relationship with the offender, she had been forbidden to speak out about certain things for fear of reprisal. The appellate judge (Stevenson DCJ) remarked, based on all of the evidence, on the 'extreme nature' of the offender's control over the applicant. After another brutal beating by the offender, the applicant was admitted to hospital where she remained for seven days. There was never any issue about the identity or apprehension of the offender by the police. In fact, the offender pleaded guilty to the assault. However, the assessor found that the applicant did not do all she could reasonably have done to assist investigators or prosecutors because when she was approached by the police while she was still in hospital, she 'declined to comment, would not make a complaint and refused to identify the perpetrator'.

17 Contrary to the assessor's findings, on appeal it was found that the applicant had not refused any request by the police investigating the assault. Indeed, the police investigating the assault did not request the applicant to make a complaint and did not formally ask her to make a written statement to assist them in prosecuting the offence. It was plain that at the time the authorities considered they had sufficient evidence and considered no further evidence or assistance was required from the applicant to obtain a conviction.

18 From my review of the authorities, in each case where it has been held that there has been a failure on the part of the applicant, but that s 38 (or its equivalent) did not preclude an award of compensation, there existed one or both of the following factors:

(a) A legitimate fear by the applicant of reprisal by the alleged offender, especially where the threat of harm to the applicant was real and immediate. A general fear of an offender is not, on its own, sufficient to justify a failure to report an offence to the police: Sullivan [130]; Re Collard [26].

(b) Something in the applicant's personal circumstances which demonstrated that the applicant's failure to report or provide assistance to the police was reasonable.

19 The alleged offence occurred on 13 June 2014 in Geraldton, where Mr Iaria then lived.

20 In his statement provided to the police and signed 10 March 2016, Mr Iaria stated that at about 3.00 pm he was walking from his house to town. He walked from Hale Street to North West Coastal Highway. There is a path near the power plant that heads into town, on which people walk quite regularly. He was walking to the bank to pay rent and had $600 in his pocket. He was about half way up the path when he felt a smack on his jaw. He fell down to all fours and his vision blacked out. He estimated he was on all fours for about 5 - 10 minutes. When he checked his pockets he discovered that his money was gone. He did not know who hit him and did not see a thing. After getting up he stumbled to the road and a woman picked him up and took him to the Geraldton Regional Hospital.

21 Mr Iaria suffered a fractured jaw. He was admitted to the Geraldton Regional Hospital and then flown to Royal Perth Hospital (RPH), where he underwent surgery to insert steel plates to his jaw.

22 According to the in-patient case notes from RPH on 16 June 2014 at about 11.00 am Mr Iaria told a social worker that he intended to report the attack to police on his return home. The note reads:

Alleges assault occurred from unknown perpetrator, did not call police at the time but intends to press charges/make a statement on his return to Geraldton. States he feels safe to return home.

23 Later that day Mr Iaria was discharged from RPH. He did not, however, report the assault on his return home.

24 Nothing was done by Mr Iaria to report the matter to the police until he was told by his lawyers to do so as a precursor to his application for criminal injuries compensation. It was not until 10 March 2016 that the appellant attended a police station and reported the alleged offence.

25 In the police running sheet the 'critical decision' made by the police recorded on 10 March 2016 was as follows:

The victim was spoken to and advised that because of the historic nature of the complaint, there are no lines of inquiry to be actioned for investigation. The victim was satisfied with police action, because the complainant was only made as a recommendation of the victim's lawyer, in relation to criminal compensation.

26 The reason for Mr Iaria's delay in going to the police, as he stated in his 'Statement of Effects' provided to the assessor and dated 1 July 2016, was that 'I was scared that if I spoke out, the offender would find out and there would be retribution'. He later stated that he was worried the offender was someone he knew (even though he has maintained that he did not know who the offender was).

27 Mr Iaria also stated in his Statement of Effects that he was so affected by the incident that he shut himself off from the rest of the world. It affected him considerably 'for about a year'. He also produced a psychological report from clinical psychologist Mr Tim Milnes dated 8 September 2016. Mr Milnes reported that Mr Iaria experienced Anxiety in the form of a Panic Disorder, and diagnosed Acute Stress Disorder. Mr Milnes expressed the opinion that it was 'highly probable' that Mr Iaria's psychological problems are directly attributable to this incident.

28 There is no issue that there has been a failure to act by Mr Iaria, within the meaning of s 38 of the Act. His failure was to fail to report the matter to the police until almost 1 year and 9 months after the alleged assault. The issue is whether that failure to act was unreasonable.

29 Before the assessor, and also in this appeal, it was contended that s 38 should not apply to preclude an award of compensation because Mr Iaria's late reporting of the incident did not compromise police investigations. This was because:

(a) He was alone and walking into town when he was assaulted;

(b) He did not see the assailant/assailants as after the assault his vision blacked out. The assailant/assailants were unidentified; and

(c) The police would have classified it as 'no offender detected'.

30 It is not for Mr Iaria to form an opinion and make a decision about whether or not anything useful would come to the investigation if he did make a report to the police. Rather, the onus was on him to report the matter to the police, and give the police the information which they required and which was in his possession. It was then up to the police, in the course of their investigations, to make whatever assessments regarding the evidence were necessary: Ransfield [28].

31 I also accept the amicus curiae's submissions that there is nothing in the text of s 38 or the authorities which requires the assessor, or this court on appeal, to determine whether any particular step would have actually resulted in the identification, apprehension or prosecution of the offender.

32 The relevant test is whether the failure of Mr Iaria to report the matter to the police was reasonable, taking into account his particular circumstances to determine what was reasonable for him to do. The focus is on what could reasonably be expected of Mr Iaria in all of the circumstances.

33 Mr Iaria did express, in his statement provided to the assessor, that he had a fear of reprisal by the offender. However, Mr Iaria has maintained that he did not know who his assailant was, and there is no evidence of any real and immediate threat of harm to him. I am not satisfied that Mr Iaria's fear of reprisal by the alleged offender is legitimate. His expressed general fear is not sufficient to justify his failure to report the matter to the police.

34 I turn now to Mr Iaria's personal circumstances and whether there is anything in these which suggests he could not reasonably have been expected to report the matter to the police.

35 Another reason why he failed to make an earlier report to the police, as explained in Mr Iaria's statement to the assessor, was that he was affected by the incident so that he shut himself off from the rest of the world. In this appeal it was also submitted, based on the psychological report of Mr Milne, that another reason why Mr Iaria's failure to report the matter to police was not unreasonable in the circumstances was because for a period of 6 to 12 months following the alleged offence, Mr Iaria was significantly depressed and suffered from anxiety issues and panic attacks.

36 Mr Milne's diagnoses and opinions were based upon the history given by Mr Iaria and the symptoms he described when he saw Mr Milne on 22 August 2016. The symptoms were:

(a) recurrent distressing dreams related to the events;

(b) intense fear of discomfort characterised by the sudden onset of sweating, palpitations, a pounding heart, or accelerated heart rate;

(c) repeated efforts to avoid distressing memories, thoughts or feelings associated with the traumatic incident;

(d) sleep disturbance hyper-vigilance and problems with concentration;

(e) distressing recollections of the incident including images, thoughts and perceptions;

(e) having 'frequent panic attacks' particularly when in pubs or supermarkets, though these are slightly less frequent now; and

(f) getting edgy when he thinks the offender may be around.

37 However, there is other medical evidence to suggest that Mr Iaria's symptoms arose from other medical conditions which were in existence at the time he saw Mr Milne in August 2016. The evidence is that:

(a) Mr Iaria has suffered from cardiomyopathy since 2013, which produces symptoms of shortness of breath. In September 2015 he was referred from Geraldton Hospital to RPH with acute congestive heart failure. He was later hospitalised at Geraldton Hospital following symptoms of shortness of breath and intermittent chest pain in February 2016 and again in May 2016. He was seen again in relation to his heart problems in the emergency department of Geraldton Hospital in June 2016.

(b) Mr Iaria used illicit drugs, both at the time of the alleged offence and since. On his admission to RPH following the assault a urine drug screen tested positive for amphetamines, methylamphetamine and opioids. After the alleged offence Mr Iaria was admitted to Geraldton Hospital with drug induced psychosis in May 2016 and July 2016. The hospital notes on the day of his first admission on 2 May 2016 record that he had been using methylamphetamine for three years and that, in addition to psychotic symptoms which included hallucinations and paranoia, his drug use had affected his sleep and appetite. According to the notes, Mr Iaria made no mention of being the victim of an assault in June 2014 and no mention of any fear or paranoia about the alleged offender.

38 From the history taken by Mr Milne it appears that Mr Iaria made no mention of either his heart or drug problems. Mr Milne's report does not address either of these matters. Accordingly I am unable to place much weight on Mr Milne's opinions: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 [69] - [85]; Pownall v Conlan Management Pty Ltd [1995] WASC 117; (1995) 12 WAR 370, 389 - 390; Pollock v Wellington (1996) 15 WAR 1, 3 - 4.

39 Even accepting that the alleged offence either caused or contributed to Mr Iaria's anxiety and diagnosed Acute Stress Disorder, these conditions do not, in my view, explain why Mr Iaria made no immediate report to the police, particularly after his declaration at RPH that he intended to do so. While the psychologist Mr Milne reported that Mr Iaria suffered from depression for six months after the alleged offence, and also suffered panic attacks when in places like pubs or supermarkets (which had since improved), there is nothing in Mr Milne's report to suggest that Mr Iaria's symptoms rendered him completely housebound or were otherwise so debilitating that they prevented him from going to the police station to file a complaint.

40 The submissions based on the state of Mr Iaria's mental health as a reason for his substantial delay in making a complaint, are also inconsistent with what is recorded in the RPH notes on 16 June 2014. The evidence is that at the time of his discharge from RPH he intended to report the matter to police.

41 Mr Iaria's situation is different from the applicant in Prideaux. In that case the applicant was found to have had a particular background and experience of life so that it did not occur to him that the police should have been notified. In this case it did occur to Mr Iaria to report his assault to the police.

42 On the evidence before me I am unable to conclude that there is anything in Mr Iaria's background or personal circumstances, or that his mental health was so affected, that he could not reasonably be expected to report the matter to police following his return to Geraldton after his discharge from RPH, or at any time reasonably soon afterwards.

43 In these circumstances it is my view that the assessor was right to form the opinion that she did. Having regard to all of the evidence, and applying the test which focuses on the applicant, I am not satisfied that Mr Iaria's failure to report the matter to police was reasonable in all of the circumstances.