Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Appeal - Criminal Injuries Compensation Act 2003 s 17 - Alleged offence - No person charged - burden of proof

Criminal Injuries Compensation Act 2003

Amicus Curiae : Mr P D Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Gullelo v Halloran [2008] WADC 145

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

1 HERRON DCJ: This is an appeal pursuant to pt 7 of the Criminal Injuries Compensation Act 2003 (the Act) against a decision of the chief assessor of criminal injuries compensation dated 13 March 2013 refusing the appellant's (Mr Prefumo's) application for criminal injuries compensation pursuant to s 17 of the Act. By letter to Mr Prefumo dated 11 February 2013, the chief assessor outlined her provisional determination and invited Mr Prefumo to make further submissions which invitation he took up by letter dated 5 March 2013. By letter dated 13 March 2013 to Mr Prefumo, the chief assessor provided brief reasons explaining her reasons for refusing the application.

2 The following account is taken from the police incident report and running sheet which was provided to the chief assessor and which is also annexed to Mr Prefumo's affidavit sworn 4 July 2013 and filed in support of his appeal.

3 At 6.42 pm on 31 October 2012 Mr Prefumo reported to an officer at the Scarborough Police Station that he had been assaulted. He reported his attacker was a person I will identify as SGA. As SGA was not a party to this appeal, nor was he given notice of it, and because SGA has not been charged with any offence as a result of the complaint made by Mr Prefumo, and also because of the serious nature of the allegations, I consider it is proper and appropriate that SGA not be otherwise identified in these reasons.

4 The police incident report records the incident reported by Mr Prefumo occurred at 6.40 pm on 31 October 2012.

5 Both Mr Prefumo and SGA resided in separate units in a block of units in North Beach. Mr Prefumo reported he was assaulted by SGA outside SGA's unit.

6 Police attended the address where the altercation took place. They observed Mr Prefumo had a small cut to the left side of his mouth and a scratch on his back consistent with being punched and falling onto pot plants. Broken pot plants were observed outside SGA's unit. Mr Prefumo told police that he approached SGA to speak to him about some issues that they had in the past as he wanted to smooth things over. Mr Prefumo stated that without provocation, SGA assaulted him by punching him three times in the mouth/head area. Police tried to question Mr Prefumo further about the incident but were unable to obtain any further information from him and felt he kept diverting their questions. Police smelled liquor on Mr Prefumo's breath and he stated that he had consumed three light beers before the incident.

7 Mr Prefumo then walked to an ambulance and sought assessment and treatment from St John Ambulance officers. While police were speaking with SGA, Mr Prefumo was conveyed by ambulance to Sir Charles Gardiner Hospital.

8 SGA told police that he and Mr Prefumo had had ongoing issues for quite a while. He said Mr Prefumo regularly drinks and he saw him walking around in the carpark drinking beer earlier in the day. He only ever had issues with Mr Prefumo after he had been drinking and attended SGA's address. SGA further said Mr Prefumo attended his house four times during the day to try and speak to him and that each time Mr Prefumo appeared to become more and more intoxicated. On the fourth occasion, after SGA had earlier made it clear he did not wish to speak with Mr Prefumo, Mr Prefumo banged vigorously on SGA's door and shouted at him in a threatening way. SGA and Mr Prefumo were separated by SGA's security screen door. Mr Prefumo opened the door and stepped inside SGA's house without permission. SGA admitted he punched Mr Prefumo three times to the face as he was trying to get him out of the house. SGA struck Mr Prefumo with a closed fist which sent Mr Prefumo backwards where he fell into a collection of pot plants breaking some of them.

9 The police located a witness who also resided in the units. He stated he heard the commotion but did not see anything as he was in the process of moving some furniture and did not pay any attention. Mr Prefumo asked him to call the police but he refused to because he did not want to become involved and did not want to attend court.

10 Police telephoned Mr Prefumo later that evening at 8.45 pm and informed him that they would not proceed with any charges and gave their reasons why. The police running sheet records that Mr Prefumo 'stated that he was fine with that and he planned to pursue the POI in civil court anyway.'

11 A supervisor review on 2 November 2012 refers to the need to include an offence of trespass against Mr Prefumo and that both offences, that is an offence of trespass and an offence of assault by SGA, had insufficient evidence to prefer a charge due to lack of independent witnesses.

12 The police running sheet records further contact by Mr Prefumo on 2 November 2012 and 28 December 2012 expressing dissatisfaction with the police decision not to charge SGA.

13 The incident report concludes there was insufficient evidence to support the allegation made by Mr Prefumo

14 In support of his application for compensation to the office of criminal injuries compensation, Mr Prefumo swore an affidavit dated 10 December 2012. The annexures to the affidavit reveal a background of interaction between Mr Prefumo and SGA. There have been applications for violence restraining orders by Mr Prefumo, a complaint made by Mr Prefumo regarding SGA to the Australian Human Rights Commission and complaints to the State Department of Housing, Mr Prefumo's and SGA's landlord, by Mr Prefumo about SGA.

15 At par 16 of his affidavit Mr Prefumo says he knocked on SGA's door and when SGA opened his security door he, Mr Prefumo, was knocked backwards by the door and fell back onto his head and torso. SGA then 'just laid into' him with some eight to 10 punches.

16 In the affidavit filed in support of his appeal, Mr Prefumo says he was talking to SGA through the wire mesh of the security door when SGA pushed the door out so violently that the door knocked Mr Prefumo off his feet hitting his head and torso on the concrete. SGA punched Mr Prefumo some eight times while he was on the concrete floor.

17 At par 1 of his affidavit, Mr Prefumo also says that he was struck with a dozen punches.

18 There are therefore some differences and inconsistencies in Mr Prefumo's various accounts of the circumstances in which he says he was assaulted. Although, according to the police running sheet, he reported he was struck three times in the face by SGA, which is consistent with SGA's account to the police, in his later affidavits he said he was punched eight to 10 times or a dozen times.

19 During the hearing before me Mr Prefumo handed up a bundle of papers which I accepted into evidence. The bundle contains handwritten notes from the emergency department of Sir Charles Gairdner Hospital dated 31 October 2012. The notes record Mr Prefumo alleged he was punched repeatedly by one person to the left side of his jaw eight times. After the fifth punch he fell straight backwards onto flat concrete and then got up again when he was punched three further times. After the third punch he fell backwards again.

20 There is no mention in the initial report to the police that he was knocked backwards by the screen door being violently opened, nor that he was punched while lying on the concrete floor. These allegations were first mentioned to the chief assessor.

21 Further, in a letter he wrote to the chief assessor dated 5 March 2013 (date stamped 11 March 2013) which was in response to the chief assessor's invitation to make further submissions he stated SGA 'then without provocation set out punching my body non stop for a period of 15 minutes'.

22 Even allowing for some emotional colour or exaggeration this account is a further inconsistent account of the circumstances in which Mr Prefumo says he was assaulted by SGA.

23 I have earlier noted that Mr Prefumo told the police he had consumed three light beers. In the Sir Charles Gairdner emergency department handwritten medical notes it is recorded Mr Prefumo reported having a few drinks which he was unable to quantify.

24 I have earlier referred to the report of SGA to the police that he had observed Mr Prefumo drinking in the carpark earlier in the day and on each occasion which he came to SGA's unit he was increasingly intoxicated. In his affidavit sworn 4 July 2013 Mr Prefumo states there is no evidence that he was drinking in the carpark.

25 There are therefore also inconsistencies in Mr Prefumo's accounts as to the amount of alcohol he had consumed on 31 October 2012.

26 He also denied he attended SGA's address except for the one time. He denied he opened the security door to SGA's unit or stepped inside the unit.

27 There are also stark differences in the accounts of Mr Prefumo and SGA as to what occurred.

28 By her letter to Mr Prefumo dated 13 March 2013 the chief assessor explained that for an application pursuant to s 17 of the Act the applicant bears the onus of satisfying her that an alleged offence occurred. She pointed out that the alleged offender (SGA) raised issues of self defence and defence of property, each of which, if established, would constitute a complete defence to a charge of assault. The chief assessor also explained that where there are competing reports of an incident involving an allegation of assault she may not simply prefer one version over another without foundation and evidence to support that decision. She explained that where there are conflicting accounts of what occurred and no independent witnesses the party bearing the onus of proof has failed to discharge the onus upon them. She concluded Mr Prefumo had not discharged the onus of proof upon him and she was not satisfied an alleged offence of assault had been committed.

29 In her earlier initial letter to Mr Prefumo dated 11 February 2013 the chief assessor outlined her provisional determination, that because it appeared to her based upon the account given by SGA to the police that Mr Prefumo may have been committing the offence of trespass at the time he was injured, pursuant to s 39 he was not entitled to an award of compensation. As I have earlier noted, Mr Prefumo wrote in response to that letter on 5 March 2013 disputing that he had stepped into SGA's unit without permission. In her letter of 13 March 2013 the chief assessor did not re-visit the s 39 issue.

1. The correct interpretation of s 17 of the Act, specifically whether s 17 permits an application for compensation in circumstances where although no person is charged with the alleged offence, the alleged offender's identity is known and he is able to be located but has not been charged with an offence;
2. Whether the appellant has discharged the burden of proof upon him to prove that on the balance of probabilities the claimed injury and loss suffered by him occurred as a consequence of the commission of an alleged offence of assault (s 17(4)(a));
3. In considering (2) above whether defences of self-defence (s 48 of the Criminal Code) and/or defence of property (s 254 of the Criminal Code) were open to the alleged offender so as to constitute a complete defence to a charge of assault;
4. Whether the appellant suffered injury when he was himself committing an offence so as to disentitle him to an award of compensation pursuant to s 39 of the Act;
5. The extent of any injury or loss suffered by the appellant; and
6. Whether pursuant to s 41 of the Act there is any behaviour of the appellant which contributed to any injury or loss suffered by him which would disentitle him to any award of compensation or reduce the amount of compensation which would otherwise be assessed.

31 At the hearing I raised with Mr Prefumo and counsel who appeared on behalf of the chief executive officer as amicus curiae, whether s 17 of the Act permitted an application in the present circumstances where because of conflicting accounts between the people involved in the reported incident, and because of a lack of any independent witnesses or corroborating evidence, the police decided not to prefer any charges because of insufficient evidence. I queried whether s 17 only permits an application for criminal injuries compensation in limited circumstances, such as where no person is charged with an offence because the alleged offender has not been able to be identified or located, or there are difficulties serving the alleged offender with a prosecution notice (perhaps because the person is an overseas resident), or where the alleged offender has died, preventing anyone from being charged with an offence.

32 Those circumstances are of course quite different to the present circumstances in which the identity of the alleged offender is known, the alleged offender can be located, easily served and is alive, but the police have not laid charges because of insufficient evidence. I questioned whether the purpose of s 17 is that but for the inability to identify or locate or bring a charge against an alleged offender a charge would otherwise have been brought, a victim of an alleged offence is entitled to bring an application for criminal injuries compensation. It is not intended by s 17 that where the reason for a charge not having been brought is because of insufficient evidence an application for compensation is permitted. Otherwise in cases such as this, where there are conflicting accounts as to what occurred and where accusations are made against and by each of the parties that they have committed offences, the office of criminal injuries compensation, and this court on appeal, become a forum for resolving what are essentially civil disputes between parties giving rise to civil remedies which are more appropriately dealt with as a civil action.

33 Furthermore, as the entitlement to an award of criminal injuries compensation is generally based upon the commission of an offence for which a person has been convicted, the proof of which is to the criminal standard of beyond reasonable doubt, it would seem to be contrary to and inconsistent with that purpose if by s 17 an alleged victim was entitled to make an application for criminal injuries compensation in circumstances where a charge has not been brought (against a known alleged offender) because of insufficient evidence by proving an alleged offence to the lesser civil standard of on the balance of probabilities.

34 Underlying the entitlement to an award of compensation under the Act is the suffering of an injury or loss as a result of the commission of a crime. It is consistent with the underlying beneficial purpose of the Act that a victim of an alleged offence or crime be permitted to make a claim for compensation where there is really no issue an offence or crime has been committed but for technical reasons, such as the inability to identify, locate or serve an alleged offender, or the alleged offender has died, no-one has been charged with an offence. For example, where a person has been assaulted but the alleged offender has not been able to be identified because they kept their identity hidden or the victim, because of the injuries suffered in the assault, is unable to identify the alleged offender, there are good reasons why a victim in such circumstances should be entitled to an award of criminal injuries compensation by having to only prove on the balance of probabilities that an alleged offence was committed where no person has been charged. In such circumstances there would not normally be a competing version of events. Those situations are quite different to the current situation.

35 I am supported in that preliminary view by the other provisions in div 2 which provide a right to compensation where for technical reasons, such as an acquittal due to unsoundness of mind, or a charge is not proceeded with because an accused person is not mentally fit to stand trial, or a charge is not proceeded with due to good public policy reasons such as a nolle prosequi being entered, a person is not convicted of an offence.

36 I am further supported in this view by reference to pt 6 of the Act which enables the State to recover awards of compensation against persons convicted of the offences in respect of which awards are made. The evident underlying purpose of pt 6 is to recover compensation from those who are responsible for causing the injury and damage. The Act provides for an entitlement to criminal injuries compensation which is payable by the State so that victims of crime are not forced to proceed against those responsible for causing injury or loss but which also empowers the State to seek to recover any awards of compensation paid by it against those responsible.

37 However, if an award of compensation is made pursuant to s 17, pt 6 does not provide any right for the State to recover an award of compensation. Self-evidently that is because a s 17 application proceeds on the basis that no person is charged with an offence and therefore there is no-one against whom an award of compensation can be recovered. It seems to be inconsistent with the underlying purpose of the Act that the State could not recover an award of compensation from a person against whom a complaint of assault is made and whose identity and location is known but has not been charged with an offence of assault because of insufficient evidence.

38 If s 17, properly interpreted, does permit an application for compensation in circumstances where an alleged offender's identity is known but the person has not been charged with an offence because of insufficient evidence, and where there are conflicting accounts between the alleged victim and alleged offender, an issue arises as to how the assessor determines the application and resolves what is essentially a civil dispute between parties. Must an assessor in making findings on the balance of probabilities seek evidence from both 'parties'? Does the assessor need to hear from both Mr Prefumo and SGA to assess whom she believes? Part 3 of the Act sets out the powers of an assessor in dealing with compensation applications. Section 18 provides an assessor must determination a compensation application expeditiously and informally, is not bound by rules of evidence or procedure and may inform him or herself in any manner he or she thinks fit. Section 19 provides general powers.

39 Section 19(1)(b) provides for written notice of the application being given to an 'interested person' which expression is defined in s 3. By s 24 an assessor may conduct a hearing if he or she thinks fit. Pursuant to s 25(1) an assessor must given written notice of a hearing to the applicant and any other interested person the assessor intends to hear. By 63 an assessor may by written notice require a person to appear at a hearing conducted by the assessor.

40 A person in the position of SGA is not an 'interested person' because he cannot become liable under pt 6 to pay an amount to the State. Therefore there is no power pursuant to s 19(1)(b) to give notice of the application to SGA nor notice of a hearing pursuant to s 25(1). However, an assessor may, pursuant to s 63(2), give notice to SGA to appear as a witness at a hearing.

41 Therefore SGA has no right, and indeed there is no power, to be given notice of a compensation application or to appear and be represented at a hearing before an assessor. Such a person can only appear as a witness pursuant to a s 63 notice which is issued at the discretion of the assessor. That position is to be contrasted with a person who has been convicted of an offence and against whom the State is entitled to proceed under pt 6 of the Act to recover an award of compensation. Such a person is an 'interested person' and has a right to participate, subject to being given notice of an application or a hearing for compensation. Such a person also has the right to oppose an application by the State pursuant to pt 6 for recovery of an award of compensation. The fact that there is no power to involve a person in the position of SGA, except as a witness, in the process nor proceed against him to recover an award of compensation, in my view provides further support for a construction of s 17 that does not permit an application in the present circumstances.

42 However, counsel appearing as amicus curiae disavowed such a construction of s 17. He quite correctly pointed out that the wording of s 17(1) does not actually say that it only applies if no person is charged with the alleged offence because they had been unable to be identified or located or have died.

43 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 [47], the plurality of the High Court said:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.

44 The primary object of statutory construction is to construe the relevant provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. The context and general purpose and policy of the provision are guides to the correct construction of a statutory provision: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69].

45 Although the language of s 17 does not expressly provide for an application for compensation where a person has not been charged with an offence only because the alleged offender cannot be identified, located or served, or has died, when s 17 is construed in the context of the Act as a whole there is, in my view, a reasonable basis for a construction as I have suggested.

46 I am doubtful, that on a proper construction, s 17 permits an award of compensation in the circumstances which exist in relation to Mr Prefumo's application for compensation where the alleged offender is known and able to be located but has not been charged with an alleged offence of assault because of insufficient evidence. However, because the issue was not considered or dealt with in the otherwise helpful written submissions filed on behalf of the chief executive officer as amicus curiae, and because the matter was not fully argued, I do not express any concluded view as to the correct construction of s 17 and whether it precludes an award of compensation being made to Mr Prefumo. I propose to determine the appeal on the basis that s 17 does permit an award of criminal injuries compensation to be made to Mr Prefumo but without deciding that question.

Has the appellant discharged the burden of proof upon him?

47 By s 56(2)(a) of the Act this court is able to exercise any power of an assessor accept for the power to give an interested person notice of an application or conduct a hearing. Although an appeal under the Act is a hearing de novo (Gullelo v Halloran [2008] WADC 145 [5]) and the court has a general discretion to receive and admit further evidence (s 56(1)), if the court is not empowered to conduct a hearing in the same way as an assessor an issue arises whether, in a s 17 application, where the identity of the alleged offender is known and he can be located, the person should be given a witness notice to attend the hearing of the appeal to give evidence, and what is the court's role in determining whether an applicant has discharged the burden of proof on him that an offence has been committed where there are conflicting accounts of what happened, without the alleged offender giving evidence in the appeal. Although this court has the power under s 63(2) to give a written notice to SGA requiring him to appear at the hearing of the appeal and give evidence, I have determined it is unnecessary to require SGA to appear at the hearing of the appeal for the following reasons:

1. SGA is not an 'interested person' as defined by s 3 of the Act;
2. SGA is not at risk that if an award of compensation was made to Mr Prefumo there is any risk he would be liable to an order for recovery of the award pursuant to pt 6 of the Act;
3. SGA is probably unaware of the application for compensation by Mr Prefumo;
4. except for perhaps having an interest in protecting his reputation against an allegation he assaulted Mr Prefumo, SGA is unlikely to have any wish to become involved in the appeal or interest in its outcome;
5. given the apparent history of conflict between Mr Prefumo and SGA, requiring SGA to attend the hearing at the appeal is only likely to inflame the relationship between them;
6. this court, unlike an assessor, has no general hearing power;
7. neither Mr Prefumo nor the chief executive officer sought an order requiring SGA to appear at the hearing of his appeal and give evidence.

48 I have earlier outlined the inconsistencies in the various accounts of Mr Prefumo as to the circumstances in which he says he was assaulted and the nature and manner of the assault. I have also noted the conflicting accounts of Mr Prefumo and SGA as to what occurred.

49 Mr Prefumo has the onus of proving on the balance of probabilities that an alleged offence of assault occurred. In other words he must prove on the balance of probabilities that SGA committed an offence by assaulting him.

50 Proof of a fact on a balance of probabilities requires a court to feel an actual persuasion of its occurrence or existence before it can be found. It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. However, whether an issue has been proved to the reasonable satisfaction of a court depends upon the seriousness of an allegation made and the gravity of the consequences flowing from a particular finding. When, in a civil proceeding, a question arises whether a crime has been committed, reasonable satisfaction should not be reached without the exercise of caution and unless the evidence survives careful scrutiny and appears precise and not loose and inexact (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 per Dixon J, 361 - 363, 368.

51 Due to the conflicting accounts and evidence I have outlined, I am not persuaded SGA assaulted Mr Prefumo as alleged by him. The inconsistent accounts given by Mr Prefumo as to the circumstances in which he alleges he was assaulted and the conflicting accounts between himself and SGA do not reasonably satisfy me that an offence of assault occurred. The evidence produced by Mr Prefumo is imprecise and inexact and I cannot be reasonably satisfied of the truth of the allegations. Neither am I reasonably satisfied that Mr Prefumo has proved SGA did not act in self-defence and defence of his property. In particular, I find Mr Prefumo's explanation as to the amount of alcohol consumed by him on 31 October 2012 and whether he had visited SGA on more than one occasion on 31 October 2012 to be unsatisfactory. I am not satisfied SGA punched Mr Prefumo more than three times in the face after Mr Prefumo harassed SGA during the course of the day by repeatedly visiting SGA at his unit and threatening SGA.

52 Further, if it was necessary, I am not satisfied Mr Prefumo suffered any injury in the incident on 31 October 2012 other than minor bruising and a small cut to the left side of his mouth. Mr Prefumo claims he has suffered psychological injury as a result of the incident but has not produced any medical or similar evidence to prove he has suffered psychological injury. However, because of the finding I have made that Mr Prefumo has not proved on the balance of probabilities that an alleged offence of assault was committed, it is unnecessary for me to make any specific finding as to the extent of any injury or loss suffered by Mr Prefumo.

53 It is also unnecessary to determine whether either s 39 or s 41 of the Act preclude or entitle Mr Prefumo to an award of compensation.