B v W

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

File No : CI 269 of 2012, CI 831 of 2012, CI 832 of 2012, CI 833 of 2012, CI 834 of 2012, CI 835 of 2012, CI 836 of 2012

Criminal injuries compensation - Appeal from assessor's refusal to award compensation by reason of lack of proof of alleged offences - Whether extension of time for bringing application should be granted - Whether alleged offences proven on a balance of probabilities

Criminal Injuries Compensation Act 2003

Amicus Curiae : Mr J L Winton appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Amicus Curiae : State Solicitor for Western Australia

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

Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1

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

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Clayton v Aust (1993) 9 WAR 364

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405

Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450

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

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Green v Lee (1996) 17 SR (WA) 93

Gullelo v Halloran [2008] WADC 145

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

Helton v Allen [1940] HCA 20; (1940) 63 CLR 691

Hinchcliffe v Hinchcliffe [2010] WADC 78

Hogben v Darcy [2009] WADC 63

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

Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D970275, 12 September 1997)

Re RT (2006) 47 SR(WA) 197

Re: Profumo [2013] WADC 127

Regan v Zoller, (Unreported, WASC, Library No 6134; 6 December 1985)

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

S v Neumann (1995) 14 WAR 452

YBT v BAT [2003] WADC 163

1 SCHOOMBEE DCJ: This is an appeal under the Criminal Injuries Compensation Act 2003 (the Act) against the refusal by the Assessor of Criminal Injuries Compensation to make an award of compensation in favour of Mr Jackamarra, the appellant. Mr Jackamarra filed seven applications for criminal injuries compensation relating to 12 physical assaults allegedly committed against him by seven people who were all group carers (wardens) at juvenile detention facilities. Mr Jackamarra avers that on each occasion he was struck hard on his head or face by the group carer's hand and subsequently suffered facial pain, general discomfort and on one occasion a blood nose. On another occasion he fell against the cell wall and broke off part of a tooth. In addition, Mr Jackamarra submits that he suffered ongoing mental injury in the nature of depression and anxiety as a result of these assaults.

2 Mr Jackamarra has a sad history of childhood neglect and abuse. His single mother who already had two children came to Australia from Italy while pregnant with Mr Jackamarra to join family members. After Mr Jackamarra's birth she could not cope with a baby and working to earn a living and Mr Jackamarra was placed in an orphanage at one month of age. After 4 1/2 years he was returned to his mother's care, but she was still unable to properly care for him. Mr Jackamarra claims he was repeatedly physically abused by his mother and his siblings. The situation culminated in an incident, observed by a neighbour, during which his mother hit him with a wooden block to the head and body in the front yard. Mr Jackamarra was then placed in institutionalised care. After approximately six months a foster home was found for him, which, at least initially, seemed to provide proper and loving care for Mr Jackamarra. However, Mr Jackamarra says he was also abused, physically and emotionally, whilst living with the foster family for approximately five years.

3 At age 11, Mr Jackamarra was returned to the care of his mother, but was charged soon after with various charges of stealing and receiving. After approximately two years of living with his mother Mr Jackamarra was again placed under the care of the then Department for Community Welfare (later called the Department for Community Services). Mr Jackamarra spent the next two years, from approximately age 13 to 15, in various juvenile detention facilities, notably Hillston Cottage, an Anglican farm for boys, Longmore Detention Centre for juveniles and Riverbank Detention Centre for juveniles. It was during these years and at these institutions that he says he was physically assaulted.

4 On release at age 15, Mr Jackamarra resided for short periods at a number of hostels, his original foster family, an aunt, a grandmother and refuges. It also seems that he tried various forms of employment with little success. He was again convicted of a breaking and entering charge and receiving charges at age 15 and 17.

5 Mr Jackamarra is now aged 47. In May 2008 he made an application for an ex gratia payment under the Redress WA Scheme. Under that scheme ex gratia payments were available to persons who were abused or neglected as children while in State care.

6 Mr Jackamarra alleged in his application to Redress WA that he had been repeatedly physically abused by his foster parents, his mother and siblings and at each of the juvenile detention and other State facilities where he had been placed while in the care of the Department for Community Welfare. His application was granted on the basis that it was likely that he had suffered abuse and neglect whilst in State care. The injury, harm or loss suffered by him was assessed as having been severe and he received an ex gratia payment of $28,000.

7 The seven applications for criminal injuries compensation were based on 12 distinct physical assaults by seven different group carers which occurred while Mr Jackamarra was at Hillston, Longmore and Riverbank. It seems that Mr Jackamarra also relied on an alleged offence of a sexual kind in that he stated that he had been held naked in a punishment cell at age 12 on numerous occasions at Hillston. The punishment cell had viewing panels and abusive staff and inmates peered at him lying naked in this cell.

8 Mr Jackamarra first filed the seven applications on 20 July 2005. The assessor wrote to Mr Jackamarra indicating that further information was required and on 23 November 2005 Mr Jackamarra submitted seven revised applications to the assessor. During 2006 and 2007 the assessor requested further information to support Mr Jackamarra's applications and Mr Jackamarra filed further documents. The last item of information provided by Mr Jackamarra was a letter from Redress WA, dated 6 January 2012, which stated that Mr Jackamarra had been assessed under that scheme as having been in abusive State care for between 7 to 10 years.

9 On 11 July 2012 the assessor wrote to Mr Jackamarra granting him an extension of the time in which to make the application, but refusing to award him any compensation on the basis that she was not satisfied that the alleged offences had occurred.

10 Mr Jackamarra lodged a notice of appeal, within the prescribed time, against the assessor's decision.

The law applicable to the assessment of criminal injuries compensation

11 Pursuant to the Act, a victim who suffers injury as a consequence of the commission of a proved or alleged offence may apply for compensation for the injury and any loss suffered. 'Injury' is defined in s 3 of the Act as 'bodily harm, mental and nervous shock or pregnancy'.

12 A victim may receive compensation even if the perpetrator has not been charged or convicted. Section 17 of the Act provides that an assessor may make an award of compensation where an alleged offence has been committed but no person has been charged, if the assessor is satisfied that the applicant's injury has occurred as a consequence of the commission of the alleged offence. The word 'satisfied' is defined in section 3 of the Act as meaning 'satisfied on the balance of probabilities'.

13 The assessor must therefore be satisfied on a balance of probabilities that an alleged offence was committed. An 'alleged offence' is defined in the Act as 'a crime, misdemeanour, or simple offence of which no person has been convicted'. This means that the applicant for compensation must be able to satisfy the assessor on the balance of probabilities that a specific act was committed against him or her which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted of it (see Green v Lee (1996) 17 SR (WA) 93, 97.

14 The phrase 'mental and nervous shock' has been construed as including any malfunction of the victim which can be seen to be a consequence of the impact of events constituting the offence, or associated with the commission of the offence, as those events impact on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) 5. Mental and nervous shock includes distress, horror, disgust and other similar adverse mental reactions, but excludes mere fright, humiliation or anguish: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) 10 - 11. What is contemplated by the Act is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury: S v Neumann (1995) 14 WAR 452, 461.

15 In determining the appropriate amount of compensation the correct approach is to apply the ordinary tortious principles for assessment of damages subject to the jurisdictional limit imposed by the Act: M v J and J v J. In assessing the amount of compensation the court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim: B v W (1989) 6 SR (WA) 79, 89.

16 Pursuant to s 56(1) of the Act, an appeal against an assessor's decision is to be decided afresh by the District Court. This means that the appeal is a rehearing and the judge will consider the evidence afresh: Gullelo v Halloran [2008] WADC 145 [5].

17 As the appeal is a rehearing, the District Court is not bound by the determination of the assessor. However, because the assessor is a specialist tribunal, it is appropriate to take into account the assessor's reasons for making or refusing to make a particular award: Hogben v Darcy [2009] WADC 63 [13].

18 Mr Jackamarra's application for criminal injuries compensation was not made within the three years after the date on which the last offence was committed, as required by s 9(1) of the Act. An assessor may allow an application to be made after the three year period, if the assessor is of the view that it is just to do so. As this appeal is a rehearing and the District Court has to consider all the relevant issues afresh, it also has to consider again whether Mr Jackamarra's application should be permitted even though he only filed his first seven applications approximately 21 years after the last offence: Hinchcliffe v Hinchcliffe [2010] WADC 78, [21]. Allowing for the three year period during which the application may be made, Mr Jackamarra's applications are out of time by approximately 18 years.

19 The burden is on an applicant for compensation to explain to the satisfaction of the court the reasons for the delay in bringing the application: Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D970275, 12 September 1997) 3 (Greaves C).

20 The main purpose of the Act is to provide a benefit to applicants for criminal injuries compensation. The Act is therefore remedial in character and such an act should be construed beneficially: Bird v The Commonwealth [1988] HCA 23; (1988) 165 CLR 1, 9.

21 However, there are also strong policy reasons for requiring limitation periods, including the one set by the Act, to be complied with: Re RT (2006) 47 SR(WA) 197 [30]. The three year time limit is a substantive provision laid down by the Act and not a mere procedural time limit imposed by the rules of court which may be treated with the indulgence appropriate to procedural rules. In Clayton v Aust (1993) 9 WAR 364, 366 Malcolm CJ held in relation to a time limit set by legislation dealing with inheritance disputes that the burden of persuading the court that an application should be heard despite the delay was no triviality and the applicant had to make a substantial case for it being just and proper for the court to exercise its statutory discretion to allow the application:

22 The mere reason that an applicant may never be able to litigate his or her claim if an extension of time is not granted, is not, by itself, enough to warrant an extension because if it were, there would be no discretion to be exercised: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 549.

23 In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480, the High Court listed the factors that should be taken into account in exercising the discretion to extend the time for the filing of an appeal. Similar considerations apply in considering Mr Jackamarra's application for an extension of time to file his application. The factors proposed by the High Court are the following:

1. the history of the proceedings;
2. the conduct of the parties;
3. the nature of the litigation;
4. the consequences for the parties of the grant or refusal of an extension of time;
5. the prospects of the appellant succeeding;
6. the fact that upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.

24 In his application for compensation Mr Jackamarra relies on the last alleged assault as being one by a Mr Drury which occurred at Riverbank during the period July 1981 to 1984. It appears from the summary of Mr Jackamarra's contact with the Department for Community Welfare provided in a letter to him by that department (then called the Department for Community Services), dated 28 March 1988, that Mr Jackamarra was released from Riverbank in early 1982, although he seemed to have spent short periods after his release staying at the Riverbank Hostel. It appears from the summary that he spent another period of some four months in Riverbank between December 1983 and April 1984.

25 On the assumption that his last month spent at Riverbank was April 1984 and that at least one of the alleged assaults occurred during that time, even the first applications in July 2005 were slightly more than 18 years out of time.

26 Mr Jackamarra provided reasons to the assessor for this delay. He said that as a juvenile victim he did not understand that the assaults on him involved criminal conduct nor did he know that he might be entitled to claim compensation under the Criminal Injuries Compensation Scheme. That may be so, but Mr Jackamarra was an adult for most of the 21 years since the last assault and a Criminal Injuries Compensation Scheme has been in existence in Western Australia since 1985.

27 Mr Jackamarra also explained that after he was released from the care of the Department for Community Welfare at age 18, he 'took flight from WA, fearing further violence from the Department and its agents'. He said he did not 'resettle properly' in Western Australia until 2004 when he returned from Indonesia. I do not understand this to mean that Mr Jackamarra has not been in Western Australia at all between 1984 and 2004, or that he could not have made enquiries from a lawyer or a community legal centre to find out whether he had any right to compensation in respect of the alleged offences.

28 Mr Jackamarra further says in his reasons for the delay that he was not aware of the possibility of applying for criminal injuries compensation until he was told about this in July 2005 by the acting director of the Department for Community Services. Being ignorant of the availability of criminal injuries compensation is not an excuse, particularly not where this has stretched over a period of 21 years.

29 Mr Jackamarra also argued that the abuse that he suffered while in the care of the Department mentally incapacitated him and that he was confined to mental health institutions on several occasions. There is reference amongst the documents provided to the assessor to admissions of Mr Jackamarra to Graylands Hospital in 1989. The file also contains a letter from the Department of Health and Community Services of the Northern Territory, addressed to the Department of Community Services in Western Australia, dated 8 May 1990, which states that Mr Jackamarra had spent many months as an inpatient but was, at the time of the letter, successfully maintained in the community.

30 Another letter from Dr Parker, director of psychiatry at Top End Mental Health Services in Darwin, dated 21 December 2005 and addressed to the assessor, states that Mr Jackamarra had been a client of those services from 1989 to 1990. At that time he had been diagnosed with paranoid schizophrenia and an anti-social personality disorder. Mr Jackamarra told the court during the hearing of the appeal that he had never met a Dr Parker and that the letter must have been compiled from information held by Top End Mental Health Services.

31 A letter from Mr Jackamarra's treating psychiatrist at the Mills Street Centre Outpatient Clinic to the assessor, dated 22 January 2007, states that Mr Jackamarra was seen by Dr Binns on several occasions between September and November 2006 when he was diagnosed with depression and anxiety. There is no reference to Mr Jackamarra having been an inpatient.

32 Whereas Mr Jackamarra obviously had mental health issues to deal with from time to time, there is no indication that he was not in a position to seek legal advice as to whether he was entitled to some form of compensation. It seems that he did consult Kott Gunning, a Perth firm of solicitors, in 1988 to assist him in obtaining information from the Department for Community Services regarding his history while under the Department's control. A letter from the Department, dated 28 March 1988, is addressed to Mr Jackamarra (then Mr Panaia), care of Kott Gunning.

33 This is not a case where the applicant was treated as an inpatient for all the years between the commission of the offence and the application for criminal compensation injury or where it is apparent from medical reports that the applicant was not mentally capable of putting his mind to the issue whether and how compensation could be sought.

34 It also appears from the medical information in the file that Mr Jackamarra spent at least some time in Australia from 1989 to 1990 and again towards the end of 2006 when he could have made enquiries regarding the availability of compensation.

35 The delay in this case was extraordinary and I have not been referred to any case law where there was a similar long delay of approximately 18 years. In Re RT Goetze DCJ declined to grant an extension to an applicant who gave evidence that she had not been aware of her right to claim criminal injuries compensation until she had been informed of this approximately eight years after the offending. Goetze DCJ referred to Regan v Zoller, (Unreported, WASC, Library No 6134; 6 December 1985), which concerned the grant of an extension of time for bringing an application under inheritance legislation. In Regan v Zoller Brinsden J noted that greater emphasis should be placed on the principle that ignorance of the law is no excuse, particularly where the legislation under which the application was brought had been on the statute books for a very long time and similar applications had been the subject of media coverage.

36 Goetze DCJ also relied on the fact that it took the applicant another year to file her application after she had become aware of her right to claim criminal injuries compensation. The total delay in that case was approximately nine years.

37 In Hinchcliffe v Hinchcliffe, an application for criminal injuries compensation was allowed to be made nine years out of time because the applicant had been exposed to ongoing repression and threatening behaviour by the offender and was under his influence. The offender was an active participant of an outlaw motorcycle gang and the applicant feared for her safety and that of her children. The applicant stated in a letter to the assessor that she had not been strong enough, mentally and physically, to make a claim until the time that she did so.

38 Most matters in which an extension of time was granted have been concerned with a delay of less than two years.

39 The consequence of disallowing an extension of time would not mean that Mr Jackamarra would be without any redress for the maltreatment that he experienced at the juvenile detention centres while being under the care of the Department for Community Services. Mr Jackamarra did receive an ex gratia payment from Redress WA which was in respect of all of the abuse that he had suffered whilst in State care.

40 Another matter that needs to be taken into account when assessing whether an extension of time should be granted is the prospect of the applicant succeeding in his application. In my view there is little prospect of this and I shall deal with the merits of this application after having decided whether an extension of time should be granted.

41 Taking into account the factors proposed by the High Court and the material that is before me, I am not satisfied that it would be just to allow Mr Jackamarra to bring an application for criminal injuries compensation 18 years after he should have done so. As I said earlier, granting an extension is not merely a procedural step, but the court must be satisfied that there is a substantial case for it being just and proper to extend the period of time for the filing of an application. It is not an excuse to say that one did not know about the provisions of the law or available compensation and the reasons that have been furnished for the delay are not persuasive. It would be quite unusual for a court to allow an extension of time for such a long period as 18 years.

42 I do take into account that the assessor allowed an extension of time, but it is not clear on what basis. She did not provide any reasons as to why she changed her mind after having initially indicated that she would not allow an extension of time. Because an appeal from the assessor's decision is a rehearing, I have to consider afresh whether an extension of time should be granted and I am of the view that it should be refused for the reasons outlined.

43 However, because the assessor granted an extension of time and out of courtesy to Mr Jackamarra and the work he put into bringing this appeal, I will also deal with the merits of his application for criminal injuries compensation.

The material provided by Mr Jackamarra in support of his allegation that the alleged offences took place

44 The first issue to be decided is whether the material before this court is sufficient for the court to be satisfied on a balance of probabilities that the particular alleged incidents took place and that they would have qualified as offences if the perpetrators had been found guilty.

45 Mr Jackamarra attached to his application for criminal injuries compensation a 'statement of the incidents'. In this statement he described the alleged assaults in detail and identified each of the group carers involved, as well as the period of time during which and the respective detention centre where the assault took place. Some of the assaults are said to have taken place in a punishment cell, called 'the cabin' and in response to Mr Jackamarra banging on the door in frustration.

46 Mr Jackamarra said in this statement that he reported each of these physical assaults, apart from the alleged sexual offence involving him being left naked in a cell, to the police in June 1991. Mr Jackamarra filed a statutory declaration, dated 19 June 1991, which, although unsigned, contained essentially the same information. The statutory declaration was in the name of Mr Panaia, which was the name Mr Jackamarra was then known by.

47 Mr Jackamarra initially made a complaint about these assaults to the Northern Territory police who then referred the complaints to the Western Australia police. Mr Jackamarra says he provided the statutory declaration to the police. The police in Western Australia investigated these allegations in July and August 1991.

48 According to a letter sent by the police to Mr Jackamarra on 16 January 1992 extensive enquiries were conducted by the police and six of the seven alleged offenders were interviewed. The seventh person could not be located despite protracted enquiries. The letter also states that a Mr Kevin Griffiths, a witness nominated by Mr Jackamarra, had been interviewed but had denied the allegations. Mr Jackamarra told the court during the hearing of the appeal that Mr Griffith had been a teacher at one of the detention centres.

49 The police came to the conclusion that in the absence of any corroboration there was insufficient evidence to justify criminal proceedings being instigated against any person.

50 In August 2005 Mr Jackamarra made an application to the Western Australia Police Service under the Freedom of Information Act 1992 asking for any documents dealing with the police investigation and the reasons for the decision not to prosecute. He was told that these documents were destroyed in 1996 and 1997 in accordance with the disposal recommendations followed by the police. Only one page which is a print-out from the police data base was recovered. This records that a complaint of various assaults was made by Mr Jackamarra, that a statement from him was obtained but that the result of the investigation was that there was insufficient evidence to instigate a prosecution.

51 It is of significance that the police investigated the alleged offences and came to the conclusion that there was insufficient evidence to justify a prosecution.

52 In addition to the statement of the incidents, Mr Jackamarra relied on the fact that he had repeatedly and consistently reported these incidents in 1991 and 1992, at a time when he says he had no knowledge of any available compensation and just sought acknowledgment of the wrongs perpetrated against him and justice to be meted out to the offenders. Mr Jackamarra wrote to the Equal Opportunity Commission in 1991 and to the Parliamentary Commissioner for Administrative Investigations in 1992 reporting his treatment in juvenile detention centres. Mr Jackamarra provided letters to the assessor which acknowledge these complaints.

53 Mr Jackamarra also referred to a letter from the acting executive director for Community Development, dated 11 August 2006, which confirmed a grant to him of $1,500 for psychological counselling made on a 'without prejudice' basis and without admission of liability. Mr Jackamarra submitted that this further showed his persistent reliance on him having been assaulted and his continuing appeals to authorities for acknowledgement.

54 Mr Jackamarra said he also made complaints to the directors of the various institutions at the time when these assaults occurred. He relied on a letter, dated 8 May 1991, signed by a Mr Colin Simpson who, according to Mr Jackamarra, was the director of Longmore at the time when Mr Jackamarra was assaulted in that institution. The letter answers a query by the director of the East Metro Community Services regarding allegations of assault then made by Mr Jackamarra.

55 Mr Jackamarra relied particularly on Mr Simpson's statement in the letter that he could not give a guarantee that a youth was never struck. Mr Jackamarra submitted that this was an implied admission that he had been assaulted. However, if the remainder of the letter is read it is apparent that Mr Simpson supported an investigation of the allegations and made suggestions on how information could be obtained seeing that even then the alleged dates of the incidents was many years earlier. At the same time Mr Simpson stated that there were clear procedures for following up on a complaint and explained that if Mr Jackamarra had made a complaint to him as the director of Longmore, it would have been recorded together with any action taken and findings made. This seems to imply that a complaint had not been made to Mr Simpson.

56 Mr Simpson further said that he or other administrative staff made frequent, more than once daily, visits to the cabin area which would have allowed for an opportunity to bring the assaults to the attention of the director of the institution.

57 Mr Simpson stated in the letter that he recalled Mr Jackamarra and the very unhappy and unfortunate childhood that he had to endure. However, he also said Mr Jackamarra exhibited disturbed behaviour at home and at school and was a particularly difficult youth. Mr Simpson noted that Mr Jackamarra was an intelligent boy but his behaviour could be very provocative towards other children and staff.

58 Mr Jackamarra also referred to a memorandum headed 'Frank Panaia programme' signed by the acting superintendent whose name has been blocked out. Mr Jackamarra explained during the hearing of the appeal that he was certain that this was a memorandum prepared at Riverbank, because this was the only institution where programs for residents were put in place. The memorandum discusses on what terms Mr Jackamarra was to be allowed to participate in a program and seems to instruct staff on how to encourage Mr Jackamarra to join.

59 Mr Jackamarra relied on a comment made in the memorandum that 'withholding of meals, confrontation, taunts, etc' should not be used to encourage Mr Jackamarra to join the program as they might work for other boys but only seemed to make him regress into destructive rages. Mr Jackamarra argued that the reference to the 'etc' after the negative forms of encouragement listed indicated that assaults were also part of the treatment meted out to him.

60 Mr Jackamarra further relied on a report of a conference held by staff and signed by the deputy superintendent of Riverbank, dated 29 July 1981. The report discusses the very good progress made by Mr Jackamarra on a program and the potential choices for his placement after his release. Mr Jackamarra relied on a reference in this document to him refusing to accept a visit from his uncle and aunt and the statement that Mr Jackamarra had been in his cabin at the time with a sore ankle which was later found to have been broken. Mr Jackamarra argued that this showed another example of maltreatment of him because he was left for two days in his cabin until he was finally given medical attention.

61 I am not convinced that the two internal documents from Riverbank show that Mr Jackamarra was maltreated by staff. On the contrary, both documents show concern for Mr Jackamarra, the hope that he could be included in a program, a positive assessment of his attitude to staff and of his work ethic and concern for an appropriate placement after his release.

62 Mr Jackamarra further relied on the Statement of Assessment Decision issued by Redress WA on 22 July 2011 which recorded that he had been assessed as having been in abusive State care for between 7 to 10 years and that the abuse suffered by him had been in the severe range as compared to other applicants. Mr Jackamarra was given an ex gratia payment.

63 However, the fact that Redress WA was satisfied that Mr Jackamarra had been abused in State care does not necessarily mean that the investigating officer was satisfied that offences of assault in the juvenile detention centres as alleged by Mr Jackamarra had occurred. The 'details of abuse and/or neglect' document filed by Mr Jackamarra on or about 13 May 2008 in support of his application for an ex gratia payment refers in addition to the assaults that Mr Jackamarra now relies on to abuse by his foster family and abuse in other institutions than Longmore, Hillston and Riverbank. Redress WA also did not have to be satisfied on a balance of probabilities that particular incidents which qualify as an offence, misdemeanour or simple offence occurred.

64 Mr Jackamarra also submitted extracts from the 2003 senate inquiry entitled 'Forgotten Australians: a report on Australians who experienced institutional or out-of-home care as children' to support his application. This report deals with the abuse suffered by children all over Australia in various State institutions and also in institutions operated by churches and private organisations. Whilst the report clearly accepted that there had been widespread and often systematic abuse in a range of institutions, this is only general information which does not necessarily pertain to juvenile justice detention centres or to Mr Jackamarra. The senate report does refer in par 2.93 of ch 2 to the fact that children could be placed in juvenile detention centres despite not having committed a criminal offence.

65 Mr Jackamarra also referred the court to two articles which had appeared in 'The West Australian' in June and August 2012 and which summarised the findings made under the Redress WA scheme. One of the articles referred to the fact that more than 20 institutions in Western Australia had been implicated in cases of child abuse and neglect and the other article stated that 5225 ex gratia payments had been made under the scheme of which 1,063 were awarded for 'very severe sexual, physical or psychological abuse that left the child victim with problems into adulthood'.

66 Mr Jackamarra explained that he relied on documents such as the senate inquiry report, the statement from Redress WA and the newspaper articles to indicate that it was likely that his allegations were true because such widespread abuse of children occurred in so many institutions during the 1980's.

67 This material is certainly helpful as circumstantial evidence in that it indicates that it is not far-fetched to allege that abuse of children occurred in State institutions. However, in order to make a criminal injuries compensation award, the assessor, and now the court, needs to be satisfied on a balance of probabilities that the particular assaults at the particular juvenile detention centres took place.

68 It seems that the Department for Community Services also commenced an investigation into Mr Jackamarra's allegations of abuse by Mr Kevin McGillivray. Mr Jackamarra was advised of the commencement of this investigation by letter dated 16 February 2007. There is no information as to the outcome of this investigation.

69 The main evidence before the court is the allegations made by Mr Jackamarra in his statement of the incidents. There is no corroborative evidence that the specific assaults took place. There is no available evidence of a contemporaneous complaint and the letter from Mr Colin Simpson, dated 8 May 1991, seems to imply that no complaint was made by Mr Jackamarra about his treatment at Longmore, at least not to Mr Simpson personally.

70 The findings and information from Redress WA and the senate report provide some support for Mr Jackamarra's allegations. They indicate that there was widespread and often systematic abuse of children in government and religious institutions throughout Australia including in Western Australia. This shows that it is quite possible that there is some truth in Mr Jackamarra's allegations or, at least, that they are not far-fetched. However, this information is general background evidence, does not specifically deal with juvenile detention centres and does not help that much in making findings whether these specific assaults by the named people occurred in the circumstances described by Mr Jackamarra.

The standard of proof and investigations open to an assessor and the court in relation to an alleged offence

71 If this court were to make findings that each of these assaults occurred, these findings would also impact upon the alleged offenders. The finding that a specific assault occurred would not amount to a criminal conviction, but it would be a finding that the perpetrator did an act which is in the nature of an offence. The perpetrators do not have to be named in the judgment, but Mr Jackamarra has disclosed the names of the alleged offenders to the Western Australia Police, the Department for Community Services and, it seems, various other government agencies. A finding that each of these assaults occurred may very well come to the attention of the alleged offenders, or their employers or other people who know them. Such a finding could therefore have serious implications for the alleged offenders.

72 The assessor may make a finding that an alleged offence occurred and may do so on the balance of probabilities. It is not unusual in our system of the law for a court or tribunal to have to make a finding in civil law on a balance of probabilities as to whether an offence has been committed. In Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 the Supreme Court of Queensland had to decide whether the husband of a deceased person was precluded from receiving any benefit under the deceased's will because he had murdered her. The husband had previously been found not guilty during a criminal trial. In Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 a party to a civil dispute claimed that the other party had committed fraudulent misrepresentations, which essentially amounted to an allegation that the other party had committed the offence of deceit. In both Helton v Allen and Rejfek v McElroy the High Court held that the appropriate standard of proof was on a balance of probabilities because it concerned a civil dispute.

73 However, Starke J observed in Helton v Allen at 701 that the nature of the fact to be proved affected the process by which reasonable satisfaction (on a balance of probabilities) was obtained. Where the matter to be proved was a grave fraud or a crime, the court or tribunal ought not be satisfied that it had been established unless the preponderance of evidence was so substantial as to establish it clearly.

74 In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 Dixon J held that the seriousness of the allegation or the gravity of the consequences flowing from a particular finding were considerations which impacted upon the question whether an issue had been proven to the reasonable satisfaction of the court.

75 In this case it is clearly a serious matter to make findings that each of the seven alleged offenders committed an act in the nature of an offence of assault, particularly where they were not given the opportunity to refute those allegations.

76 The assessor has the power under s 19 of the Act to seek and receive any information or evidence and to make any enquiries or investigate any matters that the assessor thinks necessary. The assessor may also give written notice to an 'interested person' that an application for compensation has been made. Under s 24 of the Act an assessor may conduct a hearing of a compensation application if he or she thinks fit. Section 25 provides that the assessor may hear the applicant and 'any other interested person' at such a hearing and must give written notice to them of the time and place of the hearing. Under s 25 of the Act any person notified of a hearing is entitled to be represented by a lawyer, may present evidence and may ask the assessor to call witnesses.

77 In Re: Profumo [2013] WADC 127 [34] [40] Herron DCJ expressed the view that the assessor could not give notice to an alleged offender that she wanted to hear him or her at a hearing. Herron DCJ came to that conclusion because an 'interested person' is defined in s 3 of the Act as a person who may become liable to reimburse the State for any amount of compensation paid to an applicant. Section 49 makes it clear that only a convicted offender is exposed to an application for reimbursement and not an alleged offender. Herron DCJ concluded that the definition of an 'interested person' in s 3 applied to s 25 and that the assessor could therefore not give notice to an alleged offender that she wished to hear him or her at a hearing.

78 It is not readily apparent whether s 25 was intended to restrict an assessor to only hearing a convicted offender who might be exposed to an application for reimbursement. Section 25 provides that if an assessor decides to conduct a hearing the assessor must give written notice of the hearing 'to the applicant and to any other interested person that the assessor intends to hear'.

79 It is an accepted principle of statutory interpretation that the same words used in a statute must be given the same meaning: Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450, 452. However, it is also a principle of statutory interpretation that the legislature did not intend any word to be superfluous or insignificant: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414.

80 If some meaning is to be given to the word 'other' in s 25, the power to hear 'any other interested person' may include hearing another person who has an interest in the outcome of the application other than a convicted offender. If the legislature only intended to refer to a convicted offender in s 25, it could merely have stated that the assessor had to give notice of a hearing to 'the applicant and any interested person' that she wanted to hear.

81 Herron DCJ was reinforced in his conclusion by reason of the fact that s 19 only states that the assessor may give written notice of the application for compensation to an 'interested person'. This section does not refer to 'any other interested person'. However, this section allows the assessor to give notice of the application to an 'interested person'; it does not say that the assessor is restricted to only giving notice of the application to an 'interested person'.

82 In practical terms it probably does not matter that much whether an assessor may give notice under s 25 to an alleged offender that she wants to hear him at a hearing or not, because, pursuant to s 63(2), the assessor may also, of her own initiative, give notice to a person that he or she is required to appear at the hearing as a witness. The assessor may notify a potential witness that he or she will have to give oral evidence or produce specified records. The assessor may ask the witness questions at the hearing. The main difference between being notified of a hearing as 'any other interested person' or being notified as a witness is that a witness is not entitled under the Act to be represented by a lawyer.

83 In this case the assessor did not consider it necessary that a hearing be conducted and did not call upon the alleged offenders to give evidence at a hearing or to appear as witnesses. It is therefore not known what the alleged offenders would have said to the allegations. It is for the assessor to decide whether a hearing should be conducted. The assessor is tasked, under s 18, to determine compensation applications expeditiously and informally, but having regard to the requirements of justice and the Act.

84 Pursuant to s 56(2) of the Act a judge of the District Court may exercise the same powers that an assessor has, but the powers to give notice of an application to an 'interested person' and to conduct a hearing are not afforded to the District Court on appeal. The District Court also has no power to call witnesses on the appeal as the assessor's power under s 63 to notify a person that he or she has to appear at a hearing and give oral evidence is only for the purpose of conducting a hearing. The District Court may not conduct a hearing.

Whether s 17, dealing with alleged offences, is meant to apply to a situation where the alleged offender is known and able to be charged, but the police have decided not to prosecute

85 The difficulties inherent in making a claim for compensation which is based on an alleged offence raise the issue whether the legislature intended that compensation should be available in respect of an alleged offence where the alleged offender is named and able to be charged in Western Australia but has not been charged for whatever reason, which may be because the police decided that there was not enough evidence to justify a prosecution.

86 In Re: Profumo [31] - [34] Herron DCJ expressed the preliminary view that s 17 was meant to be confined to a situation where the alleged offender was unknown, for example, where he or she had disguised their identity during the offending or where the applicant had clearly suffered an injury, but was unable to identify the offender. Herron DCJ questioned whether s 17 was meant to apply to a claim for compensation where there are conflicting versions of the relevant incident as between the applicant and the alleged offender. In conclusion Herron DCJ did not express a definite view because the issue was not fully argued before him.

87 One of the reasons which led Herron DCJ to be of the preliminary view that s 17 was intended to be limited to unknown offenders was his conclusion that alleged offenders could not be notified about and heard at a hearing. Herron DCJ came to the preliminary conclusion that the legislature did not intend for compensation to be awarded where the assessor had to decide disputed versions of fact and make findings against a known alleged offender, because, inter alia, he or she had no entitlement to be heard at a hearing.

88 However, as indicated above, it is not that clear that the assessor's power to give notice to 'any other interested person that the assessor intends to hear' is confined to a convicted offender. In any event, the assessor could give an alleged offender notice to appear at a hearing as a witness.

89 It is also apparent from s 16 of the Act, which deals with a similar situation to that of an alleged offender, that the legislature intended to allow the availability of compensation even where the offender was known but not convicted and where there might be a dispute of fact about the incident. Section 16 of the Act deals with the situation where an offender was charged with an alleged offence, but the charge was either withdrawn, or dismissed without a verdict having been reached, or the alleged offender died before a verdict could be reached, or where the State did not adduce evidence on the charge. In all of these situations the offender was known and there is likely to have been a dispute about the facts constituting the incident. Nevertheless the legislature contemplated that the assessor had a duty to consider whether he or she could be satisfied that an alleged offence had occurred even though the matter was unable to be concluded by way of a trial.

90 If the legislature deemed it appropriate for a finding to be made by an assessor on a balance of probabilities about an alleged offence where a person had been charged but the trial could not be concluded, there is no reason why the legislature would not also have deemed it appropriate for an assessor to make a finding about the commission of an alleged offence where a person had not been charged at all. The fact that this may give rise to difficult decisions because the assessor is called upon to make findings on a balance of probabilities with regard to whether conduct in the nature of a criminal offence has occurred, must have been in the contemplation of the legislature.

91 Another reason why s 7 should apply to a known alleged offender is that there may be a situation where a known offender does not dispute the facts relating to an incident and yet has not been charged. There is no reason why compensation should not be available against such an alleged offender.

92 It should further be noted that s 7 does not contain any express words which confine it to a situation where the alleged offender is unknown or cannot be charged in Western Australia. If the legislature had intended such an outcome, it would have been easy to say so.

93 In YBT v BAT [2003] WADC 163 Kennedy DCJ allowed compensation to an applicant who had relied on a number of alleged sexual offences committed against her by her father and also by her stepfather. The father had previously been found guilty of sexual offending against her and had confessed in an interview conducted by the police to some of the alleged offending, but to a lesser level of seriousness. The stepfather had made no admissions. Nevertheless Kennedy DCJ came to the conclusion that the alleged offences by the father and the stepfather had been committed based on the applicant's statement made to the police shortly after the offending had occurred, reports by psychologists and psychiatrists who had diagnosed the applicant as suffering from post-traumatic stress disorder with depression 'as a result of terrible sexual abuse' and the conference notes from the Department of Community Services which made it clear that a senior social worker, the clinical psychologist and the foster parents all believed what the applicant had reported to them. The applicant also gave oral evidence.

94 Kennedy DCJ awarded the applicant compensation even though both alleged offenders were known, but had not been charged. It is not apparent from the reasons for the decision why the father was not charged with the further alleged offences. As regards the stepfather, the applicant did not wish to lay charges at the time against him as she did not want to be separated from her mother who stood by the stepfather. At the time of bringing the application for criminal injuries compensation she did not wish to put herself and her own family through the trauma of another criminal trial.

95 This case and the other matters referred to support a conclusion that s 17 was not intended to be limited to a situation where the offender is unknown or not able to be charged in Western Australia.

Whether the court should be satisfied on a balance of probabilities that the alleged offences took place

96 This court now needs to assess on the material before it whether it is satisfied on a balance of probabilities that the alleged offences took place. Additional documents were provided by Mr Jackamarra during the hearing of the appeal and these have been accepted by the court and will be relied upon as part of the material before it.

97 As I have indicated before, the allegations made by Mr Jackamarra are serious and they could potentially have significant consequences for the alleged offenders. At the end of the day, the only evidence that these alleged assaults took place is contained in the statement made by Mr Jackamarra. It is acknowledged that he made complaints about his maltreatment at the juvenile detention centres at least as far back as 1991. This is evidenced by the letter from Mr Colin Simpson which seems to respond to an allegation by Mr Jackamarra that he had been struck by a group worker while at Longmore and by the police investigations that were conducted in 1991.

98 However there is no corroborative evidence even though it appears that enquiries were made and an investigation was launched into the conduct of Mr McGillivray in February 2007.

99 What is of significance is that the police conducted extensive enquiries in 1991 and interviewed six of the seven alleged offenders. The police came to the conclusion that there was insufficient evidence to justify criminal proceedings. This is a matter to which substantial weight must be afforded and to which the assessor also gave considerable weight.

100 This court has not had the opportunity of hearing any evidence from the alleged offenders. Even if this court had the opportunity, such an investigation would be fraught with all the difficulties that I have discussed, namely making findings on limited materials and evidence and in respect of incidents that are said to have occurred almost 30 years ago.

101 This means that the evidence is just not sufficient to meet the higher level of satisfaction which is required when serious matters with potential grave consequences are to be decided on a balance of probabilities.

102 In the YBT v BAT case the applicant was able to provide reports by psychologists and psychiatrists who had made findings that she was suffering from post-traumatic stress disorder 'as a result of terrible sexual abuse' and conference notes showing that a senior social worker, the clinical psychologist and the foster parents had supported the applicant's claims when she first made them. She had also furnished statements to the police shortly after the offending had occurred and her father had admitted to some sexual offending against her. There was therefore considerable corroborating evidence on the basis of which Kennedy DCJ was prepared to find that the alleged offences had occurred.

Whether causal link between assaults and mental health injury

103 Another problem regarding the prospects of Mr Jackamarra succeeding in an application for criminal injuries compensation is that it is a requirement that his mental health injury for which he seeks compensation must have been caused by the assaults. The assaults do not have to be the sole cause of the mental health injury, but must have contributed materially to that injury: Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673. The burden is on the applicant for compensation to establish, on the balance of probabilities, a causal relationship between the commission of the alleged offences and the mental health injury: S v Neumann (1995) 14 WAR 452, 463 - 464.

104 There is no evidence to show that the particular alleged assaults made a material contribution to the mental health problems that Mr Jackamarra has experienced. The letter from Dr Parker of Top End Mental Health Services in Darwin, dated 21 December 2005, states that it was controversial whether the paranoid schizophrenia and anti-social personality disorder that Mr Jackamarra had then been diagnosed with were related to any issues about his early history of being placed in institutional care. I acknowledge that there is very little information regarding this particular diagnosis and the opinion on causation is stated in the briefest of terms. Nevertheless it raises questions about what caused Mr Jackamarra's mental health problems.

105 In December 2007 Dr Binns, a registrar in psychiatry from the Mills Street Outpatient Clinic, came to the conclusion that Mr Jackamarra suffered from depression and anxiety. Mr Jackamarra has also filed a report by his general practitioner, Dr Forward, dated 25 November 2010, which states that Mr Jackamarra has suffered from anxiety and panic attacks over the past 10 years. The attacks are said to manifest themselves as a compulsion to sit upright at night with a sense of doom. There is no indication in these reports regarding the cause of the depression and anxiety.

106 Mr Jackamarra was given the opportunity to file further medical reports until the 13th December 2013. He filed some reports within that time. However, he sent further medical reports to the court which were received on 20 December 2013. Strictly speaking that further material does not fall within the limits that the court had set regarding the receipt of further evidence. However, because it may have taken Mr Jackamarra some time to obtain these further medical reports, I have considered them. They include a letter by Dr Gary Budrikis, consultant psychiatrist, to Dr Forward, dated 4 August 2011 and outpatient notes.

107 The letter from Mr Budrikis states that Mr Jackamarra has been diagnosed with a panic disorder with underlying complex post-traumatic stress disorder which causes nocturnal panic attacks. Dr Budrikis expressed the opinion that the panic disorder can be seen as a complication of the childhood trauma and abuse experienced by Mr Jackamarra as documented by Dr Binns in 2006. The outpatient notes which appear to have been taken by Dr Binns in 2006 record that Mr Jackamarra told Dr Binns that he had suffered extended abuse while brought up in institutional and foster care. Mr Jackamarra also referred to the physical abuse from his mother. There is no specific reference in the notes to any assaults suffered by Mr Jackamarra while in juvenile detention centres. The notes refer to Mr Jackamarra suffering from significant anxiety, panic attacks and dysphoria in the context of significant childhood trauma experienced in foster homes and orphanages.

108 The available medical reports appear to indicate that Mr Jackamarra is suffering from a panic disorder and post-traumatic stress disorder which can be traced back to significant childhood trauma and abuse. Unfortunately there is no indication that his mental health issues have arisen from the specific alleged assaults suffered by Mr Jackamarra while kept in juvenile detention centres. It is not sufficient to show that Mr Jackamarra has suffered a mental illness caused by abuse experienced at home, in foster care and in institutions during his childhood. There must be at least some evidence that the specific alleged assaults made a material contribution to his mental illness.

109 In light of all the matters discussed, I am not satisfied on a balance of probabilities that Mr Jackamarra is entitled to compensation as a result of a mental health injury which has occurred as a consequence of the commission of the alleged assaults. In any event, in my view, it is not just that an extension of time be granted for the applications which were filed more than 18 years out of time.

Whether a Redress WA ex gratia payment should be deducted from an award of criminal injuries compensation

110 Pursuant to s 42(3) of the Act the assessor must deduct from a criminal injuries compensation award made to an applicant any amount received by the applicant by way of 'compensation or damages ... for the injury or loss'.

111 This court asked for written submissions from the Chief Executive Officer as amicus curiae regarding the question whether the ex gratia payment made by Redress WA to Mr Jackamarra would qualify as 'compensation or damages ... for the injury or loss' and would therefore have to be deducted from any compensation award to be made under the Act. Detailed and helpful submissions were filed.

112 However, because no compensation award has been made to Mr Jackamarra, this issue does not need to be decided. It would also not be helpful to make general findings as to whether an ex gratia payment made by Redress WA qualifies as 'compensation or damages ... for the injury or loss', because each case would have to be determined on its own facts.