BAS v The Estate of NAS

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Criminal injuries compensation - Appeal from assessor's refusal to award compensation by reason of lack of proof of alleged offences - Whether alleged offences proven on a balance of probabilities

Criminal Injuries Compensation Act 2003

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

BAS v The Estate of NAS [2000] WASCA 270

Egitmen v The State of Western Australia [2016] WASCA 214

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

Gullelo v Halloran [2008] WADC 145

Hogben v Darcy [2009] WADC 63

Lau v State of Western Australia [2017] WASCA 16

Re Jackamarra [2014] WADC 9

Re Tilbury [2010] WADC 46

Robinson [2016] WACIC 11

1 On 30 June 2014 the appellant, Mr Robinson made an application under the Criminal Injuries Compensation Act 2003 (WA) (the Act) for compensation for injuries suffered by him as a consequence of the commission of an alleged assault on 17 September 2012.

2 The person said to be responsible for the alleged assault was interviewed by police. He was never charged with any criminal offence, however, and so the application was brought under s 17 of the Act.

3 By letter dated 20 September 2016 the assessor refused the application for the reasons subsequently delivered on 21 October 2016 in Robinson [2016] WACIC 11.

4 The assessor found that Mr Robinson was involved in an incident with a person referred to as 'DC' on 17 September 2012 and suffered injuries. The assessor was not satisfied on the balance of probabilities however that an alleged offence occurred and the application was accordingly refused.

5 The assessor stated in the 20 September 2016 letter to Mr Robinson's solicitors that even if the application had not been refused on that basis, it would have been refused pursuant to s 41 of the Act, in any event because of Mr Robinson's conduct.

6 Mr Robinson appealed from that refusal on the basis that the assessor erred in:

1. concluding that there is sufficient evidence to raise the defence of self-defence;
2. that even if s 17 applied s 41 of the act applied;
3. that there is sufficient evidence for her to refuse the application.

7 It is well established that an appeal under the Act is a hearing de novo: Gullelo v Halloran [2008] WADC 145. The court may confirm, vary or reverse the assessor's decision either in whole or in part pursuant to s 56(2)(b) of the Act.

8 The court has a discretion to receive and admit further evidence under s 56(1) of the Act unless it would be unjust to do so: Re Tilbury [2010] WADC 46.

9 Even though the appeal is a hearing de novo it is appropriate to have regard to the assessment made by the assessor being a specialist tribunal in the field: Hogben v Darcy [2009] WADC 63, 13.

10 The onus was on Mr Robinson to prove to the assessor's satisfaction on the balance of probabilities that DC committed the alleged 17 September 2012 offence: BAS v The Estate of NAS [2000] WASCA 270 [11]. This remains the position on the appeal.

11 It is convenient to begin with ground 1 and then ground 3 and then finally ground 2.

12 Notwithstanding the terms of ground 1, Mr Robinson's counsel, correctly in my view, conceded that the evidential basis to raise the defence of self-defence had been discharged on the materials: (t 7).

13 The law on discharging the evidential burden is as explained in Lau v State of Western Australia [2017] WASCA 16 [85] and [91] - [92] (per Buss P).

14 A police officer formally interviewed DC on 15 November 2012. According to the summary of the interview in the police running sheet, DC stated that a male person, who I accept was Mr Robinson, was aggressive towards him and told him to take a walk with him.

15 Both men walked outside DC's unit and Mr Robinson, while holding a bottle of beer, pointed his finger in DC's chest. Mr Robinson then lifted the bottle to shoulder height, at which point DC grabbed him and wrestled him to the ground. Both men exchanged punches with DC landing between four and eight punches to Mr Robinson's face in an endeavour to get him to drop the bottle.

16 Once DC had possession of the bottle he stopped punching Mr Robinson, got up from the ground and removed the bottle from the area. He returned to check on Mr Robinson but he had left the area.

17 The relevant question, in a case where (as in the present case) the legal burden is on Mr Robinson and the evidential burden is on the alleged offender, DC, is as follows. Is there evidence which, taken at its highest in favour of DC, could lead a reasonable tribunal of fact, properly applying the relevant law, to conclude on the balance of probabilities that each of the elements of the defence of self-defence have been negatived? Questions as to the weight to be given to the evidence and the credibility of the accused are matters for the tribunal of fact: Lau [85] (per Buss P).

18 DC may discharge the evidential burden by giving or calling evidence, or by pointing to evidence called in Mr Robinson's case. Slender evidence may be sufficient, depending on the facts and circumstances of the particular case, to discharge the evidential burden: Lau [91] (per Buss P).

19 I will come to the elements of self-defence under s 248 of the Criminal Code shortly, but based upon the information before me of DC's account in a recorded interview, I am quite satisfied that DC discharged the evidential burden so as to raise the defence of self-defence. This defence would then need to be negated to the civil standard by Mr Robinson.

20 The assessor was correct to conclude that there was sufficient evidence to raise the defence of self-defence and ground 1 is dismissed.

21 I turn then to ground 3. Mr Robinson is in the position as explained by Wisbey DCJ in Green v Lee (1996) 17 SR (WA) 93, 97, cited with approval by Schoombee DCJ in Re Jackamarra [2014] WADC 9 [12].

22 It is necessary for an applicant under the Act to establish to the required degree of satisfaction, namely on the balance of probabilities, that he was injured as the consequence of the commission of an alleged offence; and in so doing it is necessary that he negative the existence of defences reasonably open. That is the applicant (save as to the burden of proof in the civil standard) must persuade the court as if he were prosecuting the criminal offence.

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

23 St John Ambulance patient care records reveal that they attended 39 Great Eastern Highway, Rivervale at 11.34 pm on 17 September 2012. Mr Robinson was taken to the emergency department of the Royal Perth Hospital. He stated that he had been involved in an altercation with occupants of the motor vehicle having hitched a ride. He was assaulted by others receiving several blows to his face (AB 54 - 55).

24 The triage nursing assessment notes reveal that on admission at 11.49 pm he was alert. At approximately 11.58 pm, Mr Robinson stated that he was waiting for his lift and, 'three lads jumped him' (AB 43).

25 There is an immediate inconsistency therefore, as to whether the alleged assault occurred after he had got into a motor vehicle or whilst waiting for someone to give him a lift.

26 In a letter to the solicitors for Mr Robinson from an assessor L V Dempsey on 30 June 2016, the assessor observed that when Mr Robinson was admitted to Royal Perth Hospital he had a blood alcohol level of 0.23%.

27 That observation has not been disputed and whilst there is no evidence of back calculations before me, it is obvious that at the time of the incident with DC, Mr Robinson's blood alcohol level would have been higher than that already significant figure.

28 I conclude that at the time of the incident with DC, Mr Robinson was very intoxicated.

29 A further account is recorded by a medical officer Cara Hughes on 18 September 2012 when she reports that Mr Robinson alleges that whilst out drinking he had been assaulted with multiple kicks to the head (AB 56).

30 Following his discharge from hospital Mr. Robinson reported matters to police on 19 September at 2.20 pm and provided a four page witness statement to the police at 3.50 pm that day. Referring to 17 September, he described drinking at the house of a friend of his called Magnus at Nannine Place, Rivervale. He drank six full strength beers and left at about 5.00 pm to walk to the Burswood train station along Great Eastern Highway.

31 Mr Robinson described that at some unknown time he was hit from behind and lost consciousness. He thought that two people attacked him. All he could remember was a flurry of hits to his head and waking up some time later. He alleged that when he regained consciousness his backpack, which had contained two mobile phones, $80 in cash, his birth certificate, his passport, prescription medication, phone charges and a six-pack of beer had been stolen. He stated that he did not give permission for anyone to hit him or take his property (AB 38 - 41).

32 The clear inference from that statement is that Mr Robinson was asserting that he had the backpack when he was attacked, and that it must have been stolen from him during the assault.

33 The police running sheet reveals that although Mr Robinson was very vague about the circumstances regarding the incident, and that he smelled faintly of alcohol when he attended Cannington police station to provide his statement, he did not appear intoxicated, was completely lucid and able to hold normal conversation.

34 As a consequence of this formal complaint Kensington detectives commenced an investigation.

35 Eight days later on 28 September 2012, according to the running sheet, Mr Robinson attended Cannington police station stating that he now remembered everything that happened. In a telephone conversation with police officer John Daniels at 2.47 pm, Mr Robinson stated that he remembered what happened and that he was attacked by 'a bloke called 'D'', (D being the first name of DC) and that he had a witness.

36 He was asked to come into the police station the following Tuesday to provide a new statement.

37 According to a statutory declaration made by Mr Robinson on 29 August 2016, he discovered that the backpack, which he had referred to in his 19 September 2012 statement, was in fact at his friend Magnus' unit. Magnus told him that DC had assaulted him and, 'it all came back to me'.

38 Mr Robinson described in the statutory declaration opening Magnus' door because DC was banging on it and being abusive. He informed DC that he would be staying there for a couple of weeks and asked if they could have a chat. Mr Robinson stated that he grabbed two bottles of beer and headed down the stairs for the front door, but whilst on the way down the stairs he was assaulted by DC.

39 He woke up at the stairs and rather than going back to Magnus' unit, walked off until he saw some workmen who called the ambulance on his behalf. He was about 1 km from Magnus' unit at this time. He denied threatening DC with a bottle.

40 On Tuesday 2 October 2012, Officer Daniels spoke with Mr Robinson who stated he was not a victim of a robbery but was assaulted by D with whom he remembers speaking just before he lost his memory. He also stated that his friend Magnus had ongoing problems with D. He stated that D had laughed at him the other day and made reference to his injuries.

41 On 8 November 2012 Mr Robinson advised Officer Daniels that DC was the last person he remembers seeing as he left his friend's unit and that there have been previous issues between him and DC. He could not say he was assaulted by DC however due to his intoxicated state and concussion.

42 DC attended Cannington police station voluntarily as a non-arrested suspect on 15 November 2012 and was interviewed by Officer Daniels. DC did not recognise Mr Robinson from a photograph shown to him, but did describe a similar incident as I have already outlined.

43 On about 16 November 2012 the police decided to write off the complaint because of insufficient evidence.

44 On 30 June 2014 Mr Robinson made a written application for criminal injuries compensation, albeit the application was inappropriately said to be brought under s 12 on the basis that it was a proved offence with the offender convicted. That of course is not the position.

45 Somewhat oddly, despite the communications to police that I have referred to on 28 September, 2 October and 8 November 2012, in his statement in support of the application, dated 24 July 2014, said to be true to the best of his knowledge and ability, Mr Robinson stated at par 4, 'for full details of the incident please refer to my statement to the police dated 19 September 2012'.

46 The version of events in that statement of course was that while walking along Great Eastern Highway he was hit from behind two people, lost consciousness and was apparently robbed of his backpack and valuable belongings.

47 As of 24 July 2014, Mr Robinson's state of knowledge as to how he been injured was as described in the statutory declaration I have referred to at [38] - [39]. As of 28 September 2012 at the latest, according to Mr Robinson, he would have known that the account he gave to the police on 19 September 2012 did not reflect what happened to him, yet he repeated it in the written application of 30 June 2014.

48 I pause to note that this is not a case where a person has said initially that he had little or no recollection of events and then provides details at a later time. Rather, the case is that Mr Robinson has provided at the time a detailed allegation, specifying the loss of some highly significant items implicitly in a robbery. There is no suggestion in any of the materials that DC robbed him of any items.

49 On 26 August 2014, Mr Robinson was assessed by a psychiatrist, Dr Frederick Ng. Mr Robinson stated that he had no memory of the incident but was told he was outside someone's flat next great Eastern Highway. He reported that he and the police knew who attacked him but there was not enough evidence to charge them.

50 Mr. Robinson's friend Magnus Wootton made a statutory declaration on 9 September 2016. Mr Wootton does not specify the date of the incident, but describes Mr Robinson and DC going down the stairs together and then opening his front door to see DC coming back up the stairs. According to Mr Wootton he simply closed his door and did not make any attempt to see where Mr Robinson was. Mr Wootton does not describe DC giving him the bottle he had taken from Mr Robinson.

51 The law on self-defence under s 248 of the Criminal Code was most recently explained in Egitmen v The State of Western Australia [2016] WASCA 214 [61] - [77], [225] - [231] and [271] - [291].

52 Section 248(1) provides that, in s 248, the term 'harmful act' means an act that is an element of an offence under pt V other than ch XXXV.

53 By s 248(2), a harmful act done by a person is lawful if the act is done in self-defence under s 248(4).

A person's harmful act is done in self-defence if -

(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and

(b) the person's harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and

(c) there are reasonable grounds for those beliefs.

55 As demonstrated by Buss P at [76], s 248(4) enumerates four elements:

• First, the accused (subjectively) believes the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4) (a));
• Secondly, the accused's harmful act is a reasonable (objective) response by the accused in the circumstances as the accused (subjectively) believes them to be (s 248(4) (b));
• Thirdly, there are reasonable (objective) grounds for the accused's (subjective) belief that the harmful act is necessary to defend the accused or another person from a harmful act, including a harmful act that is not imminent (s 248(4)(a) read with s 248(4)(c));
• Fourthly, there are reasonable (objective) grounds for the accused's (subjective) belief as to the circumstances (s 248(4) (b) read with s 248(4)(c)).

56 If an accused (in this case DC) satisfies the evidential onus in relation to self-defence, then the burden is on the State (in this case Mr Robinson) to negative the defence by excluding at least one of its elements beyond reasonable doubt (in this case on the balance of probabilities): (Buss P at [77]).

57 In my view Mr Robinson has failed to exclude the first element on the balance of probabilities. The only witnesses to the incident are Mr Robinson and DC. Mr Robinson has provided a number of conflicting accounts. Even as late as 24 July 2014, Mr Robinson adhered to an earlier version which he must by that stage have known was incorrect.

58 The level of Mr Robinson's intoxication at the time would have been very high. There is, I find, a further inconsistency between his claim on 8 November 2012 that he could not say he was assaulted by DC due to his intoxicated state and concussion, compared to his assertion on 29 August 2016 that whilst on the way down the stairs he was assaulted by DC.

59 DC's account of Mr Robinson having a bottle in his hand is consistent to an extent with Mr Robinson's 29 August 2016 statutory declaration, in which he states that he walked down the stairs with two stubbies.

60 Given the absence of any witnesses and Mr Robinson's state of intoxication, both factors which would have been known to DC, he could easily have chosen to deny there was any incident at all or alternatively refused to participate in the interview.

61 Instead DC admitted throwing a number of punches, but stated that he did so in response to Mr Robinson raising a beer bottle to shoulder height, and that he stopped punching Mr Robinson once he had dispossessed him of the bottle.

62 The brief summary of the interview before me does not enable me to form a judgment that the account described by DC, of wrestling on the ground with a man who was throwing punches and that at some stage remained in possession of a bottle, is innately improbable.

63 I do not accept that it is logistically impossible to retain possession of a bottle and throw punches. It is possible, in my view, that DC was able to hold the hand or arm of Mr Robinson that held the bottle down so as to prevent him from using the bottle, but that he was unable to hold Mr Robinson's other arm. He would be unable to do so because he was using his other hand to punch Mr Robinson. That would necessarily leave Mr Robinson's other hand free to punch DC, even if he was unable to use the bottle.

64 Mr Robinson has not demonstrated that it is more likely than not that DC did not (subjectively) believe that punching Mr Robinson was necessary to defend himself from a harmful act, namely Mr Robinson using a bottle to assault him.

65 In my view Mr Robinson has also failed to exclude the second element on the balance of probabilities. I repeat my observations at [57] - [58]. Mr Robinson has not demonstrated that it is more likely than not that throwing several punches, even punches as demonstrably powerful as these punches were given the injuries, was not a reasonable (objective) response by DC in the circumstances as DC (subjectively) believed them to be.

66 In my view Mr Robinson has also failed to exclude the third element on the balance of probabilities. I repeat my observations at [57] - [58]. Mr Robinson has not demonstrated that it is more likely than not that there were not reasonable (objective) grounds for DC's (subjective) belief that his punches were necessary to defend himself from Mr Robinson threatening him by holding the bottle at shoulder height.

67 Finally, in my view Mr Robinson has failed to exclude the fourth element on the balance of probabilities. I repeat my observations at [57] - [58]. Mr Robinson has not demonstrated that it is more likely than not that there were not reasonable (objective) grounds for DC's (subjective) belief as to the circumstances he believed them to be.

68 Accordingly I find that Mr Robinson has failed to negative the defence by excluding at least one of its elements on the balance of probabilities.

69 An award of compensation cannot be made under s 17(2) of the Act if the person who committed the act, DC, that constitutes the alleged offence, was, at the time of the act not criminally responsible for it: s 17(4).

70 If the person who committed the act that constitutes the alleged offence is not criminally responsible for that act the alleged offence is taken not to have been committed for the purposes of s 17(4) of the Act: s 17(5).

71 In my view it would be entirely speculative and contrary to the material before the court to conclude that Mr Robinson came by his injuries in any other way than the earlier incident outside the unit where Mr Wootton and DC lived.

72 The assessor was correct to conclude that the application should be refused on the basis that she was not satisfied that Mr Robinson was the victim of an unlawful assault.

74 Ground 2, which asserts that the assessor erred in concluding that even if s 17 applied, s 41 of the act applied, is referable to the 20 September 2016 letter.

75 In that letter the assessor stated that even if the assessor was satisfied that Mr Robinson had been the victim of an unlawful assault, so as to enliven jurisdiction under s 17, the assessor would then have to have regard to Mr Robinson's conduct and behaviour pursuant to s 41. Applying that section, the information in the statutory declaration of Mr Wootton was, in and of itself, sufficient evidence to satisfy the assessor that Mr Robinson's application ought to be refused.

76 In the written reasons provided by the assessor however, the assessor stated at par 20 that as the application has been refused on the basis that the applicant had not satisfied her that an alleged offence occurred, the s 41 comments made in the letter fall away and are not required to form part of the assessor's determination.

77 Given my findings in respect of grounds 1 and 3, ground 2 does not arise and is accordingly dismissed.

78 By agreement, following the hearing of 1 February 2017, on 3 February 2017 an affidavit was filed on behalf of Mr Robinson providing further particulars of his alleged loss and damage. Given my findings and my decision to dismiss Mr Robinson's appeal, it is not necessary to describe the information contained in that affidavit.

79 In light of all the matters discussed, I am not satisfied on a balance of probabilities that Mr Robinson is entitled to compensation as a result of the injuries he sustained on 17 September 2012.