Bonnington Castings Ltd v Wardlaw

Appeal - Criminal injuries compensation - Alleged offences

Criminal Injuries Compensation Act 2003

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

Amicus Curiae : State Solicitor for Western Australia

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

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

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

Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

1 EATON DCJ: On 7 June 2011 HCM made application under the Criminal Injuries Compensation Act 2003 (the Act) for an award of compensation arising out of sexual offending alleged to have been committed against her as a child at Mosman Park in the State of Western Australia by TJB. The alleged offending had been reported to police in Western Australia on 20 August 2009.

2 Following an investigation TJB was charged with having indecently dealt with HCM, a child under the age of 13 years, and with having sexually penetrated HCM, a child under the age of 13 years, in each case during the period January 1993 to December 1994, inclusive.

3 By letter of 21 December 2009 the Director of Public Prosecutions for Western Australia wrote to HCM advising her that TJB was due to appear in the Magistrates Court at Perth on 21 January 2010. As later outlined, the charges did not progress beyond the Magistrates Court. The Director of Public Prosecutions formed the view that there was no reasonable prospect of success on either charge and elected not to pursue the prosecution. No evidence was offered by the prosecution and TJB was discharged.

4 My understanding is that no other person has been charged with or convicted of the offences alleged against TJB.

5 Section 9 of the Act provides that a compensation application must be made within three years after, in the case of more than one offence, the last of the offences committed. It follows, in the case of HCM, that her application for compensation should have been made on or before 31 December 1997. It was, therefore, when made, many years past that date.

6 Section 9(2) of the Act provides that, despite the requirement that an application be made within three years after the date on which the last offence was said to have been committed, an assessor may allow a compensation application to be made if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.

7 By letter of 28 July 2011 an Assessor of Criminal Injuries Compensation, Mr R Guthrie (the Assessor), advised HCM that he was not satisfied, on the information provided to him, on the balance of probabilities, 'that the sexual assaults alleged took place'. Having reached that conclusion he advised that he would not allow an extension of time 'because I could not be satisfied the essential facts have been made out'.

8 Section 16 of the Act applies, inter alia, if a person is charged with an alleged offence and the prosecution is discontinued. In such circumstances a person who suffers injury in consequence of the commission of the alleged offence may apply for compensation for that injury and any loss so suffered. In such circumstances an assessor must not make a compensation award in respect of a compensation application made unless satisfied that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence.

9 The Act defines the term 'alleged offence' to mean a crime, misdemeanour or simple offence of which no person has been convicted.

10 Section 55 of the Act provides that an interested person may appeal to this court against an assessor's decision to make or refuse to make a compensation award. An appeal must be made or commenced within 21 days of the date of the decision. Section 55(4) of the Act provides that this court, if it is just to do so, may allow an appeal to be commenced after the 21 days and may do so even if the period has expired.

11 An appeal is to be conducted in accordance with the rules of this court.

12 I have the benefit of submissions in writing from the appellant, dated 19 September 2017, and from the Chief Executive Officer of the Department of the Attorney General dated 21 September 2017. Both were represented by counsel at the hearing, the latter in the capacity of amicus curiae. In consequence, I heard oral submissions in support of or augmenting each of the written submissions mentioned.

13 It is well settled that an appeal under the Act to this court is an appeal, following amendments to the Act in July 2008, by way of a hearing de novo. I may confirm, vary or reverse the Assessor's decision. I must determine the matter 'without being fettered by the Assessor's decision' but it is appropriate that I have regard to the written reasons for decision provided by the Assessor as a specialist tribunal in this particular field. Finally, I have a general discretion to receive and admit further evidence. That discretion should not be exercised where it would be unjust to do so.

14 I have agreed to and received additional material that was not before the learned Assessor as follows:

(a) a further written statement by HCM dated 17 September 2017;

(d) an extract from the records of Royal Perth Hospital; and

(e) a report of Dr John Cronin dated 8 September 2017.

15 Counsel are agreed that the principal issues in this appeal are as follows:

(a) whether, on the balance of probabilities, the offences, as alleged, occurred;

(b) whether I should exercise my discretion under s 9(2) of the Act to grant the appellant an extension of time to allow the application to proceed;

(c) whether I should exercise my discretion under s 55(4) of the Act to grant an extension of time to allow the appeal to proceed; and

(d) if I am satisfied on the balance of probabilities that the alleged offences were committed by TJB against HCM, the amount of compensation, if any, payable to HCM in consequence of the alleged offending.

16 I accept that the foregoing are the principal issues for determination but the primary issue is one of fact, that being whether the alleged offences took place at all. It is very clear from the final paragraph of the Assessor's letter to HCM of 28 July 2011 that he was not persuaded in that regard and that, in consequence, he would not accede to her application for an extension of time. The factual issue is, therefore, a threshold one in the determination of this appeal. Dealing with that issue will necessarily require that I form my own view in that regard but also examine the reasons given by the Assessor in arriving at the conclusion drawn by him.

17 HCM was born on 2 May 1983 in Vienna, Austria. She is now 34 years old. She was born to SH and a man whose name is not known. He played no part in her life.

18 Not long after the birth SH emigrated to Australia with HCM and settled in Western Australia. HCM has resided in Australia since then.

19 Shortly after arriving in Australia, SH met and married NAM. There was one child of that marriage, a son named S. For almost 15 years HCM was part of a family which comprised her mother, her stepfather and her half-brother.

20 HCM's mother and stepfather separated in about October 1998 when she was 15 years old. SM (formerly SH) travelled to Austria to visit during her long service leave. While there she informed her family in Western Australia that she had found a new life in Austria. SM returned to Australia for a week-long visit in January 1999, staying only to put her affairs in order before returning to Austria. It seems that SM had formed a relationship with a man in Austria.

21 Prior to the matrimonial breakdown, HCM lived with her family at 13 Monument Street, Mosman Park. From school years 2 to 6, inclusive, she attended Iona Primary School in Mosman Park. In year 7 she attended St Thomas Primary School in Claremont in the hope that, in year 8, she might be accepted at John XXIII College in Mt Claremont for her secondary schooling.

22 SM was concerned about HCM's weakness in mathematics and, anxious to improve her marks in that field, with a view to gaining entry to John XXIII College, engaged the services of a tutor in mathematics to provide after-school tutoring in that field.

23 TJB had placed advertisements in local newspapers circulating in the western suburbs of Perth offering his services as a tutor in mathematics. HCM's mother noticed his advertisement and contacted him. She engaged him to provide after-school tutoring at their home in Monument Street, Mosman Park. TJB was, at that time, a teacher at Scotch College in Swanbourne in his mid-50s.

24 The arrangement entered into was that he would attend HCM's home at 4.00 pm on Tuesdays and Thursdays, each session being for an hour. He would charge about $25 per hour. The tutoring took place with TJB and HCM seated at the dining table in the lounge room.

25 In a statement signed by HCM and provided to police dated 20 August 2009, she said that, about a week after tutoring commenced, TJB began to touch her in a sexual way as he sat beside her at the dining table. He began by putting his hand down her blouse and resting it on her left breast. She was dressed in her school uniform. That conduct continued, she said, on a regular basis. He touched both breasts.

26 After a time he began to put his hand inside her underwear, placing two fingers in her vagina.

27 HCM said that he would change places, on one day sitting on one side of her and, on another, sitting on the other. Her recollection is that he touched her in a sexual manner on every occasion of tutoring which, she thought, began in February 1994 and came to an end in May 1994.

28 She was, at the time of tutoring, a fan of the band Silverchair. She recalls that TJB gave her, as a birthday gift, a compact disc of the band's album 'Frogstomp'. Shortly after, he gave her a compact disc player. It appeared to be new. The disc and the player were, she said, returned to TJB at his home in Doonan Road, Nedlands by her stepfather, NAM. The tutoring ceased at about that time.

29 HCM said that she was unable to tell her parents about TJB's molestation of her and did not do so. The first person she told was, she said, a psychiatrist, Dr Ann McDonald, at her rooms at Stirling Street, Fremantle. That was in 1999. She was not, she said, ready to report the matter to police at that time.

30 By letter of 18 August 1999, Dr Ann McDonald, who was a registrar in psychiatry at the South Metropolitan Child and Adolescent Mental Health Service of 1 Stirling Street, Fremantle, wrote to an officer of the Department of Family and Children's Services in Fremantle advising:

I have been informed by HCM that when she was 11, she was sexually abused by a visiting maths tutor to her home. She told me that this man's name was TJB and that he was a teacher at that time. She has decided to disclose this information now, in an attempt to prevent this man treating other children the same way. I should be grateful if you would follow-up on this information and contact the police/Child Abuse Unit if you think this is appropriate.

31 HCM was, when that letter was written, 16 years old.

32 HCM and her younger half-brother did gain admission to John XXIII College. When she was 15 years old the deputy principal of that school wrote to her mother and stepfather, by letter dated 27 October 1998, expressing concern as to the extent of HCM's absences from school in the then current school year. There was also concern, to a lesser extent, about her younger half-brother's poor attendance.

33 HCM was, at that time, in year 10 and her half-brother was in year 8. Their absences from school were well above average for students in those years.

34 The deputy principal noted that the house co-ordinator for both HCM and S had repeatedly attempted to make contact with their parents to express concern about their apparent truancy. There had been no reply to messages left on mobile telephones and on an answering machine at their home.

35 The deputy principal emphasized the importance of regular school attendance and, in particular, of years 11 and 12 for HCM. Her continued absences in those years would 'almost certainly result in failure'.

36 In conclusion, the deputy principal urged HCM's parents to contact the house co-ordinator 'in the near future to discuss the issue of ... absences from school'.

37 It seems likely that there was no or no effective response to that letter because HCM's mother left Perth for Vienna Austria in October 1998 and did not return apart from a one week visit to Perth in January 1999 and a further brief visit later that year.

38 I infer that HCM's parents' marriage was, at that time, irretrievably broken down and that the breakdown had been gradual over preceding years. The letter from the deputy principal of John XXIII College and, in particular, the reference to failed attempts by the school to make contact with the children's parents is revealing. The school's attempts to make contact were about matters of clear concern as to the children's education. I infer that the breakdown of the marriage led to the family becoming dysfunctional and impacted on both children, contributing to their aberrant behaviour at school.

39 Although the precise circumstances are not clear, I infer that, following her mother's departure for Austria, HCM and her younger stepbrother remained in NAM's care. The family moved from Mosman Park to 174 Preston Point Road in East Fremantle. I infer that both children were enrolled at John Curtin Senior High School for the start of the first term in 1999 which would have been, for HCM, year 11 and, for her younger half-brother, year 9.

40 In summary, at a crucial stage in HCM's development her parent's marriage had collapsed, her mother had left for Europe, apparently permanently, the family had moved house and the children had moved schools from North of the Swan River to South of the river.

41 On 26 February 1999 HCM was referred by a school nurse at John Curtin Senior High School to the South Metropolitan Child and Adolescent Mental Health Service for assistance. She had, on the previous day, sought the assistance of the school nurse because she felt mentally unwell. She told the school nurse that her life had changed considerably since the departure of her mother who had returned to Europe to live with her former boyfriend. Her mother's departure had been unexpected, leaving little time for discussion as between mother and daughter. In that circumstance she felt the need to look after her stepfather and her 14-year-old half-brother. Her stepfather had delegated household tasks, such as washing, cleaning, budgeting and the care of her half-brother, to her.

42 HCM told the school nurse that she had no knowledge of her biological father and that she felt abandoned by her parents. She informed that she and her stepfather were 'very concerned' about her half-brother's substance abuse and absence from the family home.

43 Notes made by Dr McDonald of her attendances on HCM following referral by the school nurse at John Curtin High School left her with the impression that 'this family was fairly well-adjusted until the crisis of late'. Dr McDonald noted that HCM's thoughts were appropriate with no psychotic features displayed. She displayed higher than average language skills and intelligence. She was, said Dr McDonald, intent on completing her schooling in England and had acquired a passport to fulfil that intention. She expected that her mother would pay for her education there. She would, in that scenario, be able to visit her mother and vice versa.

44 Specifically, Dr McDonald noted 'she denied any history of sexual abuse'. At this point I note that when HCM attended upon Dr McDonald, on referral from the school nurse, she did so in the company of her stepfather.

It is apparent that she is now under pressure to provide some mothering to both her (step) father and her younger brother. HCM appears to be using avoidance as a defence still and is otherwise now idealising a life with her mother in Europe; hence, the acute loss has been compounded by important decision making. There will be benefit in psychological counselling. Her depressive symptoms seem to be on the retreat generally (some residual physiological shift symptoms) but her plans involve further losses and stresses in the foreseeable future, and renewed withdrawal would not be surprising. Diagnosis tends towards 'depression' stemming with a situation akin to grief.

46 Dr McDonald recommended individual psychological assistance to help HCM digest her relationship with her mother and the implications of her plan to 'escape' to Europe. She concluded that the family was in crisis and needed support. HCM should be referred to a clinical psychologist.

47 Six months after the referral by the school nurse HCM's mental state had deteriorated and she attended the Stirling Street Centre with features of acute psychosis. She had been experiencing 'troubling and persistent auditory hallucinations' for about two months. They were in the form of voices or thoughts which suggested that she should harm herself or her half-brother. She had, on 6 August 1999, taken an overdose of an anti-depressant medication called Sertraline. It had been prescribed for her by Dr McDonald on about 3 August 1999.

48 By letter of 16 August 1999 Dr McDonald wrote to a colleague informing that domestic care of HCM had become erratic and that the Department of Family and Children's Services had become involved.

49 During this time of crisis, SM journeyed from Austria to Perth on 10 August 1999 but returned eight days later. There was discussion about a proposal for HCM to travel to Austria with her mother for the remainder of 1999 with the intent that she return to Perth and the care of NAM to commence year 11 at John Curtin High School in 2000.

50 It is important to note that, during 1999, HCM's mental health deteriorated from depression at the start of the year to features of psychosis by August. She turned to mental health services because she knew that she was in trouble in that regard. It is true that a disclosure of sexual abuse at the hands of her mathematics tutor was made to Dr McDonald in about early August 1999. The context of her deteriorating mental state does not rationally lead to a conclusion that the subject matter of her disclosure was either a deliberate fabrication or a fictional manifestation of her mental state at the time. That context could have been productive of the disclosure of events which did, in fact occur, but had been internalised for several years.

51 In his letter to HCM of 28 July 2011 the Assessor referred to 'a number of inconsistencies between your account as compared to that of your stepfather NAM'. He was referring to what he regarded as NAM's statement. That appears to be a reference to an unsigned, unwitnessed five-page type-written statement. I infer that it was prepared by a police officer following contact with NAM in the wake of HCM's report to police. The statement referred to by the Assessor, in par 40, includes:

On Monday, September 21st 2009 I gave a statement to Detective FORREST at the Child Abuse Squad.

52 The document, presumably prepared by Detective Forrest, contains in par 41, a declaration in the following terms:

I declare that this statement is true to the best of my knowledge and belief and that I have made this statement knowing that if it is tendered in evidence I will be guilty of a crime if I have wilfully included in this statement anything which I know to be false or do not believe to be true.

53 The document is, however, unsigned. It should not be regarded as being a 'statement of NAM' because it was never adopted by NAM.

54 I have the benefit of a statement dated 11 July 2017 signed by NAM. In it he says:

I have read the statement that the police took. This is the first time I have seen it. There are a lot more memories I have that aren't in the statement, like the ones I have spoken of in this statement. I remembered talking with Detective Kelly Forrest at Stirling Street. Detective Forrest mentioned me coming back to the station again later, but I was never called back. I remembered telling her that HCM told me TJB touched her. This is what prompted me to return the CD player and gifts to his house. HCM telling me that he touched her just confirmed what I was already suspicious of. I don't know why the police haven't put that in the statement.

55 NAM concludes his statement of 11 July 2017 with the following:

This is my statement and I declare it to be true to the best of my knowledge and belief. I am more than willing to give evidence if called upon to do so.

56 An obvious mistake in the unsigned statement relied upon by the Assessor is found at par 6 which states HCM's date of birth to be 2 May 1993. Clearly, as a matter of fact, she was born on 2 May 1983.

57 The Assessor refers to a number of inconsistencies between HCM's account and the unsigned statement. Those inconsistencies include, he says:

(a) the period over which the offending is said to have taken place;

(b) whether HCM was, from time to time, alone with TJB;

(c) whether NAM made a particular effort to supervise the tutoring because of his suspicions as to what was happening; and

(d) the size of the dwelling at which the tutoring took place and its impact upon the opportunity for TJB for 'repeated and sustained sexual assault' on HCM during tutoring sessions.

The period over which the alleged offending occurred

58 In her statement of 20 August 2009, HCM said that she began grade 7 at St Thomas's Primary School in February 1994 and that her parents found a mathematics tutor for her. She said that he touched her inappropriately 'every Tuesday and Thursday for the entire time he tutored me'. She thought that was from February 'until about May 1994'. She remembered her step-father, NAM, becoming suspicious about TJB at about the time of her birthday. Her 11th birthday would have been on 2 May 1994.

59 In her statement of 17 September 2017, HCM said that TJB was engaged when she was 'around 11 years old'. At par 18 of that statement she seeks to correct her reference to 1994, indicating that it should be 1995 when she was 12 years old. She was, at the time of her 12th birthday, in year 7 at primary school. The tutoring, she said, was from February to May 1995.

60 In her statement of 1 July 2017, SM says that HCM was, when TJB was engaged to tutor her in mathematics, attending year 7 at St Thomas Primary School in Claremont. The engagement lasted for about half a year.

61 In his statement of 11 July 2017, NAM confirms that HCM was in year 7 at St Thomas Primary School, Claremont when TJB was employed as a mathematics tutor.

62 The reference to the tutoring continuing for 12 - 18 months is found in the unsigned statement of NAM, a document apparently prepared by Detective Kelly but never adopted by NAM.

63 On the information before me, in arriving at a factual conclusion on the balance of probabilities, I place no reliance on that statement and infer that the tutoring took place over a period of several months from, and including February to, and including, May 1995 when HCM was a student in year 7 at St Thomas Primary School, Claremont.

64 In her statement to police dated 20 August 2009, HCM said:

I was always home alone when TJB came to tutor me. My parents and my brother would always leave the house for the hour so I had peace and quiet to concentrate on my studies.

65 In her statement of 1 July 2017, SM says that on a couple of occasions she, with NAM and her son, left the house for short periods while the tutoring was taking place 'so as not to distract her and help her concentrate'. She said that she and other members of the family used that time for visits to the local library and shops. She had no driver's licence and was reliant upon NAM to drive her around. When at home, she was busy preparing meals and attending to other household chores. She said 'I did not notice anything out of the ordinary or unusual happening'.

66 In his statement of 11 July 2017, NAM said that, on the occasions of tutoring, he and SM sometimes left the home so that the tutoring would not be disturbed. He said that, following his suspicions being aroused as to TJB's behaviour, he made a point of being in the vicinity of the tutoring.

67 I infer that, prior to his suspicions being aroused, he was not paying particular attention to HCM and TJB but was allowing the tutoring to take place without disturbance.

68 I find that the tutoring took place, not in a bedroom or study, but in a main living area of the house at a kitchen or dining table. The tutorials were for one hour. They were important, the aim being to improve HCM's grades in mathematics to enhance her chances of being accepted into what was regarded as a desirable secondary school. In that context, it is not surprising that, prior to suspicions being aroused, the rest of the family either absented themselves from the house for a time or took steps to ensure that the tutor and pupil were not distracted or disrupted by the activities of others in the house.

69 Having regard to the statement of HCM made on 20 August 2009, I do not accept that her parents and half-brother always left the house during tutoring and that she was always alone with TJB for the duration of tutoring. I do accept, however, on the balance of probabilities, that, prior to NAM's suspicions being aroused, other members of the household would have made themselves scarce, such that tutor and pupil were not distracted or disrupted by their activities.

70 To the extent that tutor and pupil were left alone and/or undisturbed, I conclude that there would have been ample opportunity for TJB to interfere with HCM in the manner complained of. A person offending in that manner would do so covertly, not openly. The offender would not do so if others were present. An offender would ensure that his activities went unobserved. If, as alleged, the activity became repetitive, there is the real likelihood of, firstly, the victim being increasingly acquiescent and, secondly, the perpetrator being increasingly emboldened.

71 As to NAM's suspicions being aroused, it is likely that he maintained an appearance of normalcy and that TJB was unaware that his suspicions had been aroused.

72 My conclusion, as a matter of probabilities, is that there was ample opportunity for the offending complained of to have taken place.

73 In his statement of 11 July 2017, NAM said that HCM's grades in mathematics were not improving notwithstanding the tutoring. There came a point when TJB was told that his services were no longer required. NAM said:

He then started turning up to our home uninvited and unexpectedly for 'social' visits - not when [HCM] had a tutoring session booked with him. And this usually occurred on a Saturday morning (when SM was not at home - she was at work). I have suspicions that he knew SM's work schedule as it was in plain sight on the calendar next to the kitchen table. He also started bringing presents around for HCM. This included a portable CD player, a Silverchair album and other CD's (her favourite band at the time) and money.

74 SM, in her statement of 1 July 2017 mentions that TJB started to call at their home at times other than his scheduled tutoring appointments. He did so, she said, with presents for HCM which included sweets, chips, CDs and a portable CD player. She mentioned that he took HCM and her brother on trips to buy ice-cream and that, at about that time, he stopped charging tuition fees. She said 'towards the end he came to see us for social reasons'.

As far as I can remember it was my ex-husband's suspicion raised when TJB presented HCM with a portable CD player. He promptly returned the CD player and CD's to his place and informed TJB to stop seeing HCM or come anywhere near our house.

76 I conclude that the behaviour of TJB changed, suggesting a growing familiarity with the family and, in particular, HCM. The arousal of suspicion is likely to be laced with doubt as to whether the suspicion might be misplaced. In its initial phase it is likely that TJB was not aware of it. I accept that NAM was suspicious of TJB because of his increasingly inappropriate behaviour. It is not possible to draw any conclusions as to precisely when his suspicions were aroused.

77 The fact of the suspicion is not, of itself, probative of the alleged acts. The behaviour giving rise to suspicions or concerns may, however, in a circumstantial sense, be of some probative value.

78 The Assessor said, in his letter of 28 July 2011:

There is also evidence to the effect that your residence at the time that the tutoring took place was 'tiny', again suggesting that the opportunity for repeated and sustained sexual assault would be minimised.

79 This was a point made by Mr TF Percy QC, counsel for TJB, in his lengthy written submission to the Director of Public Prosecutions in support of his contention that it would not be in the public interest for the prosecution of his client to proceed and that there were 'extremely limited prospects of conviction if the charges are to proceed'. He submitted, inter alia, that the 'tiny' family residence made it inherently unlikely and improbable for the alleged offending to have occurred.

80 In my view, the size of the family home at the time of the tutoring, is a largely irrelevant consideration. It is the experience of this court that the size of a home or a room in which sexual offending against a primary school age child by an adult is said to have taken place has little or no relationship to the degree of likelihood that the alleged offending did, in fact, take place.

81 TJB's engagement as a tutor meant that for two hourly sessions each week, he was seated next to HCM at a table. He was, when engaged, entrusted by HCM's parents to undertake that task. He was a teacher at a prestigious local private school. There was no need or reason for others in the household to maintain surveillance of the tutor and pupil until suspicions were aroused. As mentioned, such sexual interference, as alleged, is likely to be carried out covertly, not when under surveillance.

82 In his letter of 28 July 2011, the Assessor made reference to the notes provided to him from South Metropolitan Child and Adolescent Mental Health Service. HCM was 15 years old when she first attended that service. The Assessor said:

During the course of your treatment it was also observed that you were undergoing psychosis which resulted in you experiencing delusions both visual and auditory. It was about this time that your first disclosure of the alleged sexual assault took place.

83 In his statement of 11 July 2017, NAM says that HCM told him that TJB 'touched her'. In response he said:

I took all of the presents he had given her (the CD player and the CD's) and put them in a plastic bag and put them inside the front wall of his property, which seemed to work because he never contacted us again.

84 SM observed that her daughter's behaviour seemed to change in the course of the tutoring. She became more withdrawn.

85 It does appear that the observable conduct of TJB towards HCM in the latter part of the tutoring changed. Not only were there gifts to HCM, TJB appears to have been visiting her family home, unannounced and lavishing some attention on both children.

86 The Assessor makes reference to HCM's adolescent denial of prior sexual abuse and her subsequent disclosure to Dr Ann McDonald, to the effect that she had been abused from age 10 years by her maths teacher. On 18 August 1999, Dr McDonald referred that disclosure to the appropriate authorities. The matter was taken no further at the time.

87 The Assessor mentions that HCM was 16 years old in May 1999. He notes 'it was not until 2009, when you would have been age 26 years that you finally made disclosure to police about these allegations'. The fact that her disclosure to Dr McDonald and the latter's referral of that matter to responsible authorities were inconsequential may have been a factor in HCM's failure to take the matter further at that point.

88 Section 36BD of the Evidence Act 1906 (WA) provides that where (in a trial) evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence by the complainant or to suggest delay by the complainant in making such complaint, the trial judge is to inform the jury that the absence of or delay in making complaint does not necessarily indicate that the allegation that the offence was committed is false and that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or refrain from making a complaint of that offence.

89 That amendment was made to the Evidence Act to reflect the reality of the impact of sexual abuse on both adults and children. It is true that there may be many reasons why an adult might refrain from making complaint about a sexual assault. The position, so far as children are concerned, is often more complex. It is, however, well established now that there may be many reasons why a child might refrain from or delay in making complaint until, quite often, well into adulthood.

90 After making reference to a Claire Stoker, interviewed by an officer of the Director of Prosecutions in April 2010, the Assessor said:

In other words there was no contemporaneous disclosure of alleged sexual assault and the disclosure made in August 1999 came after a specific denial of assault earlier that year. It was upon this information that the DPP decided not to proceed with your case.

91 The Assessor concluded that you had not provided 'cogent evidence'. He referred to a number of suggested 'weaknesses'. He went on to say:

In particular, the most significant disclosure was made at a time when you were suffering from psychosis which resulted in your experiencing delusions both visual and auditory. That fact alone unfortunately reduces the cogency of the evidence and taken with other inconsistencies noted above, I have considered that overall the evidence against [TJB] lacks the required cogency.

92 The Assessor concluded that he could not be satisfied on the balance of probabilities that the sexual assaults alleged took place.

(a) that HCM's recollection of her treatment at the hands of TJB is a fabrication from the outset; or

(b) that her allegations are the product of a deluded mind in the context of mental ill health, now pursued by HCM in the honest but mistaken belief that she was sexually assaulted by TJB as alleged.

94 My understanding of the Assessor's conclusion is that he did not find HCM to have been untruthful, although the references to inconsistences might hint at that conclusion. He concluded that the proposition that the events complained of actually occurred lacked cogency. I conclude that the circumstances of HCM's mental health at about the time of her disclosure to Dr McDonald were significant in the Assessor's conclusion that the complaint lacked cogency.

95 It is undisputed fact that TJB was engaged by SM to tutor her in mathematics at their home for several months when she was in grade 7 at primary school. He was, therefore, in close proximity to her during each tutoring session and, I conclude, had the opportunity to do what he is alleged to have done, albeit perhaps not on every occasion of tutoring.

96 Both SM and NAM, in their most recent statements, support a conclusion that TJB's behaviour during the period of the tutoring and, very shortly thereafter, became increasingly inappropriate, displaying affection for the child, manifested in the form of gifts bought for her and attending at the child's home outside the contracted hours of tutoring.

97 It is the experience of this court that matters of child sexual abuse are often brought to light many years after perpetration and sometimes come to trial decades later. The effluxion of time can undoubtedly impact adversely on the accuracy and reliability of memory. In the context of a jury trial, in such circumstances, a jury is inevitably told of the forensic disadvantage faced by an accused person by reason of the effluxion of time and is warned that it might be dangerous to convict on the evidence of the complainant alone unless the complainant's evidence is scrutinised with great care.

98 In the matter before me, the papers referred from the Director of Public Prosecutions office to the office of Criminal Injuries Compensation included the written submission of senior counsel for TJB, urging that the State discontinue its prosecution. That is what happened. The State did so on the basis of insufficient prospects of success. In other words, on the material gathered by the State, there was little prospect of satisfying a jury beyond reasonable doubt of the guilt of TJB.

99 The information concerning HCM's mental health at about the time of the disclosure to Dr McDonald would have been potent in the hands of experienced and skilled defence counsel at trial. That information would have been a significant obstacle for a prosecutor attempting to persuade a jury beyond reasonable doubt. The decision not to further prosecute the charges is unsurprising.

100 On appeal, the question is whether I am satisfied on the balance of probabilities on the material that has been put before me. There are, as is often the case in such matters, inconsistencies. There is nothing to corroborate the alleged acts but the material before me does provide a circumstantial context in terms of what was happening in the household on the occasions of the tutoring and shortly thereafter. I refer, in particular, to the most recent statements provided by SM and NAM. That material was not before the Assessor. I am persuaded on the balance of probabilities that the acts complained of did, in fact, occur.

101 In terms of HCM's application and the provisions of the Act it follows that I am satisfied that the acts the subject of the charges originally preferred against TJB and taken no further by the Office of the Director of Public Prosecutions, did, in fact occur. I find that they were not isolated incidents but were, rather, representative of a course of conduct which continued intermittently over a period of about 3 or 4 months in 1995.

102 In the concluding paragraph of his letter of 28 July 2011 the Assessor, having concluded that he was not satisfied that the acts complained took place, indicated that it would, in consequence, not be just to allow an extension of time within which to file the application. He declined the applications for an extension of time.

103 On 18 November 2015 HCM, represented on that occasion by the law firm Slater & Gordon, made a further application under the Act. By letter to that firm of 18 November 2015 the assessor advised that firm of the earlier application and provided a copy of his letter to HCM of 28 July 2011. He invited Slater & Gordon to provide him with further information and to make further submissions as to whether he should reconsider his previous decision not to grant an extension of time within which to make the application. No further information or submissions were forthcoming and on about 2 March 2016 that firm ceased to act for HCM.

104 It was at about this time that HCM's general medical practitioner began writing to the Assessor on her behalf. He was instrumental in the filing of the Notice of Appeal on about 30 June 2016. It seems that HCM was overseas at the time. Subsequently HCM engaged her present solicitors.

105 The principles relating to the exercise of discretion to grant an extension of time within which to make an application are correctly set out in pars 16 - 24 of the Chief Executive Officer's written submissions filed 21 September 2017.

106 HCM's encounter with TJB was when she was in her final year of primary school. The next few years saw the breakdown of her family life leading to an apparent abandonment by her mother, educational disruption and a descent into mental ill-health. As her mental state deteriorated the matter of TJB's treatment of her came to the attention of Dr McDonald. She referred that matter to appropriate authorities but it appears to have been taken no further. At the age of about 26 years HCM brought the matter to the attention of police. TJB was charged but later released following the decision by the Director of Public Prosecutions not to prosecute the matter further. HCM's period of mental ill-health was, no doubt, a factor in that decision-making process.

107 There is no doubt that the length of the delay is significant but there are equally significant factors in HCM's adolescent and early adult years which serve to explain the delay. The events in HCM's life in those years (including perhaps the treatment at the hands of TJB) are likely precipitants of the onset of mental ill-health. That, in turn, led to her complaints to authorities. Her history of mental ill-health was a factor in those complaints being inconsequential. Ultimately it was a factor in the refusal to grant an extension of time within which to make her application.

108 In my view there is an arguable case and there is no prejudice to any person by reason of the granting of an extension.

109 Having considered all matters pertinent to each exercise of my discretion in each case, pursuant to s 9(2) of the Act I grant the appellant an extension of time to allow her application to proceed and, pursuant to s 55(4) of the Act I grant an extension of time to allow her appeal to proceed.

110 The correct approach to adopt in fixing an appropriate amount of compensation is to apply ordinary principles of assessment of damages subject, of course, to the jurisdictional limit imposed by the Act. The jurisdictional limit for offences committed between 1 July 1991 and 31 December 2003 as prescribed by s 31 of the Act is $50,000.

111 Where there are multiple offences on separate occasions, the Act does not limit compensation to the maximum for a single offence. Accordingly, pursuant to s 34(2) of the Act, the maximum penalty that can be awarded in this matter is $100,000.

112 The maximum compensation payable under the Act is merely a jurisdictional limit and not reserved for the worst cases.

113 I may not make an award of compensation unless satisfied that the claimed injury and loss has occurred as a consequence of the commission of the alleged offences. Given the very significant troubles which confronted HCM in the years following her treatment at the hands of TJB, the issue of causation is a difficult one. Sympathy for HCM has no role to play in the task that I must undertake.

114 'Injury' is widely defined by the Act to mean bodily harm, mental and nervous shock or pregnancy.

115 'Loss' is defined by s 6 of the Act and includes expenses that are actually and reasonably incurred by or on behalf of the victim that arise directly from or that arise in obtaining any report from a health professional or a counsellor in relation to the injury suffered by the victim.

116 As with the issue of liability the onus is on HCM to establish, on the balance of probabilities, a causal relationship between the commission of the offence and the injuries. It is sufficient for her to establish that the offence materially contributed to any injury or loss (see Fagan v Crimes Commission Tribunal [1982] HCA 49; (1982) 150 CLR 666, 673).

117 If the evidence establishes that a non-compensable event contributed to the claimed injury or loss the award of compensation must be reduced to take into account that other contribution (see Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638).

118 If it is not possible to disentangle the consequences of the offence from the non-compensable event the claimant is entitled to the full amount of compensation (see Bonnington Castings Ltd v Wardlaw [1956] UKHL 1; [1956] AC 613 and Fagan v Crimes Compensation Tribunal).

119 There is no evidence of any bodily injury in consequence of the acts complained of. It is well accepted that the phrase 'mental or nervous shock' comprehends any malfunction of the person which can be seen to be a consequence of the acts complained of or associated with the commission of those acts as they impact upon the mind or nervous system. The impact must be more than mere emotional reaction. It must have a more enduring character which may, in both the legal sense and common parlance be described as an injury. The phrase includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish. (See Hatfield v Undersecretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) (Burt CJ).

120 As mentioned, there must be a causal connection between the injury claimed and the acts complained of. I have a significant amount of material relating to HCM's mental health problems over the years and the treatment thereof. In addition, I have her victim impact statement of 15 January 2014 which is, necessarily, a subjective document. In it HCM divides the impact of the offending between more immediate consequences and longer term consequences. For example, in relation to schooling, HCM attributes her truancy to TJB's treatment of her. She said that, when at home, she tended to stay in her room and listen to music. She mentions that her relationship with her parents changed and that her mother returned to Austria. The latter was, clearly, not a consequence of the acts complained of but it was a very significant factor in the development of HCM's mental health problems.

121 In that regard HCM refers to being admitted to 'several psych wards' and attempted suicide. HCM refers also to her resort to illicit drugs and alcohol at the age of 15 or 16 years. She added:

After this my mother was forced to come back and she took me to Vienna, where I was admitted to another psychiatric hospital (I was 16-17 years old). After I was released from the hospital I left Vienna and went to London and got a job in a pub. I was still using drugs and alcohol, but had to leave this job when they did an ID check and I was not over 18. Over this time period I had ongoing financial difficulties, difficulties with relationships and trust of people.

122 Emphasis is placed on HCM's troubles at school and truancy and a growing problem with drugs and alcohol in her teenage tears. I note that it is very clear that her brother, in these same years, was displaying the same behaviours. The problems recognised by staff at John XXIII College were common to both children. The lack of parental response to the concerns expressed by the college was also common to both children. There is no evidence of or suggestion that HCM's brother was sexually abused by TJB yet they were both simultaneously displaying similar behaviours.

123 As mentioned earlier, the lack of parental response to the concerns expressed by staff at John XXIII College suggests strongly that there were troubles at home and that the relationship between SM and NAM was in the throes of breaking down, if not already broken.

124 The breakdown of that relationship and her mother's departure from Australia left HCM with an enormous burden while she was still a teenager at secondary school. It is clear that she found herself, as the only female in the household, in a position of responsibility for her half-brother who was in need of care and supervision and, to a lesser extent perhaps, for NAM.

125 I am provided with a psychological report from Ms Maya Manning, a clinical psychologist, dated 14 August 2014. HCM is described in that report as a 31 year old single mother with one child. According to that report, HCM left Perth for Melbourne at the age of 22 or 23 years and has lived in Melbourne since then. HCM is now a qualified phlebotomist.

126 Ms Manning concludes that HCM displayed and/or reported symptomatology that meets the diagnostic criteria for chronic post-traumatic stress disorder. Ms Manning concluded that the sexual abuse caused the disorder. In doing so she relied, both for the diagnosis and as to the causal connection, on what HCM told her about her then present and past reactions to the offending. HCM reported becoming 'angry, upset or scared' on a daily basis.

127 HCM told Ms Manning that the abuse had occurred at Mosman Park in Western Australia. Ms Manning's post office box address is, she said, in Mosman Park in Victoria. That fact, she said, caused HCM to be distressed.

128 The most recent expert report provided to me is that of consultant psychiatrist, Dr John Cronin of Prahran in Victoria. He reported to HCM's general practitioner, having seen HCM on one occasion on 31 March 2017. He noted that HCM's presentation was consistent with the history provided by her. He noted that what he was told and her presentation was consistent with a diagnosis of complex post-traumatic stress disorder with borderline personality disorder also being likely. Among the symptoms described to her by HCM to Dr Cronin were sleep disturbance, nightmares, flashbacks, intrusive thoughts, irritability, and anxiety, hypervigilance and social isolation.

129 Counsel for HCM submits that she has been diagnosed with multiple psychiatric conditions since February 1999 including depression, adjustment disorder and post-traumatic stress disorder. In addition, it is submitted that she now suffers from lupus. That condition was diagnosed by her general practitioner, Dr Baro. He attributed the onset of lupus to childhood trauma. Closer examination of his report of 5 October 2014 suggests that the attribution is somewhat tenuously based. In his report he describes the connection between lupus and stressful events in childhood as being 'documented'. In that regard he refers to the report of Ms Manning, the consultant psychologist. Ms Manning refers to childhood abuse as potentially being a trigger but refers also to other stressful events including HCM's pregnancy and the birth of her daughter.

130 On the information before me I am not prepared to find that the onset of lupus is causally connected to the activities of TJB.

131 There were other very significant events in HCM's life precipitated by the breakdown of the relationship between SM and NAM and SM's abandonment of her. In my judgment, those factors were highly significant in HCM's life at a crucial time and contributed significantly to her deteriorating mental health.

132 I accept that HCM has been diagnosed with 'multiple psychiatric conditions since 1999, including depression, adjustment disorder and post-traumatic stress disorder'.

133 In written submissions counsel for HCM suggests that at par 9.5, as a result of the sexual offences committed against her she has been adversely affected in that shortly after the abuse her relationship with her parents changed and her school attendance deteriorated. I have already observed that both children, HCM and her brother, displayed the same behavioural problems at about the same time. That strongly suggests to me that those behavioural problems are not attributable to TJB's offending against HCM. Concurrent and subsequent events within the family undoubtedly contributed significantly to HCM's deteriorating mental state, which problems began to manifest themselves shortly after her enrolment at John Curtin Senior High School.

134 I do not conclude that there were no adverse consequences of TJB's offending. It is well known that such offending often has disastrous consequences and lifelong impact. I am not, however, satisfied that all of the matters referred to in par 9.5 of the appellant's written submissions are, on the balance of probabilities, attributable to the offending. I am satisfied, on the balance of probabilities, that other factors played a more significant role.

135 As to pecuniary loss I note that, at par 10.5 of the appellant's written submissions it is suggested that Dr Baro and Ms Manning have both expressed the opinion that HCM has suffered a reduction in work capacity as a result of trauma-related psychiatric symptoms. I have no doubt that that is the case. I do agree that the appellant's taxation records indicate 'a scattered earnings history inclusive of Centrelink benefits'.

136 It is impossible, on the material before me, to adopt a mathematical approach to the matter of pecuniary loss. I do accept that HCM suffers post-traumatic stress disorder. I do accept that it is causally related to traumatic events in her teenage years. I do not accept that the injury and loss presently experienced by HCM can be wholly attributed to TJB's offending. There is compelling evidence that other factors played a far more significant role.

137 I propose, taking a somewhat broad-brush approach to the issue of assessment, to award a lump sum of $37,500 for each of the two compensable offences. In addition, I will allow the sum of $1,980 in respect of Ms Manning's report fee and the sum of $990 in respect of Dr Baro's report fee as set out in par 10.12 of the appellant's written submissions. Finally, I will allow an amount of $1,000 towards the cost of ongoing counselling and/or treatment of HCM's disorder.

138 It follows that the total amount which I award is $78,970.