Briginshaw v Briginshaw

Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

Appeal against a decision of criminal injuries compensation assessor - Application for a compensation award- Application for an extension of time - Additional evidence and information - No conviction for an offence - Self-defence - Injuries consistent with an assault or grievous bodily harm - Uncertainty about how the injuries came about; only speculation about alleged offence - Appeal dismissed

Criminal Injuries Compensation Act 2003 (WA)

Mr T R Oliver appeared on behalf of the Chief Executive Officer of the Department of Justice

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

EB v Ramljak [2021] WADC 134

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

EM v CL [2021] WADC 127

Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] WASC 174; (1989) 2 WAR 196

Goodwyn v The State of Western Australia [2013] WASCA 141

KBR v ADM [2018] WADC 120

Martin v Martin [2015] WADC 138

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

Re ATS [2017] WADC 92

Re Coad [2023] WADC 9

Re Collard [2018] WADC 1

Re Jackamarra [2014] WADC 9

Re TLJ [2016] WADC 74

S v Neumann (1995) 14 WAR 452

Underwood v Underwood [2018] WADC 13

1. By notice of appeal dated 18 September 2024, the appellant appeals against a decision of a criminal injuries compensation assessor (Assessor). The decision was made following an application for compensation made by the appellant on 22 August 2023. The application was made pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). That is, where there was an alleged offence but no person had been charged.
2. The application was made for compensation for a compensation award arising out of alleged injuries suffered as a result of an incident on 12 August 2020.
3. On 30 August 2024 the Assessor formally refused the application. The letter accompanying the formal refusal referred to earlier correspondence dated 7 November 2023 and said the reasons for formally refusing the application were 'for the reasons stated therein'. The letter earlier provided to the solicitors for the appellant preliminary views about the application and to enable a response to be provided. In summary, the letter said that there was no certainty about the circumstances of the incident and it appeared that at the very least the appellant was antagonising the alleged offender to such an extent that he had retaliated, striking the appellant. The letter said the preliminary view was, the appellant was largely responsible for his injuries due to behaviour that proceeded the incident. Alternatively, the letter said that in accordance with s 41 of the Act, the appellant's compensation should be reduced by 50%. A response was provided to this letter but the refusal occurred as I have set out.
4. On 4 September 2024 the appellant's solicitors wrote to the Assessor seeking written reasons for decision. These were provided by letter dated 16 December 2024. The letter set out the relevant law, an assessment of the facts and the following conclusion:

Clearly your client was injured in some way, but I am unable to have any certainty as to how that occurred, he was most likely assaulted, but that may have been in self-defence or in response to assault that your client had committed against the alleged offender or someone else. It may have occurred after his attendance at the pub as your client had no recollection of even getting home. We just do not know and in those circumstances, it was appropriate to refuse your client's application for compensation and it was refused accordingly.

1. On 19 November 2024, the Chief Executive Officer of the Department of Justice was granted leave to appear in the appeal as amicus curiae. The Chief Executive Officer was represented by the State Solicitor for Western Australia.
2. The amicus curiae provided written submissions to the court and also appeared at the hearing to provide oral submissions.
3. The court is indebted to the written and oral submissions made by the amicus curiae. Submissions of an amicus curiae are particularly important where, like here, a respondent to an appeal does not appear and therefore there is no contradictor before the court.

The Criminal Injuries Compensation Act 2003 (WA) - appeals

1. Part 7 of the Act legislates about appeals and referrals.
2. Section 55(1) of the Act provides that, relevantly, an interested person may appeal to the District Court against an assessor's decision to refuse to make a compensation award. Section 56(1) of the Act provides:

On an appeal under section 55 against an assessor's decision, the District Court must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor or may receive further evidence and information.

1. As stated in s 56 of the Act, the appeal is to be determined by the court 'without being fettered by the assessor's decision'. Whilst there are conflicting authorities, the better view in my opinion is that the appeal may and most often should be determined without regard to the assessor's reasons and instead, the court is to independently review the evidence.[1]
2. From the terms of the legislation and as confirmed by authority, an appeal under the Act is a hearing de novo.[2] Accordingly, there is no requirement for the appellant to demonstrate error on the part of the Assessor.
3. Section 56(2)(b) and s 56(2)(c) of the Act provides that on an appeal the District Court may, relevantly, confirm, vary or reverse the assessor's decision, either in whole or in part; and make any other order that an assessor could make under the Act.

1. Section 9(1)(a) of the Act provides that an application for criminal injuries compensation must be made within three years after the offence was committed. However, pursuant to s 9(2) of the Act, an assessor may allow a compensation application to be made after the three years if the assessor thinks it is just to do so.
2. Here the incident occurred on 12 August 2020 and the application was lodged on 22 August 2023. As the court is deciding the appeal on the basis of a consideration of the application de novo, before the appeal can be determined, it is necessary for the court to grant an extension of time.
3. In the application lodged by the appellant to the Assessor, the failure to lodge the application within the three-year time period was said to be on the basis of 'inadvertence'. There was however no evidence provided as to the inadvertence. Nevertheless, this explanation is not a fanciful one. In any event, the delay was of a short period of time and there is no suggestion that the Assessor and the court is placed in any difficulty in assessing the application or the appeal. No respondent has been disadvantaged in the Assessor or the court dealing with the application and appeal as there has been no named respondent. As will be set out later, this is because the perpetrator of the alleged assault against the appellant cannot be ascertained.
4. The appellant also has an arguable application and appeal.
5. Although at times differently stated, generally the factors to be considered in exercising a discretion to extend time are the length of the delay, reasons for delay, whether there is an arguable case and the extent of any prejudice to a respondent.[3] I have had regard to each of the factors as expressed above.
6. In my opinion, having regard to all of the facts and circumstances, it is just to allow the application to be made on 22 August 2023. An order will be made to that effect.

1. As set out in s 56(1) of the Act, the court may 'receive further evidence and information' as opposed to deciding 'the application to which the decision relates ... solely on the evidence and information that was in possession of the assessor ...'.
2. The appellant sought to rely on evidence and information in addition to that before the Assessor. This was contained in documents in an 'Additional Book of Documents' filed on 9 April 2025.
3. In the book are the Assessor's Reasons for Decision dated 16 December 2024, referred to earlier.
4. There was also notice of taxation assessments of the appellant from the year ending 30 June 2020 to the year ending 30 June 2024.
5. There was also a supplementary statement of the appellant and a redacted bank statement of the appellant, as referred to in and annexed to the statement. The supplementary statement says that further to the Statement of Effects dated 14 June 2023, the appellant recalled that after the 'assault' occurred on 12 August 2020, he ordered a taxi for himself and Mr Daniel Pratt, a friend, to go to the appellant's address. The appellant says that in his bank statements he found a taxi fare charged to his card on 13 August 2020 at 1.34 am. The redacted bank statements, annexed to the statement, confirm this.
6. In my opinion, it is just that the court take into account these documents in deciding the appeal as they are relevant. As set out earlier, the appeal is to be determined afresh without being bound by the decision of an assessor.
7. The Act does not set out any particular requirement for the receipt of further evidence and information in the hearing of the appeal. There is no requirement, for example, to demonstrate that the evidence or information should only be received if it is new or fresh evidence or information.

1. Although, as set out earlier, the hearing of an appeal is a hearing de novo, the relevant form for an appeal notice under r 51(1) of the District Court Rules 2005 (WA) provide that grounds of appeal should be included in the appeal notice. Here the appeal notice specifies that:

The assessor erred in refusing to make an award of compensation to the appellant, on the basis that:

1. there can be no certainty of the circumstances of the incident (incident); and/or
2. the appellant is largely responsible for his injuries due to behaviour that proceeded the incident.

1. This ground provides background to and a focus of the hearing and determination of the appeal.

Entitlement to compensation under the Criminal Injuries Compensation Act 2003 (WA)

1. As referred to earlier, the application to the Assessor was based upon s 17 of the Act. Relevantly to the present application are s 17(1), s 17(2) and s 17(4), which are as follows:

(1) This section applies if an alleged offence is committed but no person is charged with the alleged offence.

(2) A person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered.

...

(4) An assessor must not make a compensation award in respect of a compensation application made under this section unless satisfied -

(a) if the application is made under subsection (2) - that the claimed injury and any claimed loss has occurred and did so as a consequence of the commission of the alleged offence;

1. The effect of s 17(4)(a) of the Act is that the court must not make a compensation award under s 17(2) of the Act unless satisfied:

(b) that the claimed injury and any claimed loss occurred; and

(c) the claimed injury and any claimed loss occurred as a consequence of the commission of the alleged offence.

1. 'Alleged offence' is defined in s 3 of the Act to mean 'a crime, misdemeanour or simple offence of which no person has been convicted'.
2. The legislation has been construed to mean that the court must be satisfied that an alleged offence occurred in the manner described by the appellant. For this to occur the court must be satisfied that it is more probable than not that the alleged offence took place.[4] There is authority, which I accept, to support these propositions:

(a) The strength of the evidence necessary to establish a fact on the balance of probabilities may vary according to the nature of what is sought to be proved. This is particularly so when criminal conduct is alleged.[5]

(b) It is a serious matter to make a finding that an alleged offender has committed an act in the nature of an offence, particularly when they are not given an opportunity to refute those allegations.[6]

1. Accordingly, the court should exercise caution in making a conclusion that an offence has been committed. The evidence to support the commission of an offence must be precise rather than loose and inexact and should be considered with careful scrutiny before making the relevant findings.[7]
2. The burden placed upon the appellant is not discharged merely by providing evidence that contains conflicting inferences of equal degrees of probability. In such circumstances the choice between the two versions is no more than conjecture.[8]
3. I have applied these principles in the findings that I have made. I set out those findings later.
4. An injury is defined in s 3 of the Act to mean 'bodily harm, mental and nervous shock, or pregnancy'.
5. Loss is relevantly defined in s 6(2) of the Act and provides as follows:

(2) In the case of a victim who is injured, loss means -

(a) expenses actually and reasonably incurred by or on behalf of the victim -

(ii) that arise in obtaining any report from a health professional or a counsellor in relation to,

(b) expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim; or

(c) loss of earnings suffered by the victim as a direct consequence of the injury suffered by the victim; or

(d) any loss arising from any damage caused as a direct consequence of the commission of the offence to any personal item that was being worn by the victim when he or she suffered the injury.

1. 'Personal item' is also defined in s 6(1) of the Act. It is not necessary to set out the terms of that definition.
2. The application of the appellant includes, in effect, a claim for compensation for mental and nervous shock, described as post-traumatic stress disorder (PTSD). The court must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence or for any loss in respect of such shock, unless satisfied that an applicant falls within one of the categories specified in s 35(2) of the Act. Relevant to the present application is s 35(2)(a) and (b), as follows:

(2) An assessor must not make a compensation award for mental and nervous shock suffered by a victim as a consequence of the commission of an offence, or for any loss in respect of such shock, unless the assessor is satisfied -

(a) that the victim also suffered bodily harm or became pregnant as a consequence of the commission of the offence; or

(b) that the victim was the person against whom, or against whose property, the offence was committed; or

1. 'Mental or nervous shock' includes a malfunction of the person as a consequence of the impact of events constituting the offence or offences, associated with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction, being something of a more enduring character which may, in both the legal sense and in common parlance be described as an injury. It does not include mere fright, humiliation or anguish. But it does include distress, horror, disgust and other similar adverse mental reactions.[9] Mental or nervous shock includes therefore PTSD such as the appellant asserts was caused to him by the alleged assault.

1. As will be later set out, the facts as to whether an offence occurred are unclear.
2. However, the application before the Assessor alleged an assault had been committed against the appellant. In some of the submissions made on behalf of the appellant however, it was suggested that the appellant had suffered grievous bodily harm as a result of the actions of the person who had allegedly committed an offence. This does not matter for present purposes. This is because a claim alleging either or both offences involve an alleged offender doing something physical which caused injuries to the appellant.
3. In very general terms, it was alleged that a physical action of the uncharged person unlawfully caused injuries to the appellant. In summary, this included a broken jaw in two places. Evidence or information of subsequent medical effects and economic losses are before me.
4. Section 313 of the Criminal Code (WA) provides for the offence of common assault. Relevantly, s 313(1) provides that a 'person who unlawfully assaults another is guilty of a simple offence ...'.
5. Leaving aside the issue of identity, which is presently irrelevant, the elements of the offence are firstly, that there was an assault and secondly, that the assault was unlawful.
6. The definition of an assault is contained in s 222 of the Criminal Code. Presently relevant is that an assault includes:

A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent

1. Section 223 of the Criminal Code relevantly provides that:

An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law. ...

1. In deciding the appeal, self-defence is relevant as provided for in s 248 of the Criminal Code. Self-defence which does not cause another person's death can be lawful if the act is done in self-defence as provided for in the subsection. Section 248(2) provides:

(2) A harmful act done by a person is lawful if the act is done in self-defence under subsection (4).

1. Harmful act is defined in s 248(1) as follows it: 'means an act that is an element of an offence under this Part other than Chapter XXXV'. The part referred to is Part V of the Criminal Code which includes s 313, the offence of assault. The offence of assault is not within Chapter XXXV which deals with criminal defamation.
2. Section 248(4) describes that a harmful act is done in self-defence, if:

(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.

1. Section 248(5) and s 248(6) can also be relevant in certain describing self-defence, as follows:

(5) A person's harmful act is not done in self-defence if it is done to defend the person or another person from a harmful act that is lawful.

(6) For the purposes of subsection (5), a harmful act is not lawful merely because the person doing it is not criminally responsible for it.

1. The offence of doing grievous bodily harm is provided for in s 297 of the Criminal Code which is also included in Part V and not Part XXXV. Section 297(1) of the Criminal Code provides that a person 'who unlawfully does grievous bodily harm to another is guilty of a crime ...'.
2. In turn, grievous bodily harm is defined in s 1 of the Criminal Code to mean:

The term grievous bodily harm means any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause, or be likely to cause, permanent injury to health.

1. Leaving aside, again, the irrelevant element of identity, the elements of the offence of doing grievous bodily harm are:
   1. The complainant suffered grievous bodily harm.
   2. The alleged offender did that grievous bodily harm; in other words it was caused by the alleged offender.
   3. The alleged offender did the grievous bodily harm unlawfully.
2. The element of doing the grievous bodily harm unlawfully again means, where relevant, it needs to be proved that the 'harmful act' was not done in self-defence. The doing of a harmful act is an element of the offence of doing grievous bodily harm, in the sense of the grievous bodily harm being caused by the alleged offender.
3. Accordingly, to prove either the offence of assault or doing grievous bodily harm, the appellant must establish that the alleged offender did not do the act constituting the assault or causing grievous bodily harm in self-defence. This needs to be established on the balance of probabilities, having regard to the seriousness of proving that an uncharged person has committed an offence.
4. Relevantly, self-defence contains four elements. Here, the burden is on the appellant to negative self-defence by proof, on the balance of probabilities, that at least one of the elements is excluded. The relevant elements are:
   1. The alleged offender believed the harmful act is necessary to defend himself or another person from a harmful act including one that is not imminent (s 248(4)(a)).
   2. The alleged offender's harmful act is a reasonable (objective) response by the alleged offender to the circumstances as that alleged offender subjectively believed them to be (s 248(4)(b)).
   3. There are reasonable (objective) grounds for the alleged offender's (subjective) belief that the harmful act is necessary to defend that person 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)).
   4. There are reasonable (objective grounds) for the alleged offender's (subjective) beliefs as to the circumstances (s 248(4)(b) read with s 248(4)(c)).[10]

1. From the documents before me it is reasonably clear that the appellant attended Franklins Tavern in Victoria Park on the evening of 12 August 2020. On the following day he woke at his home in a lot of pain. The appellant that day attended his local GP at the Kenwick Medical Centre who referred him to the Royal Perth Hospital where he was admitted on 14 August 2020.[11]
2. The medical records including those from Royal Perth Hospital establish the plaintiff suffered significant injuries with consequent medical treatment. They included two fractures of the jaw which were repaired by plates and screws and the extraction of 11 teeth. This had, understandably, consequences of significant pain and an inability to eat solids for nine months.
3. I accept for present purposes that these injuries are consistent with an assault or grievous bodily harm being done to the appellant.
4. The uncertainty however is how these injuries came about.
5. The appellant provided a statement to the police, signed and witnessed on 15 September 2020.
6. Insofar as how the appellant came to be injured, the following paragraphs are relevant:
   1. On Wednesday 12 August 2020, my friend Daniel PRATT (Daniel) picked me up from work in Canning Vale.
   2. I've known Daniel for a few years. Daniel is aged in his mid 30's of aboriginal decent, wearing a green Everlast hooded jumper.
   3. We went for work drinks at the Riverton pub we went for one drink at 4.30 pm.
   4. Daniel drove me home to Kenwick to get changed.
   5. After I got changed we caught the train to Victoria Park with Daniel.
   6. Daniel and I went to Franklins Tavern in Victoria Park at about 6:00 pm to continue drinking. I know it was about 6:00 pm because it was getting dark.
   7. Whilst I was at Franklins I bumped into a guy I think I met in Northbridge a few years ago. I only know him as Ryan.
   8. Ryan is approximately 6'3, between 80 to 90kg. He has brown hair, blue eyes and has an olive complexion, he has a light stubble on his face.
   9. Ryan wore a white T-shirt and white shorts.
   10. Ryan was with his girlfriend but I don't know her name.
   11. Ryan, his girlfriend, Daniel and I played doubles in pool.
   12. Franklins wasn't busy, other than us four there was four to five more people in the bar and one bar maid.
   13. While I was playing pool, Daniel went for a cigarette.
   14. The pool table is located right in front of the bar.
   15. The next thing I remembered was waking up at home the next morning in a lot of pain. I'm not even sure how I got home.
   16. I phoned Daniel and asked him what happened. Daniel told me that Ryan hit me. I'm not sure how he knows that, we didn't go into anymore. He told me to go to the doctor.
7. I note from this statement:
   1. The appellant had no recollection of how he came to be injured.
   2. The only information about how the injuries had occurred was the hearsay information from Mr Pratt who told him that the man called Ryan had hit him.
8. The appellant provided a statement of effects in support of the application for compensation signed on 14 June 2023. This was a detailed statement including the appellant's background, the incident, medical treatment, and impact on employment and work prospects. With respect to the incident, the statement contained the following:
   1. On the day the assault occurred I had finished work around 4:30 pm and my friend Daniel Pratt/Woods (he goes by both names) collected me from work so we could have some after work drinks. I had known Daniel for many years. We headed to the Riverton Hotel for one (1) beer. After that, Daniel drove us to Kenwick and I got changed and we left his car at my place, which at the time was [address redacted] and we made our way to the Franklins Tavern in Victoria Park by train.
   2. We arrived around 6:00 pm had a few beers there and played pool.
   3. Daniel knew someone there, a guy called Ryan who was there with his partner. I vaguely think I had met Ryan previously at Northbridge sometime but I don't really remember.
   4. We started playing pool together, everything was going fine, there were no arguments or anything.
   5. Ryan was in his mid to late twenties (20s). He was like a slightly smaller version of Buddy Franklin, approx. 6 ft 3, strong build, 80 to 90 kgs, part Aboriginal, had brown hair and blue eyes. His partner was small and a bit round, plumpish, she was Caucasian. I think they were from the Belmont area.
   6. I didn't see the assault coming at all.
   7. Daniel must have gone outside for a smoke or something and out of no where Ryan hit me with a cue ball in his hand around three (3) times on the face/jaw area.
   8. The pub was fairly quiet, only a few people were around, but I'm not sure about witnesses, CCTV footage could not be recovered, I think this is due to Franklins Tavern being a dodgy place.
   9. I absolutely think that Ryan was on drugs when he assaulted me.
   10. I don't really remember much else; I must have been floored from the impact.
   11. Daniel took me home and I went straight to bed and Daniel left.
   12. I don't really remember any of this, it is just what I was told by Daniel.
9. Again, it can be noted that the appellant has no particular memory of the incident it is 'just what I was told by Daniel'.
10. There is a police incident report.[12] This records an offence reported on 15 September 2020 at Kensington police station. Relevantly, the narrative refers to 'an unknown altercation has occurred between [the appellant] and Ryan'. The narrative also recalls that the appellant was present at Franklins Tavern in company with his friend Daniel Pratt on 12 August 2020. The incident report records potential witnesses as being Mr Pratt, Mr Rohan Edward Toy and Ms Keely-Justice Dunn. As set out earlier, no person was charged with any offence against the appellant. Indeed, the person named as Ryan was not located.
11. There was no direct evidence from these witnesses before the Assessor however the police running sheet records conversations with the appellant and the witnesses.
12. The police running sheet was included in the Assessor's Papers.[13] The running sheet records that there was no CCTV footage available of the incident.
13. Mr Toy was spoken to by police on 15 September 2020. He told police that he was the duty manager at Franklins Tavern on 12 August 2020. He confirmed there was no longer CCTV footage from 12 August 2020 due to the time that had elapsed. Mr Toy said he had not seen an altercation occur on 12 August 2020. However, he did hear an unknown male make unfounded comments to a regular known only as Ryan and his girlfriend. He heard an altercation occur and by the time he reacted to it, an unknown male was on the ground. Mr Toy said he helped the male to his feet when the male continued to act up and make further unfounded comments towards Ryan and his girlfriend. Mr Toy said that the unknown male left the tavern in company with anther male not known to him. He said that he did not see any further violence between the pair.[14]
14. Although there is a record of police having advised Mr Toy that they may seek a statement in the future, there is no statement in the documents.
15. The running sheet also records that Ms Dunn was spoken to by police on 15 September 2020. Ms Dunn told police that on 12 August 2020 she vaguely remembered an altercation between a regular known only as Ryan and an unknown male of smaller stature. Ms Dunn said that she heard 'the unknown male carrying on like a dick when she heard what sounded like him being punched'. Ms Dunn said when she turned around, she saw the unknown male lying on the ground and did not see any further violence between the pair. Again, the running sheet records Ms Dunn being told that police may seek a statement in the future, but there is no statement.
16. The running sheet records the appellant providing his statement on 15 September 2020.
17. The running sheet records police obtaining information from Mr Pratt on 16 September 2020. This records Mr Pratt saying he did not wish to give a statement due to being an acquaintance with both the victim and the suspect. He said that he knew the suspect Ryan from prison and on the night Ryan was in a calm and good mood but the victim was 'drunk and aggressive'. Mr Pratt informed police he did see the victim pick up a pool ball and act physically aggressive towards the suspect, however, he did not witness an assault as he was elsewhere in the tavern when it happened. He said that the victim was being aggressive towards a 'kiwi barmaid'.
18. There is a record in the police running sheet that the appellant spoke to police again on 18 September 2020. It records the appellant saying that he had been informed that Mr Pratt will not provide a statement in support. The appellant is recorded as saying that was because Mr Pratt's partner (whose name was not given) is a close associate of the suspect's partner and did not want to harm the relationship. The running sheet also records that the suspect's partner was heavily involved with an outlaw motorcycle gang and that he would have to 'keep his head down'.
19. I have referred earlier to the supplementary statement of the appellant which is included in the additional book of documents. However, this does not contain additional information about the incident, other than what occurred afterwards. As recounted earlier it says that after the incident, the appellant ordered a taxi for himself and Mr Pratt to go to his former address in Kenwick. The appellant found within his bank statements a fare charged to his card on 13 August 2020 at 1.34 am.
20. No other information is available about what happened in Franklins Tavern. It appears that the only people who may have witnessed the alleged offence were identified. However, none of them gives any clear information as to what occurred.
21. Medical records contained in the Assessor's Papers include a report from a medical practitioner whose name is redacted but, on the letterhead titled the 'Government of Western Australia East Metropolitan Health Service Royal Perth Bentley Group'. The report is dated 3 March 2021.[15] The report refers to an examination of the appellant on 9 February 2021. The medical practitioner did not examine him prior to that date. The report refers to a review of the medical notes. They recorded a bilateral fracture of the mandible for which the appellant received open reduction internal fixation. The report says the nature of the injuries are consistent with having been inflicted as alleged. Earlier medical records were to the effect that the allegation was an assault to the face. The report also records, consistently with the definition of grievous bodily harm that the injuries were of such a nature as to endanger or be likely to endanger life. The report says without medical treatment the life of the appellant could have been endangered by sepsis. The report also says that the injuries were of such a nature as to cause or be likely to cause permanent injury to health and that without medical treatment the likely permanent injuries included deformity of the jaws and bite.
22. Although this report asserts consistency between injuries and an alleged assault, or the doing of grievous bodily harm, it cannot of course provide any information about what happened before and at the time of the occurrence.
23. There is also contained within the Assessor's Papers a police 'incident write off'.[16] This said it was prepared by the investigating officer, although that officer is unnamed. The report refers to the factual investigations including the statement made by the appellant, conversations with the witnesses referred to above and information about the inability to identify the suspect called Ryan.
24. The incident write off concludes with the officer saying that he is 'putting the matter to file' and had advised the appellant of this. The document says there were no further lines of enquiry with the appellant not being able to particularise the assault and Mr Pratt not being willing to provide a statement and no additional witnesses. The document says that if a suspect is identified, they would be interviewed but with no other 'collaborating' [sic - corroborating] evidence to suggest an assault has occurred, unless the offence was admitted in interview by the suspect, the officer did not believe any charge could be brought against him. The officer also said that he was conscious of the fact that all witnesses seem to state it was the victim who was the aggressor and behaving abusively towards bar staff and the suspect's girlfriend.
25. With respect to all of the above, I note:
    1. There is a lack of any direct evidence as to how the alleged offence occurred.
    2. Although an alleged offence can be proved on the basis of circumstantial evidence there must be something more than conjecture or speculation. A mere conflict of statements may not satisfy proof of an alleged offence. However, here and notably there are no conflicting statements. There are simply no statements as to how the alleged offence occurred. The hearsay information that the appellant recorded in his police statement about what Mr Pratt had told him, is discounted by what Mr Pratt said to the police.
    3. I repeat that the alleged offence lead only be proved on the balance of probabilities but I must have regard to the seriousness of any finding that an offence has occurred. This is not diminished by the fact that the alleged offender has not been identified.
    4. It would be insufficient proof of an alleged offence if there was only speculation or guesswork as to what occurred.
    5. On the basis of the evidence and information it is unclear as to how the appellant obtained his injuries. On the evidence of the information before me, the prospect that the alleged offender was acting in self-defence cannot be excluded on the balance of probabilities. This is particularly so given the information the police obtained from Mr Pratt and which is before me. That is to the effect that the appellant was the aggressor and had picked up a pool ball.
26. Accordingly, the appeal cannot succeed. I cannot be satisfied to the required standard that an offence was committed against the appellant. It would only be by guesswork or speculation that I could think that an offence had occurred; and in particular that self-defence has been excluded. That is an insufficient basis upon which to make a finding that an offence occurred and allow the appeal. The appeal must therefore be dismissed.
27. There is no respondent to the appeal and accordingly no issue as to a costs order arises.

1. For these reasons I make the following orders:
   1. The appellant have leave to commence his application for criminal injuries compensation on 22 August 2023.
   2. The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Re Coad [2023] WADC 9 [17]; EM v CL [2021] WADC 127 [11]; EB v Ramljak [2021] WADC 134 [18].

[2] Underwood v Underwood [2018] WADC 13 [19] (Underwood); Re Collard [2018] WADC 1 [30].

[3] Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] WASC 174; (1989) 2 WAR 196, 198; Re Jackamarra [2014] WADC 9 [19] - [23]; KBR v ADM [2018] WADC 120 [16].

[4] Re TLJ [2016] WADC 74 [51].

[5] See for example Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449 - 450; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; Re ATS [2017] WADC 92 [29].

[8] Martin v Martin [2015] WADC 138 [30] (Martin).

[9] S v Neumann (1995) 14 WAR 452, 461; Martin [85].

[10] Goodwyn v The State of Western Australia [2013] WASCA 141 [95], [96]; repeated in Egitmen v The State of Western Australia [2016] WASCA 214 [76], [77].

[11] Royal Perth Hospital discharge summary dated 15 August 2020, assessor's papers page 72.

[14] I infer the 'unknown male' was the appellant.