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[2010] WADC 30
District Court of WA
2010-03-17
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : SHEPHERD -v- SHEPHERD [2010] WADC 30
MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
Criminal injuries compensation - Appeal hearing de novo - Additional evidence and information - Principles relevant to assessment - Whether offender likely to benefit from award
Amicus Curiae : Ms S F Mateljan appeared for the Chief Executive Officer of the Department of the Attorney General
Amicus Curiae : State Solicitor of Western Australia
Chappell v Bowe [2006] WADC 29
Garton v McCormack (2002) 30 SR (WA) 307
Gullello v O'Halloran [2008] WADC 145
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
MJN v MAJS (2003) 35 SR (WA) 219
Re; Karra (1984) 2 SR (WA) 97
Reid v Assessor of Criminal Injuries Compensation, unreported; DCt of WA; Library No 970170; 5 June 1997
RGE v Bandy, unreported; SCt of WA; Library No 1365; 31 May 1974
S v Neumann (1995) 14 WAR 452
1 WAGER DCJ: The appellant Mr Shepherd appeals against the criminal injuries compensation award of $14,098.50 (including $12,500 for injuries) made in favour of the respondent Ms Shepherd pursuant to s 12(3)(a) of the Criminal Injuries Compensation Act 2003 (the Act) in respect of his conviction for an offence of assault ("agg") against her contrary to s 313(1)(a) of The Criminal Code.
2 In summary, the grounds of appeal are that the Chief Assessor was unaware that Mr Shepherd and Ms Shepherd were in a relationship at the time Ms Shepherd made a claim for criminal injuries compensation and at the time Ms Shepherd was granted the award of compensation (contrary to s 36 of the Act) and alternatively that the amount awarded was manifestly (excessive) in that the Assessor did not take into consideration Ms Shepherd's contributory behaviour.
3 At the commencement of the hearing Mr Shepherd applied for additional evidence to be considered at the appeal. I allowed the receipt of additional evidence in part. I provide the following reasons for allowing the additional evidence.
4 Pursuant to s 56 of the Act the appeal is a hearing de novo. The Court must decide the application 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.
5 Mr Shepherd sought to adduce additional evidence contained in his affidavit sworn 4 January 2010 in support of his assertion that the award made was contrary to s 36 of the Act. Mr Shepherd deposed in the affidavit that he was living with Ms Shepherd at the relevant time and she had promised him a benefit from the award being a ticket to Taree, New South Wales.
6 It has been held that the discretion to admit further evidence on an appeal under the Act ought to be exercised without undue restriction particularly given the beneficial purpose of the Act which is to provide for the payment of compensation to victims of offences.
7 In Chappell v Bowe [2006] WADC 29 at par 37 Macknay DCJ said:
"Given the general terms of the discretion, the beneficial purpose of the Act, which is to 'provide for the payment of compensation to victims of offences', and the informal nature of a hearing before an Assessor contemplated by the Act, viva voce evidence and reasons absent request not being required, in my view the discretion to admit further evidence ought be exercised without undue restriction, when to do so would better place the Court to determine whether in fact 'just' compensation has been allowed for the injury and any loss."
8 Although the victim of the offence is not the party who seeks to adduce the evidence, the informal nature of the hearing and the requirement to determine just compensation apply equally to the assessment of the sum to be paid by the offender.
9 The evidence was not before the Assessor for consideration. In Gullello v O'Halloran [2008] WADC 145 at par 10 - 13 Commissioner Staude (as he then was) commented on the desirability of receiving relevant evidence:
"I note that this Court may exercise any power of an Assessor conferred by the Act (with certain exceptions which are not presently relevant): s 56(2)(a). Accordingly, the Court may inform itself in any manner it thinks fit as the Assessor is empowered to do by s 18(2).
In this context it is necessary to say something about the District Court Rules 2005. Part 6 deals with appeals. By virtue of the definition of 'appealable decision' in r 49 the provisions of Part 6 would appear to apply to an appeal from an award made pursuant to the Act. Rule 50 describes the nature of an appeal to this Court as, effectively, an appeal by way of re-hearing at which further evidence may not be adduced without leave and provides that such leave should not be granted absent special grounds. Clearly, s 56(1) of the Act overrides r 50 in this respect. Rule 50 needs to be read down accordingly.
Section 56(1) has also been amended to substitute the word 'receive' for the expression 'admit or receive' in relation to further evidence and information. This change tends to reinforce the legislative intention expressed in s 18(2).
In my opinion, although it is reasonable to construe s 56(1) as conferring discretion, the nature of the scheme created by the Act, as I have described it, supports the view that the reception of further evidence and information of a relevant nature should not be restricted."
10 I considered that Mr Shepherd's additional affidavit evidence should be received at this hearing because the evidence was relevant to the issues to be determined and its reception may have assisted in the assessment of just compensation. Having reached that decision I agreed that Mr Shepherd could be cross-examined and re-examined on oath and that Ms Shepherd could give viva voce evidence during the course of the appeal.
11 Mr Shepherd also applied to have the affidavit of Nathan Loffman sworn 15 January 2010 received as additional evidence. The affidavit was not served on the parties and was provided to the parties at the bar table during the course of Mr Shepherd's counsel's submissions. The affidavit contained some hearsay and opinion material that could not be led as evidence. The affidavit also contained factual assertions that could have been received as evidence, however I accepted Ms Shepherd's counsel's submission that Ms Shepherd would have been significantly prejudiced by the receipt of the evidence if I allowed it to be introduced because he would then be required to take instructions on the run and would not be prepared to meet Mr Shepherd's case. In light of the substance of the affidavit and its late provision I found that Ms Shepherd would be prejudiced in the conduct of the appeal if the evidence was admitted. I refused to allow the affidavit of Nathan Loffman to be introduced as additional evidence.
12 The Assessor did not provide written reasons for her decision. The transcript of the trial of the offence held in the Joondalup Magistrates Court on 7 March 2006 was not provided to the Assessor because of a tape malfunction (email Ms Griffiths, customer service officer at Joondalup Magistrates Court, 1 October 2008).
13 The evidence and information in the possession of the Assessor included:
14 I note that the additional evidence did not relate to the offence. The evidence relevant to the offence included:
"On Friday, 17 June 2005 the accused was at home at 7 Beaumont Way, Greenwood where he resides along with the complainant. At approximately 11.10 am the accused and the complainant had a verbal argument. This has progressed to the accused using both palms to shove the complainant in the chest causing her to fall backwards against the doorway hitting her head causing some pain.
When the complainant struck at the face of the accused in self defence her fingernail caused a minor scratch and bleeding to the nose of the accused.
The accused then grabbed the complainant around both wrists and swung her towards the couch. He then used both hands to shove the complainant over the back of the couch. She fell over the couch and onto the floor. The defendant sustained minor bruising and abrasions to both her wrists."
"9. We then had a verbal argument during which David swept his arm across the kitchen bench, this sent the flowers and picture frames flying.
I said 'Calm down please, calm down'.
David then used both hands to shove me backwards into the door frame. I banged the left-hand side of my head into the frame. It hurt but not too badly.
I struck out with my left hand to defend myself. My hand was arched with my nails out. One of my nails caught David on the side of his nose and caused it to bleed a little bit.
David grabbed me by the wrists and swung me towards the couch. He then shoved me again and I fell over the couch onto the floor.
This left a couple of abrasions on both of my wrists.
We continued yelling at each other and then David left the room. He went to the back of the house where our other phone is. I heard him talking calmly into the phone. From the conversation I believe David had rung my mum or dad.
I heard him hang up the phone and come back into the lounge room. Almost straightaway the phone rang and I answered it, my mum was on the line.
I said 'He's going off his face, you'd better come over'.
David then walked up to me and slapped me on the side of the head. The blow was medium strength and stung a little."
"13. We went inside and I found Lara sitting on the couch. Kailen was in his bassinette and Jack was wandering around the room.
David was pacing around the room. He was in an extremely agitated and aggressive state.
He shouted 'Look what the fucking bitch has done to me'.
He showed me some scratches on his face. They appeared pretty minor.
He continued to shout, scream and swear.
I tried to calm him down but I couldn't get through to him. He had completely lost it. I rang the police to come and help."
"This patient first attended to see me on 21 June 2005. She stated that she had been assaulted on 17 June 2005. She stated that she had been thrown against a door frame and then thrown onto a couch, from where she fell onto the floor.
Examination revealed a haematoma of the left wrist, a haematoma of the left and right buttocks, and also she also stated that she had been hit on the left-hand side of her head, although there was no physical evidence of this at the time of the examination.
Clinically there were no fractures present, the patient did not suffer a loss of consciousness, did not report a loss of consciousness.
When reviewed on 26 August, the patient stated that she had no residual injuries, there were no residual marks or scarring, however she reported having trouble sleeping since the time of the alleged assault.
A tentative diagnosis of post-traumatic stress disorder was made with a plan to further review the patient after several weeks ..."
"Firstly, in regard to the incident that Lara is claiming compensation for, I did not assault her, although I have been convicted for it. Lara attacked me and I held her out by her wrists, in self-protection to avoid suffering any further lashes to my face. Lara's wrists were slightly bruised by this action on my part. I then placed her backside on the kitchen floor. I did not use excessive force. At the time of this attack on me I had severe scratching to the face and my eye. The police do have photographs to substantiate my claim.
The police charged me with assault as they believed Lara's story that I attacked her. I DID NOT attack her nor did I even defend myself. I merely held her out and protected myself."
"5. I did not attack him. He lost his temper, swept a vase of flowers off the kitchen bench then pushed me against the kitchen doorway. I thought he was going to punch me. I put my hands up to protect my face. He then grabbed my wrists and threw me over a lounge separating the kitchen and the lounge area. I was trying to push him away. My fingernails were long. I could have scratched him.
Immediately after the incident he looked at himself in the mirror and then took photos of himself. ... I have never attacked him."
15 Given the Magistrate's verdict I find that the version of events consistent with Ms Shepherd's police statement would have been accepted by the court to its satisfaction beyond reasonable doubt. I find that the court would have accepted Mr Myers' assessment of the scratching to Mr Shepherd as being minor because that finding is consistent with the verdict.
16 The version of events set out by Mr Shepherd in his correspondence dated 26 September 2008 is inconsistent with the verdict of the presiding Magistrate and I do not accept it. It would be going behind the conviction in an impermissible way to accept Mr Shepherd's version of the offence because he denies that an assault ever occurred. Further, if Mr Shepherd raised issues of self defence and/or provocation at trial (which is unclear) then these defences were negatived to the presiding Magistrate's satisfaction beyond reasonable doubt in order for a conviction to be recorded.
17 The police statement of Ms Shepherd, Ms Shepherd's statement dated 26 February 2009 and the police statement of Mr Myers are consistent with the history, medical assessment and findings of Dr Haygarth. I am satisfied on balance of probabilities that any scratch to Mr Shepherd's face was minor and that Mr Shepherd initiated the violence by sweeping the vase of flowers off the kitchen bench and pushing Ms Shepherd against the kitchen doorway. I am not satisfied that Ms Shepherd contributed to the commission of the offence at the time or immediately prior to the offence.
Injury and loss that occurred as a consequence of the proved offence
18 Compensation is payable where a person has suffered "injury" in consequence of the commission of an offence (s 12(1) of the Act). Bodily harm and mental or nervous shock are included in the definition of "injury" in s 3 of the Act. It is trite law that the phrase "mental or nervous shock" comprehends any malfunction of the person which can be seen to be a consequence of the impact of events constituting the offence or offences, or associated with the commission of the offences as those events impact on the mind or nervous system (Hatfield v Under Secretary for Law, unreported; SCt of WA (Burt J); Library No 4012; 15 December 1980 at 5).
19 The Act contemplates that mental or nervous shock is not a mere emotional reaction but something of a more enduring character which may, in both the legal sense and common parlance, be described as an injury. The term includes distress, horror, disgust and other similar adverse mental reactions but excludes mere fright, humiliation or anguish (S v Neumann (1995) 14 WAR 452 at 461 per Murray J).
20 However in assessing mental and nervous shock the Court must attempt to make a distinction between "direct impact damage" and further damage that may be suffered by such things as the reaction of the victim's friends and family, court proceedings or public attention: Re; Karra (1984) 2 SR (WA) 97; RGE v Bandy, unreported; SCt of WA (Burt J); Library No 1365; 31 May 1974; Garton v McCormack (2002) 30 SR (WA) 307 at 311 per Yeats DCJ.
21 In her correspondence dated 23 July 2008 in support of Ms Shepherd's application for criminal injuries compensation Dr Annan states:
"On 8 July 2005 Mrs Shepherd presented in a distressed state with symptoms and signs of anxiety and depression. She reported that she had been assaulted by her husband three weeks previously (I now know the date to be 17 June 2005) that she and her husband were separated and that she had taken out a violence restraining order.
We discussed the use of antidepressants/anti-anxiety medication but Mrs Shepherd was not keen on this and we decided to treat her headaches and insomnia symptomatically with analgesics and sleeping tablets. With supportive counselling from myself and with help from her family and relaxation techniques, and with the passage of time and the absence of her husband, it was hoped that Mrs Shepherd's distress would decrease.
However Mrs Shepherd continued to suffer from symptoms of depression and anxiety with panic attacks. She was suffering from a post-traumatic stress type disorder. Her condition did not improve and she was commenced on an antidepressant/anti-anxiety medication in January 2006. The medication regime was altered several times as weight loss, anxiety and insomnia continued to be problematic.
Mrs Shepherd is now feeling a lot better and more like her usual non-anxious, non-depressed self. However the anxiety caused by her relationship with her husband and the exacerbation of this (by the alleged assault) into a post-traumatic stress type disorder requires Mrs Shepherd to continue medication and counselling for at least a year."
22 A list of medications prescribed to Ms Shepherd is consistent with Dr Annan's report.
23 Ms Elaine du Toit, senior counsellor, in her report dated 30 March 2009 states that she is a senior counsellor at the Patricia Giles Centre who has worked in the field of domestic violence for the past six years. She states:
"Lara attended our service again on 28 January 2009 in relation to a claim for criminal injuries compensation. She stated that she was suffering from anxiety, panic attacks and depression and has difficulty sleeping. She was prescribed antidepressants/anxiety medication in January 2006 and I believe was receiving supportive counselling from her doctor (Dr Annan).
I have interviewed Lara on the following dates: 28 January and 20 February 2009. I administered the Depression, Anxiety and Stress Scale (DASS). The DASS is a self-report questionnaire designed to measure levels of depression, anxiety and stress. I also administered the Impact of Events Scale which is a subjective report of the difficulties people sometimes have after stressful life events. There are three scales which measure intrusion, avoidance and hyper-arousal."
24 Ms du Toit describes Ms Shepherd as appearing tired and reporting feeling anxious since the incident and finding it difficult to relax since the offence. Ms du Toit further states:
"The results of the DASS placed Lara in the following ranges: Depression (Moderate), Anxiety (Severe) and Stress (Moderate). These results were consistent with my clinical impression of mild to moderate depression and high anxiety. The results of the Impact of Events Scale - Revised placed Lara in the Severe range for Intrusion, Avoidance and Hyper-arousal which also indicates high anxiety.
It is difficult to make a prognosis as to how long counselling will be required as various factors impact on recovery."
25 The evidence that was before the Assessor also makes reference to physical and mental anxiety suffered by Ms Shepherd before the commission of the offence. Dr Annan refers in her report dated 23 July 2008 to the following:
"During consultations with Mrs Shepherd since March 2005 she frequently expressed concerns re: her poor sleep, lethargy, headaches and anxiety. She attributed these symptoms to stress in the relationship with her husband rather than her children".
26 Ms du Toit also refers to prior physical, verbal and emotional injury inflicted by Mr Shepherd and suffered by Ms Shepherd from March 2002 following the birth of her first child.
27 Although the appellant did not choose to make oral submissions in relation to whether the offence was the sole cause of the injury, the Act makes it clear that pre-existing conditions must be considered in relation to the assessment of an award.
28 Section 41 of the Act sets out that in determining the amount of an award the Court must have regard to any behaviour, condition, attitude or disposition of the applicant which contributed, directly or indirectly, to the injury or loss suffered by him or her and may reduce the amount which he would otherwise award by such percentage as is thought just.
29 Pre-existing and subsequent injuries must be taken into account in accordance with s 41 of the Act: Reid v Assessor of Criminal Injuries Compensation, unreported; DCt of WA (Viol DCJ); Library No 970170; 5 June 1997 at 22 - 23.
30 It is not necessary for the offence the subject of the criminal injuries compensation application to be the sole cause of the injury, however it does not follow that where non-compensable events contributed to the injury, or had a propensity to do so, the applicant is entitled to compensation for the full injury: MJN v MAJS (2003) 35 SR (WA) 219 at pars 47 - 52 per Martino J.
31 I consider that the history of the relationship between Mr Shepherd and Ms Shepherd cannot be separated from the injury suffered by Ms Shepherd as a result of the offence. At the time when the offence occurred Ms Shepherd had experienced physical and emotional distress, anxiety and sleep problems. I accept that the injury suffered by her as a result of the offence may in part have been more significant because of her distressed and vulnerable state given the history between the two parties. I do not consider that Ms Shepherd contributed to the offence or to the injuries that she suffered as a result of the offence.
32 Taking all matters into account including the material that was before the Assessor pursuant to s 18(1) of the Act an award of $12,500 is the appropriate award to be ordered for the injuries suffered in this case. No objection has been raised to the sums calculated by the Assessor for the report costs, treatment expenses and future medical expenses (to a maximum). Having considered the material relevant to these sums a total of $14,098.50 is appropriate in relation to the application.
33 The appropriate quantum cannot be awarded if Mr Shepherd satisfies me on the balance of probabilities that the making of an award would contravene s 36 of the Act.
34 Section 36 of the Act provides that an Assessor must not make a compensation award in favour of a victim if the Assessor is of the opinion that there is a relationship or connection between the person who committed the offence and the victim and that by reason of the relationship or connection any money paid under the award is likely to benefit or advantage the person who committed the offence.
35 Mr Shepherd submits that he resumed a relationship with Ms Shepherd after the offence was committed but on a date before the Assessor had determined the award and that the relationship is still ongoing. The additional evidence received from Mr Shepherd and Ms Shepherd relates to this issue.
36 Both Mr Shepherd and Ms Shepherd gave evidence that there was a relationship or connection between them. Ms Shepherd's evidence is that Mr Shepherd co-parents their two children with her. Despite a violence restraining order being made on 22 September 2005 and varied on 17 August 2006 and a subsequent violence restraining order being made on 21 January 2008 Ms Shepherd says that Mr Shepherd has stayed at the family home on weekends and has visited on weeknights since 2007. Ms Shepherd also agrees that she and Mr Shepherd have been on a joint activity with their children to the monster trucks at Burswood in August 2009 and that she has paid for birthday and Christmas presents for her children to give to Mr Shepherd.
37 Mr Shepherd's evidence is that he and Ms Shepherd resumed a marital relationship in late 2005, and that although he maintains a separate home and lives in that home on three or four nights per week, he and Ms Shepherd are in a marriage relationship. Mr Shepherd says that Ms Shepherd has bought him clothing items and that they have shared meals and been intimate.
38 It is unnecessary for me to determine the precise nature of the relationship between the parties. I accept that whether the relationship is a marriage relationship or a co-parenting relationship it is a relationship or connection of a type from which Mr Shepherd could derive a benefit or advantage from Ms Shepherd. The issue is whether Mr Shepherd is likely to benefit or receive an advantage from an award if an award is paid.
39 Mr Shepherd gives evidence that Ms Shepherd told him she would pay for him to have a trip when she received her award:
"When I receive my compensation I will buy you a ticket to Taree in New South Wales." (par 37, affidavit of Mr Shepherd sworn 4 January 2010)
40 Ms Shepherd admits that she said she would buy Mr Shepherd a ticket to Taree, however she says that this is a comment she made three or four years ago that she describes as being a nasty and mean comment because she is aware that Mr Shepherd does not get on with his family who live in Taree.
41 Ms Shepherd says in evidence, however, that Mr Shepherd will not benefit in any way from an award. She says that she will give the whole of the award for injuries suffered by her to her parents. Ms Shepherd's evidence is that her parents paid a sum similar to the award sum to cover the costs of her legal representation in the Family Court and to cover legal representation in other proceedings. Although the money paid for legal fees was not a loan, Ms Shepherd chooses to give her parents the sum as a gift for an overseas holiday. Ms Shepherd refers to her mother's illness as being another reason why she wants to finance a holiday for her parents rather than keep the award for herself.
42 In cross-examination Mr Shepherd did not dispute that Ms Shepherd's parents had paid for her legal fees.
43 The proposition put to Mr Shepherd in cross-examination is that all of the award would go to Ms Shepherd's parents for a trip to Europe. Mr Shepherd accepts this proposition. Ms Shepherd was not cross-examined on her decision and intention to give the award to her parents.
44 Mr Shepherd's evidence in cross-examination is that the reason why he has appealed against the Assessor's decision is because he considers that he should not benefit from the award. Mr Shepherd will not benefit from the award if Ms Shepherd, consistent with her intention and undertaking, gives the total sum of the award to her parents as a gift.
45 I am not satisfied on the evidence before me that any of the award money is likely to be used to fund a ticket to Taree or to purchase items that will benefit Mr Shepherd. I am satisfied that the whole of the award sum for injury will be given to Ms Shepherd's parents in line with her intention.
46 Although no direct evidence has been led in relation to the relationship between Ms Shepherd's parents and Mr Shepherd, I draw an inference based on the content of Mr Myers' police statement in relation to the offence and the fact that Mr Myers and his wife funded the court proceedings against Mr Shepherd (Exhibit 3) that Ms Shepherd's parents would be very unlikely to provide Mr Shepherd with any money received from the award or use the money to the benefit or advantage of Mr Shepherd.
47 I make the following award in favour of Ms Shepherd:
Chappell
Bowe
(1995) 14 WAR 452