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[2010] WADC 78
District Court of WA
2010-05-28
Original judgment source is linked above.
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CITATION : HINCHCLIFFE -v- HINCHCLIFFE [2010] WADC 78
MATTER : IN THE MATTER of Part 7 of Criminal Injuries Compensation Act 2003
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Criminal injuries compensation - Extension of time for making compensation application - Amendment of compensation application - Admission of further evidence and information on appeal - Whether appellant did not do any act or thing which she ought reasonably to have done to assist in the identification, apprehension and prosecution of the offender - Assessment of compensation - Causation
Amicus Curiae : Ms L A Eddy appeared on behalf of the Chief Executive Officer for the Department of the Attorney General
Amicus Curiae : State Solicitor for Western Australia
CME [2004] WACIC 9
IGG [2004] WACIC 8
Prideaux v Chief Executive Officer [2000] WADC 143
Re; Tilbury [2010] WADC 46
VPAN [2007] WACIC 41
1 On 20 September 1999 the appellant, Ms Hinchcliffe, was the victim of a vicious and prolonged assault which caused her serious physical injuries and psychological harm (the incident). The perpetrator of the crime was her husband, the respondent. He admitted the offence on 13 June 2000 by pleading guilty to one count of assault occasioning bodily harm. On 14 August 2000 he was sentenced to a term of imprisonment of 3 years 6 months for his criminal conduct during the incident.
2 This is an appeal against the decision of the Criminal Injuries Assessor made on 2 February 2009, whereby the learned Assessor refused to make an award of compensation under the Criminal Injuries Compensation Act 2003 (the Act) in favour of Ms Hinchcliffe for injuries she sustained as a result of the criminal offence committed by the respondent on 20 September 1999.
3 The learned Assessor made a finding of fact, based on the information available to her, that Ms Hinchcliffe did not at the time do all she could reasonably have done to assist the investigators or prosecutors. The Assessor held that because of this finding she was prevented by s 38 of the Act from making a compensation award in favour of the appellant.
4 I am required to determine the application "afresh" on the basis of the evidence and information before the Court, which is substantially different in material respects to the information provided to the learned Assessor.
5 In my opinion, for the reasons which follow, the appeal must be allowed and a compensation award made in favour of Ms Hinchcliffe.
The nature of the appeal and the admission of further evidence
6 The appeal to this Court is made pursuant to s 55(1) of the Act and is against the decision of the Assessor for Criminal Injuries Compensation dated 2 February 2009 whereby she refused to make a compensation award in favour of the appellant.
7 In determining the appeal, the Court must consider the appellant's application for a compensation order "afresh" without being fettered by the Assessor's decision. In doing so the Court may receive further evidence and information which was not made available to the Assessor: s 56(1). The appeal Court may exercise any power of an Assessor under the Act (subject to three exceptions) and in doing so may confirm, vary or reverse the Assessor's decision either in whole or in part, and make any order that an Assessor could make under the Act: s 56(2).
8 In addition to the information that was before the Assessor, the appellant seeks to rely upon her affidavit sworn 6 May 2010, a clinical and forensic psychologist's report by Dr L W Coxon dated 27 April 2010 and a psychologist's report by Mr M Evans dated 19 February 2010 (the additional material). The information in the additional material is relevant to all the issues raised in the appeal. The affidavit expands on the personal circumstances of the appellant and, in particular, the alleged nature of the relationship with her former husband, the respondent, before and after the assault.
9 As mentioned, the Court has a general discretion to receive further evidence and information. The discretion conferred is stated in general terms. Given the beneficial purpose of the Act and because there is no reason why it would be unjust to do so in this case, the Court will in the exercise of its discretion receive and admit into evidence the additional material for the purpose of determining the appeal. See Re; Tilbury [2010] WADC 46 per Martino DCJ at [3].
10 The respondent did not file an answering affidavit in relation to the appellant's detailed allegations of the nature of their former relationship. In my view, a joinder of issue as to the precise details in this regard is not necessary for the proper determination of this appeal.
11 The appellant is granted leave to amend her application for compensation dated 20 April 2008 to include par 31 (report expenses) and par 32 (future treatment expenses): s 19(1)(a).
12 Counsel for Ms Hinchcliffe handed up a schedule of expenses incurred by the appellant involving court fees and costs associated with the preparation of the reports of Dr Coxon and Mr Evans. The costs paid by the appellant are $2,385.62 of the $2,539.12 incurred. I find that the costs claimed are reasonable and have been incurred for the purpose of these proceedings, but the Assessor does not have the power to award costs (s 67). The only costs properly claimable under the Act (subject to the appellant being entitled to an award) are the report costs of Dr Coxon of $2000 (s 6(2)(a)(ii) and s 30(1)).
13 The respondent, Mr Hinchcliffe, appeared in person at the commencement of the hearing of the appeal. He informed the Court that he understood that it was a compulsory obligation that he attend the hearing. After he was made aware that he had a right to stay and be heard in relation to any aspect of the appeal, Mr Hinchcliffe decided, on his own volition, to leave and not remain for the rest of the hearing. As I understand it, he was content for the appeal to be heard in his absence.
14 It was agreed, as a preliminary matter, that there was no need for the evidence of Ms Hinchcliffe and the expert medical witnesses to be given orally. Nobody sought to test the evidence by cross-examination. Counsel for amicus curiae, quite properly in my opinion, did not seek to test the evidence for inherent inconsistency or reliability.
15 A curious aspect of the Court's appellant jurisdiction under the Act is that, being clothed with the same powers as the Assessor at first instance, it is arguably part of the Court's function to 'positively investigate and test' the applicant's claim and in particular, where appropriate, the evidence and information relied upon. For example, the Judge could, on his or her own volition, compel the production of evidentiary material from the appellant and third parties. Also a cross-examination of the applicant or other persons in relation to any relevant contested or uncertain factual matter or expert opinion could be conducted.
16 In this case, the hearing proceeded on the basis that the appellant did not have to give oral evidence. This is consistent with the informality of the proceedings, bearing in mind that the Assessor is required to determine the compensation application expeditiously and informally, having regard to the requirements of justice and the Act, and in doing so is not bound by rules or practice as to evidence or procedure but may inform him or herself in any manner thought fit: s 18.
17 It is a matter for reflection that the Court, in deciding the appeal is in essence put in the position of the Assessor at first instance and may in certain matters be required to undertake an investigative role in relation to evidentiary issues to determine the application. In this case, there was no body of contentious factual material which required the Court itself to undertake an investigative role. I note, on this topic, that the position of counsel for amicus curiae was that it is entirely a matter for the Court and not something which it can or should seek to invoke, which is consistent with the role as amicus curiae.
The appellant's application for an award of compensation
18 The incident which gave rise to the offence occurred on 20 September 1999 in the appellant's home at Rockingham. As a result of the injuries sustained from the assault, Ms Hinchcliffe was hospitalised for seven days. On her release from hospital, she was subjected to a form of "punishment" imposed on her by the respondent (which in fact commenced while she was in hospital by the exercise of his power over her to persuade her to cut off her hair). The details of the incident and the injuries suffered by Ms Hinchcliffe are set out below.
19 Ms Hinchcliffe filed an application for a compensation award on 23 April 2008. The application form is dated 20 April 2008. At the time she was, and still is, serving a term of imprisonment for the murder of Mr Michael Wright on 25 February 2000. It is a matter of record that in 1999 she had been in a relationship with Mr Wright.
20 The compensation application was filed out of time. Section 9 of the Act provides that a compensation application must be made within three years after the date on which the offence to which it relates was committed. However an Assessor is empowered to allow a compensation application to be made after the time limit, if in his or her opinion, it is considered just to do so (the power may be exercised conditionally): s 9(2).
21 By letter dated 20 April 2008, Ms Hinchcliffe expressed to the Assessor the reasons why it had taken so long to make the claim. Ms Hinchcliffe accepted she should have dealt with the issue sooner. She explained it had taken a long time to reach the stage where she felt she could make the application because of the physical and emotional power exerted on her by the respondent (even while he himself was incarcerated for the offence he committed against her). She said the influence of the respondent was "very controlling" and that her life was not her own.
22 Ms Hinchcliffe explained how throughout her relationship with the respondent she had been forbidden to speak out about certain things for fear of reprisal and that this was reinforced at the time by the respondent's active participation in an outlaw motorcycle gang. She was also concerned about the safety and welfare of her own children, especially after the respondent was released from prison and whilst she herself was still serving her sentence.
23 In summary, Ms Hinchcliffe contends that it was only at the time she made the application that she was "strong enough" mentally and physically to make the application.
24 The Assessor, because of the appellant's circumstances, allowed the application for compensation to be made out of time. However, it is necessary for the Court in determining the appeal to consider again whether the application should be permitted because the time limit for making the application had expired.
25 In my view, justice in this case requires that Ms Hinchcliffe be permitted to make her compensation application. I accept the expert medical evidence that it was only after a period of treatment and counselling that the appellant was physically and emotionally well enough to make the application. The time taken in this regard is reasonable because of the degree and the extent of the power and control that the respondent exerted on the appellant as evidenced by their relationship and the conduct towards each other before and after the incident. In my view, these matters explain the length of the delay and are, in the circumstances of this case as a matter of law, sufficient reason for the delay on her part. There is no prejudice that the Court is aware of which militates against time being enlarged to allow the application to be made (see RT [2006] WADC 185 per Goetze DCJ at [28]).
26 The Assessor was provided with a detailed statement by Ms Hinchcliffe in support of her application, a separate letter seeking an extension of time to lodge the application, various court and prosecution documents relating to the criminal proceedings against the respondent arising out of the incident, and a photograph of a large tattoo across the lower back region of the appellant (which the respondent required her to have against her will as part of the punishment he imposed on her after the assault). In addition, the Assessor was provided with various medical reports and hospital records concerning the injuries sustained by the appellant as a result of the offence.
27 Separate to the information provided by the appellant in support of the application, the Assessor on her own initiative obtained and had access to the files of the Director of Public Prosecutions in relation to the respondent's assault offence against the appellant and the appellant's wilful murder of Michael Wright (including two police DVDs dated 27 February 2000 and 14 December 1999).
28 As noted, the appellant has produced additional evidence and information that she seeks to rely upon for the purpose of the appeal. As stated, in my view, it is in the interests of justice that the Court receive this information and there is no reason why it should not permit the appellant to adduce it.
Details of the offence for which compensation is sought
29 The appellant never made a formal complaint to the police about the incident. There is no evidence before the Court that the police asked the appellant to make a statement to assist them in their prosecution of the respondent for the offence. At the committal hearing in the Perth Court of Petty Sessions, the prosecution relied on admissions made by the respondent in telephone intercepts and other inculpatory evidence. Having elected to have a committal hearing the respondent indicated, before the completion of the hearing, that he admitted committing the offence of assault occasioning bodily harm on 20 September 1999. He formally pleaded guilty to the charge on 13 June 2000.
30 Apart from disclosure during psychological counselling sessions while in custody, the first 'on the record' account by the appellant of the incident is contained in her supporting statement to the Assessor which accompanied her application. In this statement, dated 20 April 2008, the appellant said the assault was "the most terrifying night" of her life. She said she had disclosed "the affair" to the respondent the previous day and that on his return home on the evening of the incident he was affected by drugs. She said in her affidavit that the respondent called her to say he was coming home and that he wanted to know all the details of what she had done and that she was to take an ecstasy tablet to make her open and compliant.
31 The appellant's evidence in these proceedings is that the respondent pinned her down on the bed and punched her with a closed fist in the face repeatedly whilst verbally abusing her. The appellant says the respondent "got on top of me so that he was pinning my arms to my side and started punching me in the face and ribs. This went on for a while before he released me". She said he was hitting her so hard that she even contemplated trying to call out for the police. This is instructive because the respondent had, according to the appellant, trained her as part of the bikie club cult to believe that the police were "the enemy". According to the appellant, this was the first time she had ever thought she should contact the police about the respondent's conduct and she said this was an indication of how desperate she felt.
32 The appellant said she was "bloody and swollen" as a result of being punched and assaulted by the respondent. She said the respondent then said:
"... in a very calm voice that he had learned a new martial arts move that he wanted to try with me. He said it was called 'sleeper hold' and that he would use it until I passed out and then when he released me I would regain consciousness. He said if he kept it on it could kill me. He did it over and over, he put pressure on my neck using his forearm until I passed out and then I would become aware of him again, smiling an evil smile in my face. The whole time he was so calm. He was talking to me and describing what he was doing with a smile on his face the whole time. His face was terrifying. He said 'Welcome back. Did you like that? If I let go at the right time it won't kill you, it will just make you pass out. Here, it's really easy - let me try it again'. He did that over and over and I was powerless to stop him."
33 According to the appellant she felt her consciousness slip away as the respondent applied pressure to her neck. She said that after "several hours of physical and mental abuse" the respondent dragged her to the bathroom where he had a shower and she lay on the floor. At the time she said she it was difficult to breathe and that, because of the pain from the injuries, she was unable to move.
34 The appellant says the respondent then telephoned a friend and told him what he had done. She recalled that he said "she just keeps bouncing off my fists". The respondent then said he was going to take her to the hospital, but instead started beating her again and asked for the address of the man that she had had sex with. The appellant says she indicated a different place and directed him to a house. She said when they got there the respondent pushed her out of the car door and drove off. The appellant was then taken by an inhabitant of the place where she had been dumped to the emergency department of the local hospital.
The appellant's injuries arising out of the offence
35 Dr Y H Chee of the Rockingham-Kwinana District Hospital described the injuries sustained by the appellant as a result of the incident in a medical report dated 30 November 1999.
36 The appellant was admitted to the emergency department of the hospital at 9.55 am on 20 September 1999. On examination she was found to be badly bruised with a severe haematoma of her right eye and a lesser one on her left eye. Her right temple and cheek were also bruised. Both ears were bruised. Her neck was bruised and had "whip-like" marks mainly on the left. There were further bruises and "whip-like" marks on her back, mainly over the lower thoracic and upper lumbar area. She was tender in her right lateral chest wall and surgical emphysema was present.
37 The medical assessment at the time was that the appellant had "multiple injuries, mostly bruising and soft tissue injuries ... Clinically, she had a right-sided pneumothorax and a probable right rib fracture". On investigation the chest x-ray showed a right-sided pneumothorax and a fractured right 10th rib. The facial x-rays revealed no fractures.
38 Subsequent investigations disclosed the appellant had suffered "a traumatic rupture of her right tympanic membrane and an undisplaced nose fracture". A CT scan of the head revealed no intracranial injury.
39 The appellant was discharged from hospital on 26 September 1999, seven days after her admission. The medical evidence is that the injuries sustained were consistent with the appellant's explanation that she had been assaulted with fists and that no objects had been used on her. The hospital's medical records record that the appellant was reluctant to provide any history on enquiry and "was not forthcoming with information". The hospital records also contain a note that, on 24 September 1999, a police officer attended the hospital to interview the appellant, but she declined to be interviewed by police.
40 The hospital records state that on 12 October 1999 there had been no further contact from the appellant and that review would only occur if she re-presented herself. It seems after she was discharged she did not attend the hospital again in respect of her injuries from the incident.
The sentencing remarks when the respondent was sentenced for the offence
41 The respondent was sentenced by Hammond CJDC in the District Court on 14 August 2000. His Honour the Chief Judge set out the background to the incident in his sentencing remarks. This is instructive about the extent and nature of the assault and also assists in understanding the familial context in which the assault occurred:
"The second count on the indictment is that on 11 November 99, at Mandurah, you assaulted Michael Ian Wright and thereby did him bodily harm. Both offences are prohibited under section 317 of the code and the maximum penalty allowed for each offence is that of 5 years' imprisonment. By way of background, from the facts it appears that the complainant Mrs Hinchcliffe, your wife, had at some point in September 99 admitted to you that she had been in a sexual relationship with others.
In fact on 20 September you and your wife were living separately, she in Rockingham with the children and you at Mandurah. In the early hours of 20 September 99, you went to the complainant's home in Rockingham where you assaulted her by punching her and kicking her. The injuries suffered by the complainant are as set out in the medical report of Dr Yew Hoong Chee dated 30 November 99. She received a ruptured lung, a fractured rib, a fractured nose, perforated eardrum and soft tissue injuries to the face and neck including haematoma of both eyes and bruising to both ears.
Dr Chee reports that her neck was also bruised and she had whip-like marks mainly on the left. There were further bruises and whip-like marks on her back, mainly over the lower thoracic and upper lumbar area. His conclusions were that she had multiple injuries, mostly bruising and soft tissue injuries, no focal haematology was found, clinically she had right-sided pneumothorax and probable right-rib fracture. 'These injuries were consistent with having been inflicted by assault'.
Although at no stage has the complainant Ms Hinchcliffe made a complaint about this offence before me, the medical report indicated that she did tell the doctor that she was assaulted at about 5.00 am in the morning. She appears to have been admitted to hospital at about 5 to 10 in the morning, that is, about 5 hours after the assault. It will be necessary to return to the facts with respect to count 1 but I turn now to count 2.
...
It is a postscript to this whole incident that the complainant Michael Wright was shot dead on 25 February this year at his home and the complainant in count 1, Mrs Hinchcliffe has been charged with his wilful murder.
Counsel for the offender, in a plea of mitigation, has put forward a number of factors for consideration. He urges that these incidents should be looked at within the matrix of a complicated family situation, that the offender Hinchcliffe was the one who was carried away by the trauma of discovering details of his wife's unfaithfulness.
There is a psychological report with the opinion that the assault occurred due to the offender's morbid jealousy in a dependent and suspicious husband who displayed the psychotic features and morbid jealousy whilst withdrawing from dependent use of stimulant drugs including cocaine, ecstasy and LSD. It is said that the complainant Mrs Hinchcliffe has forgiven her husband and is writing to him from prison professing her love. With respect to the assault upon Wright, which of course occurred several weeks after the assault on Mrs Hinchcliffe, it is submitted that again it was the effect of being shocked and affected by further details of his wife's infidelity and, again, it was a question of loss of control due to circumstances not of his own making.
It is said that this is a manifestation of people in crisis, that this emotional crisis was fuelled by illicit substances, that the offender is remorseful, the offence is out of character, that he had a difficult and disturbed upbringing and that he has suffered greatly by losing his business as a result of his incarceration and that these offences are far from being the most serious of their kind and they are, to an extent, understandable.
It is impossible, in my finding, to accept any submission regarding any suggestion of impulsive behaviour. The papers include a number of transcribed telephone conversations between the offender and his wife, the complainant, commencing with a conversation on 18 September at 8.40 am whereby the complainant Mrs Hinchcliffe was upbraided and abused by the accused for her infidelity in vile terms.
That is 18 September which is two days prior to the assault. In a call shortly afterwards at 8.46 am to a friend Reid the offender informed the friend of his discovery of his wife's infidelity and then went on to discuss what appears to be party arrangements. At 9.40 am on the 18th he again called the complainant and began demanding that she shave off her hair by way of public penance for the infidelity.
There is a call logged at 4.11 am on 20 September obviously when the offender was on his way to the complainant's home when the offender said, 'I have decided to come and play with you. I'll see you shortly, babe'. At the time of the assault which was committed at about 5 am the three children were in the house. At 8.16 am there was a call from the offender to his mother making arrangements for someone to look after the children because the complainant was going to hospital for a while and upon inquiry the offender said, 'She just keeps bouncing off my body, off my fist, heh?'.
The conversation ended with a threat to his mother. At 8.32 am the offender rang his friend Mercanti and said with respect to his wife, the complainant, 'She's on the floor, just fucking breathing'. It was in that conversation that he used the words, 'I lost the plot', but the offender did go on to say that he was going around to some other person's place, such people being those who had had sexual relations with his wife and they could perform the task of taking her to hospital.
That conversation contains the words from the offender, 'Yes, she's been laying on the floor a few hours, heh, she's in a lot of pain'. Again at 9.59 that morning there is a call to a friend Dave in which the offender says, 'I sorted me cook out, the physical side's done'. The offender then said that he had dropped the injured complainant off at a third party's house and made the comment, 'I bet they don't recognise the cunt today, eh?'.
The tapes and transmissions and transcriptions continue and what they show in their totality is that this was not a crime of passion in the sense that it is generally understood, that it was a crime of the utmost premeditated and planned brutality and the actions of the accused in boasting to his friends of what he has done, the further actions of getting through on the telephone to the complainant when she was in hospital on subsequent days, abusing her, demanding that her hair be shaven and demanding that she seek gynaecological assistance to correct what the offender saw as results of her infidelity.
There is, in my view, absolutely no way that this particular assault can be regarded as anything other than at the top of the range when it is viewed in the light of the offender's comments and actions both before and after the assault ...
... The only credit he can receive is for the plea of guilty and that has the effect of reducing the offence which I see at close to the top of the range, down to a term of 3 and a half years' imprisonment." (emphasis added)
42 The learned Assessor's reasons for decision in respect of the application are contained in her letter of 2 February 2009 to the appellant.
43 The Assessor informed the appellant that in addition to the material provided in support of the application, she had obtained the Director of Public Prosecutions' file relating to the prosecution for the assault. The Assessor also obtained and referred to the Director of Public Prosecutions file concerning the appellant's prosecution for the murder of Michael Wright "in order to refresh [her] memory". It is not immediately clear why the learned Assessor considered the file relevant to her task of determining the application for compensation arising out of the assault by the respondent (except possibly to understand the alleged extent of the psychological injuries suffered by the appellant as a result of the assault).
44 The learned Assessor formed the view that the prosecution of the respondent for the incident was "highly unusual" because:
"... it was not initiated by a complaint from you. Instead, police got wind of the assault on you because they had intercepted calls from Mark Raymond Hinchcliffe's telephone. When police approached you about the assault while you were still at the hospital, you declined to comment, would not make a complaint and refused to identify the perpetrator.
In an extraordinary action, without a complaint from you and without a signed statement from you the police nonetheless, charged Mark Raymond Hinchcliffe with assaulting you. Mark Raymond Hinchcliffe only pleaded guilty to the charge on (sic) 8 August 2000 after a committal hearing which adduced the damning evidence against him by way of tapes and transcripts of telephone calls he made to you and others admitting the assault against you. You did not give evidence at the committal hearing. Mark Raymond Hinchcliffe was convicted on his own plea of guilty of assaulting you on 20 September 1999 in spite of your lack of complaint and despite your lack of cooperation and non-assistance to police and prosecutors. As I said, you would not assist the police. You remained in continual contact with Mark Raymond Hinchcliffe through the relevant period. In fact, as you know, at your trials for murdering Michael Wright, the Crown asserted you wilfully murdered your ex-boyfriend, Michael Wright, in order to appease Mark Raymond Hinchcliffe. In that regard, I note in your statement supporting your application you said when you first came to Bandyup you felt totally ashamed of the crime you had committed. This is simply not true. You were convicted of wilfully murdering Michael Wright and then appealed the conviction on the issue of identity. That is, you appealed on the basis that it was not you who killed Mr Wright at all. This does not reflect any remorse on your part.
I can understand you have had considerable time over the years to reflect on your relationship with Mark Raymond Hinchcliffe. However, you chose to remain with him despite your assertions of abuse for over 15 years. You were only separated from him when arrested for the wilful murder of Michael Wright on 25 February 2000." (emphasis added by the Assessor)
45 The Assessor set out s 38 of the Act and went on to say:
"Section 38 denies compensation to a victim of crime if that person has unreasonably failed to cooperate with the police in the identification, investigation and prosecution of an offence. Although Mark Raymond Hinchcliffe was convicted of assaulting you, I am of the opinion that you did not do all you could reasonably have done to assist investigators or prosecutors. Therefore, section 38 provides that I must not make a compensation award in your favour."
46 In my view the learned Assessor's comments and findings in relation to the appellant's apparent lack of remorse at the time for her crime of wilfully murdering Michael Wright are not relevant considerations for the purpose of refusing the appellant's application for compensation arising out of the offence committed by the respondent. If anything, it may on one view, show the extent of the influence and control that the respondent had over the appellant at the relevant time. Given the extreme nature of the control of the respondent over the appellant, as evidenced arguably by the appellant's own conduct, any relevance is limited to the issue of assessment of compensation. However this tends to minimise the value or importance of the assault itself when considered in the context of the appellant's overall emotional and psychological symptoms arising out of her relationship with the respondent over a lengthy period of time.
47 The Assessor made specific findings that the appellant positively refused to comment when approached by the police while still in hospital, and that she "would not make a complaint and refused to identify the perpetrator" of the assault. Putting to one side the question of reasonableness or otherwise of the position adopted by the appellant at the time, the Assessor's finding is predicated on the assumption that the police sought assistance from the appellant in the way indicated. The Assessor, in her reasons for decision, did not identify the information or evidence relied upon for her finding. There is no direct evidence before the Court to this effect except possible comment in the hospital records to the effect that the appellant declined to be interviewed (an unsubstantiated opinion which is inconsistent with the evidence of the appellant that she did speak to the police while in hospital on 24 September 1999).
48 Having made this finding, the Assessor formed the opinion that the appellant "did not do all [she] could reasonably have done to assist investigators or prosecutors". Therefore, by reason of s 38 of the Act, she was unable to make an award. As I understand the reasons, this conclusion is based on the Assessor's finding that the appellant was requested by the police to assist by making a complaint and to identify the perpetrator, and to make a statement in respect of the offence.
49 Because of Assessor's findings, the appellant in her affidavit explained in detail the contact she had with the police in September to December 1999. She deposed on oath as follows:
"On 24 September 1999 two police officers came to the hospital. I think they were detectives from Rockingham. They said to me: 'What's with the hair?' I didn't answer. They then said 'We know what happened to you' and 'You don't have to talk to us'. I said 'I know I don't'. Then I walked back to my room. I had been 'trained' by Mark to never speak to the police. I had never done it after all the years of violence and abuse; according to what Mark had told me, it would have been the worse thing I could do. Moreover, I knew that the police could not protect me from him. I had no intention of reporting on Mark."
50 In addition the appellant said two police officers visited her in a women's refuge in Nollamara on 17 November 1999. At the time the appellant understood the purpose of the visit was to see if she would provide information to the police about the motorcycle club in which the respondent was involved. According to her the police said "We know he did this to you and we don't need you in order to prosecute it". The appellant says that her response was that she did not want the respondent to go to gaol but that she just wanted the violence to stop. At the time she still had symptoms and pain from the assault on 20 September 1999.
51 The police officers pointed out the situation she was in and offered to assist her if she was prepared to help them with their inquiries. The issue of "trust" was raised but the appellant did not say anything and the police left a card in case she changed her mind. I find the purpose of the visit by the police officers on this occasion was to see if the appellant was willing to provide them with information about the motorcycle club. The visit was not in the context of an investigation of the assault on 20 September 1999.
52 As mentioned, the Court must determine the application afresh based on the information received by it for this purpose. In this case that information includes the information and material before the Assessor and also the additional material referred to above.
53 Based on the evidence and material before the Court there is, in my opinion, nothing which indicates that the appellant refused any request by the police investigating the assault that could be construed as a positive and informed decision by her not to aid an inquiry into the identification, apprehension or prosecution of the respondent for the assault. No evidence to the contrary has been brought to the attention of the Court and it is plain from the telephone intercept evidence in the possession of the police at the time that they knew the identity of the person who assaulted the appellant on 20 September 1999.
54 There was never any issue about the apprehension of the respondent by the police, or in particular about which the appellant could have provided assistance. In addition, I find that the police investigating the assault did not request the appellant to make a complaint against the respondent and did not formally ask her to make a written statement to assist them in prosecuting the offence. It is plain from the court transcripts that at the time the authorities considered they had sufficient evidence of the respondent's own description of his assault on the appellant in the telephone intercepts. They considered no further evidence or assistance was required from the appellant to obtain a conviction, and they were right. Partway through the committal hearing (an opportunity for an accused person to test the evidence against him or her), the respondent changed his position and said he would plead guilty to the assault on the appellant on 20 September 1999.
55 On the evidence and information before the Court, I find that there was no actual refusal by the appellant to assist the police officers investigating the assault by the respondent on 20 September 1999. The police had by reason of the evidence already in their possession, sufficient evidence to commence proceedings against the respondent and to prove the offence. As noted, the matter did not proceed to trial because a judgment of conviction was entered on the respondent's own admission of guilt.
56 I accept the submission by counsel for the appellant that, in any event, there was no apparent attempt by the Assessor to assess the reasonableness of the appellant's alleged failure to assist the police.
Section 38 of the Act
57 Section 38 of the Act provides as follows:
"38. No award if applicant did not assist investigators
An assessor must not make a compensation award in favour of a victim, or a close relative of a deceased victim, if the assessor is of the opinion that the victim or close relative did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person who committed the offence."
58 There is some controversy as to the proper construction and meaning of s 38 of the Act and in particular, in what circumstances it operates to bar an award. The primary mischief aimed at is to ensure that the law enforcement authorities are not prevented by reason of any knowledge or information in the possession of the victim (or close relative) from investigating the factual circumstances of an alleged offence. This includes any matter relevant to the identification, apprehension or prosecution of the person who may have committed the offence.
59 In my opinion the question of whether s 38 should operate as a guillotine on a claim for an award by the victim of an offence must be assessed carefully and with a great deal of scrutiny. The remedial object and purpose of the legislation must be borne in mind. The Assessor will ordinarily be required to make findings of fact based on the available evidence and information about the relevant circumstances and context in which the alleged failure to assist occurred.
60 The public policy behind the Act is to "provide for the payment of compensation to victims of offences in some circumstances, and for related matters" (the long title). Other factors relevant to the proper construction of s 38 include an accused person's right to silence and the competing public interest policy of ensuring that the perpetrators of criminal acts are identified, prosecuted and sentenced for their crimes. In this sense it must be understood that crimes of personal violence are also crimes against the whole community. This is self-evident from the "ripple effect" of the consequences and ramifications from the act of violence which emanate in decreasing magnitude from the victim to the whole community.
61 It must be remembered that the Act also provides for an award of compensation in circumstances where an alleged offence occurred as opposed to cases when the offence which has been proved or is admitted by an offender. The operation of s 38 is more likely to be contentious in crimes where the offender is known to the victim. It is in this arena that certainty of meaning is particularly required because of the public interest in having the offender identified and dealt with.
62 Section 38 is rarely invoked. In Prideaux v Chief Executive Officer [2000] WADC 143 Blaxell DCJ (as he then was) allowed an appeal where the Assessor refused an application based on s 24 (which is in equivalent terms to s 38 of the Act) of the Criminal Injuries Compensation Act 1985. In that case, the appellant was assaulted after leaving his sailing club to walk home. The appellant had no warning of the attack. The force of the blow caused him to fall to the ground and he next remembered being assisted to his feet by a fellow club member. Four people attended on him and nobody could see any other person in the vicinity. The incident occurred in a "lonely dark area" and the trial Judge was satisfied that it was unlikely other possible witnesses may have observed what occurred. The appellant did not seek medical treatment for his injuries until about a week later. He did not report the assault until he was persuaded to do so about 16 months later after a "casual conversation with an acquaintance who was a police inspector at a country station". At [15] his Honour said in relation to the construction of s 24:
"As a matter of construction, I do not consider that this provision requires that an applicant's lack of action be judged by reference to what a hypothetical reasonable person would have done. The section focuses on the applicant and what 'he' ought reasonably to have done. Accordingly, although the ultimate test is what was objectively reasonable in all the circumstances, that test is to be applied by reference to what could reasonably be expected of the particular applicant."
63 Applying this test in the circumstances before him his Honour did not consider that "this particular appellant ought reasonably to have reported the assault to the police".
64 In IGG [2004] WACIC 8 the learned Assessor refused to apply s 38 of the Act to bar the applicant's claim because, in his opinion, the applicant's refusal to assist in the prosecution of the alleged offenders was not unreasonable. The applicant did provide a statement to the police about the incident which identified all of the alleged offenders. In reaching his view, the Assessor adopted a "subjective approach to the question whether the applicant's refusal to give evidence was reasonable. That involved a consideration of the mental status and personality of the applicant which was reflected in the report of Dr Wu".
65 In CME [2004] WACIC 9 the same Assessor adopted a subjective approach to the question of whether the applicant's refusal to assist the investigating police officer was reasonable because the applicant believed the offender continued to pose a threat to her safety. Applying the test adopted, the Assessor considered the mental condition of the applicant, her fears for her safety and the medical evidence. He was not prepared to conclude that the applicant's refusal to assist in the prosecution of the offender was unreasonable in the circumstances.
66 In VPAN [2007] WACIC 41, the learned Assessor held it was reasonable in the circumstances of that case for a person in authority to withdraw her consent to two children being interviewed by police in relation to alleged offences.
67 The proper construction is not immediately obvious. It is also muddied by the heading of s 38, namely "No award if applicant did not assist investigators". This arguably speaks of the situation where a victim refuses to assist an investigator by refusing to do an act, rather than omission. It should be noted s 32(2) of the Interpretation Act 1984 provides that the heading of the section is not to be taken as part of the written law.
68 Counsel for amicus curiae submitted that the concept of failure to assist for the purpose of s 38 should be construed broadly and that it might, subject to the relevant circumstances, include a failure to assist by not complying with a request by an investigator to do something (e.g. make a statement). Counsel also contended that 'assistance' could mean an obligation in a wider sense, in effect, an obligation to do something which could objectively, or reasonably be expected to, assist in the identification, apprehension or prosecution of an offender but circumscribed by the victim's own subjective circumstances. In either case, failure to assist in itself is not immediately exclusionary but must be determined by reference to the particular circumstances of the case, including those referable to the victim. Counsel for the appellant, in my view, agreed with the section having the broader reach.
69 The question remains to what extent s 38 imposes an obligation upon a victim to do something positive which can be properly characterised as assisting the identification, apprehension or prosecution of the offender. In my view, there can be no doubt that the obligation, whatever it is, must be understood in the context of the subjective circumstances of the victim and not what objectively a reasonable person might or might not have done. This much at least is borne out by the authorities referred to.
70 It follows there is a need to know and understand the full circumstances and context of the victim in relation to what it is said that he or she ought to have done to assist. This might be, depending on the case, a positive refusal to a lawful request for assistance by an investigator. Alternatively, it might arise because the victim is found not to have done something which was objectively of sufficient gravity and importance to the task of indentifying, apprehending or prosecuting the offender that they should not be permitted to make a claim for compensation, notwithstanding their own individual circumstances.
71 In this case the investigation and prosecution of the respondent's offence for his assault of the appellant on 20 September 1999 was not inhibited or delayed in any manner as a result of anything that the appellant did or did not do insofar as her communications with the police were concerned. This is not a case where the applicant did something by act or omission that prejudiced the prosecution of the offender by the law enforcement authorities.
72 In my view, in the circumstances of this case there is no proper basis for the operation of s 38 to prevent an award of compensation being made to the appellant.
Nature of the relationship between the victim and offender
73 Having reached the view that the appellant is not precluded from receiving an award of compensation by reason of s 38 of the Act, it is necessary to determine the application on its merits. No provisional award was made by the Assessor. The appellant claims that she suffered physical injuries and psychological injury characterised as post-traumatic stress disorder as a result of the offence committed against her by the respondent on 20 September 1999.
74 In this case it is necessary to understand the history and the nature of the relationship between the appellant and the respondent before and after the offence in order to assess the award. The extent of the physical injuries is set out in the documentary medical evidence at the time. However the extent, if any, of the alleged psychological injury that can be attributed to the offence is moot because the information before the Court is that the relationship between the parties involved a long history of extreme domestic violence and psychological abuse. This is evidenced by the "punishment" imposed by the respondent on the appellant following the assault over a period of months before her eventual incarceration (and even thereafter as evidenced by the control and influence he continued to assert on her for a period of time while they were both imprisoned for their separate crimes).
75 According to the appellant's affidavit, she left home when she was about 16 years old and met the respondent when she was 17. The respondent was 22 years old at the time. Soon after they met they commenced a relationship and started living together in early 1985. At the time she was working and the respondent was unemployed. In 1994, when the appellant was pregnant with their third child, she and the respondent married.
76 A full account of the nature of the relationship between the parties is set out in the appellant's affidavit sworn 6 May 2010. It is not necessary for the purpose of this application to refer to all the details except to say that the relationship was marred by physical violence and emotional abuse imposed on the appellant by the respondent. The control of the appellant was reinforced by the respondent by his membership of an outlaw motorcycle gang to back up his threats and demands of the appellant, particularly after the incident which gave rise to the offence. Notwithstanding the apparent "open" nature of their relationship at the time, the respondent seems to have demanded a different course of conduct from the appellant, which did not apply to him.
77 The extent of the power and influence of the respondent over the appellant can be demonstrated by reference to one incident. According to the appellant, she took her son to hospital because he was having difficulty breathing. A nurse was attempting to put an oxygen mask on the child which caused him to panic because he did not understand what was happening. Without invitation, a hand holding a pair of handcuffs reached through the closed curtain beside the appellant and the child. The child was distracted and immediately started to calm down. After a while the policeman concerned came through the curtain and spoke to the child (he was there in relation to the patient in the adjacent cubicle). As a result of this action the child was controlled and medical assistance was able to be provided. The appellant says that she was immediately grateful but also very concerned about the respondent becoming aware of the incident.
78 According to her, she had been assaulted previously by the respondent as a result of an incident concerning the police. Apparently the respondent, because of his participation in the motorcycle club, regarded the police as "the enemy" and he had inculcated this attitude in her. On returning home, the appellant said that her son mentioned the policeman. Even though the appellant explained that the policeman had been escorting a patient in the next cubicle and the circumstances of his intervention, the respondent "flew into a rage". The appellant says the respondent grabbed her by the hair and tried to cut it off with scissors. Injuries sustained included lacerations to the appellant's hands, head and rib cage and as a result she received treatment at the Joondalup Health Campus hospital. This event occurred on 15 May 1999 and resulted in a skin graft on her finger because of the amount of skin that had been cut away.
79 In addition to the matters deposed to in the appellant's affidavit, insight into the abusive nature of the relationship is contained in the medical reports of Dr Coxon and Mr Evans (obviously based on what the appellant reported, in the course of her examination by Dr Coxon and her counselling over a long period of time by Mr Evans).
80 Dr Fellows-Smith in his report of 29 January 2001 diagnosed the appellant as having post-traumatic stress disorder in the context of physical, emotional and sexual abuse by the respondent during their relationship. He noted that the appellant, at that time, was reluctant to talk openly because she claimed that the respondent had instilled upon her the need for secrecy and loyalty specifically with regard to authority figures. Dr Fellows-Smith noted that the appellant said that this had been reinforced by "frequent beatings which occurred on a weekly basis throughout her married life". He also noted that the appellant stated "she was sure that in due course she herself would be murdered for what had happened as an example to others". This comment was made in the reference to the respondent's membership of the motorcycle club.
81 Mr Saunders, a clinical psychologist, in his report dated 20 May 2001 said:
"The extent and severity of this physical abuse can be gauged by her reports not only of the assault that resulted in Mr Hinchcliffe's current gaoling, but also that Mrs Hinchcliffe reported three episodes when, as punishment and humiliation, she was forced to shave her hair. She reported innumerable beatings and almost casually mentioned that on one occasion she was beaten, stripped naked and then dumped out of a car by her children's school and made to run home naked in front of the other mothers. Similarly, on another occasion, Mr Hinchcliffe assaulted her over a long period and then, at dawn, took her to a house occupied by two men that Mr Hinchcliffe believed Mrs Hinchcliffe had had sex with, and threw her naked on their lawn.
Mrs Hinchcliffe reported that she became totally subservient and believed herself powerless to escape his violence and control ..."
82 Mr Saunders was also of the opinion that the appellant's "profile was consistent with traumatic stress caused by victimisation or combat experience".
83 The appellant was reviewed on 16 April 2010 by Dr L W Coxon for the purpose of preparing a report for these proceedings. Dr Coxon is a registered clinical and forensic psychologist and has a doctorate in clinical psychology. She described post-traumatic stress as a form of nervous shock and as such a disorder of a more enduring nature rather than just an emotional reaction at the time of the traumatic event.
84 Dr Coxon described the current physical symptoms of the appellant and based on her assessment expressed the opinion that the appellant suffered from "chronic post-traumatic stress disorder of a moderate degree with a moderate level of impairment in functioning". In her report Dr Coxon says the "psychological factors coupled with the belief" by the appellant that if she admitted the abuse to the police she would "end up in a box in the ground" prevented her from disclosing the identity of her assailant. Her symptoms were described by Dr Coxon as continuing post-traumatic stress disorder with "co-morbid anxiety and depression plus a constellation of other symptoms listed above as a result of the ongoing abuse. She now considers that she was 'brainwashed into believing she was "bad" and "would end up in a box in the ground" if she were to "consort with the enemy", i.e. the police".
85 Dr Coxon is of the opinion that the appellant requires ongoing intensive treatment for "at least another year or so" and that "this may be best conducted through the prisoners' counselling services". However, she says if a specialist clinical psychologist is to be funded she considered at least 20 sessions of clinical psychology treatment would be required. She estimated the cost of such sessions based on the Australian Psychological Society Ltd recommended fees schedule of $206 per hour effective from 1 July 2009 to be about $4,120 plus travelling time.
86 The appellant while in custody has received from time to time treatment through the prison counselling service from a Department of Corrective Services clinical supervisor who is a psychologist. The counselling has been provided to the appellant by Mr M Evans since 12 March 2003 with the exception of two lengthy periods of suspension. The opinion of Mr Evans is set out in his report of 19 February 2010. The report was received by the Court on the basis of a disclaimer from the Department of Corrective Services dated 14 May 2010 concerning the circumstances of its creation.
87 The appellant relies upon the opinion of Mr Evans and in my view it should be received by the Court. In his report Mr Evans says:
"Psychological Issues Arising From Marital Relationship
It is the author's assessment that Ms Hinchcliffe suffered and in certain respects continues to suffer from a range of psychological issues arising from her relationship with Mr Hinchcliffe and the abuse and trauma she suffered at his hands.
Across the course of the relationship Ms Hinchcliffe experienced a systematic and pervasive deconstruction of her fundamental sense of self and identity resulting in her becoming a literal extension of Mr Hinchcliffe and his beliefs, values and treatment of her. Ms Hinchcliffe actively participated in her own objectification and degradation, which served to further erode her sense of self and worth. This was compounded by the unrelenting fear and hypervigilance. Ms Hinchcliffe lived with and the constant (almost religious) manner in which she would prepare for her punishments, abuse and traumatisation. These were reinforced by Ms Hinchcliffe's isolation from friends and family across the course of her marriage rendering her increasingly and eventually entirely dependent on Mr Hinchcliffe for what little worth or utility she would see in herself.
It is the author's assessment that in addition to meeting the requisite criteria for a diagnosis of Post Traumatic Stress Disorder, Ms Hinchcliffe suffered a derivative loss of self worth and identity ..."
88 In his report Mr Evans refers to the impact of the assault on 20 September 1999 on the mental state of the appellant. He said:
"The assault on Ms Hinchcliffe for which she is seeking compensation was a significant and paralysing point of realisation as it initiated the process of cementing and finalising for her how helpless and isolated she was in the world. The assault marked the origin of the 'sentence' imposed by Mr Hinchcliffe and thus defined the point in Ms Hinchcliffe's life from which her fundamental purpose became to pay for and repair the damage she caused by shaming and betraying Mr Hinchcliffe. Ms Hinchcliffe reports the assault was perpetrated in such a way that it marked an unprecedented height of rage, viciousness and sadism in Mr Hinchcliffe that instilled her in a deeper fear that she had typically known to that point. Ms Hinchcliffe reports this was compounded by the sustained nature of the attack, which was also unprecedented."
89 As to the need for future treatment, Mr Evans' opinion is that the appellant should have fortnightly sessions until about 12 months after her release which he conservatively estimates to be six to eight years.
90 The Court was not provided with specific submissions by either counsel as to the right of a serving prisoner to receive private medical treatment whilst serving a term of imprisonment. In my view, in the circumstances of this case, there is a need in assessing the appellant's award of compensation to make an allowance for the injury sustained by her as a result of the offence to include an element for "mental and nervous shock" in addition to the bodily harm and physical injuries sustained: s 3, definition of "injury".
91 However, because the assault was but one of many in the course of the relationship between the respondent and the appellant, it is difficult to assess the extent to which the appellant's psychological symptoms and post-traumatic stress disorder can be attributed to the compensable event in question. In such circumstances the court is obliged to do the best it can using the information available to it. There can be no doubt that the majority of the appellant's psychological symptoms must be attributed to all of the domestic abuse perpetrated on her by the respondent throughout the course of their entire relationship, a period of 15 or 16 years.
93 The maximum amount that may be awarded to the appellant is $50,000: s 31. The claim is limited to the appellant's injuries attributable to the assault on her by the respondent on 20 September 1999.
94 In my view there is no prospect that any award of compensation made in favour of the appellant is likely to benefit the respondent: s 36. The evidence is that the relationship between them is finished and the appellant has divorced the respondent.
95 In the circumstances of this case, in my view s 41, which directs a consideration of the behaviour, condition, attitude or disposition of the appellant that may have contributed directly or indirectly to her injury does not apply and does not provide any proper basis to reduce the amount that should otherwise be awarded.
96 I am satisfied on the information and material before me that the appellant suffered physical injury and mental and nervous shock as a result of the respondent's offence on 20 September 1999.
97 In my view the appropriate award of compensation must take into account the fact that the appellant has no residual physical symptoms from the bodily harm suffered from the offence. Allowance must be made for the ongoing psychological and associated symptoms described in the medical evidence, but only to the extent caused by the offence. The Court is required to make a finding in this regard based on the evidence before it. This is made more difficult because of the time and events that have elapsed since the offence was committed by the respondent.
98 In my view the extent of the mental and nervous shock suffered by the appellant which can be fairly attributed to the offence is small. A consideration of the appellant's circumstances at the time of the offence, and the expert psychological evidence, tends to suggest that the offence was just one incident in the whole spectrum of conduct by the respondent towards the appellant over a long period of time which, overall, was causative of her mental symptoms.
99 In my opinion the "punishments" imposed by the respondent on the appellant after the offence are more likely to have contributed in a serious way to her current symptoms than the offence itself. The respondent's behaviour towards the appellant after the offence is more likely to have been the catalyst for the appellant's extreme conduct evidenced by the commission of her own crime. This tends to suggest, if the appellant's actions manifested themself temporally, that the majority of the psychological harm occurred after she was assaulted by the respondent on 20 September 1999. It must be remembered that the offence is similar to other assaults that had been perpetrated against the appellant by the respondent up until that point in time. It only constituted one aspect of a course of conduct by the respondent over a long period of time which was intended to subjugate the appellant for the purpose of making her subservient and submissive.
100 In my view a proper assessment of the compensation to which the appellant has a legal right under the Act and which can be fairly attributed to the offence committed by the respondent on 20 September 1999 is $5,000. The award is made in relation to all aspects the physical and mental injury suffered by the appellant.
101 I am not satisfied on the evidence that there is any demonstrated need by the appellant to an entitlement to compensation for future medical treatment as a result of injury sustained directly from the offence on 20 September 1999. In any event, the appellant has not herself demonstrated that she has an intention or need at the time of her release to obtain medical treatment for her psychological injury. In this regard, the expert medical evidence does not permit a finding that the appellant will need treatment at the time of her release. Further, no case was made that the treatment presently available to her in custody at no cost does not in fact meet her reasonable needs.
102 The appellant is entitled to the costs of the preparation of Dr Coxon's report, fixed at $2,000.00.
103 For these reasons the appeal must be allowed. I make the following compensation award in favour of Ms Hinchcliffe:-
**Citation :** HINCHCLIFFE
HINCHCLIFFE