Gullelo v Halloran

Criminal Injuries Compensation Act 2003 (WA)

Mr C Madondo on behalf of the Chief Executive Officer of the Department of Justice

Gullelo v Halloran [2008] WADC 145

Guy v Hampson [2019] WADC 19

Lloyd v Small (1996) 16 SR (WA) 111

Martin v Martin [2015] WADC 138

Re CJR [2023] WADC 111

Re Coad [2023] WADC 9

Re TLJ [2016] WADC 74

1. This is an appeal against an assessor's decision refusing criminal injuries compensation.
2. The appellant claims that in February 1987 she was kidnapped by unknown individuals at a house in Capel, Western Australia. At the time she was 11 years old.
3. On 15 April 2025 the appellant applied for compensation under s 17(1) of the Criminal Injuries Compensation Act 2003 (WA) (the Act). In the application and supporting documents, the appellant referred to other alleged offences committed against her including rape, institutional sexual abuse, stealing, inadequate housing provided by the Department of Housing and witnessing a friend being murdered.
4. On 22 May 2025 an assessor of Criminal Injuries Compensation refused the appellant's application for compensation. In a letter setting out short reasons for the refusal of the application, the assessor said that she was not satisfied that any offence had been committed.
5. On 2 June 2025 the appellant appealed the assessor's decision. For the reasons that follow, I dismiss the appeal.

1. Section 55 of the Act gives a right of appeal to this court against an assessor's decision to refuse to make a compensation award. By s 56(1) of the Act the court 'must decide the application to which the decision relates afresh, without being fettered by the assessor's decision'.
2. The entirety of the evidence must be reconsidered independently of the assessor's decision.[1] The appeal is to be heard 'de novo' meaning a fresh hearing where the matter is heard again from the beginning and not confined to the materials presented in the original hearing before the assessor. Further, it is not necessary for the court to determine an error on the part of the assessor.[2]

1. In my reconsideration of the matter, I have independently reviewed the evidence, including fresh evidence adduced for this appeal, which I refer to in the next paragraphs. I have not had any regard to the merits of the decision of the assessor and have only considered the assessor's decision so as to give context to the submissions made by the parties in the appeal.
2. At the appeal hearing I granted leave to the appellant to rely upon five affidavits which were filed on 10 June 2025, 30 June 2025, 18 August 2025, 6 September 2025 and 26 September 2025. In addition to these affidavits, I have also had regard to a Book of Assessor's Papers,[3] which includes:
   • the appellant's two applications for criminal injuries compensation dated 15 April 2025 and 18 April 2025 and various medical records;
   • correspondence between the Office of Criminal Injuries Compensation and the appellant; and
   • the refusal letter from the assessor dated 22 May 2025.
3. No person has been convicted of any offence relating to the matters the appellant has raised. Accordingly, it is necessary to assess the appellant's application by considering whether an offence was committed which caused her to suffer an injury.

1. Where a person suffers injury as a consequence of the commission of an offence, the person may apply for compensation for that injury and any loss suffered as a consequence of the injury.[4] In this respect, compensation is capable of being awarded if an applicant establishes on the balance of probabilities that a specific act was committed against the applicant which would qualify as a crime, misdemeanour or simple offence if the perpetrator had been convicted and which caused injury to the applicant.[5]
2. The standard of proof when considering whether an alleged offence was committed is the civil standard - the balance of probabilities. The court must be satisfied that an alleged offence occurred in the manner described by the applicant for compensation which resulted in an injury to the applicant and, further, it must be more probable than not that the alleged offending occurred.[6]
3. Plainly, it is a serious matter to find that an alleged offender has committed a criminal offence. The court must exercise caution in assessing whether an offence has been committed. The evidence must survive careful scrutiny and must be precise and not loose or inexact.[7] The court must feel an actual persuasion that the offence alleged actually occurred. While corroboration is not essential, the relevant question is whether the court is satisfied that the applicant has proven his or her claim on the balance of probabilities, having regard to the seriousness of the allegation and the apparent credibility, accuracy and reliability of the applicant's evidence.[8]

1. Under s 9(1) of the Act, an application for compensation may be made within three years after the date on which the offence was committed. An assessor, or the court, may allow an application for compensation after the three-year period if 'it is just to do so'.
2. The appellant's application for compensation is more than 30 years out of time, the alleged kidnapping having occurred in February 1987. On the materials before the court, the appellant has not provided any explanation for the delay in making the application.
3. The relevant factors for determining whether it is just to extend time include:

(a) the history of and background to the proposed application;

(d) the prospects of the compensation application succeeding;

(e) the consequences for the parties of the grant or refusal of an extension of time, including the extent of any prejudice to the offender; and

(f) whether injustice will be suffered if an extension of time is refused.[9]

The evidence the appellant relies upon to seek criminal injuries compensation

1. The appellant relies on the material I have set out at [9] above in support of her application for compensation.
2. The appellant's affidavits contain descriptions of various incidents throughout her life. Her account of an alleged kidnapping in February 1987 is set out in [23] below.
3. The appellant's medical records disclose that she has suffered from a range of physical and psychological conditions including post-traumatic stress disorder (PTSD), bipolar spectrum disorder, chronic lower back pain, and extensive dental issues.[10]
4. In relation to the appellant's PTSD a medical report of Dr Dulcie Veltman dated 17 July 2006 attributes the condition to the lifelong impact of trauma beginning with the appellant's initial separation from her biological mother and family. Dr Veltman identifies additional traumatic events which, in her opinion contributed to the appellant's psychological condition including the loss of her father, biological mother and separation from her first child. The medical evidence does not appear to identify (or mention) any link between the alleged kidnapping and other alleged offences to any of the appellant's injuries.
5. Dr Veltman's report does not mention the alleged kidnapping. The appellant's medical records do not identify any link between the alleged kidnapping and any of the appellant's injuries or psychological conditions.

1. As I have noted, the appellant alleges she was kidnapped in 1987. Kidnapping is an offence under s 332 of the Criminal Code (WA).
2. The appellant describes the incident in which she was kidnapped broadly in these terms:[11]
   1. She had recently moved from Perth to Capel to live with her mother and was unfamiliar with the area and its residents.
   2. On an unspecified date in February 1987, she went to visit a friend at a house in Capel.
   3. Upon arrival, she was approached by individuals who were not the friend she had intended to visit but who claimed were associated with the occupiers of the house and invited her inside.
   4. Shortly after entering the premises, she began to feel dizzy and disoriented and subsequently 'passed out' on a bed inside a room in the house.
   5. She does not recall what caused her to pass out or what occurred during that period.
   6. The individuals provided her with adult magazines and instructed her not to disclose the incident to anyone.
3. At the time of the alleged incident, the appellant was 11 years old. There is no real surrounding information as to the alleged kidnapping other than the description given by the appellant which I have attempted to summarise.
4. Kidnapping, within the meaning of the Criminal Code, occurs when a person deprives another person of personal liberty by, relevantly, taking the other person away or enticing the other person away. The offence requires proof that the alleged offender detained the victim with intent to, amongst other things, cause a detriment, pecuniary or otherwise, to that person by threat or demand or both.
5. There is no corroborating evidence to support the appellant's allegation of kidnapping. Specifically:
   1. No police report was made at the time or subsequently.
   2. No medical evidence links the appellant's conditions to the alleged kidnapping.
   3. No witness has provided a statement supporting the allegation.
   4. No contemporary records exist documenting the incident.
   5. The appellant has not provided evidence that she reported the matter to any person at or near the time.
6. I must determine whether, on the balance of probabilities, the alleged kidnapping occurred as described by the appellant.
7. I must approach this question with caution, given the seriousness of the allegation and the fact that the alleged offenders have had no opportunity to respond to the allegations.
8. The appellant's account is limited in detail. She cannot provide a specific date, she cannot identify the alleged offenders, she has very limited recollection of the events she describes, and she cannot explain what caused her to lose consciousness during the incident.
9. While I accept that a claim for criminal injuries compensation based upon an alleged offence does not necessarily require corroboration, the complete absence of any supporting evidence, combined with the very limited detail in the appellant's account and the passage of some 38 years, leads me to conclude that I cannot be satisfied on the balance of probabilities that the alleged kidnapping occurred.
10. Accordingly, I am not satisfied that the appellant suffered injury as a consequence of the alleged offence of kidnapping contrary to s 332 of the Criminal Code in Capel in 1987.

1. In her affidavits, the appellant referred to various other alleged incidents spanning from 1987 to 2024. These included allegations of rape, institutional child sexual abuse at a Salvation Army facility, being given medication without proper justification, losing custody of her son due to inadequate housing and damage to her teeth from chlorinated tap water.
2. The other alleged offences are not expressly listed in the compensation application form. Pursuant to s 56(2)(a) of the Act, the court, when determining an appeal from an assessor's decision, may exercise any power conferred on an assessor under the Act. This includes, relevantly, the power to amend a compensation application either on the application of an interested person or on its own initiative.[12]
3. In my review of the documents attached to the appellant's affidavits I have not been able to identify with sufficient precision any specific act or incident so as to enable me to conclude that the appellant suffered injury as a consequence of the commission of an alleged offence.
4. In these circumstances I have exercised my discretion to not treat the appellant's application as being amended to extend to any alleged offence other than the kidnapping allegation I have dealt with earlier in my reasons.
5. Given that I am not satisfied that the appellant suffered injury as a consequence of the alleged offence of kidnapping in Capel in 1987, I conclude that the appellant's delay in bringing the compensation application does not favour allowing the application to proceed out of time.
6. I make the following orders:
   1. The time for making the compensation application is not extended to the date that the appellant filed the application.
   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] See, for example Re Coad [2023] WADC 9 [10], [17] (Troy DCJ). See also Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ) (Guy).

[2] Gullelo v Halloran [2008] WADC 145 [5] (Commissioner Staude as his Honour then was).

[3] As part of the appeal the court was provided with copies of the documents that were before the assessor, and which were supplied to the court pursuant to r 52(3) of the District Court Rules 2005 (WA).

[6] Re TLJ [2016] WADC 74 [51] (Goetze DCJ).

[7] Martin v Martin [2015] WADC 138 [30] (Derrick DCJ) citing Lloyd v Small (1996) 16 SR (WA) 111 [113] - [114].

[9] See, for example, Re CJR [2023] WADC 111 [52].

[10] Book of Assessor's Papers, pages 124, 126, 127 and 135.

[11] Book of Assessor's Papers, page 14 being derived from a statutory declaration made by the appellant.