Criminal injuries compensation - Appeal - Fresh evidence - Whether award should be reduced for victim's behaviour - Apportionment between proved offences and alleged offences

Criminal Injuries Compensation Act 2003 (WA), s 12, s 16, s 31, s 41, s 45(1)(b), s 55(1), s 55(2), s 56(1), pt 6

Ms R Eaton on behalf of the Chief Executive Officer of the Department of Justice

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

Curran v Champion [2012] WADC 9

Hinchcliffe v Hinchcliffe [2010] WADC 78

Martin v Martin [2015] WADC 138

Nagel v Tahere [2020] WADC 110

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

Re Tilbury [2010] WADC 46

TAW v NJS [2011] WADC 187

Taylor v Paindelli [2016] WADC 160

Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173

1. On 8 August 2019 an assessor of criminal injuries compensation (the assessor) granted the respondent $75,000 in compensation for injuries sustained as a result of the conduct of the appellant and others on 3 August 2014 outside Murphy's Irish Pub in Mandurah.
2. The respondent was punched, knocked to the ground and kicked resulting in him suffering a significant injury to his right eye.

1. The assessor determined that $40,000 was an appropriate award of compensation for the appellant's non-pecuniary loss and that $64,789.10 should be allowed for loss of income. The combined assessment for loss of income and non-pecuniary loss was therefore $104,789.10.[1]
2. The assessor reduced the award to $75,000 in accordance with the statutory maximum prescribed by s 31 of the Criminal Injuries Compensation Act 2003 (WA) (the Act).
3. Pursuant to s 45(1)(b) of the Act the assessor apportioned $50,000 to a proved offence (as defined in s 12 of the Act) for which the appellant was convicted. The remaining $25,000 was apportioned to 'alleged offences' (as defined in s 16 of the Act) committed by others and with whom the respondent had been jointly charged.
4. The assessor ordered that only $50,000 may be the subject of proceedings under pt 6 of the Act against the appellant (thus limiting the amount of compensation that could be recovered against him).

1. On 27 August 2019 the appellant filed a notice of appeal challenging only the assessor's order made under s 45(1)(b) of the Act.
2. Section 55 of the Act provides:
   1. Appeal lies to District Court

(1) An interested person may appeal to the District Court against an Assessor's decision -

(a) to make or to refuse to make a compensation award;

(2) The CEO or an offender may appeal to the District Court against an Assessor's decision -

(a) to make or to refuse to make, or to cancel or amend or to refuse to cancel or amend, a compensation reimbursement order under section 52;

(b) as to the amount of a compensation reimbursement order made or amended under section 52.

1. Section 55 does not permit appeals against an order under s 45(1)(b) of the Act: Curran v Champion [2012] WADC 9 [78] - [79] (Staude DCJ) affirming Tidmarsh v The Assessor for Criminal Injuries Compensation [2011] WADC 173 [21] (Bowden DCJ). Thus, the notice of appeal filed on 27 August 2019, insofar as it sought to challenge only the order under s 45(1)(b), was incompetent.
2. On 27 May 2020 (after being granted leave to do so by Lemonis DCJ) the appellant filed an amended notice of appeal.

The grounds of appeal in the amended notice of appeal

1. The amended notice of appeal refers to s 55(1) of the Act and contains three grounds.
2. Grounds 1 and 2 challenge the assessor's findings as to the extent to which the appellant caused the respondent's injuries.
3. Ground 3 challenges the amount of the award of compensation. Under this ground the appellant asserts that the assessor did not take into account the respondent's contributory behaviour having regard to s 41 of the Act.
4. The appellant seeks leave to adduce fresh evidence in support of ground 3. The appellant submits that the fresh evidence contradicts the psychological evidence before the assessor which would affect the amount of compensation that should be awarded for non-pecuniary loss.
5. The respondent has also sought to adduce fresh evidence in response to the appellant's submission that the quantum of compensation should be reviewed.

1. There are a number of questions that I must determine on this appeal. They are:
   1. Should I give leave to the appellant to adduce further evidence in relation to the respondent's psychological injuries? If so, what weight should it be given? Should I give leave to the respondent to adduce fresh evidence?
   2. What is the proper assessment of compensation in light of the evidence before the assessor and/or the fresh evidence?
   3. Should any award of compensation be reduced due to the respondent's contributory behaviour pursuant to s 41 of the Act?
   4. Does the psychological evidence before the assessor justify an award of $40,000 for non-pecuniary loss or some lesser amount?
   5. Do I have the power to vary the order made under s 45(1)(b) of the Act? If so, should I vary the order?

1. The assessor's file contained the following materials in support of the respondent's application:
   • The respondent's victim impact statement dated 15 March 2018.
   • A statement from the respondent's son dated 2 August 2017.
   • A statement from Kiri Barron, the respondent's friend.
   • Photographs showing the bruising and swelling to the respondent's face.
   • A discharge letter from Royal Perth Hospital.
   • Medical notes from Royal Perth Hospital.
   • A medical report dated 8 December 2014 from Dr Tran-Lee Kaing.
   • Medical notes from Mandurah Counselling Services (psychologist Dr Malcom Heckenberg).
   • Tax returns for the years 2009 - 2018.

1. In his victim impact statement of 15 March 2018 the respondent described the impact of the assaults on him as 'extremely significant'. At the time of the assaults the respondent was a partner in an automotive dealership and was in constant contact with the public. After the incident he was unable to perform his duties as he was terrified of repercussions from family members of the people who had attacked him. He took a lot of time off work, was not entitled to sick leave and had to relinquish his share of the business to his business partner.
2. The respondent's relationship with his wife broke down following the incident. They later separated and divorced.
3. By March 2016 the respondent could no longer afford to live in his house. He was not working and had no savings. He stayed with a friend for six months until he was able to obtain a job and find somewhere permanent to stay. At one point the respondent was living out of his car before finding accommodation as a warehouse caretaker at a storage facility for which he was paid $200 per week. He remained living at the storage facility (having little contact with others) for about eight months until he was removed from there by his son in May 2017.
4. The respondent said that he had become so depressed he thought of ending his life.
5. In October 2016 the respondent began to receive Centrelink payments - his only form of income.
6. After moving in with his son, the respondent was able to return to the workforce and started paying off his debts. However, he still found it difficult to be in public due to his anxiety.

1. The respondent's son Michael Palmer said that, prior to the incident, the respondent had been a driven and inspired businessman. The incident had changed him into a timid and shocked person who was more closed off than usual and who had developed an addiction to alcohol and gambling. This affected the respondent's business and his ability to socialise and show happiness. The respondent hit 'rock bottom' after he separated from his wife.

1. The respondent's friend and work colleague Kiri Barron had worked as a bookkeeper in the respondent's business.
2. After the incident, Ms Barron noticed a marked change in the respondent. She described him as having become a recluse who was having days off work, not attending social events and gambling.
3. Ms Barron said that the respondent's business declined following the incident and he was eventually stood down from his role. Following that, his life spiralled out of control. Eventually, he had to rely on friends for a place to stay.
4. Ms Barron said that after the respondent moved into the accommodation at the storage facility he became very isolated and was no longer vibrant and happy go lucky.

1. The Royal Perth Hospital records reveal that the respondent suffered severe swelling to the left side of his face. A CT scan identified fractures to the right orbit and medial wall of the right eye. A moderate quantity of air was observed in the right orbit with some localised haemorrhaging within the intraconal fat adjacent to the right optic nerve. A large quantity of blood was present within that nerve and the right maxillary sinus.
2. The hospital notes recorded that the respondent had swelling and pain to his face and was unable to open his right eye. He had bilateral bruising to both eyes, swelling to the left side of the face, blurred vision and pain in the right eye which was eased with anaesthetic drops. He had difficulty reading smaller print due to his right eye weeping.
3. In a report dated 8 December 2014 prepared for the police, Dr Tran-Lee Kaing said that the respondent was seen on 4 August 2014 by Dr Milton Ng after being transferred from Peel Health Campus following the assault. He had complained of decreased vision in the right eye with a pain score of 7 out of 10. He was observed to have right peri-orbital oedema, skin discolouration as a result of bleeding and a subconjunctival haemorrhage. His right eye was firm with very limited movement and vision of 6/12. The CT scan showed a right orbital floor medial wall fracture with haemorrhage into the eye socket. He had proptosis and had blood and gas in the eye socket.
4. Dr Kaing concluded that the respondent would suffer imminent visual loss without immediate release of pressure in the eye and so he performed a lateral cantholysis and canthotomy.
5. The respondent's symptoms and vision improved after the procedure. Dr Kaing noted there was no diplopia and a full range of eye movement by 12 hours post-surgery.
6. The respondent subsequently underwent repair of the lateral canthal ligaments. On 18 August 2014, his sutures were removed. A residual left cheek haematoma was drained under local anaesthetic.
7. The respondent was discharged on 1 September 2014.

1. Medical notes from the respondent's general practitioner reveal that following the incident the respondent was treated for extremely severe depression and a pathological gambling disorder.

The reports of psychologist Dr Malcolm Heckenberg

1. The respondent sought counselling from psychologist, Dr Malcolm Heckenberg.
2. The counselling notes record that the respondent was suffering low mood, low motivation, had a gambling problem, suffered a lack of social support and had suicidal ideation. A Davidson Trauma Scale test recorded a post-traumatic stress disorder (PTSD) score in the top 20.89% of people who have had PTSD.
3. When the respondent attended counselling on 23 May 2017 he reported feeling low but said he had been engaging in activities at home to improve his outlook. He reported spending three years living in a shell, without going out and suffering social anxiety and isolation. He was worried about getting bashed again. He had a fear of shopping centres and arguments in carparks.
4. On 29 April 2019 the respondent reported that his wife had left him eight months previously. Since then, he had begun gambling, lost his business and his father had died. He had lost his dog, his friends and was in financial distress. He was staying with his son and working to save money. He had commenced a relationship but was still fearful of going out and felt paranoid.
5. The respondent reported that he was still numb to the side of his face from the nerve damage. He was teary and angry about the disfigurement to his face.
6. The respondent attended counselling on a further three occasions. The notes record the respondent as being critical and down on himself. He had resumed smoking and increased his alcohol intake.
7. At his last appointment with the counsellor on 7 June 2019, the respondent was still suffering the effects of PTSD as well as grief at the loss of his health and nerve damage to his face.
8. Dr Heckenberg thought that the respondent was suffering PTSD as a consequence of the incident and this had caused him to engage in self-destructive behaviours including gambling and drinking.

1. The assessor reproduced the respondent's net income for the financial years 2009 - 2018 which she presented in tabulated form and which is reproduced here.

1. The assessor assessed his financial loss in [27] as follows:
   1. His increase in income in the 2018 financial year corresponded with him having sought psychological treatment from his GP and then the psychologist and after a time when [the respondent's] son had taken him in to assist him getting back on his feet. Using the income earnt in the financial year before the incident as a guide, [the respondent's] loss in the 2015, 2016 and 2017 financial years exceeded $64,000. I therefore allowed the sum of $64,789.10 for loss of income.
2. I can find no reason to depart from the assessor's assessment of pecuniary loss and gratefully adopt her methods of calculation. It follows that I would not interfere with her assessment of the quantum of pecuniary loss.

The appellant's application to adduce fresh evidence

1. The appellant has sought to adduce evidence of Facebook posts from 4 October 2014 to 20 October 2015 depicting the respondent in a way which the appellant submits was inconsistent with the psychological evidence.

The respondent's application to adduce fresh evidence

1. The respondent has also sought to adduce fresh evidence and has filed a book of documents containing the following:
   1. Letter from the respondent's solicitors to Mandurah Counselling Service dated 21 June 2020.
   2. Report of Dr Malcom Heckenberg dated 30 July 2020.
   3. Email from the Office of Criminal Injuries Compensation to the respondent's solicitors attaching the respondent's income tax returns dated 7 August 2020.
   4. Statement of the respondent dated 24 August 2020.
   5. Statement of John Yewdall dated 24 August 2020.

1. The court does have power to permit the parties to adduce further evidence: s 56(1) of the Act.
2. Fresh evidence should be admitted on appeal unless there is some reason why it would be unjust to do so: TAW v NJS [2011] WADC 187 [17] (Bowden DCJ); Hinchcliffe v Hinchcliffe [2010] WADC 78 [9] (Stevenson DCJ); Re Tilbury [2010] WADC 46 [3] (Martino DCJ); Taylor v Paindelli [2016] WADC 160 [7] (McCann DCJ).
3. Given that the respondent has also had an opportunity to adduce further evidence in response to the evidence sought to be led by the appellant, I have decided I should admit the evidence.

The fresh evidence as to the respondent's psychological injury - what weight should it be given?

1. The appellant submits that Facebook posts ostensibly made by the respondent in late 2014 and early 2015 show that the extent of his psychological injury was exaggerated and tend to cast doubt on Dr Heckenberg's conclusions.
2. The Facebook posts show the respondent in social situations (including at the same venue where the offending occurred). The appellant submits this is inconsistent and contradicts the conclusions of Dr Heckenberg to the effect that the respondent was not capable of socialising.
3. In order for me to be satisfied that the posts are inconsistent with the respondent's claims to psychological injury, I would need to be positively persuaded as to the existence of the relevant facts when making those findings. Given that the appellant asserts that the respondent has embellished the extent of his psychological injuries, I would need to be satisfied on the basis of strong evidence that he had done so. See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362, 363 (Dixon J); Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 449 - 450.
4. I consider that the evidence of the Facebook posts has little or no probative value: there is no conclusive evidence that the photographs were taken at the time that the posts were generated. Even if I were to accept that the posts establish the respondent was 'out and about' in a social setting at a time not long after the incident, there is no context to the posts which would permit me to draw any inference as to the respondent's state of mind. To attempt to draw any such inference would be an exercise in speculation.

Dr Heckenberg's report of 30 July 2020 concerning the Facebook posts

1. Dr Heckenberg was invited by the respondent to comment on the Facebook posts. In a report dated 30 July 2020 Dr Heckenberg said he would not alter his previously expressed opinion.[2]
2. Dr Heckenberg confirmed that the respondent suffered from symptoms of PTSD, extremely severe major depressive disorder, severe generalised anxiety disorder and a pathological gambling disorder.
3. Dr Heckenberg explained that the symptoms of the respondent's disorder became manifest immediately after the incident but the PTSD became more entrenched over time as he became more fearful of the possibility of being attacked again.
4. Dr Heckenberg said that the psychological injuries suffered by the respondent as a result of the offences committed against him on 3 April 2014 contributed to him later engaging in self-destructive behaviours such as gambling and drinking alcohol to excess. He considered that the respondent had only partially recovered from some of the psychological injuries suffered as a result of the assault on him.
5. Dr Heckenberg observed that the respondent was, and still is, a man who is able to put up a very good façade at being competent, confident and in control.[3]
6. Dr Heckenberg said that the Facebook posts had no bearing on his assessment of the respondent; he had encouraged the respondent (as he did with other clients with PTSD, anxiety and/or depression) to try and get out and socialise with friends and go on holidays. He considered that, if the respondent was drinking alcohol with friends, it helped him put up a façade of wellness and being happy.
7. Dr Heckenberg noted:[4]

I see the Facebook entries as being quite normal for someone who has been undergoing extreme stress. Holidaying and being social with friends are strategies to assist people to break out of their psychological trauma. Having had many conversations with [the respondent] I have been able to listen to and observe his mannerisms and behaviours. Nothing has caused me to doubt his truthfulness. There has not been anything to cause me to consider that he may be exaggerating any of his symptoms of psychological distress.

1. There is no reason to discount Dr Heckenberg's expert opinion and observations that the Facebook posts did not have a material bearing on his diagnosis. It follows that I find that the Facebook entries do not weaken the effect of Dr Heckenberg's conclusions and opinion.

Should I interfere with the assessor's assessment of financial loss?

1. On 8 September 2020 the respondent filed a further affidavit to supplement the statements he had submitted with his claim for compensation.
2. Annexed to the affidavit were tax returns for the years 2009 - 2018 the results of which were reproduced in a table.[5]
3. However, I proceed on the basis of the net income calculations conducted by the assessor (which were not challenged by the appellant) are correct.
4. Whilst there are different approaches to the calculation of financial loss, the learned assessor's approach was, in my view, a valid one and I would not interfere with it.
5. I gratefully adopt the learned assessor's calculation of financial loss. Based on the income earned by the respondent before the incident, I find that his loss in the years 2015, 2016 and 2017 amounted to $64,789.10.
6. In his affidavit, the respondent deposed that he continued to suffer psychological distress as a consequence of the incident. He was anxious about his safety and had resumed gambling in early 2015 having not gambled for over three years prior to that. His poor psychological state contributed to his decision to resume gambling.
7. The respondent swore that, but for his injuries, his work performance would not have suffered; he could have continued to work, would not have resumed gambling and would have continued to earn not less than $65,000 per year for the years ending 30 June 2015, 2016 and 2017.
8. I do not consider that the further evidence filed by the respondent would change the assessment of pecuniary loss made by the assessor.

Should there have been a reduction under s 41 for the respondent's behaviour?

1. Section 41 of the Act provides:
   1. Behaviour etc. of victim to be considered

In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an Assessor -

(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim's injury or death; and

(i) refuse to make a compensation award because of that contribution; or

(ii) reduce the amount that the Assessor would otherwise have awarded.

1. The appellant submits that some reduction should be made because of the respondent's provocative behaviour.
2. The appellant submits there is evidence that, prior to the incident, the respondent had been drinking, had taken dexamphetamine, was being threatening and had earlier assaulted a member of the appellant's family.
3. The appellant did not press this submission at the hearing before me. I note that in sentencing the appellant, the learned trial judge did not make a finding that the respondent had contributed to the escalation of events. It is not appropriate to interfere with the learned trial judge's findings of fact in this regard. For this reason, I do not consider I should reduce the award for 'contributory behaviour'.

The issue of apportionment between the respondent and others

1. The appellant was initially charged jointly with three others (who I will refer to as GJH and LMT) with the offence of grievous bodily harm with intent to do grievous bodily harm.[6]
2. On the first day of the scheduled trial, the State presented notices of discontinuance. The State then presented a new indictment charging the appellant and GJH with doing an act with intent to cause bodily harm or to endanger life contrary to s 304(2) of the Criminal Code (WA). Relevantly, proof of an offence under s 304(2) of the Criminal Code did not require proof that the offender did grievous bodily harm.
3. The appellant and GJH pleaded not guilty but the appellant did not deny assaulting the respondent. His defence was that he had hit the respondent in self-defence.
4. At the conclusion of the trial, GJH was acquitted but the appellant was convicted.
5. It did not necessarily follow from the jury's verdict that the appellant did the acts which caused the respondent's physical injuries. Consequently, it was necessary for the learned trial judge to make findings of fact for the purpose of sentencing.

1. The learned trial judge made the following findings of fact, as to the appellant's conduct.[7]

...

The interaction culminated in [the respondent] being punched to the face and knocked to the ground. The State case was that he lay on the ground for several seconds. The State case, so far as you were concerned, was that while he was there - and I might add there was no suggestion that it was you that had knocked him to the ground - but while he was there you approached him, took hold of his shirt, leant over him and hit him forcefully to the head.

The State contended that a few seconds later you took another swing at him and then took a few steps back by way of a run up and kicked him forcefully. The contention was that you'd kicked him in the head. It was said on your behalf no, that's not so, you kicked him in the back.

You gave evidence at trial. You said that you were frustrated at the police not doing anything about an assault on a family member, I think your father, or perhaps an uncle, inside Murphy's Bar; that had occurred apparently before the bar was closed. Outside the bar in the street you saw the respondent. You told the jury:

'He said he was going to come and get us so I took him by his word.'

When asked by your counsel what you did in that regard you said that you punched him in the face "not very hard". Having been punched in the face and still on the ground, you told the jury that you regarded the respondent as still being threatening both to you and your family, believing, mistakenly as it turned out, that the respondent had been the man who assaulted a member of your family inside the bar before it closed.

In fact, he hadn't been inside Murphy's Bar at all. When asked why you hit the man on the ground outside the bar, you said:

'Cos he was threatening my family and threatening me.'

It is significant that when you were interviewed by police about your role in this incident you made no mention of the respondent threatening you. Your evidence, of course, brought into play the defence of self-defence. I explained to the jury that it was up the State to exclude the operation of that defence beyond reasonable doubt. In summarising the evidence in the course of my charge to the jury, I said:

'The act alleged against Mr Milburn-Thomas is what was described as a forceful blow to [the respondent's] head seen on the closed-circuit television footage at 10:14:04. The State contends that the jury should draw an inference that the blow seen was inflicted with an intent to harm [the respondent] and not for some other reason and that it was likely to result or did result in his health or safety being endangered.'

I infer from the verdict that, in your case, the State succeeded in that regard finding that the State had excluded - the jury finding that the State had excluded the operation of self-defence beyond reasonable doubt.

...

I'm well aware, in the light of your conviction and the evidence at trial, that I must determine the facts relevant to the sentencing process. My findings must be consistent with the verdict of the jury but it is my responsibility to find the facts rather than to speculate about facts that may or may not have been found by the jury. It's only the facts necessarily implicit in the verdict of guilty after trial that cannot be controverted in the sentencing process.

To the extent that the verdict does not establish non-core facts, findings must be made by me. Where a non-core fact is aggravating, my finding must be on the criminal standard of beyond reasonable doubt. [GJH] was found not guilty. The basis of that verdict needs to be explored because the State case against him was that he had delivered a forceful and deliberate kick to [the respondent's] face, again while [the respondent] was lying prone and defenceless on the ground.

In opening the defence case to the jury, counsel for [GJH] contended that there was no kick to the face by his client but, rather, a kick to the upper chest. It was contended that the kick to the chest was to subdue [the respondent] so that he would not re-enter the fray. Of course, in truth, there was little or no prospect of that happening. I told the jury that if they were not satisfied beyond reasonable doubt that [GJH] had kicked [the respondent] in the face as alleged by the State, they should return a verdict of not guilty.

Further, I directed them that if they were so satisfied, then they would need to consider whether the State had excluded the operation of self-defence beyond reasonable doubt. It follows from the foregoing that the verdict of not guilty might have been arrived at by following either one of those pathways or a combination of both. I should not speculate about facts that may or may not have been found by the jury. I must form my own conclusions from the evidence.

Now, [GJH] gave evidence that he was outside Murphy's Pub when he saw you, [LMT] and [AH] walking away from the bar. He recalled you running back and seeing a young man in a maroon jumper punching his brother, [A]. He said that [A] fell backwards and remained on the ground. He said that he saw the young man in the maroon jumper in a confrontation with his brother, [C]. Following that, he said that a man in a black shirt started throwing punches at [C].

The latter fought back and the man in the black shirt fell to the ground. He said that he looked up, saw a flash of maroon to his side and was hit to the side of his head. The blow stunned him momentarily. He recalls seeing a man, quite clearly as it turns out, [the respondent], on the ground and claims that [the respondent] said to him:

The man said that he was, according to [GJH], going to get him. So [GJH] kicked him in the chest and told him to stay down. He denied kicking [the respondent] in the face and said that he'd kicked him to make him stay down so he wouldn't get hit again. The fight broke up. He went to his brother, [A], and picked him up and the police arrived. So you can see from that description that the whole melee was a combination of fights in the darkness outside Murphy's Bar involving a group of, as I say, very drunk men of varying ages.

In his closing speech Mr Scudds, for [GJH], urged the jury to look at the surveillance video and the still images that were in evidence and asked how they could be satisfied beyond reasonable doubt that the kick was to the face as opposed to the upper chest.

Having reviewed the evidence, I'm satisfied that both you and [GJH] kicked [the respondent] as he lay on the road surface. The kick delivered by [GJH] was to the upper chest rather than to the face or the head. I'm also satisfied that [the respondent] was knocked to the ground by a punch to the face by a person other than you and [GJH].

By the time the two of you struck him, he was on the ground and effectively not an immediate threat to anyone. I do not accept your evidence to the effect that the blows you struck were not very hard. I am satisfied beyond reasonable doubt in that regard. They, particularly the kick, were forceful blows.

(emphasis added)

The assessor's findings of fact relevant to apportionment

1. In her reasons the assessor purported to make findings of fact based on the findings of the learned trial judge and the jury verdict after having reviewed the evidence herself. Those findings appear at [5]:
2. Relevantly, the assessor made the following findings of fact:
   1. The [appellant], GJH, CTH and LMT were all charged with, as relates to [the respondent], with intent to maim, disfigure, disable or do some grievous bodily harm, did grievous bodily harm to him. On the first day of the trial, the indictment containing those charges was discontinued and a new indictment was issued directed towards the offender and GJH alleging they, with intent to harm [the respondent], did an act as a result of which his health or safety was or was likely to be endangered. No new charges were brought against CTH or LMT. Following trial the offender was convicted in the District Court at Perth on 20 January 2016. GJH was acquitted. I am therefore satisfied a proved offence as defined in section 12 of the Act was constituted.
   2. ... I was satisfied, after [the respondent] had been knocked to the ground by someone other than [the appellant, the appellant] approached [the respondent] whilst he was on the ground, punched him hard to the head twice then delivered a hard kick to [the respondent's] head whilst he was on the ground. I was further satisfied at least one of those hard blows was to [the respondent's] face.

1. The assessor concluded that, not only was the respondent the victim of a 'proved offence' committed by the appellant, but a victim of other alleged offences committed by CTH and LMT. She made the following relevant observations as to the cause of the respondent's injuries:

There remained the issue as to whether the application ought to have also been brought pursuant to section 16 of the Act, given [the respondent] was also punched to the face by someone other than [the respondent] and GJH, which led to him falling to the ground before he was punched and kicked by the offender and kicked by GJH. Section 16 provides an Assessor must not make a compensation award unless satisfied the alleged offender was charged and the charge was withdrawn but none the less [the respondent] suffered injury which occurred as the consequence of the commission of an alleged offence.

(emphasis added)

1. The assessor then analysed the issue of how responsibility for the respondent's injuries should be apportioned at [13] - [14]:
   1. I was satisfied [the respondent] was knocked to the ground by a punch to the face by a person other than [the appellant] or GJH. I was satisfied that person was CTH as this is consistent with the evidence of GJH at trial who said CTH '... blocked a few [punches] and hit him' after which 'that man fell to the ground'. I was also satisfied the blow struck by CTH was with sufficient force as to knock [the respondent] to the ground, after which he tried to get up, and threatened to get GJH, but I am not satisfied on the balance of probabilities this blow was a cause of [the respondent's] right sided facial injuries. [The respondent's] facial injuries were severe and included fractures of the right orbit and medial wall of the right orbit, air in the right orbit, proptosis of the right eyeball, haemorrhage adjacent to the right optical nerve with large quantities of blood therein and in the right maxillary sinus. I make this finding because [the respondent] said in his victim impact statement dated 15 March 2018 the blow that knocked him to the ground was to the left side of his face. I was satisfied this blow caused swelling to the left side of his face as reported in the RPH discharge letter dated 5 August 2014. I was satisfied on the balance of probabilities the blow to the left side of the face was not in self-defence as by that time, a fight had erupted between members of each group and on balance it was [the respondent] who was acting in defence of those in his group. As the charges against CTH had been discontinued, I was therefore satisfied an alleged offence was committed as defined in section 16 of the Act.
   2. I was satisfied GJH kicked [the respondent] to the chest but have no evidence this caused physical injury. I was also satisfied that blows struck by the offender were forceful blows at least one of which was to the right side of [the respondent's] face sufficient to cause the injuries sustained by [the respondent]. This is consistent with the evidence of [the respondent's] son who said the kick administered to his father's head was 'probably near on as much force as he could put in'.

Was the assessor correct to conclude that the appellant struck the respondent twice and that one blow was forceful enough to cause the injuries to the respondent's face?

1. With great respect to the assessor, her assessment of the appellant's conduct does not accord with the learned trial judge's findings of fact at sentencing. Contrary to the assessor's finding, the trial judge did not find that the appellant hit the respondent twice to the head.
2. At the trial the State did not allege that the appellant was jointly liable for the others' conduct. Significantly, the sentencing judge found the appellant was not responsible for the punch to the respondent's face which resulted in him being knocked to the ground.
3. The learned trial judge found that the appellant had taken a swing at the respondent, had then ran up to him and kicked him forcefully before he punched him in the face - and that both the appellant and GJH had kicked the respondent as he lay on the road surface. However, his Honour also found that the kick delivered by GJH was to the upper chest rather than to the face or head. Also, his Honour was satisfied that the respondent was knocked to the ground by a punch to the face by a person other than the appellant and GJH.
4. His Honour did not accept that the appellant's blows were not very hard. However, his Honour also not satisfied that the appellant was responsible for all of the respondent's injuries. The learned sentencing judge did not make a finding as to which injuries were caused by the appellant finding it was impossible to determine whether or not the appellant was responsible directly or indirectly for the respondent's injuries.
5. Although the assessor found that the blows struck by CTH to be of sufficient force to knock the respondent to the ground, she was not satisfied on the balance of probabilities that CTH's blow was the cause of the respondent's severe facial injuries.
6. The assessor found that the appellant's blows were forceful and that at least one of those blows was delivered (to the right side of the respondent's face) with sufficient force to cause the injuries sustained by him. The assessor found this to be consistent with the evidence of the respondent's son who gave evidence that the kick administered to the respondent's head was 'probably near on as much force as he could put in'.
7. I was invited to review the CCTV footage of the incident at this appeal which I have now done.
8. In my view, there is insufficient evidence in the CCTV footage (consistent with the learned trial judge's factual findings) that the appellant hit the respondent twice to the head.
9. The conclusion that the appellant approached the respondent whilst on the ground and punched him hard to the head twice then delivered a hard kick to the respondent's head whilst he was on the ground was incorrect.[8]
10. Consequently, the assessor's finding on the balance of probabilities that the appellant's blows were the cause of the respondent's severe facial injuries cannot be sustained.

Can I vary the assessor's decision under s 45(1)(b) of the Act if I choose not to interfere with the amount of the award?

1. Section 56(2)(b) of the Act gives me the power to 'confirm, vary or reverse' the assessor's decision in whole or in part.
2. There is conflicting authority as to whether this court has the power to vary an award under s 45(1)(b) of the Act. An order made under s 45(1)(b) of the Act cannot be appealed pursuant to s 55 of the Act. However, once an appeal is commenced then the powers given to the appellate court include the power to make an order under s 45(1) of the Act: Nagel v Tahere [2020] WADC 110 [30] (Gething DCJ).
3. I was referred by counsel for amicus curiae to the case of Martin v Martin [2015] WADC 138, a case in which Derrick DCJ held that he did not have the power to vary an award under s 45(1)(b) of the Act, relying on Tidmarsh v The Assessor of Criminial Injuries Compensation. In my view, however, Tidmarsh stands for the proposition that an order made under s 45(1)(b) of the Act cannot form the basis of an appeal. In Martin v Martin, Derrick DCJ did not specifically address the power of this court to vary an award under s 56(2)(b) of the Act on an appeal under s 55 of the Act. The present case is therefore distinguishable from Tidmarsh and Martin, because here the appellant has challenged the amount of compensation on the appeal under s 55 of the Act. Consequently, I am able to exercise the powers in s 56(2)(b) of the Act, even though I have concluded that I should not vary the amount of the award.

1. I consider, having regard to the respondent's contribution and doing the best I can to apportion the award in a just manner, I should adjust the apportionment of the award to limit the amount that can be recovered against the appellant to $15,000.

1. The appeal is allowed.
2. Pursuant to s 45(1)(b) of the Act, the amount that can be recovered from the respondent is $15,000.
3. The sum of $15,000 be the subject of proceedings under pt 6 of the Act.
4. I will hear the parties as to costs.

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

[2] Letter dated 21 June 2020 from the respondent's solicitors to Dr Heckenberg.

[3] Respondent's book of documents, page 8.

[4] Respondent's book of documents, pages 9 - 10.

[5] Respondent's affidavit dated 8 September 2020, par 3.