Re Burleigh [2025] WADC 11
In Re Burleigh [2025] WADC 11, the District Court of Western Australia allowed an appeal brought by a prisoner whose criminal injuries compensation claim had been refused by an assessor. The case addresses the correct application of section 38 of the Criminal Injuries Compensation Act 2003 (WA) (Act), particularly in the context of assaults that occur in custodial settings.
The Court also considered the scope of section 17 claims, the evidentiary burden to prove an alleged offence, and the appropriate approach to assessing compensation where pre-existing psychological conditions are present.
Background
The appellant, Mr Douglas Dwayne Burleigh, was serving a custodial sentence at Albany Regional Prison when he alleged, he was assaulted by other inmates on 14 April 2023. He suffered significant injuries to his jaw and was subsequently transferred to Fiona Stanley Hospital in Perth for surgical treatment.
Mr Burleigh lodged a criminal injuries compensation application on 12 January 2024 under section 17 of the Act, which allows compensation to be awarded for injury resulting from an alleged offence, that is, an offence where no person has been charged or convicted.
However, in a decision dated 8 August 2024, the assessor refused the claim, concluding that Mr Burleigh had not fulfilled his obligations to assist in the identification or prosecution of the offenders, thereby triggering the statutory bar in section 38.
The Appeal
The appeal was filed one day out of time, but the Court granted leave under section 55(4) of the Act, citing the minimal delay and the overriding interests of justice.
As an appeal under section 55 is a hearing de novo, meaning the court considered all evidence afresh without being bound by the assessor’s earlier findings, the Court was required to decide the matter afresh, with the benefit of additional material that had not been before the assessor. This included a statutory declaration from the appellant including updated medical records and a psychological report.
Did Section 38 of the Act Apply?
Section 38 of the Act provides that a compensation award must not be made if the assessor is of the opinion that the victim did not do anything they ought reasonably to have done to assist authorities in identifying or prosecuting the offender.
The assessor concluded that Mr Burleigh had:
- Failed to notify prison officers of the identity of the offenders;
- Failed to provide a formal statement to police;
- Prevented an internal investigation from proceeding.
However, the Court found that this assessment did not withstand scrutiny.
Key Findings:
- There was documented evidence that prison officers were aware of the incident, and the matter was reported to WA Police.
- The appellant was under medical supervision following the assault, undergoing jaw surgery, and had limited capacity to speak or provide detailed accounts in the immediate aftermath.
- The appellant claimed he requested police involvement while in hospital and assumed the matter had been passed on.
- There was no evidence that Mr Burleigh’s actions hindered an investigation, nor that he was ever approached by police following the incident.
Judge Cormann held that any failure to assist was reasonable in the circumstances, particularly given that the appellant was:
- A prisoner under State care;
- Injured and recovering from surgery;
- Dependent on prison authorities to liaise with external agencies.
Accordingly, section 38 did not apply, and the claim could proceed to be assessed on its merits.
Was the Appellant the Victim of an Alleged Offence?
To succeed under section 17, the applicant must prove, on the balance of probabilities, that an alleged offence occurred. This includes demonstrating that:
- An act occurred which would amount to a criminal offence if prosecuted;
- The act caused injury as defined under the Act.
In this case, the Court found that:
- The medical records and incident reports consistently referred to the event as an assault;
- The appellant described being struck in the face, unprovoked, with two teeth knocked out;
- WA Police recorded the incident as an “Assault Occasioning Bodily Harm” under section 317 of the Criminal Code.
There was no evidence to suggest that the assault was provoked or that any defences applied.
The Court was satisfied that an alleged offence had occurred, and that the appellant was a victim within the meaning of the Act.
Physical and Psychological Injuries
Physical Injuries:
Mr Burleigh sustained:
- Displaced mandibular fractures;
- Underwent surgery including open reduction and fixation;
- Lost two teeth;
- Was placed on a restricted diet for six weeks post-surgery.
Although there was some suggestion that he had sold nutritional supplements in prison and was eating normally, the Court accepted that he experienced short-term physical injury, but found no evidence of ongoing or permanent physical damage.
Psychological Injuries:
The appellant was assessed by a clinical psychologist who diagnosed generalised anxiety disorder, triggered and maintained by the assault. The report also referred to:
- Pre-existing depression and childhood trauma;
- A positive prognosis if the appellant engaged in therapy.
The Court accepted that Mr Burleigh had some ongoing psychological symptoms resulting from the assault, but these were moderate in nature and not disabling.
Assessment of Compensation
The Court awarded:
- $10,500 for non-pecuniary loss;
- $2,706.10 for future psychological treatment (subject to s 48 of the Act);
- $1,870 for the cost of the psychological report.
Total award: $15,076.10
Section 41 – Pre-Existing Conditions
The Court considered whether the award should be reduced due to Mr Burleigh’s pre-existing mental health conditions.
Two lines of authority exist regarding the application of section 41:
- That s 41 applies only to conduct contributing to the offence itself—not to pre-existing conditions affecting injury.
- That pre-existing conditions which exacerbate the injury may justify a reduction.
Judge Cormann preferred the first approach, aligning with the reasoning in Underwood v Underwood. He held that any impact from pre-existing psychological issues had already been accounted for in the assessment of loss and did not warrant a further reduction under s 41.
Conclusion
The appeal was allowed. The assessor’s decision was set aside, and compensation was awarded in the sum of $15,076.10.
Key Takeaways
- A failure to assist authorities will not automatically bar compensation under s 38 unless it is unreasonable in the circumstances.
- Prisoners are not held to an unreasonable standard of proactivity when under state care and dealing with serious injuries.
- Pre-existing psychological conditions do not necessarily diminish an applicant’s entitlement, particularly where the offence materially contributes to the injury.
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