Something fishy about this claim!

Parke [2021] WADC 1

In this case the applicant alleged that he had been assaulted and suffered mental and nervous shock and physical injuries. He sought compensation pursuant to the Criminal Injuries Compensation Act 2003 (Act).

The case was unusual in that there was oral evidence led before the assessor of several witnesses including the applicant, his son in law and policemen.

The applicant stated to the police that he had travelled from Geraldton to Perth to collect some fish for his daughter’s boyfriend. He was driving his wife’s vehicle and arrived in Midland at around 4.00 pm. He then stopped in Midland to go to the bathroom. He could not recall where in Midland he stopped, nor did he know if he went to a public toilet or used bushland. He stated that when he returned to the car, he saw that the window was smashed and that he was then approached by three men whose identity was unknown to him. Two of the men hit him and he fought back. One of the men then struck him to the head and face several times with a metal device. He was robbed of his wallet and phone during the incident.

He then drove to the Swan Districts Hospital where a CT scan revealed complex and comminuted fractures through the nasal bones, nasal septum extending into maxilla on the left side.

After hearing evidence, the assessor concluded that the applicant had suffered injuries but that they were not sustained in the manner alleged by him. Rather she concluded as follows:

1. The applicant was not alone, as he had alleged in his report to the police, when the incident occurred, but was with his son-in- law.
2. That he had travelled to Midland and there became involved in a dispute with three men, and that they did assault him.
3. The applicant’s injuries were accurately recorded in the CT scan performed at Swan Districts Hospital.
4. That he reported the incident to Joondalup Police Station, but only reported the various items taken from him but did not lay a formal charge of assault.
5. The applicant later reported the assault to Geraldton Police, but that the reason for doing so was so he could claim criminal injuries compensation. This was on the advice of his counsellor.
6. Police intelligence showed that the applicant travelled to Perth approximately every 10 days in a blue Mazda Hatch to pick up drugs and returned to Geraldton where the drugs were then sold. This business commenced prior to the assault.
7. That during the incident his son-in-law was involved in a drug transaction.
8. Whilst there was a strong suspicion that the applicant was transporting drugs on the day, there was insufficient evidence to be satisfied that the applicant was committing an offence under the Misuse of Drugs Act 1981, in relation to the supply or purchase of drugs.
9. There was a similar strong suspicion that the applicant was aware of, or potentially involved in, his son-in-law’s attempt to purchase drugs, and therefore committing an offence under the Misuse of Drugs Act 1981 in relation to the supply or purchase of drugs. However, there was insufficient evidence to be satisfied the applicant was committing an offence.

This case raised three important legal points:

1. The applicant’s application was lodged pursuant to s17 of the Act which provides for compensation to be awarded for an alleged offence committed against a victim where no person is charged. The assessor held that she was unable to make an award of compensation for an alleged offence unless she is satisfied that the claimed loss and injury occurred, and that it did so because of an alleged offence. She found the applicant to be a very poor witness and she was unpersuaded that an alleged offence was committed pursuant to the Act. Therefore, no compensation was payable.
2. S38 of the Act provides that an assessor must not make a compensation award in favour of a victim if the assessor is of the opinion that the victim 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. The assessor found that the applicant did not assist in the identification, apprehension, or prosecution of the offenders on at least three occasions. These were (1) when he failed to report the assault to the police on 2 April 2015 when at the hospital; (2) when he failed to report the assault to police on 4 April 2015 when he reported the theft of his wallet and phone; and (3) when he failed to advise the police that Mr Scott was with him when the incident occurred. Therefore, no compensation was payable.

3. S39 of the Act provides that if an assessor is satisfied that a person was injured because of the commission of an offence but that the injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. There was insufficient evidence that the applicant was committing offences in relation to the supply or purchase of drugs as contemplated in the Misuse of Drugs Act 1981, and therefore this ground did exclude the applicant from receiving compensation. For the reasons set out in 1 and 2 above the applicant was excluded from receiving compensation.

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