Proceeding: Appeal pursuant to s55 and s56(1) of the Criminal Injuries Compensation Act 2003 (WA) from a decision of the chief assessor refusing an application for compensation for harm suffered as a result of incidents of sexual abuse allegedly committed against the appellant by her former partner W.
Issue: Whether compensation should be ordered for injuries arising from sexual assaults (x2) and other abuse.
Facts: The appellant made an application for compensation for injuries arising from alleged emotional/verbal and physical/sexual abuse between 1999 and 2015 and two separate alleged sexual assaults in 2015 allegedly committed by her former de facto partner, W. At first instance, the chief assessor refused compensation.
The appellant had been in a de facto spousal relationship with the alleged offender between 1999 and 2015. After leaving him she made a formal complaint to police of two occasions of non-consensual anal penetration, which she later advised police she did not wish to proceed with. The appellant later asked police to reopen their investigation into her earlier complaint alleged that her ex-partner had also been physically and verbally abusive during their relationship and had threatened self-harm and suicide when she tried to leave him. Police decided not to charge the alleged offender with any offence as there was not evidence to corroborate her account, despite corroboration not being required to prove an offence of sexual assault.
The chief assessor found the sexual abuse of the appellant was not non-consensual. There was evidence of contact with medical and mental health practitioners including reports of non-consensual anal sex and a 17 year history of sexual assault by her de facto partner. J, a child who the appellant cared for pursuant to Family Court orders, was successful in a criminal injuries compensation claim as both a secondary victim of W’s abuse of the appellant and primary victim of other abuse by W, and reasons subsequently published by the assessor of J’s claim reversed the finding that W’s abuse of the appellant constituted an offence and found that although the incidents of anal penetration of the appellant by W while she was crying and W had his hands around her neck were not non-consensual the appellant and AB and W committed an offence by exposing J to the incidents.
Reasoning and decision: Appeal allowed, awarding the appellant $120,000 for non-pecuniary loss and $1,846 for reimbursement of expenses.
Staude DCJ was satisfied that the two offences of aggravated sexual penetration without consent had been committed and were not isolated offences. The appellant’s statements were consistent with her reports to police and other agencies, and the judge accepted that she had been stuck in an abusive relationship and too embarrassed to report the incidents in more detail. He was not able to be satisfied that the other offences had occurred.
Staude DCJ found that the appellant had suffered injury as a consequence of the offences and assessed the injury in context of the harmful relationship. It was determined that the sexual assaults had materially contributed to the appellant’s diagnosed depression, anxiety and functional impairments and had led to her loss of self-esteem and confidence. However, some of the injury was not considered compensable as it was attributed to other abuse in the relationship and would therefore have been suffered regardless of the offences.
The judge was highly critical of the assessor of J’s claim’s findings that the appellant had committed an offence under s 101 of the Children and Community Services Act 2004 by exposing her son to abuse.
Proceedings: Appeal from magistrate’s decision to make final Family Violence Restraining Order (Final Order) pursuant to Restraining Orders Act 1997 (WA) (‘the RO Act’).
Facts: The magistrate was satisfied on the balance of probabilities that DB had committed acts of family violence against his wife (RB): a sexual assault, letting down RB’s car tyres (controlling behaviour), and two physical assaults. The magistrate was also satisfied that RB had reasonable grounds to apprehend he would commit acts of family violence against her. In relation to their daughter, TB, the magistrate found that DB had committed acts of family violence against her, exposed her to family violence, and she had reasonable grounds to apprehend further family violence/exposure to family violence. The magistrate made the Final Order protecting RB and her eldest daughter (TB) for a term of two years.
Grounds of appeal:
Decision and reasoning: Appeal dismissed.
Ground 1: Evidence of the two proposed overseas witnesses was irrelevant as they had only observed the relationship in the past. Evidence was also inadmissible as it was only intended to bolster the credibility of DB.
Ground 2: The magistrate’s finding as to TB’s credibility (a child witness) was open to make based on his assessment of the way she gave evidence, and in light of all of the evidence.
Ground 3: While the probative value of/weight given to the text messages may have been an issue for the magistrate to consider, the magistrate did not err admitting them into evidence. They were relevant to the matters to which he was required to have regard. The court also noted that s 44A(i) of the RO Act provides that the court is not bound by the evidence in a final order hearing and the court may inform itself on any matter in such a manner as it considers appropriate.
Ground 4: The magistrate did not rely on this incident as one of the acts of family violence he was satisfied DB committed. In any event, the fact that DB may not have been the instigator of the events described did not detract from the fact that DB acknowledged he acted violently towards his wife in the course of that incident.
Ground 5: The magistrate correctly applied the test set out in s 10D(1) of the RO Act that a final order must be made where the magistrate is satisfied of the matters set out in s 10D(1)(a) or s 10D(1)(b), unless special circumstances exist.
Charges: The Magistrate was satisfied that the respondent committed two acts of abuse against the appellant.
Appeal type: Appeal from a decision of the Magistrate refusing to make a final violence restraining order.
Facts: The appellant appealed a decision of the Magistrate to refuse to make a final violence restraining order against the respondent. The appeal was conducted by way of a rehearing of the application.
Issues: Whether the Magistrate erred in fact in finding that the respondent was not likely, in the future, to commit an act of abuse against the appellant.
Decision and reasoning: The appeal was dismissed. Before the Court’s power to grant a Final Violence Restraining Order (VRO) is enlivened, it must be satisfied that the respondent committed an act of abuse against the appellant and that he is likely to commit such an act again. The Court noted that the Magistrate was not satisfied to the requisite standard that the respondent was likely to commit an act of abuse against the appellant again, or that the granting of either a Family Violence Restraining Order FVRO of an Misconduct Restraining Order (MRO) was justified. As the Court was not prepared to disturb the Magistrate’s finding as to the respondent’s likely future conduct, there was no statutory basis on which the Court could order an MRO (there being no family relationship between the appellant and respondent). Having regard to the issue of the respondent’s likely future conduct in relation to the appropriateness of granting a Final VRO or a MRO, there was no utility in undertaking a consideration of a hypothetical question of whether the Magistrate erred in exercising his discretion to refuse an order in the event that the finding was overturned and the jurisdiction to make an order enlivened ([36]).
