JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : PEET [2021] WACIC 25

CORAM : C F HOLYOAK-ROBERTS

DELIVERED : 25 NOVEMBER 2021

FILE NO/S : CIC 717 of 2021

BETWEEN : SHANE GEOFFREY PEET
Applicant

Catchwords:

Application of the phrase “as a consequence of” – Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 12, s 19, s 35

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : In Person

Case(s) referred to in decision(s):

Fagan v Crimes Compensation Tribunal [1982] 150 CLR 66 673
Laurent [2007] WACIC 51
Sideris v Censori [1083] WAR 17

REASONS FOR DECISIONS:

Background

1 Shane Geoffrey Peet (the applicant) who was born on 18 February 1976 made an application on 22 April 2021 for compensation for injuries he suffered in an incident on 3 August 2018 at Fremantle (the incident). On 29 October 2021 I awarded the applicant $20,000 compensation for the injuries he suffered as a consequence of the incident. By email dated 29 October 2021 Michael Kitson (the offender) requested my reasons for decision which are set out below.
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) which authorises an assessor to award an applicant compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of a proved offence. Proved offence is defined in section 3 of the Act to be a crime, misdemeanour or simple offence of which a person has been convicted.
3 The offender was charged with four offences arising out of the incident being assault public officer, obstructing public officers, disorderly behaviour in public and fail to obey an order given by an officer. The charge of assault public officer was dismissed in the Magistrates Court at Fremantle on the 25 September 2018. The offender was convicted of the remaining 3 charges on 25 September 2018 by his own plea.
The incident
4 The circumstances of the incident were outlined in the statement of material facts as follows:
At about 10:00pm on Friday the 3rd of August 2018, Police were conducting foot patrols on South Terrace, Fremantle.
The officers were wearing high visibility vests and full uniform.
The accused approached one of the officers. While the accused was talking to the officer he touched the officer on his left shoulder twice. The officer politely requested that accused stop this. The accused has placed his hand on the officers shoulder a third time.
As a result of the officer’s request, the accused took offence and began to swear and abuse the Police officers. He said ‘You cunts think you own the place. That’s why everyone hates you cunts.’ Police warned him about his language and behaviour but the accused continued with the disorderly behaviour. As result, he was issued with a Move on order.
The accused began walking off. He stopped and turned to the officers and said ‘Fuck off I’m not going to leave.’ He sat down and continued to swear at Police. He was warned again to leave the area and stop swearing. While sitting down he shouted, ‘I’m a free man, fuck off cunts, arrest me. I’ll make you cunts work for it.’
As a result of this, Police approached the accused and said that he was under arrest for disorderly and breaching a move on order. As the officers attempted to take hold of his arm, he stood up and began to struggle with officers.
He was eventually placed in handcuffs and placed in the rear of the Police vehicle.
He was transported to the Perth Watch house due to his aggressive state.
The accused was released by way of summons.
And further.
At 10:00 pm on Friday the 3rd of August 2018, the accused was on South Terrace near Nicks Place in Fremantle.
He was issued with a Move On Order (MO422353) due to him behaving in a disorderly manner. The conditions of the order were read to the accused and he was advised that he had to leave the area until 06:00am on Saturday the 4th August 2018. A perimeter of no less than 1km. A copy of the order was given to him.
At about 10:15 pm the accused walked a few meters towards Nicks Place and stopped. He turned to the officers and said, ‘Fuck off I’m not going to leave.’ He walked over to a nearby public bench on the footpath and sat down and continued to swear at Police. He was warned again to leave the area and stop swearing. While sitting down he shouted, ‘I’m a free man, fuck off cunts arrest me. I’ll make you cunts work for it.’
As a result of this, Police approached the accused and advised him he was under arrest for disorderly and breaching a move on order. As the officers attempted to take hold of his arms he stood up and began to struggle with officers.
He was eventually placed in handcuffs and placed in the rear of the Police vehicle.
He was transported to the Perth Watch house due to his aggressive state.
The accused was released by way of summons.
At 10:15pm on 3rd of August 2018, the accused was outside nicks kebabs, South Terrace Fremantle.
The accused was advised that he was under arrest for breaching his move on order and disorderly behaviour.
The accused stood up. Police requested the accused place his hands behind his back. He refused and lashed out at Police.
A struggle ensued. The accused was requested several times to stop resisting. While police were attempting to restrain the accused, he lashed out and attempted to slap the officer to the face. The officer moved his head to avoid being slapped.
The accused was forced to the ground and continued to struggle with the officers. Police managed to place one handcuff on his left wrist, however due to him still struggling violently police were unable to place the other cuff on his other wrist. He was again requested several times to stop resisting so that they could place the other handcuff on his wrist. He continued to shout ‘Fuck off.’ Further officers attended and assisted in placing the accused in handcuffs but he still continued to struggle.
During the struggle S/C PEET sustained an injury to his left shoulder namely soreness and he also sustained bruising to his right knee.
The accused was eventually placed in the rear of the Police vehicle.
Due to his aggressive behaviour he was transported to the Perth Watch house.
And further,
While police were attempting to restrain the accused, he lashed out and attempted to slap the officer to the face. The officer moved his head to avoid being slapped.
The accused was forced to the ground and continued to struggle with the officers.
Other officers attended the scene to assist in restraining the accused. He was eventually placed in handcuffs but still continued to struggle.
He was placed in the rear of the Police vehicle and transported to the watch house where he was released by way of summons.
The alleged assault was recorded by CCTV.
5 The assault public officer charge which was discontinued, related to the offender attempting to slap the applicant to the face.
6 In support of his application the applicant provided a supporting statement dated 19 April 2021. He described the circumstances of the incident and said whilst talking to the offender, the offender slapped his left shoulder. He asked the offender to stop. After asking him to stop the offender slapped the applicants left shoulder with more force. The applicant again asked him to stop. The offender ignored the request and placed his hands on the applicants left shoulder and again the applicant asked him not to touch him and to release his hold. He said the offender took offence to this and became abusive. The applicant’s partner warned the offender several times about his behaviour and language, but the offender continued to shout obscenities. As a result of this police issued a move on order to the offender the conditions of which were read to him. The offender walked approximately 10 metres and turned to the applicant and his partner and spoke to them abusively and sat down. He was again requested by the applicant to leave the area as per the move on order and he was advised that if he did not, he would be arrested. The offender refused and continued to be abusive to police. As a result of his behaviour the offender was informed by the applicant and his partner that he was under arrest. The applicant’s partner requested the offender place his hands behind his back which he refused to do and lashed out. The applicant attempted to take hold of the offender by the arm, but he struggled violently. During the struggle the applicant alleged the offender attempted to slap him in the face (which constituted the discontinued assault public officer charge) and the applicant managed to move his head out of the path to avoid the slap. He said the offender continued to struggle and was forced to the ground in order for officers to gain control. The applicant repeatedly requested the offender to stop struggling. The offender refused to comply and continued to do so. Police eventually placed the offender in handcuffs, but he continued to act aggressively. With the assistance of other officers, the offender was placed in the rear of the police vehicle and transported to the Perth watch house.
7 During the course of investigating the circumstances of the incident I obtained information from the West Australian Police. It is not clear to me from the information provided why the assault public officer charge was discontinued but in my view nothing turned on this as the applicant said the cause of his injury was as a result of the offender resisting arrest thereby obstructing public officers in the discharge of their duties. Given the offender pled guilty to that charge and was convicted I was satisfied a proved offence as defined in section 12 of the Act was constituted.
Injuries
8 The applicant said during the struggle he felt a sharp pain in his left shoulder causing him to yell out in pain. He said he also sustained bruising to his right knee. He said after the incident the pain got worse such that he had difficulty moving his left shoulder. This progressed to constant pain and limited movement which would not subside even with the assistance of pain killers. As such he attended his general practitioner for treatment. He said he was referred for physiotherapy treatment and continued to suffer pain and discomfort and limited movement. He was also given a steroid injection and continued with physiotherapy. Despite the steroid injection and physiotherapy, he said he was still in severe pain and had limited movement. He was referred for a second steroid injection which he underwent. He said he continued to suffer pain in his left shoulder which he medicated with painkillers. He said he was unable to fully move his shoulder without feeling discomfort and hearing clicking sounds. He said he was left with pain in the left shoulder requiring pain killers to manage. He said this impacted on his personal life as he is sometimes unable to carry his normal activities such as lifting or activities requiring constant use of his shoulder. This caused him to become frustrated. He said the incident caused him to become apprehensive when he had to physically intervene with an offender.
9 The applicant submitted a first certificate of capacity. It was recorded he complained pain in his left shoulder. When struggling with a person being restrained suffering pain and limited movement. The clinical finding was restricted abduction and extension with shoulder crepitus. He was diagnosed with a rotator cuff injury to the left shoulder.
10 The applicant also submitted a progress certificate of capacity dated 22 August 2018 identifying the applicant had been referred for physiotherapy and an ultrasound guided steroid injection. He had some capacity for work from 16 to 30 August 2018 performing modified or alternative duties. It was recommended he have a further steroid injection if required and to continue physiotherapy. The diagnosis was left shoulder strain with bursitis.
11 The applicant was assessed on the 30 August 2018 with a similar outcome according to the certificate of that date. He was further assessed on the 25 September 2018 and according to the progress certificate of capacity had a full range of movement with slight pain but still felt clicking. He was to continue with physiotherapy. The applicant also submitted a copy of the referral for the ultrasound guided steroid injection to the left shoulder and an ultrasound scan and referral to the same shoulder.
12 The applicant submitted an invoice for his attendance at his general practitioner on the 13 August 2018 in the sum of $139.40, 22 August 2018 in the sum of $76.30, 29 August 2018 in the sum of $76 and 25 September 2018 in the sum of $76.30 the amounts for which were not allowed as they could be submitted to the Western Australia Police for payment. The applicant also submitted an invoice/receipt for physiotherapy for the 22 August 2018 in the sum of $115 for which no allowance was made given he could submit that to the Western Australia Police for payment. Information was requested from the Western Australia Police as to the medical expenses and or wage losses paid by them in relation to the applicant and his incident. The Western Australia Police advised that the sum of $609.70 in medical expenses was paid described as from provider the Perth Radiological Clinic.
Notice to the offender
13 Pursuant to section 19 of the Act a notice was issued to the offender on 25 August 2021 advising him of the applicant’s application and inviting him to make any submissions he chose to make with respect to the applicant’s application. On the 3 September 2021 the offender emailed the Office of Criminal Injuries Compensation advising the letter had come as a surprise. He said he was not convicted of any assault. He said he had contacted his lawyers who advised him his file was in storage and he did not have the money to spend on lawyers to retrieve it. He asked for a copy of the application and supporting material and lamented the applicants delay in lodging the application. He said he had assistance from his Union to prepare the email whom he cc’d.
14 By email dated 21 September 2021 the offender was provided with permissible documents the applicant submitted in support of his application. By email dated 11 October 2021 the offender responded to the notice issued on 25 September 2021. He alleged the applicant had been untruthful as the offender was not convicted of any assault. He said he had not been provided with information concerning other benefits and payments the applicant had received for this injury alleging he may have been entitled to workers compensation which was not the case as the applicant was a police officer injured during the course of his duties and there is no statutory workers compensation scheme as relates to police officers. He lamented he was not convicted of any offence in relation to an injury to the applicant’s shoulder. He requested copies of documents the applicant provided to police including a statement identifying no reference to a knee injury and questioned the cause of the bursitis for which the applicant required injections. He said the incident arose when he put money in a busker’s tin and, affected by alcohol, suggested police do the same. He alleged this conduct was the approach the officers referred to in the statement of material facts. He denied making threats.
15 Those submissions were taken into account by me when assessing the applicant’s application.
16 A response to the offender’s submissions was provided to the applicant’s submissions by the case manager on the 9 November 2021.
Quantum of injury
17 To award the applicant compensation, I am required to be satisfied on the balance of probabilities, the applicant suffered injury as a consequence of the commission of the proved offence. In Fagan v Crimes Compensation Tribunal [1982] 150 CLR 66, Mason and Wilson JJ said at 673:-
There is no basis in the context of the Act itself for regarding the words as having a narrow operation. The words are ordinary English words carrying no special technical meaning. All that is required is a causal relationship; both the word “by” and the phrase “as a result of” indicate a causal connexion. Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause. The only requirement is that the injury is caused “by or as a result” a criminal act.
18 The court in Sideris v Censori [1083] WAR 17 said consideration of the phrase ‘as a consequence of’ is not to determine “whether the injury was remote or proximate” but whether it was as a consequence of the commission of the offence. This requires consideration of whether the injuries suffered by the applicant were “causally connected” to the offence to entitle the applicant to compensation (see also Laurent [2007] WACIC 51.
19 Having reviewed the evidence available to me I was satisfied the applicant suffered a physical injury by way of bruising to his knee and a more serious injury to his left shoulder namely a rotator cuff injury, and left shoulder strain with bursitis. I was satisfied on the evidence available to me this caused the applicant acute concern for a period of time which required two injections into the shoulder to alleviate the pain as well as ongoing physiotherapy to improve movement. Whilst these treatments went a substantial way to improving the applicant’s symptoms I was satisfied he remained symptomatic and continued to do so which required the use of pain killers at times. I was satisfied there was a causal connection between the applicant’s injuries and the offences, the applicant having stated he sustained the injuries whilst struggling to arrest the offender for the charges of which he was convicted. Whilst this caused him some psychological sequelae, I was not satisfied the psychological sequelae was sufficiently enduring to constitute mental and nervous shock pursuant to section 35 of the Act. Therefore, I awarded the applicant $20,000 for his physical related symptoms.
20 Whilst the applicant submitted invoices for treatment with his general practitioner and physiotherapist there was no specific claim for losses. In any event as the injuries occurred during the course of his duties as a police officer the applicant was entitled to have those expenses paid by the Western Australia Police and ought to have submitted those invoices to them.
21 I therefore awarded the applicant $20,000 compensation for his injuries.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

C F Holyoak-Roberts, CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

2 DECEMBER 2021