JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : PHILLIPS [2021] WACIC 23

CORAM : R CAPARARO

DELIVERED : 12 NOVEMBER 2021

FILE NO/S : CIC 2052 of 2019

BETWEEN : DAVID ROBERT PHILLIPS
Applicant

Catchwords:

Assault – Proved offence – Victim committed a separate offence – Turns on own facts

Legislation:

Criminal Code, s 244, s 254
Criminal Injuries Compensation Act 2003, s 3, s 12, s 39
Dangerous Goods Safety (Explosives) Regulations 2007, s 38
Dangerous Goods Safety Act 2004, s 12
Firearms Act 1973

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Young & Young

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

Attorney General (WA) v Her Honour Judge Schoombee [2012] WASCA 29 at 32
Chase-v Francis [2020] WADC 34 at 37
Hutchings v Lachlan [2012] WADC 89 at 32
Pym v Richardson [2018] WADC 156 [73-74]
Richardson [2009] WADC 93

Reasons for Decision:

1 By application dated 9 January 2019, David Robert Phillips (the applicant), applied for compensation for injuries and losses sustained as a result an incident which occurred on 23 September 2017 at Uduc, pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act). Karlee Jayde Mettam (the offender) was convicted in the Magistrates Court at Harvey on 15 January 2018 of unlawful wounding with a circumstance of aggravation.
2 On 27 October 2020 I wrote to solicitors for the applicant advising that I had concerns with regards to the applicant’s eligibility to compensation due to section 39 of the Act.
3 The correspondence set out, inter alia, stated:
In considering your client’s application I have had access to documents provided by you in support of the application as well as documents received from Harvey Medical Group and the WA Police. In your client’s statement he indicates at paragraph 19 dated 7 January 2019, your client indicates that he let off fireworks as part of the celebration. Also detailed in the incident report narrative it states:
The PHILLIPS family at number 11 often shoot firearms and let off fireworks which disrupts the METTAM family at number 29. Numerous reports have allegedly been made to Police over the last 6 month. [sic]
On this occasion the PHILLIPS family have had friends over and were settin [sic] off fireworks. The METTAM family took offence and called Police, however before Police could attend (were en-route) they walked to the PHIILLIPS’ house, armed with a knife and a set of fencing strainers.
A violent physical altercation has broken out between the parties, with David PHILLIPS (your client) and Karlee METTAM (the offender) fighting each other. Karlee told David that if he didn’t let her go, she would stab him. He didn’t let go so she stabbed him twice to the shoulder.
The offender was charged with unlawful wounding and in her electronic recorded interview she stated your client grabbed her by the shirt and by the throat. She told him to let go otherwise she would stab him. He refused to let go and was consequently stabbed by the offender.
It appears your client was committing a separate offence in assaulting the offender when he was stabbed. Section 39 of the Act provides if an assessor is satisfied a person was injured as a consequence of the commission of an offence when that person was committing a separate offence, the assessor must not make a compensation award in favour of that person.
Furthermore, I have concerns regarding your client’s apparent offences under the Dangerous Goods Safety (Explosives) Regulations 2007 (the Regulations). It appears that the possession and letting off of the fireworks on his property is an offence under section 38 of those Regulations.
I write to provide my preliminary views with regards to your client’s eligibility to compensation and I invite your submissions in response within 28 days, failing which I will proceed to make a determination on the basis of the information currently before me.
4 Correspondence was received in response to my preliminary views which stated:
We refer to your letter to us of 27 October 2020 with respect to our client’s application for Criminal Injuries Compensation in relation to an incident that occurred on 23 September 2017.
In your letter you have advised that our client appears to have sustained his injuries at a time when he was committing a separate offence, being that he assaulted the offender, Ms Karlee Mettam.
We also note that you have expressed concern that our client has committed an offence under the Dangerous Goods Safety (Explosives) Regulations 2007 (‘the Regulations’).
Dealing with the question firstly of our client’s alleged assault on Ms Mettam, we respectfully draw your attention to the provisions of s. 244 of the Criminal Code (CC), on this aspect of your concerns.
In our client’s statement to the Police, he indicated quite clearly how it was that this incident unfolded and ultimately led our client being stabbed by Ms Mettam.
In short terms, our client was well within his rights to conduct himself in the way that he has described in his Police statement – particularly by reference to the matters contained in paragraphs 23 – 29 inclusive.
Our client had the legal authority to use reasonable force to prevent Ms Mettam from entering his property, or to cause Ms Mettam, who was wrongfully at his property, to leave his property.
We again point out that this incident occurred on our client’s property, which is a 30-acre rural property.
It appears that Ms Mettam was living at [redacted] at the time and on our understanding of the position, would have been required to come some distance from her property, in order to confront our client about the use of fireworks.
In relation to the apparent breach of the Regulations, on our view, there is no temporal connection between the setting of the fireworks and the incident where our client was injured, as a result of the unlawful act by Ms Mettam in stabbing our client.
In the circumstances, we maintain that our client has not infringed the provisions of s.39 of the legislation and consequently, an award should be made in his favour, as a result of the injuries sustained in the incident.
Way forward
In the event that the Assessor believes that there has been an infringement of s.39, we believe that a hearing pursuant to s.24 of the legislation, may be appropriate to resolve the issues identified in your correspondence.
We look forward to hearing from you.
5 Following the response from solicitors for the applicant I directed the case manager to request an incident report trawl from Western Australian Police (WAPOL) in relation to both the offender and the applicant. The request showed an incident involving the offender on 10 October 2017, involving the possession of dangerous goods amongst other offences. Consequently, I directed the case manager to request from WAPOL the police brief in relation to a subsequent prosecution of the applicant for various offences. These offences included possession of an unlawful firearm, inadequate storage of a firearm and unlicensed possession of dangerous goods.
6 By letter dated 25 May 2021 I formally refused the applicant’s application for compensation pursuant to section 39 of the Act, detailing what was contained in the subsequent police brief:
Reference is made to my correspondence of 27 October 2020 and your response of 16 November 2020.
I requested and received a copy of the police brief in relation to the various charges against your client arising from the search of his property on 10 October 2017, including unlicensed possession of dangerous goods.
In your letter of 16 November 2020 you submit there is no temporal connection between the setting of the fireworks and the incident in where your client was injured. However, that is incorrect. Your client had, by his own admission, on the evening of the incident been letting off fireworks before the incident and by all accounts it was the letting off of the fireworks that provoked the offender to confront your client. In addition to letting off fireworks, there is a further and continuing offence of possession of dangerous goods. There is no requirement for there to be a causal connection between the offence committed by your client and the offence which gave rise to your client’s injuries. He was clearly committing an ongoing offence with regard to the possession of the fireworks, for which he was ultimately prosecuted.
In the audiovisual record of interview log dated 8 November 2017 it is recorded your client confirmed to police he had moved to the current address at [redacted], Uduc one year before. He also informed police with regard to the fireworks “I bought them in Darwin when I was travelling there.” Police put to him that ‘he sets them off at parties at his house’ to which he agreed was correct. Your client entered a plea of guilty to a charge of unlicensed possession of dangerous goods in accordance with section 12 of the Dangerous Goods Safety Act 2004.
On the night of the incident in which your client was injured your client and other family members were alleged to have let off fireworks. In your client’s statement of 25 September 2017 he states:
I admit, I left [sic] off a few small fire crackers as we were having a celebration.
The possession of the dangerous goods (fireworks) is an offence and it was an offence for which your client was convicted. The possession of the fireworks pre-dated the incident and continued until the search of your client’s property on 10October 2017 and as such was a continuing offence. It is my opinion I am precluded from making an award of compensation in those circumstances due to the operation of section 39 of the Criminal Injuries Compensation Act 2003 (the Act).
You have suggested a hearing in the event I intend maintain a refusal, but it is my opinion it is unnecessary as the evidence currently before me is overwhelming as to the continuing offence committed by your client.
Any interested person who is dissatisfied with my decision may appeal the District Court of Western Australia. The appeal must be lodged within 21 days of the date of my decision. If you wish to make any enquiries about lodging an appeal, you must contact the District Court on (08) 9425 2178. Copies of the Notice of Appeal must be served on the Chief Assessor, Criminal Injuries Compensation, Chief Executive Officer of the Department of Justice and any other interested party.
7 The applicant’s solicitors requested my reasons for decision which are set out below.
Background
8 The application was made pursuant to section 12 of 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 mean a crime, misdemeanour or simple offence of which a person has been convicted. The offender was charged and convicted of unlawful wounding in circumstances of aggravation in the Magistrates Court at Harvey on 15 January 2018 and therefore I am satisfied a proved offence as required by the Act is constituted.
9 In support of the application I was furnished with the application dated 7 January 2019, a statement of the applicant in support of the application dated 7 January 2019, photographs of injuries of various dates, WA Police Office Information Management letter and information report, statement of the applicant dated 25 September 2017, victim impact statement of the applicant undated (the hearing on 13 November 2017), various medical reports, Harvey Hospital notes and various report tax invoices. Where relevant they will be referred to below.
10 In addition, I requested and received a copy of the police brief in relation to the prosecution of the offender.
11 As detailed above as part of my investigations in regards to the applicant’s eligibility to compensation, I requested and received a copy of the police brief in relation to the prosecution of the applicant. I anticipated this possession of dangerous goods may have overlapped the incident on 25 September 2017 (due to admissions of the applicant himself at the time and as part of the application for compensation) and continued until the items were located during the search of the applicant’s property on 10 October 2017. If that was the case it was my opinion I was precluded by section 39 of the Act from making an award of compensation.

12 Section 39(1) of the Act provides:

39. No award if victim was engaged in criminal conduct
    (1) If an assessor is satisfied —
    (a) that a person was injured as a consequence of the commission of an offence; and
    (b) 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.
    (2) If an assessor is satisfied —
    (a) that a person died as a consequence of the commission of an offence; and
    (b) that the death occurred when the person was committing a separate offence,
    the assessor must not make a compensation award in favour of a close relative of the person for any loss suffered by the close relative as a result of the death.
    13 An offence means an alleged offence or a proved offence, with an alleged offence meaning a crime, misdemeanour or simple offence of which no person has been convicted. The Act defines a proved offence as a crime, misdemeanour or simple offence of which a person to be convicted. It is not necessary for the person to have been convicted of the offence for it to be a separate offence for the purpose of section 39 the Act.
    14 As was addressed in the parliamentary debates regarding the Act, section 39 of the Act was intended to ‘prohibit compensation where a person is injured while engaged in criminal conduct.’
    15 This was explored by the Chief Justice who opined the evident purpose of CICA s 39 of the Act:
    is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct. That evident purpose would be defeated if too narrow or precise a view is taken of the temporal connection between the offence giving rise to the injury for which compensation is claimed, and the offence committed by the claimant. Take the obvious example of a claimant seeking compensation for injury suffered during an assault which was the retaliatory response to an assault which the claimant initiated but the retaliation went beyond self-defence. It would very often be the case that the offence in the form of the initial assault committed by the claimant would have been completed before the retaliatory response occurs, with the result that if the matter is approached by reference to precise instants in time, it could not be said that the two offences were committed ‘at the same time’. Another obvious example is the case of a claimant who suffers injury as a result of an offence committed while fleeing from the scene of a crime which he or she committed, but which was complete at the time injury was suffered. It is clear from the language used in s 39 of the Act, and from the secondary materials referred to by the District Court judge, that it was intended that compensation would not be available in either of these examples.
    16 He also explored the previous decision of Richardson [2009] WADC 93 which discussed the proper construction of section 39 of the Act.
    I agree with respect that s 39(1) does not require any causal connection between the injuries suffered by the appellant and the separate offence allegedly being committed by the appellant. The only relationship is a temporal one. No award can be made if the injury was suffered when the appellant was committing a separate offence. The appellant contends for a narrow interpretation of the temporal connection so that if the separate offence is committed before the offence causing injury, the appellant could nonetheless receive an award of compensation. The Amicus contends that too narrow an interpretation of the temporal limitation could defeat the purpose of this section. On the other hand too broad an interpretation would bar a victim of crime from obtaining compensation in an otherwise appropriate case.  Whether there is a temporal connection requires judgment by the Assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence. Generally, if the applicant’s injury and the applicant’s offence are part of the one incident, that would be sufficient to show a temporal connection [31].
    17 He thus formulated the view:
    Most obvious is s 39 itself which in each of its two subsections refers specifically to a causal connection between the commission of an offence and either injury or death by using the words ‘as a consequence of’ (see s 39(1)(a) and s 39(2)(a)). By contrast, those words have not been used in the specification of the relationship between the injury for which compensation is claimed (s 39(1)(b)), and the commission of the separate offence by the claimant (s 39(2)(b)). In that instance the legislature has specifically chosen to use the word ‘when’ to denote the requisite connection, and must be taken to have intended that only a temporal connection was required.
    18 The findings in Schoombee were succinctly summarised in Hutchings v Lachlan [2012] WADC 89 at 32:
    In summary terms the decision in Attorney General for Western Australia is authority for the following:
    (a) the term ‘when’ in CICA s 39 (1) (b) does not require a causal connection between the offence committed by the claimant for compensation and the offence that gave rise to that person’s injuries;
    (b) the term ‘when’ in CICA s 39 (1) (b) requires a temporal connection between the offence committed by the claimant for compensation and the offence that gave rise to that person’s injuries;
    (c) the temporal connection does not require the applicant’s offence to be committed at the same instant in time as the offence that gave rise to the claimant’s injuries; and
    (d) whether there is a temporal connection requires judgment by the assessor of all the facts and circumstances of the case to determine whether at the time the applicant was injured the applicant was committing a separate offence or whether they are part of the one incident.
    19 Thus, whether section 39 applies is determined by considering whether the applicant was committing an offence when he was injured. A sufficient temporal connection is all that is required and whether there is a sufficient temporal connection depends on questions of fact and degree to be evaluated in all of the circumstances of the case.
    
    The Evidence
    20 In the applicant’s statement signed on 7 January 2019 he stated:
40. We were all gathered out the back of my house around a camp fire.
41. During the evening, I let off a couple of fireworks as part of the celebration.
42. At around 8.30pm I recall that I was sitting outside with my grandchildren.
43. It was around this time that 4 people came on to my property, being 2 males and 2 females, who now known to be KARLEE and her sister KARYSS METTAM. I heard one of the females scream “I am going to kill you, big fat junkie cunt” and “we’re going to get that fat bastard”.
44. I turned towards the voice and saw the group standing at the side of my house.
45. I now know that KARLEE and the others were from the neighbouring property.
46. I recall one of the females was holding a knife and the other was holding a metal bar, which I later found out was a fencing strainer.
47. The men appeared to be unarmed.
48. I yelled at the group to leave the property. I had no idea why these people were on my property threatening me.
49. Someone in the group made a comment that “I am sick of you and your noise”.
50. All 4 of them approached me and were yelling at me very close to my face.
51. I recall that I was not fearful for my own safety at this point, and I thought that the knife was only there to scare me. I was however concerned about the safety of my family, particularly the younger children.
52. I pushed back at them which caused one of the females to fall to the ground. At this point, I recall that I was hit with the fencing strainer over my back and on my shoulder, and one of the females then jumped on my back.
53. The female on the ground got up from the ground and came at me with the knife. I recall that she was wielding the knife above her head. She was screaming hysterically and then stabbed me several times with the knife to my upper arm, shoulder and chest.
54. When I realised I had been stabbed, I called my son to help get her off me.
    21 The information report for criminal injuries compensation records:
    There has been ongoing tension between the neighbours of 11 and [redacted].
    The PHILLIPS family at number 11 often shoot firearms and let off fireworks which disrupts the POI’s family at ADDRESS. Numerous reports have allegedly been made to Police over the last 6 month [sic].
    On this occasion the PHILLIPS family have had friends over and were settin [sic] off fireworks. The POI’s family took offence and called Police, however before Police could attend (were en-route) they walked to the PHLLIPS’ [sic] house, armed with a knife and set of fencing strainers.
    A violent physical altercation has broken out between the parties, with David PHILLIPS and POI fighting each other. POI told David that if he didn’t let her go, she would stab him. He didn’t let go so she stabbed him twice to the shoulder. He broke his grip on her and the POI’s family left the scene and temporarily went home. Others in attendance were also involved in fights, with one male sustaining concussion. He was taken to Harvey Hospital for treatment.
    The POI’s family returned to the PHILIPPS house approximately 15 minutes later and a further altercation occurred involving a vehicle. No report was forthcoming for this incident on the night, however enquiries will be made.
    22 A statement was originally provided to police by the applicant on 25 September 2017 which recorded:
55. I saw that one of the females was carrying some kind of iron bar, which I late found out was a set of fencing strainers.
56. She was Caucasian and had dark hair. She was about my height, which was 5’7″. In comparison to the other girl I would describe her a plump [sic].
57. The other female was holding a knife in her right hand. She was also Caucasian, with dark hair and around my height.
58. I realised that the girls were the neighbours from the [sic] down the road at number [redacted].
59. I wasn’t really phased about the knife as I thought it was probably all bluff.
60. One of the guys was stocky built with a beard. He was Caucasian and slightly taller than me.
61. The other guy was taller and skinny, also Caucasian.
62. I had never seen the males before in my life.
63. All four of them came right up into my face, all screaming and abusing me.
64. I wasn’t too worried for my own safety as I know I can handle myself and I am a pretty big bloke.
    23 Again he stated:
65. We were all out in the back yard, chatting and sitting around the camp fire.
66. I admit, I left off a few small fire crackers as we were having a celebration.
    24 The notes with regard to the questioning of the offender recorded:
    Victim (applicant) has large fat build, 150 kg, black hair.
    Took knife for protection.
    Grabbed by shirt by throat, let go or I’ll stab you.
    Was there an offence of assault for the purpose of section 39 of the Act when the Applicant was Injured
    25 As initially put to solicitors for the applicant it was my preliminary view at the time of the unlawful wounding the applicant was also committing an offence of assaulting the offender. He had her in a chokehold and by the shirt. The offender is a large person weighing approximately 150 kg. The applicant stated the offender was approximately the same height as him.
    26 The Statement of Material Facts for the incident records:
    An altercation had broken out between the parties, with David Phillips and Karlee Mettam fighting each other. Karlee told David that if he didn’t not let her go, she would stab him. He did not let go so she stabbed him twice to the shoulder.
    27 The applicant and the offender appeared to have been involved in a melee at the time of the unlawful wounding, she had been grabbed by a much larger man and having told him to let her go otherwise she would stab him. He did not and she did.
    28 It was the submission of the applicant’s solicitors their client had legal authority to use reasonable force to prevent the offender from entering his property to cause the offender, who was wrongfully on his property, to leave his property.
    29 I accept the applicant whilst assaulting the offender, the applicant may have used reasonable force in an attempt to remove or prevent the offender from entering the premises in accordance section 254 of Criminal Code.
    30 Section 39(1)(b) of the Act ‘will not apply to preclude an award of compensation if the court is satisfied, on the balance of probabilities, that the claimant had a complete defence to the separate offence.’
    31 Pursuant to s 254(2), it is lawful for a person in peaceable possession of any place to use such force as is reasonably necessary to prevent a person from wrongfully entering the place, to remove a person who wrongfully remains on or in the place, or to remove a person behaving in a disorderly manner on or in the place.
    32 Consideration must be given to whether such a defence would have been available to the applicant.
    33 To have the defence available it would be necessary to establish, the applicant:
    (1) was authorised to prevent the offender from wrongfully entering the property;
    (2) only used such force as was reasonably necessary to prevent the offender from entering the property;
    (3) did not intend to cause grievous bodily harm;
    (4) the force used was not likely to cause grievous bodily harm to the offender.
    34 The applicant’s recollection was:
67. All four of them came right up into my face, all screaming and abusing me.
68. I wasn’t too worried for my own safety as I know I can handle myself and I am a pretty big bloke.
69. I pushed them backwards as I was fearful that they would get close to my 4 grandchildren, 2 nephews and nieces, who were all in the back yard only metres away.
70. My two sons were standing behind me, however I told them I had it under control.
71. The female with the knife fell backwards when I pushed her. She fell onto her back.
72. The female with the fencing strainers moved around to my side and hit me over the back of the shoulder blades with the strainers and then jumped onto my back.
73. The female with the knife got up and launched at me in a frenzy. She was wielding the knife in her right hand up above her head.
    35 I am satisfied the applicant as the owner of the property was authorised to prevent the offender and her accomplices from entering. The description of the melee does not of itself indicate the force being used but it did not appear to be excessive in the circumstances.
    36 Whilst the offender and applicant may have exchanged blows it appeared the applicant grabbed her with only sufficient force so as to prevent her from hurting him. I found reasonable force was being used. Although his statements did not address intent, clearly given the measured force there was no intention to cause nor was it likely to cause grievous bodily harm. It was my opinion this defence may have been one available to the applicant and that he was not precluded from claiming compensation by operation of section 39 of the Act as he had a reasonable defence.
    37 However that was not the only offence the applicant was committing on the evening he was injured.
    Was there a Fireworks Offence or related offence for the purpose of section 39 of the Act
    38 As discussed above the applicant had been letting off fireworks during the course of the evening, such that the offender attended the property to confront him.
    39 The documents received from WAPOL in relation to the prosecution of the applicant, record he conceded in the criminal prosecution fireworks are dangerous goods and entered a plea of ‘guilty’ of the charge of unlicensed possession of dangerous goods pertaining to fireworks (including I assume those let off on the night of the incident in question, as was also admitted by the applicant).
    40 The applicant was also charged and convicted of possession of an unlawfully altered firearm. This charge related to the possession of a sawn-off shotgun. The police brief recorded it was understood by the applicant the sawn-off shotgun had been returned to him on the proviso it be repaired. This occurred in October 1996 which was more than sufficient time for such repair to have taken place and as such he was committing an offence under the Firearms Act 1973.
    41 He was also charged for offences relating to firearms which were unsecured and failing to provide adequate storage of firearms and failing to ensure safe keeping of firearms. The applicant was convicted of all offences.
    42 There was clearly a hiatus between the letting off of the fireworks and the attendance at the property by the offender, whilst they did live next door to the offender, it was a rural property approximately 500 metres away. It would have taken time to travel on foot to the applicant’s home. On the night of the incident the applicant, however, also had in his possession the fireworks (dangerous goods) as evidenced by his own admissions and the subsequent conviction.
    43 It is my opinion the applicant was committing an offence, in fact, numerous offences when he was injured and these offences continued until the search of the property on 10 October 2017. There was no hiatus in relation to the possession of the fireworks (being dangerous goods) or the other unlawful items, and the incident in which he was injured.
    44 There was no separation in place or time. The applicant did not dispute at any time during his own prosecution the ownership of these items.
    45 It was my opinion there was sufficient temporal between the continuing offences and the injury suffered by the applicant. The unlawful items were all located on the property of the applicant and had been there for lengthy periods of time.
    46 The offences of the applicant on the night in question were numerous and transcended the incident in which he was injured. And as stated by Martin CJ in Attorney General v Schoombee at 32 ‘The evident purpose of section 39 is to preclude the payment of compensation to a person who suffers injury as a consequence of the commission of an offence when that person is themselves engaged in criminal conduct.’
    47 Following that reasoning it was my opinion the applicant was not entitled to an award of compensation as he was committing numerous offences when he was injured. The application for compensation was therefore refused.

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

R Capararo, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

3 FEBRUARY 2022