JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : G [2022] WACIC 1

CORAM : R GUTHRIE

DELIVERED : 23 FEBRUARY 2022

FILE NO/S : CIC 1271 of 2021

BETWEEN : G
Applicant

Catchwords:

Allege offence – Injury to unborn child – Is unborn child a person under the Act

Legislation:

Crimes Act 1900 (NSW)
Crimes Act 1961 (NZ), s 182
Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW)
Crimes Amendment (Zoe’s Law) Bill 2019
Crimes Legislation Amendment (Loss of Foetus) Act 2021
Criminal Code Act Compilation Act 1913, s 1(4A), s 290, s 269
Criminal Injuries Compensation Act 2003, s 3, s 4, s 12, s 17, s 64
Interpretation Act 1984 (WA), s 5
Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : CLP LEGAL PTY LTD

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

Attorney‑General (QLD) (Ex rel Kerr) v T [1940] ArgusLawRp 50; (1983) 46 ALR 275
Barrett v Coroner’s Court of South Australia [2010] SASCFC 70
Lee & Hutton [2013] Fam CA 745
Mansell v The Queen [2004] WASCA 111
Martin v The Queen (No 2) (1996) 86 A Crim Rep 133, 138
Paton v BPAS Trustees [1979] 1 QB 276 at 279
Preston v Parker [2010] QDC 264 [239]
R v Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8, 36–7
R v Iby [2005] 63 NSWLR 278
R v Iby [2005] NSWCCA 178
R v Lippiatt (Unreported, District Court of Queensland, Hoath J, 24 May 1996)
R ν Woolnough [1977] 2 NZLR 508, 516
Ramsay v Watson (1961) 108 CLR 642
Re the estate of the late K (1996) 5 Tas R 365
Watt v Rama [1972] VR 353[10]
Yunghanns v Candoora No. 19 Pty Ltd [1999] VSC 524

Reasons for Decision:

1 On 12 June 2018 “H”, the mother of “G” (the applicant), made application (CIC 1356/2018) on her own behalf seeking compensation for injuries arising out of a violent relationship with “I” (the alleged offender). In her application her solicitors outlined injuries arising from 11 incidents, comprising two applications in respect of proved offences pursuant to section 12 and nine applications for alleged offences pursuant to section 17 of the Criminal Injuries Compensation Act 2003 (the Act). On 28 May 2019 I made an award in favour of “H” in respect of those proved and alleged offences. Of particular relevance to this application is “H” included in application CIC 1356/2018 a claim in respect of an alleged offence which took place on 22 June 2015. In a supporting statement provided with her application, “H” recited details of that incident. She said, inter alia, in relation to the incident on 22 June 2015 (the incident):

76. I was pregnant with our first child together (G).
77. He (the alleged offender) was coming down from a high again and he said that the baby wasn’t his and it was the African men who lived down the road.
78. He wanted money for drugs and I didn’t give it to him and that’s what made him angry.
79. He hit me a few times and my placenta tore. I felt it tear and I didn’t realise that I was bleeding then.
80. I was so scared. I was terrified for my pregnancy and scared that I was going to lose my baby.
81. He smashed the window and left the house.
82. (The alleged offender) is the kind of person who would hide from the police and keep coming back. He would keep continuing and continuing and I needed to get to safety for the sake of my children.
83. I called Crisis Care and asked them to send a taxi to take me to a safe house.
84. The taxi arrived at my house. When the taxi turned up [“I] ran to scare the taxi off because he didn’t want my children and me to leave.
85. The police then turned up to speak to me.
86. I didn’t give the police a statement because I was scared that it would make him even madder and he would come back and hurt me or steal from me.
    …
87. I went to hospital about 7 August 2015. I was away from my kids for a week because my waters had broken.
88. I had my baby in [sic] 14 August 2015. She was born at 25 weeks gestation and weighed 580 grams.
89. My baby’s name is [“G”].
90. I had my baby early because of the tear in my placenta. There was a blood clot that went from 2 cm to 5 cm in a week. t ended up being 7 cm.
91. [“G”] had a chronic lung condition which the doctors are still investigating, a whole [sic] in the heart, she’s partially blind and she has inflamed lungs.
92. I was really scared and was really depressed. I blamed him and I blamed myself. I was crying every day.
93. He punched me while I was in hospital. My tooth went through my lip and now I have two (2) scars on my upper lip.
    …
    2 I accepted the above statement as evidence of an alleged offence and accordingly included compensation for this incident in the award I made on 28 May 2019. On 29 June 2021 “H” lodged an application in relation to “G”, who was born on 14 August 2015, claiming compensation for injuries sustained by “G” on 22 June 2015. In support of the application on behalf of “G”, “H” provided a statement similar to her statement provided in application CIC 1356/2018.
    3 Police attended the incident on 22 June 2015 and compiled Incident Report (IR) number 220615 2035 15309 documenting reports of damage done to “H’s” premises. Consistent with the statement subsequently made by “H” in support of her application for compensation in application CIC 1356/2018 it is recorded police facilitated “H’s” transfer to Crisis Care. There is no record in the IR of “H” suffering injury and the running sheet attached to the incident report refers to property damage only.
    4 In support of this application on behalf of “G”, her solicitors provided a report from Paediatric Neurologist, Michael Harbord dated 6 May 2021. Dr Harbord had access to the notes from King Edward Memorial Hospital (KEMH) in relation to “H” and the birthing of “G”. Dr Harbord noted that on 4 June 2015 – that is, more than two weeks prior to the incident – at 15 weeks gestation an antenatal scan was performed for “H” showing partial chorioamnionic separation with heterogeneous echotexture in the retro‑amnionic region along the anterior uterine wall. An ultrasound was taken at 17 weeks gestation showing a subchorionic haematoma measuring 60 x 64 x 24 mm, which was still evident when a scan was performed at 22 weeks gestation measuring 62 x 56 10 mm. Dr Harbord noted the assault upon “H” occurred on 22 June 2015 at 18 weeks gestation. He noted “H” was reviewed at KEMH on 8 July 2015 at 20 weeks gestation and at that time it was expected the delivery for “G” would be 23 November 2015. The notes recorded there was no PV (per vaginum) bleeding; that is, bleeding of the genital tract. “H” was reviewed again on 7 August 2015 at 24 weeks gestation as a result of premature rupture of membranes at about 7.30 am. She was admitted to KEMH for ongoing management but later in the day it was observed there was meconium staining (indicating possible foetal distress). She was reviewed by an obstetric registrar at 4.00 pm who noted the meconium staining. An ultrasound was performed which showed normal amniotic fluid volume with no adverse foetal features seen. An ultrasound was repeated on 13 August at 25 weeks gestation, noting there was no amniotic fluid volume indicative of a persistent fluid leak following the rupture of membranes. The placenta was situated at the posterior uterine wall clear of the cervix. No adverse foetal features were seen, and the umbilical artery was normal. On 14 August 2015 there were concerns about ongoing PV loss with intermittence uterine tightenings [sic], and “H” was transferred to the labour ward for Syntocinon augmentation of delivery, that is, an induced birth. “G” was subsequently delivered by normal vaginal delivery. On examination post‑delivery the placenta was found to have three vessels in the umbilical cord and showed no abnormality. There was evidence of acute chorioamnionitis, affecting the extra‑placental membranes. There was also high grade chronic villitis. The hospital pathologist concluded there was a patch of high grade chronic villitis with acute choriomanioitis and features of ischaemia. On delivery “H” was intubated and various tests were performed.
    5 Subsequently it was established “G” was born with retinopathy of prematurity affecting both eyes requiring laser therapy. She has chronic lung disease secondary to prematurity, problems with aspiration of food and requires antibiotic treatment during winter to prevent development of pneumonia. “G” currently requires the assistance of a speech therapist and dietitian and may require assistance with physiotherapy or occupational therapy. She is due to start school in 2022. She has problems with gross motor co-ordination in conjunction with chronic respiratory disease and poor exercise tolerance.
    6 The applicant’s solicitors requested an opinion from Dr Harbord as to whether “Gs” premature birth could be attributed to the incident on 22 June 2015 and the apparent damage to “H’s” placenta at that time. In answer to that question Dr Harbord opined:
94. This issue is best answered by an expert obstetrician. However, I note that the antenatal ultrasounds did show partial chorioamnionic separation, with heterogeneous echotexture in the retro-amnionic region along the anterior uterine wall, and subsequent ultrasounds showed a subchiorionic haematoma. It may be that the abnormalities with the chorioamnionic separation and the subchorionic haematoma made the membranes more likely to rupture, particularly following the episode of abdominal trauma.
95. In my opinion the placental abnormalities with high grade chronic villitis, and features of ischaemia were likely to have contributed to the intrauterine growth retardation, as her birthweight of 580gm was less than the 10th percentile. However the normal arterial cord gas at delivery indicates that there was no significant hypoxia in the hours prior to delivery.
96. In my opinion the premature delivery occurred because of the premature rupture of membranes, and the development of acute chorioamnionitis. As discussed above it may be that the subchorionic haematoma and the separation of the chorioamnionic and amnionic membranes with heterogeneous echotexture, made the membranes more likely to rupture, particularly following abdominal trauma. If there had not been a premature rupture of membranes at 24 weeks gestation, with subsequent development of acute chorioamnionitis, then the premature delivery would not have occurred. [My emphasis]
    7 I will return to consideration of the medical evidence below. This application on behalf of “G” is made pursuant to section 17 of the Act as there were no charges laid against “I”. I was satisfied when “H” made her application for compensation in relation to the incident on 22 June 2015 she had suffered injury as a consequence of the commission of an offence and made an award in her favour for that incident. In this application I note at the time of the incident “G” was not been born and the primary question for consideration in this application is whether I have jurisdiction to make an award in favour of “G” as an unborn child at the time of the alleged offence. The threshold requirement for an award of compensation under the Act is the applicant must establish there has been either a “proved” or “alleged” offence as a consequence of which the applicant suffers injury. There are two issues for consideration which overlap. First, can an unborn child be a victim for the purposes of the Act? Second and related to the first issue, is whether there are any offences under Western Australian law which impose criminal responsibility for harm done to an unborn child or foetus and, if not, can an application proceed in the absence of such an offence? The solicitors for applicant rely heavily upon the fact that “H” suffered injury as a consequence of an offence and was awarded compensation for that incident and therefore there is sufficient nexus between “H” and “G” to establish an entitlement.
    8 In order to be eligible for compensation “G” must establish she is a victim as defined by under section 3 of the Act, that is, a person who suffers injury or who dies as a consequence of the commission of a crime. The threshold requirement is the applicant must be a person at the time of the incident the subject of this application. There is no definition of person in the Act which is unsurprising given the discussion below. Person is defined in section 5 of the Interpretation Act 1984 (WA) to include a public body, company, or association or body of persons, corporate or unincorporate, but there is no reference made to a natural person as this is self-evidently included. The Criminal Code Act Compilation Act 1913 (the Code) does not define person simpliciter but at section 1 of the Code the term person and owner includes corporations consistent with the Interpretation Act, (see also the discussion in Mansell v The Queen [2004] WASCA 111) whereas the term person employed in the Public Service used in the Code is clearly a reference to natural persons only. The reference to a person in the Act is clearly limited to a natural person as the context of the Act is to pay compensation to that person as a victim for physical and/or mental and nervous shock as well as other personal losses. It follows the issue is whether the applicant is a person capable of being a victim for the purposes of the Act? The Code is of some assistance in this regard as section 269, provides as follows:
97. When a child becomes a human being
    A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel‑string is severed or not.
    The Code in effect enacts the ‘born alive rule’ which dates back the 17th Century as explained in R v Iby [2005] 63 NSWLR 278 and the cases cited therein. (See also the useful commentary in Savell K (2006) ‘The Legal Significance of Birth’ 29 (2) UNSWLJ 23). The rule was subject to criticism by Chief Justice Spiegleman, for the plurality, in R v Iby who noted it was based on anachronistic and antiquated factors, namely the primitive state of medical knowledge and high risks of childbirth at the time the rule was formulated. That said, the rule remains a part of the law in Western Australia and other jurisdictions. Fore example in Barrett v Coroner’s Court of South Australia [2010] SASCFC 70 the born alive rule was applied in the context of a coronial inquest considering the ‘reportable death’ or a new-born infant. In R v Lippiatt (Unreported, District Court of Queensland, Hoath J, 24 May 1996) in a case not unlike this matter, the accused was charged for having caused the stillbirth of an unborn child by kicking a pregnant woman in the abdomen. Because the child was not born alive, there was no unlawful killing of a person and therefore he was charged and convicted of the unlawful procurement of a miscarriage and assault. A related section of the Code for consideration is section 290.
    9 Section 290 of the Code provides:
98. Preventing birth of live child
    Any person who, when a woman is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, he would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.
    10 Consideration was given to this section in Martin v The Queen (No 2) (1996) 86 A Crim Rep 133, 138 where Murray J, referring to a when a woman is about to be delivered of a child, said;
99. Does it mean at or about the time of birth? If so, why is it so limited, or is it a case that a woman is regarded as being about to be delivered of a child at any time while she is pregnant and carrying a live fetus? … Noting therefore the uncertainties in the proper interpretation of s 290, which may be left for another day, it is sufficient for present purposes to conclude that there is nothing in the wording of that section which would necessarily require it to be applied to conduct of the accused person which is closely connected in time with the birth of a dead child.
    11 The ordinary meaning of the words ‘about to be delivered of a child’ in section 290 suggest the section is limited to situations where birth is imminent. Though it has been asserted the section may apply before birth to a ‘viable’ foetus, which is capable of being born alive. (See R v Bayliss and Cullen (1986) 9 Qld Lawyer Reps 8, 36–7 (McGuire DCJ). See also R ν Woolnough [1977] 2 NZLR 508, 516 (Richmond P), in relation to the Crimes Act 1961 (NZ) s 182 which applies to a person who causes the death ‘of any child that has not become a human being’, unless the death is caused ‘before or during the birth’ of the child by means employed in good faith for the preservation of the mother’s life. In Preston v Parker [2010] QDC 264 [239], Irwin DCJ , after a review of authorities relevant to the Criminal Code 1899 (Qld), which contains similar provisions to the Code, concluded that a foetus is not a person for the purpose of his consideration of various defences under the Criminal Code 1899 (Qld).
    12 Child is defined in the Code in section 1 as any boy or girl under the age of 18 years and in the absence of a positive evidence as to age, any boy or girl apparently under the age of 18 years. Thus, the definition of child is measured for the purposes of the Western Australian criminal law from birth not from conception.
    13 In Lee & Hutton [2013] Fam CA 745 per Watts J giving judgement in the Family Court provided a useful summary of the status of an unborn child at law:
    In tort law it is clear that an unborn child may possess rights. The unborn child is deemed to be a “person” where the right is for his or her benefit, so that if he or she survives birth, he or she is entitled to recover compensation for damage caused by a breach of duty by a defendant, notwithstanding that the child was unborn at the time the breach occurred (Watt v Rama [1972] VR 353[10]).
    In succession law, a child en ventre sa mère (in the mother’s womb) has a contingent interest dependent upon birth. Even a frozen embryo can be taken to be an existing person. In Re the estate of the late K (1996) 5 Tas R 365, a couple who wished to have children entered into an in-vitro fertilisation program. One child was born. It was the intention of the couple to have another child. Two other embryos that were produced were frozen. The father died intestate. It was held that “a child, being the product of his father’s semen and mother’s ovum, implanted into the mother’s womb subsequent to the death of his father is, upon birth, entitled to a right of inheritance afforded by law”.
    In trust law, the interests of an unborn child can be protected. In Yunghanns v Candoora No. 19 Pty Ltd [1999] VSC 524, the trustee would have been able to amend the trust deed in a way that would exclude the unborn child from having rights in the trust once born. The plaintiff was allowed to commence proceedings on behalf of his unborn child. The court granted an interlocutory injunction to protect contingent rights of an unborn child who, if born, would have rights under the family trust.
    As can be seen those areas of the law where a legal fiction exists to treat a child en ventre sa mère as a living child, the fiction does not operate unless it is invoked to provide a benefit to the child once born.
    Notwithstanding Lindenmayer J’s reasoning in Diessel, it would have been possible to have considered making a declaration that proper arrangements in all the circumstances had been made for the care, welfare and development of the child in anticipation of that child being born. Such an interpretation would have been consistent with the notation that a declaration could be made for the benefit of the child once born.
    It may also have been possible in the abortion cases to argue that there was a jurisdictional basis to be found in s 68B(1)(a) of the Act for granting an injunction for the protection of the child,[11] because the ability to be born was a benefit to the foetus. The difficulty with any such argument is the law in the abortion cases has developed in a different way to the way the law has developed in tort, succession and trust law.
    As I have already mentioned, Lindenmayer J in In the marriage of F and F observed that by way of obiter Gibbs CJ in Attorney‑General (QLD) (Ex rel Kerr) v T [1940] ArgusLawRp 50; (1983) 46 ALR 275 (a case in which an injunction was sought from a State court to prevent an abortion) said:
    The second argument is that an unborn child is to be regarded as a person whose existence can be protected by the courts. As at present advised, I would agree with the judgment of Sir George Baker P in Paton v BPAS Trustees [1979] 1 QB 276 at 279, that a foetus has no right of its own until it is born and has a separate existence from its mother.
    Consistent with this view, in criminal and coronial law, the “born alive” rule holds that “for a foetus to achieve legal personhood, the infant must have been born alive”.[12] The “born alive” rule provides that a newborn baby is a person within the law when it is fully extruded from its mother (whether or not the umbilical cord has been cut or the placenta is attached) and living by virtue of the functioning of its own organs with or without medical stimulus or assistance (see R v Iby [2005] NSWCCA 178) [My Emphasis]
    
    14 As at 22 June 2015 “G” had not completely proceeded in a living state from the body of her mother and did not do so until 14 August 2015. By letter dated 29 June 2021, “H’s” solicitors submitted in this regard:
    3.4 There is currently no other law in Western Australia or Australia as a whole that can clearly define whether an unborn child of a gestation greater than 20 weeks is considered a natural person and taking into account the Crimes Amendment (Zoe’s Law) Bill 2019 in New South Wales we propose that the Applicant be considered a natural person at the time of the incident.
    15 The applicant’s solicitors also noted that Western Australian abortion laws allow for an abortion prior to 20 weeks gestation asserting it is therefore unlawful to obtain an abortion after 20 weeks as the unborn child is “generally considered closer to a natural person than an embryo”. No authority is provided for this assertion. The submission suggests because “G” was born at more than 20 weeks gestation I should find “G” to be “closer to a natural person” anytime thereafter and therefore find she was a person and therefore a victim under the Act at the time of the incident. The applicant’s solicitors provide no case authority for this proposition and make no reference to Western Australian law. This approach is flawed for a number of reasons noted below but in addition it must be the date of offence or incident is of significance rather than the date of birth as suggested given that an award of compensation is premised on the date of an offence having regard to section 31 of the Act in particular. As noted above to the extent the Code assists in this regard the submission is contrary to the law discussed in relation to section 269 above.
    16 The applicant’s solicitor’s refer to New South Wales law under the Crimes Amendment (Grievous Bodily Harm) Act 2005 (NSW) which extended the definition of grievous bodily harm under the Crimes Act 1900 (NSW) to include, “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.” That amendment recognises the loss of a foetus as an injury to the pregnant woman broadening the definition of the legal status of the foetus itself. This allows for an indictment charging grievous bodily harm to be brought against an offender who causes harm or destruction to a foetus, though the complainant would be the mother and not the unborn child. Recent amendments to the Crimes Act 1900 under the Crimes Legislation Amendment (Loss of Foetus) Act 2021 go further and create an offence of grievous bodily harm to a foetus but have not yet received royal assent. The provision of a New South Wales statute are of little assistance in deciding this issue.
    17 Recent amendments to the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA) and the consequent amendments to section 1(4A) of the Code broaden the scope of any reference to doing bodily harm to a person to include harm done to their unborn child though these amendments do not recognise the unborn child as a separate human being, and therefore the principle that until the child is born, the unborn child is biologically part of the mother remains on foot. (See Finlay, L (2015) “Foetal Homicide Law Reform in Western Australia” 40(1) University of Western Australia Law Review 463, for background to this legislation.)
    18 Save for section 290 of the Code noted above, I am unable to find any provision in the Code which creates an offence in relation to an unborn child such that a charge could be laid referencing the unborn child. Section 1(4A) of the Code specifies a reference to causing or doing bodily harm and grievous bodily harm to the mother includes harm to the unborn child therefore constituting harm to the mother.
    19 To answer the first question posed above I find the meaning of person under the Act refers to a natural person and does not include an unborn child. The applicant was not a person for the purposes of the Act because she had not completely proceeded in a living state from the body of her mother at that time of the alleged offence and therefore cannot meet the threshold requirement of the Act. As to the second question I conclude that save for section 290 of the Code, which does not apply in this case, there is no provision in the Code, or other relevant Western Australian legislation, which provides an offence could be committed against “G” as an unborn child separate from her mother. Because I have concluded “G” was not a person it is not necessary for me to decide to whether the applicant could succeed in such circumstances.
    20 There is also a question of causation. The applicant asserts, on behalf of “G”, the incident caused “G” to be prematurely born and a consequence “G” suffered injury, namely the conditions and impairments referred to above. As to causation, and leaving aside that Dr Harbord had some doubts about his own expertise to proffer an opinion, I note the High Court in  Ramsay v Watson (1961) 108 CLR 642 said :
    That some medical witness should go into the box and say only that in his opinion something is more probable than not does not conclude the case. A qualified medical practitioner may, as an expert, express his opinion as to the nature and cause, or probable cause, of an ailment. But it is for the jury to weigh and determine the probabilities. In doing so they may be assisted by the medical evidence. But they are not simply to transfer their task to the witnesses. They must ask themselves “Are we on the whole of the evidence satisfied on a balance of probabilities of the fact?”. In this case his Honour in his summing-up instructed the jury that this was their task; and no ground is shown for impugning their conclusion. (at p645)
    21 Having reflected upon the opinion of Dr Harbord, I do not think I can put this evidence any higher than there was a possibility that subchorionic haematoma and the separation of the chorioamnionic and amnionic membranes with heterogeneous echotexture which occurred prior to the incident, caused the membranes to rupture, giving rise to the premature birth of “G” and thereby causing injury to “G”. As the applicant bears the burden of establishing on balance of probabilities the incident caused the injuries to “G”, the evidence provided would not have been enough for the claim to succeed.
    22 Accordingly, I determine I have no jurisdiction to make an award in relation to this applicant and therefore the application is refused on that ground, but I would also find that the application fails because the applicant has not established “G” suffered injury as a consequence of the alleged offence. I do not have to decide the question whether an application could succeed where there is no offence specific to an unborn child.
    

23 Pursuant to section 64(3)(c) of the Act I prohibit publication of any particular of these reasons that is likely to lead members of the public to identify “G”, “H” or “I”.

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

R Guthrie, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

23 FEBRUARY 2022