Criminal Injuries Compensation - W.A.

HUNTER [2022] WACIC 8 (18 May 2022)

by TRU Investigations

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : HUNTER [2022] WACIC 8

CORAM : K HAFFORD

HEARD : 26 OCTOBER 2021 and 7 DECEMBER 2021

DELIVERED : 18 MAY 2022

FILE NO/S : CIC 1907 of 2020

BETWEEN : MITCHELL JAMES HUNTER
Applicant

Catchwords:

Unlawful wounding – Proved offence – Burden of proof – Victim committed a separate offence – Behaviour of victim contributed to injury – Turns on own facts

Legislation:

Criminal Code, s 223, s 245, s 246, s 248, s 313, s 317, s 254
Criminal Injuries Compensation Act 2003, s 3, s 12, s 19, s 39, s 41

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : A & E Legal PTY LTD

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Bennetts v Smith [2022] WADC 32 [38
Bodney v Assessor of Compensation (2000) 24 SR (WA) 299
Bull v Hobbs [2009] WADC 128
Commonwealth v Pillifeant, unreported; SCt of ACT; 28 November 1990, Miles CJ, at 6
Hutchings v Lachlan [2012] WADC 89
Kumeroa [2013] WACIC 3
Layton v Northern Territory of Australia & Anor [2002] NTSC 6
Masciantonio v The Queen (1995) 183 CLR 58
McDavitt v McDavitt [2013] WADC 22 [21] and [22]
McDavitt v McDavitt [2013] WADC 22 [30] – [31]
Puterangi [2017] WADC 168
Re ATS [2017] WADC 92 [30] and [114]
Re Richardson [2009] WADC 93
Saric v Duric [2021] WADC 53
Sekuloff [2017] WACIC 10
SW v BB [2001] WADC 86
Underwood v Underwood [2018] WADC 13 [55] – [62]

Reasons for Decision:

1 By application dated 18 November 2020 Mitchell James Hunter (the applicant) claimed compensation for injuries he suffered as a consequence of an offence committed by Dylan Anthony Bolin (the offender) on 20 August 2019 (the offence). The applicant was born on 30 December 1994 and is currently aged 27 years.
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act). This section authorises an assessor to award compensation if satisfied the claimed injury occurred as a consequence of the commission of a proved offence. Section 3 of the Act defines a proved offence as a crime, misdemeanour or simple offence of which a person has been convicted.
The Offence
3 The circumstances of the offence were set out in the Statement of Material Facts, as follows:
At about 8:30pm on Tuesday 20 August 2019 the accused was at … Wicklow Street, Ellenbrook. The accused attempted to gain entry inside the house by removing the fly screen and attempting to open a locked window. The accused had previously stayed with the victim at the house for the last month and had his property inside. As he could not gain entry inside, he lay on the ground by the sliding door waiting for the victim to return home.
The accused was roused by the victim who hit the accused once on the head with a vacuum cleaner pole. The victim told the accused he was not welcome at the house. The accused went across the road and sat between the bushes swearing at the victim. The victim walked over and hit the suspect a second time to the head with the vacuum cleaner pole.
The accused took out a knife from the front pocket of his jumper, removed it from it’s casing and lunged at the victim, stabbing him one time to his abdomen. The knife penetrated the victim 7-9 centimeters (sic) deep and penetrated his liver.
The accused ran off from the scene and dropped the knife into a portable toilet nearby.
Shortly after, the accused returned to the scene and lay in the back yard of … Wicklow Street, Ellenbrook where he was arrested and conveyed to Midland Police Station.
4 The offender was convicted of unlawful wounding in the Magistrates Court at Midland on 15 October 2019. I am satisfied a proved offence as defined in the Act was constituted.
Evidence
5 In support of the application, the applicant provided a victim impact statement dated 16 November 2020, a WA Police Information Report for Criminal Injuries Compensation dated 12 August 2020, a police statement from the applicant dated 31 August 2019, medical records from St John of God Hospital Midland, medical records from Royal Perth Hospital and patient records from Broadway Medical Centre. I identify these documents, where relevant, in more detail below. Subsequently the applicant also submitted the Sentencing transcript from the Midland Magistrates Court in relation to the offence.
6 I obtained the Police Brief and a copy of the Electronic record of interview of the offender. In addition, due to issues later raised by the applicant with respect to a prior history between him and the offender, I obtained an “IR trawl” of all reports to police in relation to the applicant where he was either a victim or a witness.
7 I issued a notice pursuant to section 19(1)(a) of the Act to Ellenbrook Medical Centre for the applicant’s medical records, and to St John of God Hospital, Midland for the offender’s medical records on the date of the offence.
8 In his witness statement to police dated 31 August 2018 the applicant stated the offender was a friend who had been living him for the past month, sleeping in a small room at the address and who was not paying rent but was helping out by buying food. The applicant stated the relationship with the offender had been “not great” whilst he was living there and provided examples of conflict between them. The applicant stated he received a telephone call from the offender’s brother in relation to whether the offender could stay there that night. The applicant advised he did not want the offender to stay there and stated he was of the belief the offender would not be staying at his that night. The applicant set out the circumstances of the offending as follows:

  1. At about 10:30pm, I heard knocking from the sliding door to my unit.
  2. I was in bed in my bedroom at the time.
  3. I heard a voice shouting “Mitchy, Mitchy”.
  4. I recognised the voice as being Dillon as he is the only person I know who calls me “Mitchy” and only does it when he is in psycho mode.
  5. I ignored him and after a few minutes I heard him go through the side gate and come to my bedroom window.
  6. Again he was knocking on the window and calling my name but ignored him.
  7. After a couple of minutes I heard him walk back round to the front of the house and knock on the communal door to the property.
  8. After a couple of minutes I heard Patrick speaking to Dillon at the front door.
  9. I heard Patrick lend Dillon his mobile phone to contact me.
  10. After a few seconds my mobile phone rang and I answered it.
  11. Dillon was on the other end of the phone and he asked me if I was in.
  12. I told him that I was out and at an exgirlfriends (sic) address.
  13. When I told Dillon this he said “Oh fuck okay bro” and the call ended.
  14. I then heard Dillon walk back to the side of the house and was trying to pull the flyscreen off the bedroom window and tried to get in.
  15. I made some noise to alert Patrick.
  16. I heard Dillon walk back around the front of the house and I went to go and speak to Dillon about him trying to break in.
  17. At the time I was only wearing black track pants and had no shoes or top on.
  18. I went to the sliding door and opened it.
  19. Dillon was sat on the floor near to the sliding door.
  20. Dillon was wearing a red jumper, Everlast track pants and Assics (sic) trainers.
  21. Next to him on the floor was (sic) knife.
  22. I had never seen the knife before and I do not own a knife like it.
  23. I asked Dillon why he was trying to break in for.
  24. When I spoke to Dillon he jumped straight up, picked up the knife and stepped towards me.
  25. Dillon had the knife in his right hand.
  26. I was scared I thought Dillon was going to stab me so I picked up part of a vacuum cleaner that was by the door and hit Dillon to the head.
  27. I told Dillon to leave and he walked across the road.
  28. Dillon sat in a bush at the front of the house opposite and I thought he would come back to my house.
  29. I walked across the road to tell him to leave.
  30. I still had the vacuum cleaner part in my hand to defend myself as I knew Dillon still had the knife.
  31. As I got close to him I told him to leave.
  32. Dillon said “I’m going to fucking kill you bro” and stood up out of the bush.
  33. Dillon then stabbed me twice to the body with the knife.
  34. I was in shock and managed to hit Dillon to the head with the vacuum cleaner part.
  35. The vacuum part slipped out of my hand.
  36. I ran back into the house via the sliding door and closed it behind me.
    9 In his Victim Impact Statement dated 16 November 2020 the applicant described receiving abdominal wounds, which were washed out, stapled and dressed at Royal Perth Hospital. He stated he remained in fear of his life and so discharged against medical advice, before being apprehended on his way to the train station and being returned to the hospital. He described attending St John of God Hospital in Midland due to ongoing pain and an impact on his daily function, including his ability to participate in martial arts activities. The applicant stated he had pre-existing anxiety and depression which worsened after the offence, and he had an ongoing fear the offender or one of his friends may hurt him which restricted the applicant from leaving the home. He stated the clothing he was wearing, namely tracksuit pants worth $120, were destroyed as a result of blood stains and had to be thrown out. The applicant also described an impact on his earning capacity, noting he was not working at the time but since the offence he was unable to obtain work as a security guard or as a trainer in a gym. He also referred to additional losses by way of travel expenses of approximately 600 km, past treatment expenses estimated at $200 and future treatment expenses he estimated would be $5,000.
    10 The Royal Perth Hospital records indicate the applicant sustained two stab wounds in his upper abdomen resulting in a Grade II liver laceration. On 20 August 2019 the applicant underwent a CT scan and chest x-ray. He was noted to be agitated, was uncooperative with treatment and to display drug seeking behaviour, repeatedly requesting oxycodone 10 mg tablets and when refused, discharged against medical advice. It was determined by medical practitioners he did not have capacity to discharge against medical advice and police were called. At approximately 6 00pm on 21 August 2018 the applicant was returned to Royal Perth Hospital by ambulance. The inpatient notes state he rode a pushbike home, and whilst at home took an unknown quantity of pain medication. He was found collapsed at a phone booth and an ambulance was called. On readmission to hospital the applicant was agitated and was required to be restrained for treatment. His wounds were washed under local anaesthetic and stapled. He was kept sedated overnight and discharged on 22 August 2019. The applicant described the offender to hospital staff as his “best friend” and “housemate”. The applicant attended Royal Perth Hospital on 5 September 2019 for a review of his wound at which time it was noted the staples had been removed by his general practitioner on the previous Sunday, which I calculate to be 1 September 2019.
    11 The applicant attended St John of God Hospital in Midland on 23 August 2019 complaining of feeling feverish, concerned his wound was oozing and requesting a prescription of tramadol (an opioid medication). On examination he was noted to be afebrile, vitally stable and with mild guarding on palpation near his wound. After consultation by treating practitioners with Royal Perth Hospital he was discharged with stronger analgesia and advised to see his general practitioner in relation to his wound the following week. The applicant returned to St John of God Hospital in Midland on 29 August 2019 requesting the stitches be taken out of his wound. He presented as “agitated, pacing and anxious” and “paranoid, rambling”, describing pain levels of 8/10. On examination the wound was noted to be red, dry, intact with no exudate. The applicant left the hospital before medical officer review. Also contained on the hospital file was a referral from the applicant’s general practitioner to the Psychiatry Department of the hospital dated 12 July 2019, requesting an assessment of the applicant given his history of difficulty concentrating, low energy level, mood swings, panic attacks and a dislike of going out with a difficulty in finding work.
    12 The applicant provided a copy of his records from Broadway Medical Centre from 10 December 2017 to 28 August 2019. The applicant attended Dr Shalinder Mamotra on 24 August 2019 with respect to the offence and underwent a wound check. The wound was noted to have no signs of infection but there was swelling around the wound. The applicant was prescribed tramadol 100mg. There are no other records relevant to the offence, with the balance of the entries addressing the applicant’s requests to be prescribed tramadol and valium.
    13 I obtained the medical records from Ellenbrook Medical Centre. These records cover the period 11 December 2017 to 24 July 2020. On 27 August 2019 the applicant attended Dr David Hyman, requesting a script of temazepam but was refused as he had been recently prescribed it by another doctor. On 16 September 2019 the applicant attended Dr Ali Hashemlooo, again seeking temazepam, but was prescribed alternate medication and referred to a psychologist. On both 17 September 2019 and 18 September 2019, the applicant attended Dr Nazanin Ghasri requesting temazepam. The applicant was diagnosed with benzodiazapene dependency by Dr Ghasri, and referred to Midland Community Mental Health Centre on 18 September 2019. On 4 November 2019 the applicant attended Dr Trevor Hoffman who noted a drug dependency problem and recorded the applicant suffering from an adverse reaction to temaze, namely paranoia. He prescribed Dermagel for the applicant’s abdominal scarring and referred him to Headspace in Midland. The applicant attended on 20 November 2019 and 25 November 2019, seeking temazepam prescriptions which were refused. Whilst the Royal Perth Hospital records refer to the applicant’s staples having been removed on 1 September 2019, I could find no reference to this procedure in the medical records of Broadway Medical Centre or Ellenbrook Medical Centre. The clinical notes of both medical practices refer to the applicant attending other medical centres and is therefore likely the applicant had additional medical treatment at another medical centre the name of which he has not provided.

    14 The Police Brief included a witness statement from Patrick Gibbs dated 21 August 2019. Mr Gibbs resided in a property adjacent to that of the applicant. He advised police he knew both the applicant and offender by sight. The applicant was living at the property when Mr Gibbs moved in and the offender had been residing there for about two to three weeks prior to the offence. The property had adjoining walls which were thin and he could hear if there were any arguments in the applicant’s unit. Mr Gibbs was aware of no issues between the applicant and offender between 18 August 2019 to 20 August 2019. At about 9.00 pm on 20 August 2019 Mr Gibbs heard banging at the front of the property and went outside to look. He noted the lights at the applicant’s unit were turned off. He saw the offender who told him he was trying to get in as the applicant wasn’t there. The offender advised Mr Gibbs he would sleep on the front patio and Mr Gibbs returned inside. At about 10.22 pm the applicant telephoned Mr Gibbs. The applicant spoke quietly and said “Get him off the front door” and “He’s trying to smash in, break in, call the cops”. The applicant didn’t tell Mr Gibbs what was happening and did not answer when Mr Gibbs asked if he was home. A short time later the offender asked Mr Gibbs for the use of his phone to call the applicant, and Mr Gibbs allowed him to do so. He then heard the applicant and offender talking in the shared hallway but did not hear the substance of that discussion. However, he heard the offender saying “Let me in”. Mr Gibbs told the offender the applicant was not at home. The offender responded by saying the applicant was home and then left Mr Gibb’s home. A short time later Mr Gibbs heard the applicant and offender talking. About 10 minutes later, at just prior to 10.30 pm the applicant banged on Mr Gibb’s door and called for help. Mr Gibbs saw the applicant was injured and then drove him to the police station to meet the ambulance.
    15 The Police Brief contained a number of photographs of the applicant’s wounds, the knife referred to above, the bloodstains to the house, the vehicle Mr Gibbs drove and the area where the applicant was stabbed and of the applicant’s unit and the surrounding area.
    16 The “IR trawl” containing the police reports of all incidents where the applicant was either a victim or witness contained no additional incidents between the applicant and the offender.
    Progress of application
    17 On 8 December 2020 I wrote to the applicant’s solicitors advising I had reached a preliminary determination to refuse the application. I advised I had found the applicant had committed a separate offence of common assault pursuant to section 313 of the Criminal Code (CC) by reason of having struck the offender with the vacuum cleaner pole. Accordingly, I advised I was unable to make an award in favour of the applicant pursuant to section 39 of the Act. In addition, I found the applicant’s conduct in striking the offender with the vacuum pole had contributed to the applicant sustaining injury and pursuant to section 41 of the Act I considered the application should be refused. I gave the applicant’s solicitors until 8 January 2021 to provide submissions in response to the preliminary determination.
    18 On 21 December 2020 the applicant’s solicitors provided submissions in response. The applicant submitted he hit the offender on the head the first time only after the offender tried to break into his home and he was threatened with a knife, and he hit the offender the second time only after he had been stabbed by the offender. The applicant’s submission which contained an analysis of the evidence and asserted the applicant’s evidence should be preferred to that of the offender on the basis it was supported by Mr Gibbs. When setting out the evidence of Mr Gibbs the applicant referred to the police brief, primarily to an Application for a Search Warrant REF: 105863 sworn by Detective First Class Constable Reid on 21 August 2019 which lists what he understood the evidence of Mr Gibbs would be, namely:
    At about 11:46pm on Tuesday 20th August 2019, Police were contacted by Patrick GIBBS (GIBBS) who advised he was conveying Mitchell HUNTER (the victim) by vehicle to Ellenbrook Police Station with a serious stab wound to his stomach. GIBBS advised that the victim was involved in a heated argument with a former housemate (the suspect) who was recently evicted from the address but returned unannounced. The argument escalated when the suspect attempted to re-entered [sic] the address without permission. The argument escalated and the victim armed himself with a metal pole to prevent the suspect from entering. A physical altercation ensued, during which the victim was stabbed to the abdominal area with a knife.
    19 The applicant asserts this supports his version of events because Mr Gibbs agrees the offender was evicted from the premises and was trying to gain access to the property when there was a heated argument and the offender only struck him after the argument. However, the version of Mr Gibbs’ evidence, as set out in the Application for a Search Warrant, is not entirely consistent with Mr Gibbs’ police statement. Mr Gibbs only confirmed the offender was trying to gain access to the property following which there was a discussion between the applicant and offender subsequent to which the applicant was injured.
    20 On 13 December 2019 the applicant lodged a copy of the transcript of proceedings before Magistrate Sharratt on 13 December 2019. On 11 January 2019 I drew the applicant’s attention to comments made on sentencing of the offender, namely:
    There’s also the migratory effect of the degree of provocation, which, although it doesn’t justify or excuse an unlawful wounding, nevertheless goes some way to explain. I mean, first, he attended at those premises and probably gave that guy a bit of a shock on his doorstep. Then he went over and yelled out stuff at him. And he has come over with a vacuum cleaner. He didn’t need to, he could have stayed inside his house, but he didn’t. He went over to Dylan and hit him on the head, and, to some extent, was the author of his own misfortune.
    21 On 20 January 2021, the applicant raised a concern he had not been given the opportunity to testify at the proceedings and so any findings made by the Magistrate were based on submissions from the prosecution and defence counsel. On 12 February 2021 the applicant made further submissions in relation the circumstances of the incident, noting the version of events put forward by the Prosecutor to the Magistrate was a “novel creation of his own which seems to be a blend of the two versions”.
    To what extent are the parties bound by the facts of the proven offence
    22 Given the applicant’s concern he did not agree with the facts as set out in the Statement of Material Facts, I gave consideration to whether I was bound by the facts of the proven offence or could consider additional information. Underwood v Underwood summarises the relevant principles as follows:
    First, in a CICA appeal, the offender cannot re-litigate the facts which led to the proved offence; it is not a backdoor means by which to appeal the conviction.
    Second, a plea of guilty to a criminal charge necessarily involves an admission by the offender of material facts comprising the elements of the offence. Proof of the fact of the conviction may also constitute evidence of those material facts.
    Third, a plea of guilty necessarily means that all relevant defences have been conceded as not applying. This would preclude the offender from adducing evidence in criminal injuries compensation assessment, including for the purposes of CICA s 41, to the effect that he or she had a defence to the proved offence.
    Fourth, a claimant for criminal injuries compensation cannot re-litigate the facts which led to the proved offence. This is for two reasons. The first is that the basis of the claimant’s right to claim criminal injuries compensation is ‘the commission of a proved offence’: CICA s 12(1). The evidence of a ‘proved offence’ must reflect the second and third principles. The second reason is that if the claimant was able to re-litigate the facts which led to the proved offence by introducing further evidence, procedural fairness would dictate that the offender would be entitled to introduce contradictory evidence. This would lead to the re-litigation of the facts which led to the proved offence.
    Fifth, where there is an issue as to the precise identification of the facts evidenced by the conviction following a plea of guilty, the ‘only reliable guide to that issue’ will ‘usually be’ the facts admitted for the purposes of sentence: Bennett [67]. This will ordinarily be able to be discerned from the transcript of the sentencing hearing.
    Sixth, a plea of guilty does not constitute an admission of all of the facts stated in the State’s witness statements, or otherwise contained in the brief. On the other hand, nor does a plea of guilty constitute a rejection of the facts stated in the State’s witness statements, or otherwise contained in the brief, that do not comprise the essential facts necessary to constitute the elements of the offence. These other facts or circumstances are not incontrovertible.
    Seventh, both a claimant and an offender may introduce evidence and other material in relation to the facts and circumstances not falling within the second and third principles. The CICA contains procedures to enable an assessor to resolve a factual conflict, including the power to conduct a hearing: CICA s 24.
    23 The critical issue in this matter was whether the applicant struck the offender with the vacuum pole before or after he was stabbed by the offender. The offender was charged with unlawful wounding (which does not include an element of assault) and as such the defence of provocation under section 246 of the CC was not available to him. As such, the timing of when the applicant struck the offender was therefore not of critical importance with respect to the criminal charge. Further, the applicant striking the offender is not a fact which comprised the elements of the charge of unlawful wounding and is therefore a peripheral fact. Proof of the fact of the conviction is not proof of the applicant striking the offender.

    24 I am not bound by peripheral facts which do not go to prove the elements of the offence with which the offender was charged or which fall outside any defence and am able to consider additional evidence in relation to when the applicant struck the offender. To the extent there are peripheral facts which are relevant to the resolution of the matter I must determine the facts on the balance of probabilities.
    Additional material considered
    25 I obtained a copy of the Electronic Record of Interview of the offender. The offender was interviewed by police on 21 August 2019. The offender was taken by police to St John of God Hospital in Midland for medical review before being questioned by police. The offender refused legal representation or an ‘interview friend’ and advised police of the following circumstances. The offender paid $175 per fortnight to the applicant to stay in the house and was staying there at the applicant’s request. He paid on a Thursday and was therefore of the understanding he could stay until the next Thursday. He did not have a key to the property and would usually enter the house in the company of the applicant. The offender was not aware he was not able to stay at the house if he was drunk. The offender’s clothing and other property was stored in the house. Between one to three days prior to the offence the applicant had said to him you might need to move out when your rent is up but nothing had been finalised. The applicant had not told the offender he was no longer welcome to stay there. The applicant had told the offender’s brother he was not welcome there if drunk but the offender was not aware of it at the time, advising police “his brother still sent him on his way there”.
    26 The offender arrived at the house after drinking all day and was banging on the windows of the property to get the applicant’s attention when Mr Gibbs came out of his house. Mr Gibbs allowed the offender use of his telephone to call the applicant, who advised he was not at home and was with his ex‑girlfriend. The offender then tried to get into the house, by removing a flyscreen but the window was locked. The offender lay down at the mat at the front door and attempted to go to sleep. The offender had a knife on him which had been given to him by his brother earlier that night. He was unsure why he was given the knife but assumed it was because he was drunk and was carrying money on him. When laying down, he took the knife out of his pocket and had it on the ground near to him. The door to the house opened and, whilst still lying down, the offender was struck to his head by the applicant with a metal pole, sustaining a lump to his head. The applicant yelled at the offender for trying to break into his house. The offender picked up the knife and went across the road and sat down near some bushes. He was swearing and yelled out to the applicant: “Why the “F” did you hit me you dumb cunt?”. The applicant came running over to him, saying “what did you call me?”. The offender heard him running, was scared and stood up. The applicant then hit the offender a second time with the metal pole, connecting to the left side of the offender’s head. The offender then lunged at the applicant with the knife and stabbed him. The applicant threw the metal pole at him before running away. The offender also ran away and threw the knife in the toilet of a porta-loo around the corner. He then realised what he had done and returned to the scene to wait to be arrested.
    27 The offender was straightforward in the account he provided to police, advising he had been given legal advice not to answer any questions but he wanted to do so and to plead guilty as soon as possible as he had put the life of one of his best mates at risk. The offender was very straightforward and consistent in his answers to police and I had no reason not to accept his description of the circumstances of the offence.
    28 The Police Running Sheet contains a number of entries between 6 September 2019 and 23 September 2019 with respect to arrangements being made for the offender to collect his possessions from the applicant’s unit, consistent with the offender’s advice in interview his property was at the applicant’s unit.
    29 Pursuant to section 19 of the Act, on 5 May 2021 the offender was notified of the application and requested to make submissions with respect to the circumstances of the incident and his own personal circumstances with respect to an ability to refund any monies paid to the applicant to the State. No response was received to this correspondence.
    30 On 6 May 2021 I issued a notice to St John of God Hospital, Midland, seeking the offender’s medical records which were referred to in his police interview. The hospital records from St John of God Midland dated 21 October 2019 note the offender was taken there by police for an assessment of his fitness to hold him in custody given the head injury sustained after having been hit to the head with a pipe by the applicant. The description of injury noted the offender had been hit to his head twice with a pipe and he had an abrasion to his scalp. No concerns were noted, the offender was given head injury advice and was discharged into police custody. These records were consistent with the applicant’s advice to police when interviewed.
    31 On 17 September 2021 I advised the solicitors of my intent to hold a hearing in the matter, and a hearing was subsequently listed for 26 October 2021.
    Applicant’s evidence at hearing
    32 The applicant gave evidence on 26 October 2021. He advised he was very anxious about giving evidence and was concerned the offender would be present. I set out the applicant’s evidence below.
    33 The applicant had known the offender since school and the offender was living with the applicant. The day prior to the incident the applicant and offender had a bit of an argument at Optus Stadium and had gone their separate ways. The offender stayed at his brother’s house that night. On the day of the incident the offender’s brother called the applicant to confirm the offender could stay with the applicant that night and the applicant advised the offender’s brother he did not want the applicant to stay with him anymore. The applicant told the offender’s brother he was at his ex‑girlfriend’s house. The applicant considers the offender’s personality would change when he was dunk and he would “try to assault [him]”.
    34 The offender came to the applicant’s unit and tried to enter the house, going to the sliding door and banging on it and removing the flyscreen from the bedroom window and trying to open the window. The applicant telephoned Mr Gibbs and asked him to go outside and speak to the offender. The offender then used Mr Gibbs’ phone to telephone the applicant who advised he was not home and was at an ex-girlfriend’s house. The applicant heard the offender continue to try to get into the house. The applicant stated:
    And then I’ve just gotten that scared, I went outside and he’s – because I made a noise. I said, “Stop this now,” because he has gone to my window again and trying to rip it off and I’ve just fully – like, freaked out, and I’m shaking. And I remember I couldn’t breathe properly, because I was thinking he was going to smash into the window and, like, do something really – that’s what I thought in my head. Like, it was, kind of, like a horror movie for me, because I thought – yes. And then – so I’ve gone to approach him and he’s pretending to be, like, asleep on the – on the floor where my sliding door is. And then I thought to myself – I asked him, “Did you just try and break into my property?” And he said, “No, no. I’ve been here sleeping all the time.” And I said, “I just heard you taking my flyscreen off” and everything, and that’s when he has jumped up, because there was a knife laying right next to him. So he has jumped up with the knife in his hand and went to lunge at me with the knife, so that’s when I’ve had – I had a vacuum cleaner pole in my hand already. And then I’ve hit him on the head with it, only because I was scared he was about to stab me, because he has actually picked the knife up, saying “I’m going to fucking kill me – kill you, bro’.” That’s what he said to me. Because we were good mates, you know, we were really good mates. But he just always had his moments. Like, even younger days, there was a lot of disagreements and everything, and I would always be the one that end up on the bad end of the stick, you know, because he’s a much bigger guy than me. Like, bigger build and everything. So I was quite scared of him.
    Right. So you hit him on the head. And what happens after that?—And then he has gone – ran into the bushes, like, crouching down into the bushes, holding a knife in his hand, and just sitting across the road from my property. And so that meant – that makes me feel like he’s come and attack, you know, attack me. Like, waiting for me to go to sleep or something, and then charge into my house when I’m sleeping. So I thought to myself, I don’t want that happening. Like, opened my sliding door, went back outside again and asked him, “Can you please leave the property?” Like, “I don’t want you here.” And then that’s when I’ve got – he has jumped out of the bushes, lunged at me and just gone – I thought it was only one stab, but then I look at my injury and it’s actually two, because I couldn’t even remember getting stabbed. I just looked down and I just went like this. I went, “What the – what the fuck have you done, man.” All this blood just coming out, and it was, like, gushing out. And then I freaked out and I’ve actually managed to hit him a second time with the vacuum cleaner, and it slipped out of my hand, and then I’ve gone – ran inside, all blood everywhere.
    35 The applicant attended Royal Perth Hospital but was concerned the offender would attack him again so left the hospital to go home. He was apprehended and returned to the hospital but only stayed there for a short period of time despite needing to stay longer. He was in considerable pain and had to lay in bed for a week or so before he was able to walk properly. He was unable to cough as doing so hurt his stomach “really bad”. He suffered from nightmares and was unable to sleep “hardly ever” and was put on a lot of medications for the pain. The applicant advised his staples were supposed to be removed within two weeks but were left in place for four weeks as he was unable to go to the doctors himself due to his pain levels.
    36 The applicant advised whilst the offender was his “best mate” the offender had a history of assaulting him. He did not call the police when the offender was trying to break into the house as he was worried the offender would hear him do so. However, he wasn’t concerned the offender would hear him on the phone to Mr Gibbs as he was “really quiet”. He asked Mr Gibbs to phone the police. Before going out to confront the offender he dismantled the vacuum cleaner to remove the pole from it. When he opened the door to confront the offender, the offender jumped up and tried to stab him and that is why he struck him with the pole. The offender was pretending to be asleep when he was laying at the front door.
    37 After the offender walked across the road the applicant didn’t call police, stating:
    And you can see him sitting in a bush at the front of the house opposite and you know he has a knife?—Yes.
    And you didn’t call the police then?—No, Miss. Why not?—Because I was scared. I didn’t want to get attacked or anything, and I thought if I call police, they’re going to take about five minutes, 10 minutes more to get to the property. So I’m trying to get him away myself.
    All right. So when you walked across the road to him – – -?—Yes. – – – you had the pipe in your hand?—Yes. And what was your intention when you went across the road?—To – I told him to move on. That’s what I said. Move on.
    And why did you have the pipe in your hand?—Because he had a knife in his hand.
    So what were you going to do with the pipe?—Well – because I didn’t want to get stabbed, so what am I going to walk over there with just nothing in my hand and – like, I was trying to whack it out of his hand. That’s my intention to do. But I struck him in the head instead and I was actually trying to go for his hand. And that was my intention, Miss, to get the knife out, dismantle him so he doesn’t have a knife. And then call police, Miss.
    So you went across there – – -?—So I was trying to, like, sort it out myself, basically, but it didn’t end that way.
    Yes. All right. So just so I’m understanding. So you’ve gone across the road with the pipe in your hand?—Yes.
    And your intention is to sort the situation out yourself?—Yes. So you don’t need to call police?—Yes.
    And you have the intention of striking him on the hand with the pipe?—That was my intention. Yes.
    So he couldn’t stab you?—Yes. But it didn’t end like that. I got stabbed anyway.
    38 The applicant advised Mr Gibbs was inside the house and did not witness any of the assaults, despite the applicant screaming for help, yelling “he’s got a knife”.
    39 At the conclusion of the hearing of the applicant’s evidence, Mr Hornigold, who appeared as counsel for the applicant made a submission with respect to the applicant’s conduct. He submitted the situation was the offender was trying to break into the applicant’s unit and when confronted threatened to stab the applicant who then struck the offender once, lightly, in self‑defence. The submission continued the applicant was genuinely fearful of the offender and acted reasonably in going across the road to speak to the offender to tell him to leave.
    40 Having heard the applicant give evidence and having reviewed his medical records, I find the applicant exaggerated the impact of his injuries with respect to the extent of his debilitation immediately after the incident and the treatment he received. For example, he stated he was unable to attend the doctor to have the staples removed for four weeks after the incident due to his pain levels and incapacity. However, the applicant attended St John of God Hospital, Midland on 23 August 2019 and 29 August 2019. He attended his general practitioner on 24 August 2019 and 27 August 2019. He had his staples removed on 1 September 2019 (being 12 days after the incident) and attended Royal Perth Hospital on 5 September 2019 for a review of his wound. I did not accept the applicant’s evidence he discharged against medical advice because he was scared of the offender. The Royal Perth Hospital records make it clear the applicant left the hospital as he was not prescribed medication he requested. Consistent with this, upon leaving the hospital the applicant “took all of his pain killers” raising concerns about a potential drug overdose on his readmission. Whilst the passage of time since the incident may have caused the applicant to be somewhat imprecise in his recall, his evidence is self-serving in its exaggeration of the impact of the injury and fear of the offender and raises concerns with respect to the credibility of the applicant’s evidence.
    Offender’s evidence at hearing
    41 The offender gave evidence on 7 December 2021. I set out the offender’s evidence below.
    42 The offender said he had known the applicant since he was 15 years and they were like brothers. The offender confirmed he’d had a number of previous altercations with the applicant, giving examples where the applicant smoked the last cone, leading to a fight and another where they had a fight over a beer and a pie. The offender categorised the relationship as a sibling relationship where they were “just two blokes … always butting heads”. The offender had an argument with one of the applicant’s friends on 19 August 2019 at Optus Stadium and did not return to the applicant’s unit until the following day.
    43 The offender was staying at the applicant’s unit and was paying between $150 to $200 per fortnight in rent. He was sleeping on the couch and had been doing so for about a month. On 20 August 2019 he had been drinking all day and went back to the applicant’s unit. He knocked on the door but no one answered. Mr Gibbs, who lived in the adjoining property heard the knocking and came out to see what was going on. He borrowed a phone from Mr Gibbs and called the applicant. The applicant told him he was in Mandurah visiting his girlfriend and the offender advised he would sleep outside. The offender then decided he would try to get in the house through a window if he could. The offender was unaware the applicant was in the house. He took the flyscreen off the bathroom window, but the window was locked. He then tried to take the flyscreen off the bedroom window but thought it would break and so put it back on. The offender then lay down at the front door. He took the knife he had on him out of the front pocket of his jumper as he didn’t want to sleep on it and placed it on the ground in front of him. The offender pillowed his head on his arms in front of him and fell asleep. He woke to a noise. He turned his head and looked and saw the applicant had opened the door. The applicant struck the offender with a vacuum pole, hitting him to the back of his head and causing pain. The blow was struck to the back of his head before the offender was able to stand up. The applicant was swearing at the offender and threatening to hit him again. The offender ran across the street and swore at the applicant and called him a dog, asking why he hit him. The applicant came running over. The offender stood up. The applicant hit the offender a second time. The offender pulled out a knife and stabbed the applicant.
    44 The offender expanded on his discussion with the applicant at the front door of the house:
    And then – so he hits you, and what do you say to him?—What the heck was that for? And I just grabbed my head and, like, why would you do that.
    Yes?—Yes. And he’s, like, you’re trying to break into my house. And I said, well, you said you weren’t home, like, what, you expect me to sleep outside all night. I’m hungry. Because I was drinking all day and I just wanted to go lay down, have a feed. And I think – I think the reason he didn’t want me to come inside was because I was intoxicated and, like, we have had altercations in the past whilst I’ve been drunk. But that’s not the case, because that night, you know, I just wanted to come home. Maybe buy some weed off of him and – and get stoned and have something to eat and go to sleep.
    . . .
    And so was there anything more to that altercation before you got up and went across the road?—No. Just as I said, he was standing over me, threatening to hit me again.
    Did you grab the knife?—Yes. I grabbed the knife, put it in my pocket, got up and ran across the road.
    45 The offender was unclear as to whether he threatened the applicant with the knife at the front door of the house, stating:
    Did you threaten him with the knife at the time?—I don’t believe I did. No. My Dad says that I said that in my statement to the police, but I – I do not recall saying it. I could have but I don’t – I don’t remember.
    46 I have set out the offender’s interview to police at [25] to [26] above, and note he made no admission of threatening the applicant with the knife at the door of the house.
    47 With respect to the actual offence, the offender stated in more detail:
    And so then you’ve gone across the road – so this is a small suburban street, is it?—Yes. Yes. So, like, his front door just looked across the road. I ran over that – just adjacent, like, it was the other side, and I sat next to a bush and I crouched down against the fence and I was holding my head, because it was still hurting and – yes, I yelled out, like, why the eff would you do that, man, like, you know, he knew it was me, you know. Then I called him a dog, because I know he doesn’t like that, and then I heard him come running over.
    Did you threaten him?—No. I don’t believe I did.
    . . .
    Because I heard him come running over. Like, he was barefoot and I heard the thudding on the ground, so I didn’t want to be sitting down, vulnerable, again. So I stood up and he hit me and I pulled the knife out and he seen it. I took it out of its case and he said, “You won’t do it,” and then I just – yes – I don’t know why. I just stepped forward and I stabbed him with it.
    Okay. So when he hit you, what hand was the – do you recall what hand he was holding the baton?—He was holding with two hands.
    Two hands?—Yes. Then he came down like that and hit me in the front of the head.
    And when you stabbed him, that was after he hit you?—Yes.
    All right. Now, Mitchell’s evidence was that you stabbed him and then he hit you?—No. I don’t recall that. I remember getting hit, and then I pulled it out. He said I wouldn’t do it and then I stabbed him.
    Yes. And after you stabbed him, what did he do?—He dropped his weapon and he grabbed his stomach. He looked down and he looked at me and then he said, “You’re going down,” and then he ran inside and I was freaking out, like, what did I just do. And yes. I left the scene and then I freaked out and I was, like, is he okay and I ended up coming back, but there was no activity at the house so I was in his neighbour’s backyard when the police got there.
    48 With respect to the offender’s entitlement to be at the property, his evidence was he paid rent, was sleeping on the couch and had unpacked his possessions placing them in a linen cupboard the applicant had cleared out for him and had a separate shelf for his toiletries. The applicant had not given the offender a key to the property and the offender accessed the property in company with the applicant as they were always together. The offender denied the applicant had told him he was no longer welcome to live with him. The offender advised he overheard his brother’s conversation with the applicant, only hearing his brother’s comment the offender had stopped drinking and was sobering up. The offender was clearly aware at some point the applicant had told his brother he was not welcome at the house if he was drunk but the timing of this knowledge is unclear. In any event, the offender was of the view he had sobered up when he returned to the applicant’s unit as he hadn’t had anything to drink since leaving Parkwood at about 7.30 pm or 8.00 pm.
    49 The offender was asked about his knowledge of the applicant’s possession of illicit drugs when the offence occurred. The offender said the applicant would always have “weed” on him and assumed he would have some on him at the time, there would have been “THC” in the applicant’s coffee grinder in the kitchen and both the applicant and offender had a bong in the premises.
    50 I advised the applicant’s counsel I was not prepared to make a finding the applicant was in possession of marijuana based solely on the offender’s evidence he “assumed” the applicant would have been in possession of both. However, subsequent to the hearing I drew to the applicant’s attention the Police Incident Report listed a glass bong and plant material which was identified as cannabis. On 7 January 2022 the applicant’s solicitor advised by way of correspondence it was the applicant’s position the cannabis and bong belonged to the offender.
    51 The offender advised he had a head injury from “shaken baby syndrome” and had difficulties with learning and memory. The offender was inconsistent in his evidence on few matters, compared to his police interview. He stated he took the knife from his brother’s girlfriends house as if was “a wicked knife, good for chopping tomatoes”, rather than to protect himself from potential threats. The offender also expressed considerable confusion the applicant had been stabbed twice, as his recollection was he had stabbed the applicant only once. Apart from these issues I found the offender to be consistent in his evidence and preferred his evidence to that of the applicant.
    Standard of proof
    52 Section 3 of the Act provides that ‘satisfied’ means ‘satisfied on the balance of probabilities’.
    53 The evidence must be scrutinised with care and caution in determining whether the offending occurred, but also having regard to the remedial purpose of the Act which provides a right to compensation: Re ATS [2017] WADC 92 [30] and [114].
    Findings of fact
    54 Having considered the evidence and the standard of proof required, I make the following findings of fact:
    · In August 2019, the offender was staying at the applicant’s unit in exchange for a payment of between $150 to $200 per fortnight. As at 20 August 2019 the offender had been staying with the applicant for a number of weeks, but less than one month. The offender’s possessions were in the applicant’s unit. The offender did not have a key to the applicant’s unit and had always entered the house in the company of the applicant;
    · On 19 August 2019 the offender had an argument with one of the applicant’s friends. Despite that, and the applicant and offender going separate ways, they saw each other at the train station later that day and everything was OK between them.
    · On 20 August 2019 the applicant formed a view the offender was no longer welcome to stay with him. The applicant did not directly inform the offender he was not able to stay at the applicant’s unit. The offender was not aware he was no longer able to stay with the applicant.
    · The offender travelled to the applicant’s unit on the night of 20 August 2019. He had been drinking most of the day, but had stopped drinking about 7.30 pm or 8.00 pm. He had a knife in his possession.
    · When he arrived at the applicant’s unit, the offender knocked on the front door. The applicant, who was home, did not answer the door.
    · Mr Gibbs who lived in the adjacent property heard the offender knocking and asked him what was happening. The offender advised he was trying to get in. The lights at the applicant’s unit were turned off. The offender advised he would sleep outside.
    · The offender attempted to enter the applicant’s unit via the bathroom window by removing the flyscreen but the window was locked. He then attempted to remove the flyscreen from the bedroom window, but was concerned he would damage it so ceased his attempt to enter that way.
    · The applicant telephoned Mr Gibbs, and advised him the offender was trying to break in and asked him to call the police. Mr Gibbs did not do so.
    · Mr Gibbs lent his phone to the offender so he could call the applicant. The applicant advised the offender he was not at home.
    · The offender returned to the front door, and after removing the knife from his front pocket, lay down with his head cradled in his arms and attempted to go to sleep.
    · The applicant dismantled the vacuum cleaner and held the vacuum cleaner pole in his hand when he opened the door to confront the offender. The applicant was unaware when he armed himself with the vacuum cleaner pole that the offender had a knife.
    · The offender was roused by the applicant, who opened the door and struck the offender to the back of his head with a vacuum cleaner pole. Whilst the offender’s knife could clearly be seen by the applicant, it was on ground in front of the offender. The offender did not have the knife in his hand when he was struck by the applicant on this first occasion.
    · The applicant asked the offender why he had been attempting to break in and advised the offender he was not welcome at the house.
    · After being struck, the offender ran across the road and crouched near some bushes. He swore at the applicant and called him names.
    · The applicant ran across the road towards the offender, carrying the vacuum cleaner pole. The applicant had the intention of striking the offender, to knock the knife out of his hand and also to tell him to go away.
    · The offender stood to meet the applicant. The applicant intended to strike the offender to his hand but struck the offender to the front of his head a second time with the vacuum pole instead.
    · The offender held out the knife. The applicant said to the offender “You won’t do it”. The offender stepped forward and stabbed the applicant to his abdomen with the knife.
    · The applicant dropped the vacuum cleaner pole and ran back towards his house.
    · The applicant sustained two stab wounds to his abdomen, one of which caused a grade II liver laceration, and subsequently developed post-traumatic stress disorder and an exacerbation of his pre-existing anxiety.
    · At the time of the offence there was a small amount of cannabis and a bong in the applicant’s unit. I am not satisfied to the requisite standard these items belonged to the applicant.
    Were the applicant’s actions justified in defence of his home?
    55 The applicant submitted the offender was attempting to break into the applicant’s unit and the applicant’s actions in striking the offender at the doorstep and then following him across the road and striking him again were reasonable steps for any home occupier to take to preserve his property. Section 254 of the CC permits a person who is in peaceable possession of a place to use such force as is reasonably necessary to prevent a person from wrongfully entering the place or to remove a person who wrongfully remains on or in the place.
    56 The difficulty with this submission from the applicant is the offender was residing with the applicant, having been staying with him for some weeks, with his belongings in the applicant’s unit and the offender having paid money to the applicant to stay there in an informal agreement. The offender was, in effect, a lodger with the applicant. Whilst the applicant was entitled to cease the agreement at any time, he was required to communicate cessation of the agreement to the offender and give the offender reasonable time to collect his belongings. The last direct communication between the applicant and offender was the day prior to the incident at which time, on the applicant’s evidence, “everything was OK between them”. I am not satisfied the applicant contacted the offender and advised he was no longer welcome to lodge with the applicant prior to the offence. Whilst there was a telephone call between the applicant and the offender’s brother in relation to the offender being unwelcome to stay there if drunk, there was no clear and direct communication from the applicant to the offender prior to the offence occurring that the lodging relationship was terminated. At no time on 20 August 2018, whilst the offender was attempting to access the house did the applicant tell him he was no longer welcome to stay there. When the offender telephoned the applicant using Mr Gibb’s phone the applicant told the offender he was not at the premises. The offender told the applicant he would sleep outside. When the applicant went outside and spoke to the offender he asked him why he was attempting to break in. It was only after striking the offender, the applicant advised him he could no longer stay there. The offender then left the premises, running across the road.
    57 The applicant submitted the offender not having a key to the premises was a clear indicator he was not entitled to reside there. The applicant was not asked about this during the hearing. In his statement dated 31 August 2019 the applicant confirmed there was a verbal agreement between the applicant and the offender the offender could stay there. The offender’s evidence was he did not have a key to the premises as they had not gotten around to it yet, and he was always with the applicant. I do not consider the offender not having been given a key to the premises as determinative of any entitlement to reside at the premises.
    58 In circumstances where the offender was entitled to be at the premises, the applicant was not justified in using force to remove him from the premises. Further, in circumstances where the offender is at the property at which he resides and has been told by the applicant (who has the key the offender relied upon to access the property) he is not home it is not unreasonable for the offender to check the windows in an attempt to gain entry, as he did.
    Did the applicant commit an offence sufficient to preclude him compensation?
    59 Section 39(1) of the Act provides:
    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.

60 In Attorney General for Western Australia v Her Honour Judge Schoombee, the Court of Appeal said:
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.
61 I find the applicant assaulted the offender on two separate occasions, firstly by striking him with the vacuum cleaner pole outside the door of the premises (the first assault by the applicant), and then by striking him with the vacuum cleaner pole a second time when the applicant and offender engaged again across the road (the second assault). Both of these assaults by the applicant caused the offender to sustain contusions on his head. I find the first assault by the applicant and the second assault by the applicant each comprise separate offences of assault occasioning bodily harm pursuant to section 317 of the CC.
62 The question is then raised whether these assaults were unlawful. An assault is unlawful unless it was justified or excused at law. Possible justification could be self-defence or provocation. The law relating to self-defence is contained in section 248 of the CC which provides that a harmful act done by a person is lawful if the act is done in self-defence. Section 248(4) provides a person’s harmful act is done in self-defence if:
(a) the person believes the act is necessary to defend the person or another person from a harmful act, including a harmful act that is not imminent; and
(b) the person’s harmful act is a reasonable response by the person in the circumstances as the person believes them to be; and
(c) there are reasonable grounds for those beliefs.
63 The applicant submitted the first assault by the applicant was in defence of himself and his home. I have found at [58], above, the offender was entitled to be at the premises. With respect to defence of his person, the applicant’s evidence was the offender “jumped up with the knife in his hand and went to lunge at me with the knife” and so he struck him in self-defence. The offender was struck to the back of his head by the applicant. I cannot reconcile a blow to the back of the offender’s head (which is consistent with the offender lying on the ground when struck) with the applicant’s evidence he hit the offender in self-defence as the offender was lunging at him. The applicant armed himself prior to being aware the offender was in possession of a knife. I do not accept the first assault by the applicant was in self‑defence.
64 The applicant submitted the second assault by the applicant was also in self‑defence, in circumstance where the applicant described a genuine fear the offender would return to the house and attempt to break in and harm him. The applicant’s evidence was when he went across the road he had the intention of striking the offender with the vacuum cleaner pole:
And what was your intention when you went across the road?—To – I told him to move on. That’s what I said. Move on.
And why did you have the pipe in your hand?—Because he had a knife in his hand.
So what were you going to do with the pipe?—Well – because I didn’t want to get stabbed, so what am I going to walk over there with just nothing in my hand and – like, I was trying to whack it out of his hand. That’s my intention to do. But I struck him in the head instead and I was actually trying to go for his hand. And that was my intention, Miss, to get the knife out, dismantle him so he doesn’t have a knife. And then call police, Miss.
65 The applicant crossed the road to confront the offender with the intent of striking him with the pole. Prior to crossing the road the applicant was not in any immediate danger from the offender, and the applicant’s unit was not in any immediate danger from the offender. To establish a defence of self‑defence with respect to the second assault by the applicant, the applicant must establish he held a belief it was necessary to strike the offender to defend himself from a harmful act (which was not imminent), that striking the offender was a reasonable response in the circumstances believed by the applicant and there are reasonable grounds for those beliefs.
66 The harmful act feared by the applicant was the offender would break into his home at a later time when the applicant was sleeping and attack him. In support of the reasonableness of the applicant’s belief is the offender was at that stage known by the applicant to have a knife and the applicant and offender had previously had a number of altercations during the course of their friendship. The applicant also alleges the offender had already threatened him with the knife, however I found the applicant was not at that time threatened by the offender with a knife. On the other hand there was also evidence the offender and applicant had been on good terms, the offender left the property after the offender assaulted him and told him to leave and the offender had previously been unable to enter the premises, despite attempting to do so. The applicant had retreated to the premises and by all accounts was safe inside. He had a telephone and could have contacted Mr Gibbs and/or the police and chose not to do so. The applicant had options available to him to stay safe but chose instead to put himself at risk by crossing the road to confront the offender whom he knew was probably intoxicated and had a knife. This in effect was a poor choice.
67 On balance, I do not accept the second assault by the applicant was in self‑defence.
68 I have also considered whether the offender provoked the second attack by the applicant. In this regard the offender’s evidence was he called an applicant a “dog” as he knew he wouldn’t like it.
69 Section 246 of the CC provides a person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault, if he is in fact deprived by the provocation of the power of self-control, and acts upon it on the sudden and before there is time for his passion to cool; provided the force used is not disproportionate to the provocation, and is not intended, and is not such as is likely to cause death or grievous bodily harm. The term “provocation” is defined section 245 of the CC. So far as is relevant for present purposes, that section provides as follows:
“The term ‘provocation’ used with reference to an offence of which an assault is an element, means and includes, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal relation, or in the relation of master or servant, to deprive him of the power of self control, and to induce him to assault the person by whom the act or insult is done or offered.” (emphasis added)
70 In Masciantonio v The Queen (1995) 183 CLR 58 Brennan, Deane, Dawson and Gaudron JJ said:
The provocation must be such that it is capable of causing an ordinary person to lose self‑control and to act in the way in which the accused did.  The provocation must actually cause the accused to lose self‑control and the accused must act while deprived of self‑control before he has had the opportunity to regain his composure.
71 The applicant’s evidence (set out at [64], above) he went across the road to strike the offender and disarm him, indicates a deliberate decision to take action against the offender and is not consistent with the applicant having been deprived of the power of self-control. I find the defence of provocation does not apply to the second assault by the applicant.
72 The next question raised is whether the applicant was injured when these separate offences by the applicant occurred. The temporal connection between the separate offences committed by the applicant and the offence causing injury is not to be interpreted on a narrow basis and they do no need to have been committed in the same instance in time. Consideration must be had to whether the applicant’s separate offence(s) and his injuries are part of the one incident.
73 The first assault by the applicant upon the offender occurred at the applicant’s unit a short time prior to the applicant being stabbed. I received no direct evidence in relation to the time that lapsed between the first assault by the applicant and the stabbing. I estimate the time lapsed, which was sufficient for the offender to cross the road, huddle in the bushes and yell at the applicant, and for the applicant to run across the road and confront the offender was less than five minutes. Mr Gibbs said the time lapse between hearing the applicant and offender argue and the applicant seeking his assistance after being injured was about 10 minutes. The applicant’s evidence he chose to confront the applicant because it would be quicker than waiting for police who would take 5-10 minutes to reach the property is consistent with the second assault occurring less than five minutes after the first assault. In Puterangi [2017] WADC 168 Davis DCJ found two assaults involving the applicant which occurred in different locations (one being inside and one outside of a tavern) and less than 15 minutes apart were separate and distinct incidents, noting there had been a physical separation between the parties, they were at separate locations in the venue and with a time lapse between the two incidents. In this application, between the first assault by the applicant and the injury there was an ongoing engagement between the applicant and offender (with the offender continuing to yell at the applicant after retreating across the road), a short period of time and a short distance with the parties being visible to each other the entire time. I find the first assault by the applicant was part of the same incident in which he was injured.
74 The second assault by the applicant occurred immediately prior to him being stabbed by the offender. I find the second assault by the applicant was part of the same incident in which he was injured.
75 I am therefore satisfied when the applicant was injured he was committing separate offences and is disentitled to an award of compensation for his injuries.
Did the behaviour, condition, attitude or disposition of the applicant contribute, directly or indirectly, to his injuries?
76 Whilst my findings in relation to section 39 make further consideration of the barriers to the applicant receiving compensation redundant, for the sake of completeness I also address section 41 of the Act which provides:
Behaviour etc. of victim to be considered
In deciding whether or not to make a compensation award, or the amount of a compensation award, in favour of a victim, or a close relative of a deceased victim, an assessor –
(a) must have regard to any behaviour, condition, attitude, or disposition of the victim that contributed, directly or indirectly, to the victim’s injury or death; and
(b) may, if he or she thinks it is just to do so –
(i) refuse to make a compensation award because of that contribution; or
(ii) reduce the amount that the assessor would otherwise have awarded.

77 In SW v BB [2001] WADC 86, Schoombee DCJ held:
The purpose of section 41 of the Act is to apportion responsibility to the applicant for his or her behaviour, condition (in the sense of mental disposition) attitude or disposition (in the sense of frame of mind or mood), which contributed to the offence and therefore to the injury’ [at 100].
78 In considering any contribution by an applicant’s behaviour, the relevant principles are as follows:
(a) Section 41 requires a two-step process, firstly to determine whether the applicant contributed to his or her injuries, and if so, secondly to determine if it is just to reduce or refuse the award;
(b) “Contribution” requires more than a chronological connection, there must be some quality about the behaviour that is relevant;
(c) There must be a causal nexus between the applicant’s conduct and the injuries sustained;
(d) The issue of whether the victim has contributed to the injuries sustained is a question of fact to be considered in the context of the circumstances of each case;
(e) There will be no contributory behaviour where the incident giving rise to the offence is precipitated by the offender and the reaction of the victim to that should be of no surprise to the offender. There will be contributory behaviour where the incident is precipitated by the victim;
(f) The use of words ‘if he or she thinks it is just to do so’ required the Court to consider all the circumstances and to make a judgment ensuring that justice if done in this case. It is a discretion and must be exercised according to law, taking account of the purpose of the legislation and the requirements of the Act.
79 I have found the applicant struck the first blow upon the offender at the door of his house, and then ran across the road and struck him a second time. The applicant was the aggressor in relation to both the first and the second assaults by the applicant. The applicant’s behaviour in confronting the offender, and choosing not to call the police or seeking additional assistance from Mr Gibbs or staying safely locked inside his home despite the offender not having been able to enter the premises earlier precipitated the incident.
80 The applicant submitted his actions were those of a reasonable man who was in fear of his life, and in fear of the offender breaking into the home whilst he was sleeping and killing him.
81 The applicant armed himself with the vacuum cleaner pole prior to opening the front door and seeing the offender had a knife. He then struck the offender to the back of the head, whilst the offender was lying on the ground. The offender had made no threats towards the applicant prior to this occurring. The offender had attempted to enter the house in which he was lodging in circumstances where the applicant had told him he was not at home. In Saric v Duric [2021] WADC 53 the offender alleged he assaulted the applicant because the applicant had made threats of violence during a “friendly” soccer match. Gething DCJ observed at [86] it was utterly disingenuous for the offender to assert he was so concerned about an act of threatened violence so as to be morally justified in responding with a grossly disproportionate act of actual violence. In this matter, the applicant is attempting to justify his attack upon the offender by alleging his friend, with whom he was usually on good terms and who he had not advised was not welcome to stay on the premises, was attempting to break into the house and cause him harm. I do not accept that submission. The applicant’s behaviour in assaulting the offender on two separate occasions contributed directly to him sustaining injury. In effect the applicant precipitated the events which lead to his injury. He made poor choices. In all the circumstances I find it just to refuse to make a compensation award.
82 Accordingly, I now refuse the application for compensation.

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

K Hafford, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

18 MAY 2022