JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : VAN BEEK [2024] WACIC 1

CORAM : K HAFFORD

DELIVERED : 5 FEBRUARY 2024

FILE NO/S : CIC 3070 of 2023

BETWEEN : DAVID JOHN VAN BEEK
Applicant

Catchwords:

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

Legislation:

Criminal Injuries Compensation Act 2003, s 12, s, 18, s 19, s 39, s 41, s 35
Medicines and Poisons Regulations 2016
Road Traffic (Drug Driving) Regulation 2007
Road Traffic Act 1974, s 64AC(1), s 66C, s 66D, s 66E

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Not applicable

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

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
AW (pseudonym initials) v CD (pseudonym initials [2023] WADC 36 at [44]
Chase v Francis [2020] WADC 34 at [37]
Martin v Martin [2015] WADC 138
NBS v MAC [2013] WADC 83
Pym v Richardson [2018] WADC 156
Re AW [2022] WADC 96 at [57]

Reasons for Decision:

1 By way of an application dated 20 September 2023 Mr Van Beek (the applicant) submitted an application for criminal injuries compensation pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) in relation to an incident which occurred on 19 April 2022.
The offence
2 On 19 April 2022 the applicant was riding his motorcycle in a southerly direction along Kwinana Freeway when he became involved in a verbal altercation with another driver, Ms Amy Sparks. Ms Sparks contacted her partner, Mr Hayden Bilson, (the offender), who was also driving his vehicle in a southerly direction on the Kwinana Freeway. The offender drove in an erratic manner, and flashed his lights at the applicant, causing the applicant to pull over onto the side of the freeway. The offender stopped his vehicle near the applicant, exited the vehicle and walked towards the applicant to confront him. The applicant rode past the offender and as he did so was pushed by the offender, causing him to lose balance of the motorcycle and fall onto the road surface. The applicant sustained serious injuries as a result of the fall.
3 The offender was convicted of Acts or omissions causing bodily harm or danger to any person in the Magistrates Court at Rockingham on 27 April 2023. I am satisfied the offender’s conviction of the offence of Acts or omissions causing bodily harm or danger to any person is a proved offence for the purposes of section 12 of the Act.
The applicant’s injuries
4 The applicant sustained a comminuted and displaced fracture of the neck of the left humerus with antero-inferior dislocation of the humeral head as a result of the incident. He underwent surgery at Fiona Stanley Hospital on 20 April 2022, but the outcome of the surgery was poor function and anterior subluxation of the left humeral head. The applicant underwent further surgery at Fremantle Hospital in October 2022 comprising removal of the Phylos plate and a reverse total shoulder replacement. His recovery was complicated by a MET (Medical Emergency Team) call for rigors and by a methicillin resistant Staphylococcus epidermis infection. The applicant had a prolonged recovery and in February 2023 was noted to have ongoing restricted movement, pain upon sleeping and difficulty using cutlery. In addition, the applicant reported significant psychological impact from the incident.
The discovery of tetrahydrocannabinol in Mr Van Beek’s blood
5 In the course of police investigations into the incident, the applicant was required to provide a blood sample for analysis. The blood sample was tested by the Chemistry Centre (WA) and showed a positive test for tetrahydrocannabinol (cannabis). The applicant was charged with driving with prescribed illicit drug in oral fluid or blood.
6 Police records indicate the applicant’s legal representative made a submission to the Police Prosecutor the charge should be dismissed on public interest grounds taking into account the injury was caused to the applicant, not by him; the low reading of tetrahydrocannabinol in the applicant’s blood; that the applicant was prescribed medicinal cannabis and the applicant’s lack of previous similar offending. The charge was subsequently dismissed for want of prosecution on 25 May 2023.
The source of the tetrahydrocannabinol
7 The applicant’s lawyer submitted to police in the course of the prosecution the tetrahydrocannabinol was from a prescription of medicinal cannabis. The applicant repeated that submission in this application, stating ” . . . the cannabis was NOT illicit, but prescribed and I was following my doctors recomdations(sic)”.
8 The applicant provided a number of medical documents in support of his application, including records from Rockingham Hospital which indicated upon admission to hospital on 19 April 2022 he advised medical staff he had “smoked THC this morning” and a medical report from a Dr Yin Wee dated 28 February 2023 with respect to the applicant’s admission to Fiona Stanley Hospital on 20 April 2022 which stated the applicant “smoked two to three joints of cannabis per day”.
9 Additional medical records provided by the applicant included a Notification of Treatment form dated 29 July 2022 indicating Dr Brian Walker of Serpentine Medical Centre prescribed Cannatrek T25 (dried herb formula) to the applicant on 29 July 2022. Pursuant to section 19 of the Act I requested the clinical records from Serpentine Medical Centre which recorded the applicant’s first attendance upon Dr Brian Walker was on 29 July 2022, on which date he was prescribed medicinal cannabis due to pain from the injuries sustained in the incident and was advised of the driving restrictions which applied when taking medicinal cannabis. The date of this prescription was after the incident.
10 There is a requirement under the Medicines and Poisons Act 2014 and the Medicines and Poisons Regulations 2016, Part 11 Division 3 for Notification of a prescription of medicinal cannabis to be given to the Medicines and Poisons Regulations Branch (MPRB) of the Department of Health. Pursuant to section 19 of the Act I obtained records from the MPRB which indicated the first prescription for medicinal cannabis was given to the applicant on 29 July 2022, consistent with the records obtained from Serpentine Medical Centre. As the first prescription of medicinal cannabis was made on 29 July 2022, after the incident, I find the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis prescribed in Western Australia.
11 I obtained the applicant’s medical records from Stirk Medical Group pursuant to section 19 of the Act. These records indicate the applicant requested his medical practitioners prescribe medicinal cannabis to him on 8 February 2017 and on 21 February 2017 but those requests were refused. The applicant advised he had been attempting to obtain legally prescribed cannabis from 2002. The applicant also advised he saw Dr David Jones at Stirk Medical Group on 14 April 2022 and was encouraged by him to self-medicate with cannabis and the applicant was therefore acting under medical authorisation. The records from Stirk Medical Group contain no record of a consultation on 14 April 2022, although the applicant did attend Dr Jones on 11 April 2022 in relation to a squamous cell carcinoma and chronic obstructive pulmonary disease.
12 The applicant was requested to advise where the medicinal cannabis he consumed on 19 April 2022 was sourced. The applicant advised it was obtained from Louise Graves and the Nimbim Hemp Embassy. I then issued a notice pursuant to section 19 of the Act to obtain details of the prescriptions issued to the applicant by Louise Graves and the Nimbin Hemp Embassy. In response, the legal representative for Louise Graves and the Nimbin Hemp Embassy advised no prescriptions had been issued to the applicant.
13 In the course of correspondence sent by the applicant subsequent to a preliminary refusal of his application, the details of which are set out below at [23] to [27], the applicant sent an email dated 12 December 2023 which relevantly states:
… on my part there was a missunderstanding (sic). Because a health professional was involved the cannabis was not illicit I can now confirm this not to be the case. A error on my part that would bring your declination up to date. I will now conclude my correspondence with you and except (sic) defeat humbly. I look forward to your final outcome in due course.
14 I have found (at [10]) the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis prescribed in Western Australia. Further, there is no evidence the applicant was prescribed medicinal cannabis from an interstate source and I find the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis. The applicant’s submission he had consumed medicinal cannabis on 19 April 2022, which was made to police and to this office, was incorrect.
Significance of tetrahydrocannabinol when driving
15 Section 64AC of the Road Traffic Act 1974 states:
64AC. Driving with prescribed illicit drug in oral fluid or blood
(1) A person who drives or attempts to drive a motor vehicle while a prescribed illicit drug is present in the person’s oral fluid or blood commits an offence.
16 Tetrahydrocannabinol (cannabis) is a prescribed illicit drug pursuant to regulation 3 of the Road Traffic (Drug Driving) Regulation 2007. There is no exemption in the legislation for persons who have been prescribed medicinal cannabis. Therefore, any person with tetrahydrocannabinol in their blood stream whilst driving is therefore committing an offence, irrespective of whether the cannabis was from a prescribed or an illegal source.
A separate offence: Section 39
17 The Criminal Injuries Compensation Act 2003 provides “for the payment of compensation to victims of offences in some circumstances”. One of the restrictions upon compensation being awarded is set out under section 39 of the Act, which states:

39. No award if victim was engaged in criminal conduct
    (1) If an assessor is satisfied —
    (a) that a person was injured as a consequence of the commission of an offence; and
    (b) that the injury was suffered when the person was committing a separate offence,
    the assessor must not make a compensation award in favour of the person. (emphasis added)

18 The effect of section 39 is if an applicant was committing a separate offence at the time he or she was injured, the claim for compensation must be refused. Relevant factors in relation to the application of section 39 include:

1. An assessor has no discretion to allow an application when the applicant is committing a separate offence.
2. There is no requirement the separate offence being committed by the applicant be a proved offence.
3. There is no requirement there be any causal connection between the injury suffered by the applicant and the separate offence committed by the applicant, but merely a temporal connection.
   Application of facts to section 39 of the Act
   19 The evidence before me establishes the following:
4. The applicant tested positive to tetrahydrocannabinol in his blood stream as a result of a blood sample taken shortly after the incident; and
5. The applicant was riding his motorcycle when he was assaulted by the offender.
   20 I find when he was injured, the applicant was committing a separate offence pursuant to section 64AC(1) of the Road Traffic Act 1974, namely driving with a prescribed illicit drug (tetrahydrocannabinol) in his oral fluid or blood.
   21 I find there is a temporal connection between the applicant’s injuries and the separate offence as the applicant was riding the motorcycle (despite having a prescribed illicit drug in his blood) when he was pushed by the offender.
   Preliminary determination and applicant’s responses
   22 On 9 November 2023 I wrote to the applicant advising the evidence before me indicated, when injured, the applicant was committing a separate offence pursuant to section 64AC(1) of the Road Traffic Act 1974, namely driving with a prescribed illicit drug (tetrahydrocannabinol) in his oral fluid or blood. As a result, I advised I had reached a preliminary determination I must refuse the application pursuant to section 39 of the Act, and invited the applicant to provide any submissions in response prior to 9 December 2023. The applicant has provided responses on 10 November 2023, 14 November 2023, 16 November 2023, 7 December 2023, 8 December 2023, 12 December 2023, 14 December 2023, 18 December 2023, 4 January 2024, 8 January 2024, 12 January 2024 and 27 January 2024.
   23 The applicant’s various responses raised three main issues. First, the applicant submitted he had consumed medicinal cannabis on the day of the incident and therefore was not committing a separate offence. I have set out above at [7] to [13] the evidence relevant to this submission. The applicant was not prescribed medicinal cannabis until after the incident, and therefore had not consumed medicinal cannabis on 19 April 2022. The applicant accepted this in his email dated 12 December 2023, which is set out at [13], above. Further, irrespective of the source of the cannabis, it is illegal to drive a vehicle in Western Australia with tetrahydrocannabinol present in the driver’s oral fluid or blood.
   24 Second, the applicant asserts the blood test which revealed levels of tetrahydrocannabinol should be disregarded as the police officer should not have taken a sample from him as the applicant was a victim, not the offender. The applicant submits the blood sample was taken as the police officer incorrectly identified him as the offender. This submission is incorrect as I reviewed the police statement of the police officer who required the blood sample and this identified the applicant as having been the victim of a road rage incident that ultimately led to him being knocked off his motorbike.
   25 Section 66E of the Road Traffic Act 1974 permits police to require a blood sample test from any person in charge of a motor vehicle whose physical condition would make them incapable of providing a sample of oral fluid. The powers to obtain an oral sample are quite broad and under sections 66C and 66D apply to any person in charge of a motor vehicle, or any person believed to be in charge of a vehicle whose use has been an immediate or proximate cause of personal injury or damage to property. When requesting the blood sample from the applicant the police officer stated “I believe you may have been the driver of a motor vehicle that was in an incident occasioning injuries consistent with Grevious (sic) bodily harm and as such I require you supply a sample of your blood to me.” I accept the police officer was able to compel the provision of the blood sample from the applicant as he was a person in charge of a vehicle for which there were reasonable grounds to believe was an immediate or proximate cause of personal injury or damage to property. Further, by reason of the applicant’s serious injuries, he was under the care of St John Ambulance staff when police arrived at the scene and not able to participate in a preliminary oral fluid test pursuant to section 66C or to provide an oral fluid sample pursuant to section 66D. This meant the blood test was the default option pursuant to section 66E. I consider the police officer lawfully obtained the blood sample.
   26 In addition, pursuant to section 18(2) of the Act, an assessor is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit. In the event I am incorrect and the police officer was not able to require the applicant to provide a blood sample, I am still able to have regard to the results of the blood test.
   27 Third, the applicant raised the issue he was not convicted of any offence. There is no requirement under section 39 of the Act the separate offence committed by an applicant be a proved offence. I have set out the relevant case law at [18], above.
   Determination
   28 I accept the applicant sustained significant injuries as a result of a proved offence. However, the applicant’s blood sample taken shortly after the incident tested positive for tetrahydrocannabinol (cannabis) and I find he was committing a separate offence of driving with prescribed illicit drug in oral fluid or blood when he sustained those injuries. I adopt the comments of Black DCJ in AW (pseudonym initials) v CD (pseudonym initials:
   There is an obvious disparity between the very small quantity of drugs involved in the appellant’s offence and the very serious nature of the offences committed against the appellant. I note however that s 39 of the CIC Act does not allow me, where I am satisfied that s 39(1) applies to an application, to then exercise any discretion regarding the proportionality between the two sets of offending so as to decide if the appellant ought still to be compensated, at least to some extent. The terms of the provision are clear that if s 39(1) is made out then I ‘must not’ make an award of compensation in favour of the appellant.
   This is a case where the punishment did not fit the crime. Nonetheless, having found that the appellant was committing a separate offence at the time he sustained injuries from a different offence, I must not make a compensation award in favour of the appellant.
   29 Pursuant to section 39 of the Act, I now refuse this application.

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

5 FEBRUARY 2024