RE DI FRANCO FLEMING [2026] WADC 66

[2026] WADC 66 [2026] WADC 66 (MJW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : RE DI FRANCO FLEMING [2026] WADC 66 CORAM : STAUDE DCJ HEARD : 11 JUNE 2026 DELIVERED : 22 JULY 2026 FILE NO/S : APP 5 of 2026 MATTER : IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003 AND IN THE MATTER of an Appeal by BETWEEN : SELINA DI FRANCO FLEMING Appellant ON APPEAL FROM: Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA Coram : A V BARTER File Number : CIC 2309/2024 -- 1 of 23 -- [2026] WADC 66 [2026] WADC 66 (MJW) Page 2 Catchwords: Criminal Injuries Compensation - Appeal - Compensation claimed under s 17 for two assaults for which no one was charged - Whether offences were committed - Whether injury and loss claimed were a consequence of the uncharged offences - Whether appellant was committing an offence when assaulted - Whether appellant's behaviour contributed to injury - Assessment of compensation Legislation: Criminal Code Criminal Injuries Compensation Act 2023 (WA) Road Traffic Act 1974 (WA) Result: Entitlement to compensation proved Compensation assessed Representation: Counsel: Appellant : In person Amicus Curiae : Ms A Ebert appeared on behalf of the Chief Executive Officer of the Department of Justice Solicitors: Appellant : Not applicable Amicus Curiae : State Solicitor for Western Australia 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 Briginshaw v Briginshaw (1938) 60 CLR 336 -- 2 of 23 -- [2026] WADC 66 [2026] WADC 66 (MJW) Page 3 Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980) JB v Ramljak [2022] WADC 110 M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992) Re ATS [2017] WADC 92 Re Butler [2020] WADC 22 Re Jackamarra [2014] WADC 9 Re TLJ [2016] WADC 74 Robertson v Hopwood [2018] WADC 66 S v Neumann (1995) 14 WAR 452 -- 3 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 4 STAUDE DCJ: Introduction 1 This is an appeal from a decision of an assessor of criminal compensation dismissing the appellant's application for compensation for injuries sustained in two alleged unlawful assaults that occurred on 26 December 2023. 2 The application was made pursuant to s 17 of the Criminal Injuries Compensation Act 2003 (WA) (CIC Act) which provides that a person who suffers injury as a consequence of the commission of an offence for which no person has been charged may apply for compensation for that injury and any loss also suffered. 3 Section 17(4) provides that a compensation award must not be made under this section unless the assessor is satisfied that the claimed injury and loss occurred as a consequence of the commission of the alleged offence. As a matter of principle, the standard of proof applicable is on the balance of probabilities. 4 The assessor was not satisfied to that standard that any offence had been committed, observing that as there was no 'corroborative evidence' of the alleged assaults 'there is no clear and cogent evidence that any offence occurred'. The assessor also found that if any alleged offence did occur the applicant would be ineligible for compensation as she was 'committing the offence of trespass and/or assault and/or driving under the influence of alcohol at the time' and further that her conduct contributed to any injuries she suffered. Extension of time to appeal 5 Section 55(3) of the CIC Act requires that the appeal be commenced within 21 days after the date of the decision. That period expired on 14 January 2026. The appeal was lodged on 20 January 2026. The appellant has applied for an order for an extension of time. 6 The delay has been explained by the appellant. In an affidavit sworn 3 March 2026 the appellant stated that she received the decision on 24 December 2025 just prior to the Christmas and New Year holiday period. During this time, she was emotionally distressed by the decision and found it difficult to deal with it. She said that she believed -- 4 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 5 that she was within time when she was preparing the appeal and did not intentionally delay the filing of the appeal notice. She filed it promptly once the appeal notice was finalised. 7 Although it is not referred to or attached to her affidavit, there is on the assessor's file a letter from the appellant dated 24 December 2025 (the date of the decision) which purports to be an appeal from the decision, wrongly directed to the assessor (the appeal letter). 8 There is merit in the appeal and the appellant's delay has been explained. It was short, just six days. An extension of time should be granted. The appeal 9 An appeal may be brought from a decision of an assessor of criminal injuries compensation to refuse to make a compensation award. 10 Section 56(1) of the CIC Act provides that an appeal from an assessor's decision requires this court 'to decide the application on which the decision was made afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor'. 11 Because the appeal proceeds as a fresh hearing of the application the appellant is not required to demonstrate any error on the part of the assessor. The brief reasons given for refusing the application however serve in this case to point up the issues to be decided. These issues have been addressed in the submissions of the Chief Executive Officer of the Department of Justice (CEO) who appeared by counsel as amicus curiae. The assistance of counsel in this respect is acknowledged. 12 The information before the assessor was: 1. Application for criminal injuries compensation. 2. Appellant's police statement dated 26 December 2023. 3. Undated statement from appellant. 4. Western Australia Police Force (WA Police) incident report. 5. WA Police running sheet. -- 5 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 6 6. WA Police criminal injuries compensation information report. 7. Undated statement from GS. 8. Statement from appellant's father dated 2 December 2025. 9. Letter regarding restraining order dated 2 January 2024. 10. Violence restraining order 2 January 2024. 11. Photographs of injuries. 12. St John of God Midland discharge summary 26 December 2023. 13. Perth Radiological Clinic MRI imaging request 20 June 2024. 13 The court may receive further evidence and information. In this case such further information consists of the appeal letter and an affidavit of the appellant dated 25 May 2026. 14 The appeal letter, rather than constituting further evidence, stands as a submission based on the evidence and information provided in support of the application and can be treated as such. 15 The appellant's affidavit addresses the issue of whether she was committing an offence of trespass at the time that she was injured. The affidavit annexes a letter from a witness RC, a friend of the appellant who was not a witness to the alleged assaults but who observed the appellant in the aftermath. 16 The affidavit also annexes two photographs of the appellant and another person said to be taken at the gathering at which the alleged offending occurred that in the appellant's submission are consistent with her being a guest. 17 Finally, the affidavit annexes two medical certificates from two general practitioners from Stirk Medical Group dated 23 March 2026 and 14 April 2026 certifying the appellant unfit for work due to a bereavement in one case, and an unspecified medical condition in the other. Neither certificate is relevant to any issue. 18 I have had regard to the appeal letter as a submission and to the affidavit, though the evidence therein does not, in my view, add anything material to the evidence and information before the assessor. -- 6 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 7 19 In these reasons I will anonymise the names of the persons referred to in the evidence to avoid identifying the person said to have offended against the appellant. Principles 20 Compensation may not be awarded in respect of an application pursuant to s 17(2) of the CIC Act unless the assessor is satisfied that the alleged offence was committed and that the alleged injury and any claimed loss occurred as a consequence of the commission of that offence. 21 Although the standard of proof is proof on the balance of probabilities, it is well established that it is a serious matter to find that a person has committed a criminal offence particularly where that person has not been given the opportunity to refute the allegation. For this reason the court should feel an actual persuasion that the alleged offence occurred: Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J), Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1990] HCA 66 [2], (1992) 67 ALJR 449, 449, Re Jackamarra [2014] WADC 9 [99], Re ATS [2017] WADC 92 [29]. There is no requirement for corroboration, but the evidence should be clear and cogent, and not loose or inexact. It should be carefully scrutinised. 22 Counsel for the CEO has helpfully identified in decisions of this court a number of factors that have been considered in deciding whether an offence has been committed, including: (a) the credibility accuracy and reliability of the evidence; (b) the seriousness of the allegation; (c) any prior consistent statements; (d) whether a contemporaneous complaint of the alleged offence was made; (e) any medical records or injuries consistent with the commission of the alleged offence; (f) the outcome of any police investigation; (g) any denial of the alleged offending; and (h) the remedial nature of the legislation. See Re TLJ [2016] WADC 74, Re Butler [2020] WADC 22, Re Jackamarra. -- 7 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 8 Alleged assaults 23 In this case the appellant has described two incidents of unlawful assault being the application of force to her by another without her consent in a manner that was not authorised, justified or excused by law: s 222, s 317 of the Criminal Code. One or both of the assaults occasioned bodily injury. As an assault may be justified by self-defence or excused by provocation the appellant must prove in each case not only that an assault was committed, but also that it was unlawful. Evidence and information 24 On 26 December 2023 the appellant reported the incident to the police and made a statement (police statement). 25 In her police statement she said that on the previous day, Christmas Day, she went with her children to a social gathering at the home of her friend AB. Later that day she took her children to her mother's place before returning to AB's place intending to stay the night there. At about 7.00 pm another friend CD arrived at the house. The appellant and CD had been friends for about 12 months. 26 At about 10.00 pm the appellant was one of seven persons sitting around a table on a patio, talking. In the course of a text message conversation with another friend she was informed that CD had been sleeping with the male partner of the appellant's friend's sister. The appellant stated: I was still sat around the table and the conversation somehow got onto [R]. I confronted [CD] about it, and she denied it. We got into a verbal dispute about her actions, and I called her a liar as she kept denying it. [CD] was shouting at me calling me a 'fucking cunt' and then she got up off her chair and walked around the table. I thought that she was leaving to go into the house. This was not the case. [CD] came towards me whilst I was sat on the chair talking. She hit me to the left side of my face. I felt pain immediately and she hit me with that much force it knocked the chair over with me still on it. The chair fell back and I banged my head, whilst still on the floor [CD] stood over me and started hitting me again. This prompted the other persons present to intervene and get her off me. I got up and walked away. -- 8 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 9 27 The appellant stated that she then left the party: [AB] was mad at me and she said that I had ruined Christmas Day and I should have kept my mouth shut. I was upset with this, and I just wanted to leave. I walked towards my car and did not realise that my car was parked next to [CD]'s car. [CD] came out at the same time, and I said to her 'why did you hit me when I was sitting down, it was a cheap shot'. I told her it was immature. She was still angry, and it made her lose it again. She was so angry, and she came at me again. It looked like she had something in her hand that resembled a flask. She hit me with the flask in her hand, and it hit me in the face. She hit me over and over again, I pulled her hair to get her off me and I was shouting at her 'are you going to stop punching me?'. She said 'yes' and so I let go of her hair. We were both on the floor at this stage and she got up and punched me again. I do not know how long the assault lasted. [CD] is known to me, and I consider her a friend. I did not think she was capable of doing this to me. 28 The police running sheet records that the police obtained photos of the appellant's injuries and a medical report. 29 According to the notes and the running sheet, police spoke to CD on 15 January 2024 but did not participate in an electronic record of interview or make a signed statement. 30 The running sheet states that CD told police that the appellant was rowdy, obnoxious and rude to others at the party after having too much to drink. She said the appellant was told by the owner of the house to leave and refused. She pulled her chair out to prompt her to leave and the appellant lost her balance and fell over. CD denied hitting her and apologised for making her fall. She said that the appellant left the house and waited by her car which was parked near hers. When she went outside to go home, she saw the appellant waiting for her. The appellant without saying a word began to attack her and grabbed her hair. CD said she was punched in the face. She admitted hitting the appellant about three times to break free. She also admitted wearing rings at the time that she said contributed to the appellant's injuries. CD went back into the house. Others put the appellant into an uber or taxi and sent her home. -- 9 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 10 31 The running sheet states that police viewed a contemporaneous image of CD's face but that image is not described and does not appear to have been retained. 32 Enquiries were made of AB who hosted the gathering and her father whose house it was. AB declined to give a statement. 33 The running sheet concludes with an entry to the effect that there was insufficient evidence to charge CD. There were photographs of the appellant's injuries but no other corroborating evidence. No person who was present at the time of the alleged offending was willing to provide a statement. A note reads: 'Suspect: [CD] - Has given account of self-defence, has not provoked the victim, account alleges victim instigated the fight and threw the first punch'. 34 The information report provided by WA Police to the assessor gives an account of the incident complained of in the terms of the appellant's statement. It identifies the offence complained of as an assault occasioning bodily harm. Under 'Outcome details' it reads 'Insufficient evidence'. 35 The hospital discharge summary indicates that the appellant presented on 26 December 2023 complaining of multiple strikes to her face with a metal canister. She complained of pain and swelling of her face. The observations were recorded as follows: 0.5cm laceration to L eyelid; Bruising/swelling to L eyelid, R eyelid, L frontal, L TMJ, L infraorbital; Difficult to palpate infraorbitally on L due to swelling; No loose teeth; and Bruising to L lateral mid arm, no GHC/elbow tenderness but sig pain with movement. 36 The clinical impression was noted as 'undisplaced hairline fracture at the anterior wall of the left maxillary sinus, multiple soft tissue injuries, superficial laceration L eyelid'. 37 The left eyelid laceration was repaired using glue. The appellant underwent a CT scan of her face the findings of which were summarised as follows: Suspect acute undisplaced hairline fracture at the anterior wall of the left maxillary sinus … -- 10 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 11 No further acute displaced fracture identified. The bony nasal septum is deviated to the left. The temporomandibular joints are enlocated. The tympanic cavities and mastoid air cells are well aerated; Soft tissue stranding overlying the left maxillary region. Mucosal thickening of the maxillary sinuses and frontal sinuses and bilateral ethmoid air cells Secretions are seen within the left sphenoid sinus. Unremarkable appearance of the orbits and retro-orbital soft tissues. No gross intercranial abnormality seen. 38 The appellant was referred for an MRI scan of the brain by her general practitioner on 20 June 2024 with a history of chronic headaches following a physical assault in December. There is no other medical evidence. 39 In an email to the Office of the Assessor of Criminal Injuries Compensation dated 7 August 2024 the appellant said that she was seeing a psychologist for her mental health and had been prescribed medication. She indicated that medical reports could be requested, but no medical or psychological reports were provided to the assessor and none has been tendered in the appeal. 40 On 2 January 2025 the appellant applied and obtained an interim violence restraining order against CD. 41 The appellant made a further statement for the purposes of her application for criminal injuries compensation (further statement). This appears to have been made in response to a letter from the assessor dated 28 November 2025 which informed the appellant of the assessor's preliminary view was that there was insufficient evidence to be satisfied that any offence was committed given that CD had told police that she acted in self-defence. The letter also indicated that if an offence had occurred there was evidence that the appellant was committing an offence of trespass or assault at the same time and that her conduct contributed to her injuries. 42 In her further statement the appellant stated that she was invited to a Christmas party at the home of AB. She went there with her younger children then aged 10 and 8. There were other children present. When she was planning to leave, the appellant was invited by AB and another friend to stay longer. She called her mother and arranged for her to look after the children that night. After taking her children to her mother's place and purchasing a bottle of vodka she returned to AB's place. She said she was having an enjoyable evening when CD arrived. -- 11 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 12 43 At some point the issue described in the police statement of CD allegedly having slept with partner of the sister of the appellant's friend arose. CD denied the allegation. Conversations with others followed. The issue arose again sometime after the appellant had spoken by telephone with her friend. She said that CD asked her what business it was of hers and she responded by calling CD a liar. The appellant described the altercation that followed as follows: [CD] then became more abusive and started to walk away. As I turned to speak to [RS], [CD] suddenly punched me on the side of my head, causing me to fall while still sitting in the chair. I was confined to the chair, with [CD] continuing to attack me until [AB]'s dad intervened and pulled her away. [AB]'s dad told [CD] to move back or something along those lines. Everyone was annoyed at [CD] for punching me. [CD] left the patio area and I started to collect my things. 44 The appellant stated that AB's father walked her to her car. She was very upset and not thinking clearly. She said CD was yelling and screaming and others were preventing her from approaching. The appellant stated that she was not in a position to drive. She sat in her car and messaged some friends to see if someone could come and get her. No one answered her messages or calls. She considered it would not be safe to leave her car parked on the street so she decided to move it to the neighbour's verge. 45 The appellant stated that she parked behind CD's vehicle without knowing it was hers. She then saw CD running towards her car. She got out of her vehicle, raised her hands and said to CD, 'This isn't necessary, why did you punch me?' She said things escalated from there. CD became violent and caused 'further injuries to my face, cheek, head, and shoulder on my left arm [sic]'. She did not recall punching CD at all during the incident but remembered pulling her hair in self-defence. She said: I grabbed [CD]'s hair, pulled her close and pleaded, 'please please stop punching me, if I let go of your hair, will you stop?' She said yes, so I let her go - but then she punched me one more time. 46 The appellant said she was driven home by another friend, R. Observations 47 The appellant's further undated statement appears to have been provided in response to a letter from the assessor dated 28 November 2025 expressing a preliminary view that the application should be refused. -- 12 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 13 48 Counsel for the CEO has observed that the appellant's further statement is largely consistent with her police statement, with only the following minor inconsistencies: In her police statement the appellant said that other persons present pulled CD off her during the patio incident, whereas, in her letter, the appellant said that AB's father pulled CD off her. In her police statement the appellant said that AB was mad at her on the patio after the patio incident, whereas, in her letter, the appellant said that AB was mad at her on the street after the street incident. In her police statement the appellant said that CD came out to the street at the same time that she went out to the street, whereas, in her letter, the appellant said that AB's father walked the appellant out, others were preventing CD from approaching, the appellant sat in her car, she moved her car, and she then saw CD running toward her car. 49 The appellant's police statement is also inconsistent with her further statement in terms of how the first incident occurred. In the police statement she described only one verbal exchange with CD about her allegedly sleeping with her friend's sister's partner that occurred when they were sitting around a table with others towards the end of the evening which led to her calling CD a liar and CD calling her a fucking cunt. It was after this exchange that CD approached her and punched her. In her further statement which is a more elaborate narrative she said there were two exchanges. The first occurred when she first confronted CD with the allegation and she denied it, after which they had further conversations with other people. The second occurred some unspecified time later after the appellant had telephoned her friend about the matter. She went back to the table and was talking to another person when CD returned and asked her what business it was of hers to which the appellant responded by calling her a liar. CD became abusive and started to walk away before she punched her in the head. 50 On both accounts the appellant was punched in the face while sitting in a chair. The added detail in the further statement does not render it materially inconsistent with the other in my opinion and does not reflect on the appellant's credibility. 51 It was also observed by counsel for the CEO that the further statement contains some other additional details that were absent from the police statement. None of these minor details is material to the appellant's credibility, or bears on the question of whether any assault of the appellant was not unlawful because it was provoked or done in self-defence. -- 13 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 14 52 Other material before the assessor in the form of letters from the appellant's friend GH and her father, is consistent with the appellant being involved in a violent altercation, but is not direct evidence of the alleged assaults. 53 GH stated that she observed that incident had caused 'psychological and physical damage' to the appellant. 54 The appellant's father stated in his letter that when he went to AB's place on 26 December 2023 to retrieve the appellant's phone AB's father apologised to him for the incident which he described as brutal and that he said he had tried to stop but could not. While the appellant's father's evidence in this regard is hearsay, so - it must be observed - are the notes of what CD told the police. 55 The appellant's father also stated that he took the appellant to hospital and observed the effect on her of the incident. 56 As noted above there is a letter dated 31 January 2026 by another friend of the appellant RC attached to the appellant's affidavit sworn 25 May 2026. RC's description of the appellant's injuries corroborates the medical and photographic evidence. RC also made a number of observations of the apparent impact of the incident and injuries on the appellant. Findings 57 There is no question that a violent altercation involving the appellant and CD occurred on Christmas Day 2023 at the home of the appellant's friend AB. While the court has the benefit of the appellant's accounts of the incident, there is no other eye-witness evidence as to what occurred. I accept though that CD when questioned by the police gave an exculpatory account that is likely to have been accurately recorded. 58 On the appellant's account the incident involved two unprovoked assaults upon her by CD, the first on the patio behind the house and the second on the front verge. The appellant's accounts of the assaults in her two statements are essentially consistent. They are also cogent by which I mean they are logical and make sense. 59 They describe firstly an assault that was committed upon her by CD on the patio in the course of a Christmas celebration to which she had been invited. The first assault commenced with a punch to the left -- 14 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 15 side of her face while she was seated in company with others that caused her to fall over in her chair. CD continued to punch the appellant while she was on the floor until she was pulled off her. 60 On the appellant's account she had confronted CD about alleged behaviour of which she had become aware that evening. CD responded by calling her a fucking cunt. The appellant called CD a liar. CD's version as recorded by the police who spoke to her is that the appellant had been asked to leave. CD said she pulled her chair causing the appellant to fall over. She denied punching her. This is an unlikely explanation of the incident on the patio and is not consistent with what AB's father, whose house it was, said to the appellant's father the day after. 61 The appellant was an invited guest. CD, while perhaps justifiably aggrieved by the accusation made by the appellant, had no business trying to get her out of her chair to make her leave. CD's own account to police makes no mention of the confrontation over the appellant's accusation. She merely described her as rowdy, obnoxious and rude. By her own account what CD admitted doing was not done in response to provocation or in self-defence. Furthermore, there is no evidence that CD was authorised to eject the appellant. 62 It is more likely that the incident occurred as the appellant described. Her documented facial injuries are consistent with being punched in the face as she described, although it is more likely in my opinion that most if not all were suffered as a result of the second incident in which I find she was struck with a metal flask. 63 On the appellant's account the second incident occurred after she had left the house in consequence of the first assault. She made her way to her car on the roadside. She moved it onto the neighbour's verge and was out of the vehicle when the second assault occurred. When CD approached her she asked CD why she had hit her while she was sitting down. CD responded by hitting her repeatedly. The appellant grabbed and pulled CD's hair to get her to stop. 64 As a matter of common sense the injuries recorded in the photographs and the hospital discharge summary are consistent with being hit repeatedly about the head with a metal flask. 65 CD's account is that the appellant was waiting for her outside, that without saying anything the appellant began to attack her and pull her hair and that the appellant struck her in the face. CD said she 'hit her back about three time to break free'. She admitted that she was wearing -- 15 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 16 rings that contributed to the appellant's injuries. Her account is that she struck the appellant repeatedly to break free of her. That is consistent with the appellant's admission that she grabbed CD's hair to get her to stop punching her. 66 The appellant did not intend to drive home. She had messaged and called others to give her a lift. While she may have committed a drink-driving offence by driving her car from the road onto the verge, she was not doing so at the time of the second assault. 67 It is more likely, having regard to what happened on the patio, that CD remained upset by the confrontation over her alleged behaviour and that when she came to the front of the property and saw the appellant near her car she reacted in the manner the appellant has described. CD has admitted to punching the appellant repeatedly and to injuring her with her rings in response to the appellant punching her once and grabbing her hair. 68 Having regard to CD's admissions and the letters of her father and her friends of what they observed of the appellant after the incidents I find it likely that the appellant has given a candid account of what occurred. In respect of the first incident she has recounted in some detail how the confrontation with CD arose and has admitted calling CD a liar. As to the second she has admitted grabbing CD's hair. 69 The appellant's conduct after the incidents is consistent with her being the victim of the two assaults. She reported the incidents to the police the following day and attended promptly for medical examination. She obtained a violence restraining order protecting her from CD on 2 January 2024. Were the alleged unlawful assaults committed by CD? 70 On the evidence and information before me, I find on balance that CD was the aggressor in both the patio and the verge incidents. I am satisfied that CD punched the appellant in the face unlawfully in the former. I am also satisfied that CD's admitted repeated punching of the appellant on the verge was not justified by self-defence. I am not satisfied that the appellant punched CD. The appellant did, as she admits, grab and pulled CD's hair. This constituted an assault. It was justified by the need to defend herself from CD's harmful act of punching her and was a reasonable response in the circumstances known to her. -- 16 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 17 Did the appellant suffer injury as a consequence of the assaults? 71 Although the appellant stated that she felt pain when she was punched in the face during the first assault, in neither of her statements did she describe any physical injuries. She stated that she got up and walked away. In her police statement she said she was upset by AB telling her that she had ruined Christmas Day and that she should have kept her mouth shut. 72 On the evidence and information before me I am not satisfied that she suffered injury as defined in s 3 of the CIC Act, that is, relevantly, bodily harm or mental or nervous shock. For this reason I do not consider the first assault is compensable. 73 By reason of the second assault the appellant sustained injuries to her face in the form of lacerations, bruising and a suspected fracture of the anterior wall of the left maxillary sinus. As I have observed CD has admitted to causing injuries to the appellant's face by her rings when she punched her. I infer from this that the appellant's facial lacerations were visible to her. Regardless of whether any injury was caused by CD's rings, the appellant suffered facial injuries by reason of being struck with a metal flask. Was the appellant injured while committing a separate offence? 74 Section 39 of the CIC Act provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and that the injury was suffered when the person was committing a separate offence the assessor must not make an award of compensation. 75 As a matter of principle, there is no need for a causal nexus to exist between the offence for which compensation is claimed and an offence committed by the claimant, but there must be a temporal one. Whether there is such a temporal connection is a question of fact and degree. The temporal connection does not require the appellant's offence to be committed at the same instant in time as the offence for which compensation is claimed but the two offences need to form part of the same incident. See Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29. 76 For the purposes of s 39, the same principle applies to proof of an offence by a claimant as to proof of the alleged offence for which the claim is made: clear and cogent evidence is required. -- 17 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 18 77 The assessor's decision has raised an issue as to whether the appellant was committing an offence when she was assaulted by CD. The offences identified in the assessor's decision are trespass, unlawful assault and drink-driving. 78 Section 70A(1) of the Criminal Code defines 'trespass on a place' as: (a) to enter or be in the place without the consent or licence of the owner, occupier or person having control or management of the place; or (b) to remain in the place after being requested by a person in authority to leave the place; or (c) to remain in a part of the place after being requested by a person in authority to leave that part of the place. 79 Section 70A(2) makes it an offence to trespass on a place without lawful excuse. 80 The question of trespass arises only from CD's statement to police that the appellant had been asked to leave when she tried to pull her from her chair. The appellant had entered and was in AB's home with the consent of AB's father who appears to have been the owner. She was an invited guest. Apart from what appears in the running sheet there is no evidence or information that AB, her father or any 'person in authority' requested the appellant to leave. What CD told the police is not consistent with the apology that the appellant's father has said was made to him by AB's father the following day. The appellant said in her further statement that AB's father walked her to her car after the first assault but denied that she was told to leave the premises. There is no clear and cogent evidence of the appellant committing trespass when she was assaulted the first time. No question of trespass arises with respect to the assault committed on the verge. That occurred after the appellant had left AB's place. 81 Having found that the appellant did not suffer any compensable injury in the first assault that finding is made simply for the purpose of vindication. 82 The conflicting accounts of what occurred on the verge give rise to a question of whether the appellant unlawfully assaulted CD. I have made findings that the appellant did not punch CD and that she grabbed CD's hair to get her to stop hitting her, ie in self-defence. I have also -- 18 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 19 found that CD did not assault the appellant in self-defence. I find that that the appellant was not committing the offence of unlawful assault when she was assaulted by CD the second time. 83 The remaining issue is whether at the time she was assaulted by CD on the verge the appellant was committing a drink-driving offence. She has admitted moving her car from the road to the verge before that assault occurred. It may be inferred that she was intoxicated to some degree when she did so. On that basis it can be found that she likely contravened s 63, s 64, or s 64AA of the Road Traffic Act 1974 (WA) when she drove the vehicle onto the verge. 84 In her further statement the appellant said that she was in her car trying to figure out what to do next when she saw CD coming towards her. She got out of the car and raised her hands. She asked CD why she had hit her and 'things escalated from there'. Although I am satisfied that the appellant committed a drink-driving offence I am unable to find that the driving formed part of the incident in which she was assaulted. It preceded it by an uncertain but significant period of time such that it could not reasonably be said to have been committed when CD was assaulting her. 85 I am fortified in this finding by CD's account which was that when she went outside she saw the appellant waiting for her by her car. While that account differs somewhat from the appellant's it does give support to my finding that the driving and the later assault were temporally discrete. Did the appellant's behaviour, condition, attitude or disposition contribute directly or indirectly to her injuries? 86 Section 41 of the CIC Act 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. -- 19 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 20 87 Section 41 has been construed so as to require the assessor to enquire whether the complaint's conduct contributed to the injury suffered: Bennetts v Smith [2022] WADC 32 [73]; Robertson v Hopwood [2018] WADC 66 [22] and [66]. 88 In JB v Ramljak [2022] WADC 110 [72] Wallace DCJ held: [Section 41] is enlivened in circumstances where the applicant engages in behaviour that has a causal connection to the offence/s during which they sustain injury, such as engaging in behaviour that is intentionally provocative, aggressive or intimidatory in nature. … 89 The appellant has admitted accusing CD of sleeping with her friend's sister's partner and calling CD a liar when she denied doing so. Whatever may have been the case in truth the appellant's conduct in accusing CD of discreditable conduct on the basis of hearsay was calculated to elicit a response from CD. It served no other purpose. At a social event at which she and CD were guests her conduct in doing so was offensive not only to CD but to the host, AB. The group had been together for some hours and alcohol had been consumed. CD's denials were met with the appellant's further accusation that she was a liar. In those circumstances the making of the allegation by the appellant was inflammatory. The appellant had no direct knowledge of the matter with which she confronted CD. It was hearsay upon hearsay. The appellant in those circumstances might reasonably have expected a hostile reaction by CD. She may not have expected her to react violently, as she said in her police statement, but such a reaction was foreseeable. 90 Although I am not satisfied that what the appellant said to CD amounted to a defence of provocation, it did contribute to a loss of self-control by CD. For this reason I am satisfied that the appellant's behaviour did contribute directly or indirectly to her being punched in the face by CD and to being repeatedly punched by her on the floor in the course of the first assault. 91 The circumstances of the second assault are somewhat different in that CD has approached the appellant while she was standing near her car and has again started punching her, this time with a metal flask in one of her hands. It is by this assault that the documented injuries were suffered. I find that the appellant by her behaviour did not contribute directly or indirectly to these injuries. After the first assault the appellant left the party not intending to have any further contact with CD. There is no sufficient causal nexus between her earlier offensive behaviour and the injuries she suffered in the verge incident as would warrant a denial or reduction of compensation. -- 20 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 21 92 To the injuries she sustained in the second assault, the appellant's behaviour, condition, attitude or disposition did not contribute directly or indirectly. Assessment of compensation 93 The court having found that the appellant did suffer injury as a result of the commission of an offence of unlawful assault occasioning bodily harm, the appellant is entitled to compensation for her injury and any loss also suffered. 94 By virtue of s 56(2) of the CIC Act the court has power to either remit the matter for assessment by an assessor or make its own assessment. In this case the court has the information and evidence that the appellant put before the assessor in support of her application and is in a position to do so. The appellant in her application form answered the question 'Are you able to upload all of your medical reports from the health professionals you have sought treatment from?' in the affirmative. The only document uploaded was the St John of God discharge summary. Elsewhere the appellant indicated that she was lodging a 'fully complete application'. 95 I am satisfied that the injuries that were documented at St John of God, Midland on 26 December 2023 were caused by the second assault. Those injuries amount to bodily harm for the purposes of the definition of injury in s 3 of the CIC Act. 96 I am satisfied by the hospital records that the appellant experienced pain and swelling in her face. She had a 0.5 cm laceration to her left eyelid which was repaired using glue. She had bruising and associated swelling of the left eyelid, right eyelid, left frontal area and left jaw. She also suffered left infraorbital swelling, that is swelling around the floor of the eye socket consistent with what was diagnosed as a suspected acute undisplaced hairline fracture of the anterior wall of the left maxillary sinus. She suffered bruising and pain with movement of her left arm. 97 In her police statement the appellant described her injuries as follows: A hairline fracture to my left cheek, large bump on the head, two black eyes, split eye, split lip. I had bruising and a friction burn on my shoulder. This has left me feeling scared and shaken. -- 21 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 22 98 Although the appellant was referred for an MRI of her brain some six months or so after the incident in question with a history of headaches following the assault I am unable to make any finding of head injury but am prepared to find that the appellant experienced residual symptoms in the form of headaches for a period of time. No other finding is permitted on the evidence. In the absence of any other evidence of treatment for those injuries or any ongoing symptoms I find that they are likely to have resolved completely over a period of time. 99 The appellant has provided information that she was referred for psychological counselling and was prescribed antidepressant medication in the form of sertraline. I do not have evidence or information of the appellant suffering any psychological disorder except what is said by her in her further statement: My ongoing psychological impact is documented and a treatment plan, including prescribed medication (Sertraline 100 mg) and psychology appointments. The trauma has significantly reduced my social interactions and affected me overall wellbeing. These facts support the severity of the incident and its lasting effects on my life. 100 Injury is defined in the CIC Act to include mental or nervous shock which has been found to comprehend any malfunction of the person that can be seen to be a consequence of the impact of events constituting the offence, or associate with the commission of the offences, as those events impact on the mind or nervous system. It must be more than a mere emotional reaction: Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980); S v Neumann (1995) 14 WAR 452, 561; M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992). I accept that the appellant has been prescribed antidepressant medication and that she has been referred for psychological counselling and am satisfied that there has been a degree of mental or nervous shock suffered as a result of the assault, but I have no evidence of any formal diagnosis. I have no evidence that would indicate an ongoing mental health condition. 101 I have had regard to other decisions of this court that involve assessments of compensation for non-pecuniary loss for broadly similar injuries. These are illustrative only but are a useful guide to quantum, remembering that each case is to be decided according to its own facts and circumstances. -- 22 of 23 -- [2026] WADC 66 STAUDE DCJ [2026] WADC 66 (MJW) Page 23 102 Doing the best I can on the limited evidence and information before me I assess compensation for non-pecuniary loss, that is, pain and suffering and loss of enjoyment of life due to the physical and mental effects of the assault at $10,000. 103 The appellant has made no claim for any pecuniary loss. There is no claim made for report expenses, treatment expenses, travel expenses, personal items, loss of income or earning capacity or future treatment expenses. 104 Accordingly, the orders will be: 1. The time for filing the appeal notice be extended to 20 January 2026. 2. The appeal be allowed. 3. The appellant be awarded compensation in the sum of $10,000. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. DC Associate to Judge Staude 20 JULY 2026 -- 23 of 23 --