Re An Application of An Award Under the Criminal Injuries Compensation Ordinance 1983 and Re Robert Gilliland Cic [1986] ACTSC 18 (14 March 1986)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION FOR AN AWARD UNDER THE CRIMINAL INJURIES
COMPENSATION ORDINANCE 1983
AND IN THE MATTER OF ROBERT GILLILAND
C.I.C. No. 18 of 1986
Criminal Injuries Compensation Ordinance 1983

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Criminal Injuries Compensation Ordinance 1983 - Application for leave to institute proceedings out of time - Application to be granted if the Court considers it just to do so - Delay occasioned by ignorance of limitation period - Meaning of "considers it just to do so" considered - Acquittal of alleged assailant - Whether bar to claim.

HEARING

CANBERRA
14:3:1986

ORDER

THE COURT ORDERS THAT the applicant have leave to institute by 4 p.m. on Friday, 28 March 1986 a claim under the Criminal Injuries Compensation Ordinance 1983 for compensation in respect of injuries said to have been received on 21 December 1984.

DECISION

On 21 February 1986 Robert Gilliland (the applicant) moved for an order that he have leave to institute a claim under the Criminal Injuries Compensation Ordinance 1983 (the Ordinance) for an award of compensation arising out of an incident which occurred on 21 December 1984. The need to seek leave arose because of s.10 of the Ordinance which in part reads:-

"(2) Subject to sub-section (3), an

application shall be lodged within the
period of 12 months commencing on the date on
which the relevant prescribed injury or
prescribed property damage was sustained.

(3) The court may, on application made at any
time (whether before or after the expiration
of the period referred to in sub-section
(2)), extend the time for the lodging of an
application if the court considers it just to
do so."

2. The injuries for which compensation is sought are said to have arisen out of an incident which took place on 21 December 1984 when the applicant, in the execution of his duties as a member of the Australian Federal Police, attended a disturbance at the Civic Hotel, Alinga Street, Canberra City. According to the applicant's statement, verified by his affidavit sworn 11 February 1986, he told a man who he alleges caused his injuries that he was under arrest and placed him inside a police vehicle. He and other officers then had a conversation with another person. He then turned and saw the man whom he had arrested open the right rear door of the police vehicle and get out. He told the man to get back in the car. He and another police officer then took the man towards the rear door of the police vehicle. While the applicant was placing the man in the rear of the police vehicle he says that the man struck him on the right side of his face. Believing that the man was about to strike him again and in order to defend himself, the appellant struck him in the region of his left eye. He further alleges that during the trip back to the police station the man again punched him on the right side of the face.

3. The man was charged, as appears from the applicant's affidavit, with assault and resisting arrest. He was eventually committed to stand trial in this Court and after a trial which took place on 5 and 6 December 1985 was acquitted by direction, it is said, of the presiding Judge.

4. When the matter came before me and I noted the acquittal I had some concern as to whether it might operate in the circumstances to bar a claim under the Ordinance by the applicant.

5. By s.5 of the Ordinance it is provided that, where a person sustains a prescribed injury, the court may, by order, award compensation to him. So far as is relevant, s.2 of the Ordinances defines a "prescribed injury" as being, in relation to a person, an injury sustained by that person in the Territory as a result of the criminal conduct of another person. Section 2 also defines "criminal conduct" as an act or omission that constitutes or is an element of an offence and "offence" as an offence against a law in force in the Territory.

6. Section 8 of the Ordinance provides that compensation shall not be awarded unless the court is satisfied, on the balance of probabilities, that the relevant injury is a prescribed injury.

7. While certain consequences flow in favour of the man acquitted because of his acquittal (R. v. Storey [1978] HCA 39; (1978) 140 CLR 364 and R. v. Groves (1981) 5 ACrimR 274), it cannot, in my opinion, be said that in a matter to which he is not a party and in which the onus of proof is, by s.8 of the Ordinance, less than that in a criminal trial, his acquittal prevents the applicant from alleging that his conduct was criminal conduct in the relevant sense. No question of estoppel can possibly arise. It follows that, if it be just to do so, leave ought be granted the applicant to pursue his application for compensation. As to that question, I think the material initially furnished was inadequate to show that the justice of the case required that the application be granted. All that the applicant alleged was that "the 12 months period of time elapsed without me giving instructions to (my solicitors) to institute these proceedings". No reason for the delay was given. However, further evidence has now been furnished. That evidence shows that the applicant was unaware of the limitation that s.10 of the Ordinance imposes.

8. The meaning of the phrase "if the court considers it just" used in s.10(b) is left at large. I think it wide enough to cover the circumstances proved in this case. I therefore grant the application. There will be an order that the applicant have leave to institute, within 14 days, a claim under the Ordinance in respect of the injuries said to have been received on 21 December 1984.