Re An Application By Robert Gilliland and Re the Criminal Injuries Compensation Ordinance 1983 Cic [1987] ACTSC 54 (24 July 1987)

SUPREME COURT OF THE ACT

IN THE MATTER of an application by ROBERT GILLILAND AND IN THE MATTER of the
CRIMINAL INJURIES COMPENSATION ORDINANCE 1983
C.I.C. No. 18 of 1986
Criminal Law

COURT

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

CATCHWORDS

Criminal Law - criminal injuries compensation - applicant policeman assaulted in course of duty - other party acquitted of assault - applicant's injuries disputed by Commonwealth - alleged that applicant struck first blow - whether applicant's conduct disentitled him from receiving compensation or reduced any award of compensation - Criminal Injuries Compensation Ordinance 1983 s.15 - no new matter of principle.

HEARING

CANBERRA
24:7:1987

ORDER

The applicant be awarded compensation in the sum of $5,640.

DECISION

On Friday, 21 December 1984, about 3.30 in the afternoon in Alinga Street, Canberra outside the since demolished Hotel Civic, Edward Brent Bolas made an insulting remark to Constable Robert Gilliland, a member of the Australian Federal Police. That remark was followed by a warning, a repetition of the remark, an arrest, an altercation, an escape, a rearrest, the laying of criminal charges, committal and summary proceedings, a Supreme Court trial and the present application by Constable Gilliland for compensation under the Criminal Injuries Compensation Ordinance 1983.

2. The Ordinance establishes a scheme similar to other schemes throughout Australia. It is intended to provide a method for victims of crime to obtain compensation from public funds. It is intended that the method provided will be simple, cheap and quick. It succeeds in the former aim but not in the latter aim as the present case illustrates.

3. The charges laid against Mr Bolas alleged offensive behaviour, resisting a member of the Australian Federal Police in the execution of his duty and assaulting a member of the Australian Federal Police in the execution of his duty. The first charge was dealt with summarily, the second charge was not proceeded with beyond committal for trial, and the third charge resulted in the acquittal at the hands of the jury. On the material before me it seems, and it is common ground so I understand, that the alleged assault in respect of which Mr Bolas was charged and ultimately acquitted is part of the criminal conduct relied upon in the claim for compensation. The acquittal is, of course, no bar to an application for compensation. The act or omissions constituting the offence or offences, that is to say the criminal conduct relied upon, needs to be established on the balance of probabilities only, see section 8 of the Ordinance. The applicant relies upon two such acts, one being a punch to the face during the course of an attempt to place Mr Bolas in the police vehicle soon after his arrest in Alinga Street, and the other being a push in the police vehicle whilst it was conveying Mr Bolas and the applicant to the police station. The former, as I have said, was the subject of the charge on which Mr Bolas was acquitted but the other has not been the subject of any criminal proceedings.

4. The applicant gave evidence that after he had arrested Mr Bolas for offensive behaviour and whilst he was attempting to place him in the police vehicle Mr Bolas unexpectedly and without justification struck him with a closed fist on the right side of the face causing bruising and swelling of the right eye and cheek and a laceration to the upper lip. The applicant further gave evidence that whilst in the rear seat of the police vehicle on the way to the police station Mr Bolas continued to struggle, that Constable Gilliland tried to subdue him and that Mr Bolas, during the course of these events, pushed him, again without justification, so that Constable Gilliland's right hand struck the inside of the passenger door of the car, forcing the hand down towards the wrist in an abducting movement.

5. The applicant's evidence as to the injury on the right side of the face was supported by that of Constable O'Ryan and Constable Gaughran who claimed to be eye witnesses. Dr Smyth, a police medical officer, examined the applicant within minutes of arrival at the police station and found abrasions and swelling consistent with both injuries claimed. Dr McNicol examined the plaintiff about a year later and found continuous symptoms consistent with the injury to the wrist. Sergeants Huckel and McGoogan gave evidence of admissions made by Mr Bolas when he arrived at the police station that he had struck the applicant. The wrist injury, however, is not the subject of any evidence by persons claiming to be eye witnesses. The closest the evidence goes to that is the evidence of Constable Gaughran, the driver of the vehicle, relating to a commotion which he heard in the back of the vehicle on its way to the police station. That evidence is consistent with what the applicant alleges, but it is, of course, consistent with many other things. Dr Smyth, however, said that at 3.37 pm, which was very soon after the arrival at the police station, the applicant complained of a painful right wrist and this was supported by Constable O'Ryan who said that soon afterwards the applicant asked Constable O'Ryan to finish typing the applicant's statement because the applicant's wrist was too sore for him to carry on typing.

6. The Commonwealth called Mr Bolas to give evidence. He admitted in his evidence that he had struck Constable Gilliland in the face when being placed into the police vehicle. He made no claim that he was acting in self-defence but sought to explain his conduct as being in retaliation for a first punch being thrown by Constable Gilliland. That, of course, is no justification in law as far as Mr Bolas' conduct was concerned. Mr Bolas denied that Constable O'Ryan was on the scene at all and maintained that there had been another police officer there altogether, a man with red hair whom he thought he recognised from prior occasions but whose name he did not know. Mr Bolas claimed that he was badly beaten by this red headed policeman later both in the vehicle and after arrival at the police station, there in the view of some of the witnesses who gave evidence for the applicant.

7. The Commonwealth also called a civilian bystander, a Mr McLeod, in order, so it seems, to establish that no assault occurred at the police vehicle in Alinga Street. Mr McLeod observed the scene from a bus stop outside the now defunct Blue Moon Cafe and later from inside the bus after it had arrived at the stop. He saw no assault. If Mr McLeod's evidence is to be accepted as establishing that no assault occurred in Alinga Street then, of course, it contradicts the evidence of Mr Bolas himself, that he did, in fact, hit the applicant in the face. Mr Bolas was not an impressive witness. Given that conclusions drawn from demeanour and the like may well be mistaken I look elsewhere to decide where the probabilities lie. First, I am satisified that there was an assault in Alinga Street of the nature contended for. Mr McLeod's failure to see it may be explained by the fact that his attention must have been distracted at least whilst he was getting on the bus. Second - and I regard this of major importance - it was never suggested in cross-examination of the applicant and his witnesses (a), that Constable O'Ryan was simply not present (b), that a red headed man took an active part in the events; or (c), that there was a wholly inexcusable and, indeed brutal assault on Mr Bolas at the police station within the view of witnesses called for the applicant. Furthermore, the evidence of Dr Smyth and also that of Constable O'Ryan, once it is accepted that Constable O'Ryan was present, relating to the plaintiff's complaints of pain in the wrist are further corroboration of the wrist injury. Dr Smyth himself said the symptoms were consistent with an abduction type injury. I will also add that as I recall - but in the absence of a transcript - Mr Bolas never expressly denied the assault causing the wrist injury. There were, as Mr Erskine for the Commonwealth emphasised, a number of peculiar features of the evidence presented by and on behalf of the applicant both as to internal contradictions and inconsistencies with prior statements. I have taken all those matters into consideration but I am satisfied that the plaintiff received both the injuries he alleges.

8. It was argued on behalf of the Commonwealth that even if the applicant had received such injury or injuries there was conduct on his part which went to disentitle him from receiving compensation or which went to reduce any award of compensation. As I understand it, it was suggested that Constable Gilliland had struck the first blow and that that was provocation of a sort which, whilst not providing any defence in law to Mr Bolas's action, should be reflected in a reduced award of compensation.

9. I am, however, satisfied that it was Mr Bolas who struck the first blow and that there is no conduct disentitling on the part of the applicant. I add that I have had full regard to all the factors set out in section 15 of the Ordinance but I am satisfied that there was no conduct on the part of the applicant which makes it appropriate to reduce compensation to be awarded.

10. The blow to the face caused bruising, swelling and lacerations which ceased to have any effect after three weeks. That calls for a very modest award. The injury to the wrist was a soft tissue injury and there is no evidence of any joint, bone or ligament injury. The injury does not affect the applicant's earning capacity and will not do so. It hardly restricts his activities at all. What it does is to render less comfortable the strenuous activities which he continues to carry out, such as weight training, pistol shooting, concreting and fencing.

11. There is an observable clicking on flexing of the wrist but it is not necessarily associated with pain. There is otherwise a full range of movement. It should be noted that the injury also renders the applicant more liable to the effects of further injury, as in fact occurred a day or two before the first day of the hearing. Exacerbation of that nature may be regarded as within the normal stresses and strains of daily life and hence foreseeable. Anything beyond that, however, I would regard as a new injury and not a consequence for which the subject injuries are responsible for which should be reflected in the award of compensation.

12. Dr McNicholl mentions possible operative treatment, but in my view that is in the region of speculation. I am not satisfied that the applicant is permanently incapacitated. At the most, it can be said that he will continue to feel the effects of the wrist injury for some indefinite time into the future. There is an amount of $140 paid to the doctors which is supported by receipts. In the absence of objection on behalf of the Commonwealth, that will be included in the award. I think that an appropriate total award for compensation is $5,640 and I so order.