Application Under the Criminal Injuries Compensation Act 1983 (ACT) Ashley Leslie Ritherdon [1993] ACTSC 109 (16 December 1993)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 (ACT)
ASHLEY LESLIE RITHERDON
No. SCA68 of 1993
Number of pages - 5
Appeal - Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Appeal - to Supreme Court from decision of Registrar - findings of fact supported.

Criminal Injuries Compensation - Criminal Injuries Compensation Act 1983 (Cth) - whether crime of battery committed - whether accidental force is an "element" of battery even if no evidence of mens rea - apparent accident - "element" of offence must appear to be accompanied by relevant mens rea unless mens rea is absent by reason of lack of criminal capacity (s.4).

Criminal Injuries Compensation Act 1983 (ACT), ss.2(1), 9(1)

Traffic Act 1937 (ACT), ss.8(1), 25(1)

Motor Traffic Act 1936 (ACT), ss.4(1), 129, 130

HEARING

CANBERRA, 25 October 1993
16:12:1993

Counsel for the Appellant: Mr J Parkinson

Instructing Solicitors: Meyer Boettcher and Clapham

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government solicitor

ORDER

THE COURT ORDERS THAT:
The appeal be dismissed.

DECISION

HIGGINS J This is an appeal from the order of the Registrar of the Supreme Court made on 23 June 1993. The Registrar concluded that the applicant (appellant) suffered no prescribed injury within the meaning of the Criminal Injuries Compensation Act 1983 (ACT) (the "CIC Act").

2. There was no dispute concerning the circumstances which resulted in physical injury to the applicant.

3. On 15 February 1991, at about 5.15pm, the applicant, then resident at 112 Carruthers Street, Curtin, stepped from his garden path onto the footpath outside his residence. He collided with a bicycle then being ridden by Kirsty Beadman. Ms Beadman was then 15 years of age. She was riding home after school.

4. The applicant was struck and injured by part of the bicycle. He also collided with Ms Beadman. He was injured either by the collision or in falling after being struck. His injuries were serious. His lower jaw was shattered. He required dental reconstruction.

5. Ms Beadman deposed that she was proceeding along the footpath on what was identified as the eastern footpath of Carruthers Street. She was proceeding in a southerly direction approaching the intersection of the applicant's garden path with the footpath. There was a vehicle parked on the nature strip outside number 114 but close to the boundary with 112 Carruthers Street. The weather was "stormy" but it was then only sprinkling with rain.

6. There was no evidence that Ms Beadman was cycling excessively fast or that she saw the applicant before the collision. She had no reason to expect the applicant to emerge. There was certainly no suggestion that she intended any harm to the applicant. It was an accident. At worst, it could have been suggested that she was negligent in not giving warning of her approach or in failing to take account of the possibility of a resident, such as the applicant, stepping out onto the footpath.

7. The case put for the applicant was that the act of Ms Beadman in colliding with the applicant constituted "an element" of an offence, namely, battery.

8. The CIC Act provides for compensation for injury if, and only if, that injury is "... a result of the criminal conduct of another person" (s.2(1) CIC Act).

9. The term "criminal conduct" is defined by s.2(1) as "an act or omission that constitutes, or is an element of, an offence".

10. The Registrar considered whether the actions of Ms Beadman did constitute an offence. "Offence" is widely defined in s.2(1). It was (at least then) defined as "an offence against a law in force in the Territory". No other offence than battery was suggested as open to found the applicant's claim.

11. The Registrar noted that it was lawful for Ms Beadman to ride her bicycle on the footpath in question (see s.8(1) Traffic Act 1937 ACT ("Traffic Act)). No reference was, however, made to s.25(1) of the Traffic Act. That applies Part VIII of the Motor Traffic Act 1936 (ACT) ("MTA"), including s.129 thereof, to bicycle riders.

12. Section 129 proscribes reckless, dangerous, or negligent driving "upon a public street".

13. Section 130 also applies. That section proscribes driving "without due care and attention or without reasonable consideration for other persons using the public street". Those provisions are to be read as if "driver" includes "rider" and "motor vehicle" includes a "bicycle".

14. Section 9(1)(a) of the CIC Act prohibits an award of compensation for injury resulting from an offence "arising out of the use of a motor vehicle".

15. An offence against s.129 or s.130 MTA, applied by virtue of s.25(1) of the Traffic Act would not be within s.9(1)(a).

16. Section 4(1) (MTA) defines "public street" as including a footpath unless it forms part of an "entrance-driveway leading to a parcel of land". The part of the footpath where the collision occurred was not part of any entrance-driveway. It follows that, if Ms Beadman had ridden her bicycle in a manner prescribe by s.129 or 130 MTA, she would have committed an offence against s.25(1) Traffic Act.

17. However, the issue of negligence or lack of due care, attention or consideration (if that is different from negligence) was not addressed before the Registrar. Before me, the applicant's counsel acknowledged that it would be unfair now to rely upon it as supporting an award of compensation.

18. Indeed, the Registrar's findings characterising Ms Beadman's conduct would seem inconsistent with a finding that any such offence was committed. He said,
(AB,77) "... I am unable to find that Miss Beadman's conduct in

the management of her bicycle was such that she acted
recklessly. There is no evidence to indicate that she could
have foreseen that her conduct in the management of her bicycle
was likely to bring about a collision between herself and any
other user of the footpath. She did not, in my view, deviate
from the standard of conduct that a law-abiding person would
observe in the circumstances."

19. It also followed that Ms Beadman had not committed the offence of battery, whether as a result of recklessness (however defined) or criminal negligence.

20. The Registrar saw and heard the witnesses. He was entitled to accept Ms Beadman's account of her actions prior to the collision. In my view that acceptance supports the Registrar's conclusion. Not only has no error been demonstrated but, in my view, no other conclusion was reasonably open.

21. The alternative argument put on behalf of the applicant was that the collision, being an act which, if done with the necessary mens rea, would be battery, was "an element" of the offence of battery. The difficulty with that submission is that the application of such force could also have been done by accident. It could have been done tortiously as well as being an element of a battery if done with intent or recklessly. It seems incongruous to describe an act which is an "element" of an accident as being, simultaneously, an "element" of a battery.

22. No authority justifying such an interpretation of the definition of "criminal conduct" was cited. Indeed, I agree with the Registrar that, in the case of an act which may or may not per se be unlawful, to be an element of an offence it must appear to have been done with such intent, or accompanied by such state of mind, as would make the act such an offence.

23. In my view, the CIC Act recognises that position. Section 4 provides,

"For the purposes of this Act, a person shall be taken to have
intended an act or omission that, if done or made with intent,
would have constituted criminal conduct notwithstanding that,
by reason of age, mental condition, intoxication or otherwise,
she or he was legally incapable of forming that intent."

24. That provision would be otiose if intent was irrelevant.

25. The term "element", in other words, refers to a situation where only part of the offence or acts comprising it result in the injury complained of. It does not require the actus reus to be separated from any necessary intent or state of mind required to accompany the act.

26. In my opinion, the Registrar's decision was correct. The appeal must be dismissed.

27. I will hear the parties as to costs.