Re An Application Under the Criminal Injuries Compensation Act 1983 and Ricky Shane Bullock [1994] ACTSC 78 (11 August 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND RICKY SHANE BULLOCK
No. CIC42 OF 1992
Number of pages - 9
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Criminal Injuries Compensation - Grievous Bodily Harm - Knife attack - Attacker acquitted - Altercation started by Applicant - "Criminal Conduct" - "Prescribed Injury" - "Behaviour, Condition, Attitude or Disposition" of applicant.

Criminal Injuries Compensation Act 1983 ss. 2(1); 3, 7, 8, 15(1)(a); 15(1)(b); 15(2).

HEARING

CANBERRA, 28 July 1994
11:8:1994

Counsel for the Applicant: Mr G Stretton

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr P Walker

Instructing Solicitors: ACT Government Solicitor

ORDER

Compensation be awarded to the applicant in the sum of $48,112.00.

DECISION

MASTER A. HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 21 August 1992 Brett Gregory Finlay was indicted in this Court on a charge that on 16 May 1991 he intentionally inflicted grievous bodily harm on the applicant.

3. He pleaded not guilty. On 27 August 1992 the jury acquitted him. Immediately after that acquittal the Chief Justice, before whom the trial had taken place, took the unusual course of informing both the applicant and Mr Finlay that he proposed to bind them both over to keep the peace. In doing so, he made the following comments,
"Now, the jury's verdict in this case is that you, Mr Finlay, are

not guilty of the charge brought and that is a perfectly proper
verdict, I must say. It could have gone the other way; it did
not, I make no criticism at all of the jury's verdict in light of
the evidence, but the fact of the matter is the behaviour of both
you men on this occasion was something that, on the face of it, in
my opinion, is not acceptable in a civilised community.
Now, although you have been found not guilty, Mr Finlay, the fact
of the matter is the jury were told by me that they should judge
your state of mind by what would have been reasonable for a person
to do in the predicament in which you found yourself. I told them
they should not judge your conduct with the wisdom of hindsight.
For that reason, I should think they found a verdict of not
guilty. We now have the wisdom of hindsight and with the wisdom
of hindsight it can be said that your conduct was not reasonable.
That man there nearly died, you were nearly on a charge of
murder. I have a power, in a situation where it is seen that
there is a risk of a breach of the peace being committed by
anybody, to require that person to enter into a recognisance not
to commit a breach of peace for a certain period of time, and if
the person does not enter into the recognisance, the person will
go into custody.
Now, you, Mr Bullock, on your own say so, commenced the incident
that occurred on that day. It was quite an unprovoked assault on
your part. I make no reference to the behaviour of your brother.
He was not in a position to say anything about his own conduct.
He was not represented and, in a sense, you were not represented
directly either, but it was your own sworn evidence that you
commenced the incident on this occasion. So, as far as both of
you are concerned, I require you each to enter into a recognisance
to keep the peace for a period of three years from now."

4. Counsel for the Territory submitted that the circumstances of this case were such that an award of compensation should not be made to this applicant. There were two bases for the submission.

5. The first was that I should not be satisfied that the applicant's injuries were the result of the criminal conduct of another person, as is required by the definition of "prescribed injury" in S.2(1) of the Act.

6. The second was that, pursuant to S.15(1)(a), in considering whether or not to make an order awarding compensation, I should hold that the "behaviour, condition, attitude or disposition" of the applicant, which, Counsel submitted, directly or indirectly contributed to his injury, was such that I should not make any award.

7. Alternatively, he submitted that if an award were made, it should be greatly reduced, under S.15(1)(b), because of the same "behaviour, condition, attitude or disposition".

8. By S.8(a) compensation shall not be awarded unless the Court is satisfied, on the balance of probabilities, that the relevant injury is a prescribed injury.

9. By S.3, when a person has been convicted of an offence the conviction is conclusive evidence of the criminal conduct. That section does not operate in this case, because there was an acquittal.

10. But the converse is not true. It does not follow from the fact of the acquittal that the Court, in considering this application, must decide that there was no criminal conduct. Whereas the jury at the trial had to be convinced beyond reasonable doubt of every element of the offence, the Court on this application needs to be satisfied only on the balance of probabilities.

11. There was no oral evidence given on the hearing of this application. I was invited to determine the matter on the basis of the evidence given at the trial.

12. In doing so I am not bound to come to the same view of the facts as did the Chief Justice, despite the fact that he had the obvious advantage of observing the applicant, the accused and the other witnesses as they gave their evidence. That is not to say that I differ from him. I simply acknowledge my obligation to form my own view.

13. It must also be borne in mind that in binding both men over to keep the peace the Chief Justice was not punishing them for past behaviour. He was looking to the future, endeavouring to ensure that there would be no violence on the part of either man in the future.

14. There is no doubt on the evidence that Mr Finlay used a knife in the course of an altercation with the applicant, and caused serious injury to him.

15. Dr Chong, who operated on the applicant at Royal Canberra Hospital, reported on the operation as follows,

"On examination his BP was 140/80 Pulse 90/min and regular. There
were two stab wounds in the left chest wall, one wound near the
apex of axilla, the other along the posterior axillary line.
Crepitations were palpable in the neck and left chest wall. A
left pneumothorax was evident on chest Xray. There were
lacerations in the right arm (6 cm) and two in the left forearm.
There was one stab wound just to the left of the midline in the
upper abdomen. The abdomen was tender in all quadrants with
rebound tenderness present. Bowel sounds were absent.
He had an intercostal chest tube inserted through the stab wound
in the left chest to re-inflate the lung and abolish the
pneumothorax present in the left pleural space. The wounds were
sutured in the casualty.
An abdominal ultrasound was carried out. Approximately one litre
of blood was noted in the abdominal cavity. The right kidney was
noted to be absent. The spleen and pancreas were noted to be
normal.
An emergency laparotomy was performed at 15:57 hour. There was a
large collection of free blood in the peritoneal cavity. There
was an oblique stab wound passing from a 1 inch skin wound through
the left rectus muscle into the surface of the left lobe of the
liver causing a liver laceration of about 1.5 inches long and 3/4
inch deep with an actively bleeding sub-segmental arterial branch.
The artery was suture-ligated and the liver wound closed,
reinforced with an omental patch. The peritoneal cavity was
liberally lavaged with saline and a corrugated pox tex drain left
in place. The operation was completed at 18:40 hour and patient
sent to recovery room and ICU.
This patient's post operative course was complicated by
development of both basal consolidation of lung. This
complication resolved after vigorous chest physiotherapy and
antibiotics.
The injuries are grievous hurt and could have resulted in his
death if not treated."

16. In the applicant's statement to the police he said that Mr Finlay owed him about $2,500. When he saw Mr Finlay while being driven in a car by his brother, he asked his brother to stop the car, and went to speak to him. He approached him and asked for the money. Mr Finlay then stabbed him in the stomach, and continued to stab him while he tried to fend him off with his arms. The applicant did not have any weapon.

17. In his evidence at the trial he said that he walked over to Mr Finlay, asked, "Where's me money?" and threw a punch at him. His hand made contact with his chin area, but skidded off, and he lost his balance. As he was on the ground, on his hands and knees, Mr Finlay pulled a knife from his pocket and then began to stab him. He began to try to unzip his boot, he said, to defend himself.

18. Mr Finlay gave evidence that he was talking to two friends when he noticed the applicant and his brother to his left. About 30 seconds later he saw the applicant coming from his side. The applicant then king hit him with his left hand, which he blocked. He then pushed the applicant, who fell over. He then pulled the knife out of his front pocket, held it out in front of him and told the applicant to go away and leave him alone, or words to that effect.

19. The applicant then looked up, smiled and said, "You want to play with fucking knives, do you?" and reached into his boot. He continued, "After he'd said that, he reached into his boot. I stepped forward, he stood up a bit and I went to stab him in the thigh, just so I could get out of there. I didn't want him stabbing me." He assumed that the applicant was trying to get a knife or some sort of weapon out of his boot.

20. When asked during his evidence whether he intended to cause serious bodily harm to the applicant he answered, "No. I just wanted him to leave me alone, stop harassing me and taking things off me." He produced the knife to scare him away. He then used the knife because he was afraid the applicant was going to use one on him.

21. When he was interviewed by Detective Williams on the night of the incident he gave the following description, (Q49),

"This morning I got up and then I went over to Allawah Flats to
see my God-son, Chris Barears, um while I was over there talking
to his Mum and Christopher um a Ricky Bullock came up from semi
behind, beside me and swung a um big king hit at me and I, then it
was myself and an improper way and the only way I knew at the time
which was when I pulled a knife cause there was two of them and
um, and then I, I just snapped and, and I, I stabbed him and I, I
then um ran from there because he called his brother in to, to get
me as well, I ran over to the Health Care Centre where I rang my
girlfriend and told her what had happened and in turn came in and
I caught a taxi home and I stayed home all afternoon waiting, um
deciding whether to go in or waiting for the Police to arrive."

22. At Q68 he answered,

"Well I, I Hadn't finished speaking to her, a Ricky Bullock came
over from the semi side to the back, swung and hit at me which I
blocked and then we got into a fight and I tried pushing him away,
he kept coming at me and then I pulled out a knife to defend
myself cause at the moment I can't, I can't defend myself very
well cause of my broken shoulder."

23. In answer to Q75, "And what happened after Mr Bullock approached you?", he responded, "He threw a hit at me, king hit, I blocked it and pushed him away and he came back and tried again and I pulled the knife and then we got into a scuffle and I stabbed him."

24. After denying that he owed the applicant any money, he gave the following answers,

"Q90 After you became involved in a scuffle with Mr Bullock can
you ah explain to me when you drew the knife?
A When he kept coming back to try and hit me.
Q91 And how many times did he come back?
A It was on the second time that he came back.
Q92 So correct me if I'm wrong but ah you're saying that after he
attempted to strike you the first time you blocked it and
then he came back again and that's when you drew the knife,
is that correct?
A I pushed him away the second time and then I drew it, and I
was hoping it would scare him off but it didn't. He came
back in and then he just, while we were scuffling he was
trying to get something out of his sock which I presumed was,
was a knife or it was some weapon of some description."

25. He identified the knife, and gave the following answers,

"Q94 When you pulled the knife from your pocket can you tell me
what happened then?
A We just got into fighting.
Q95 When you say got into fighting can you elaborate for me
please?
A Well Mr Bullock came back at me to try beating me again or to
try and hit me again and I stabbed him with the knife and I,
I can't remember clearly exactly what, what I did from
there.
Q96 Do you recall how many times you stabbed Mr Bullock?
A I can't, no. I was just scared and didn't want to, didn't
want him beaten up on me.
Q97 Do you recall how many times you stabbed Mr Bullock before
you believe that he was going to get his knife?
A No. Wouldn't have a clue.
Q98 And what, what hand were you carrying the knife in?
A In my right hand.
Q99 Can you explain to me how you stabbed Mr Bullock?
A I don't know, how do you, I don't quite know how to explain
the stabbings or not I just stabbed him.
Q100 Well you can just explain your movements as to how you drew
the knife and ah the events then leading up to you stabbing
him?
A I just pulled the knife out of my pocket and unfolded it and,
and then we got into a bit of a scuffle and I stabbed him."

26. Later, he was asked,

"Q108 Did you at any time see Mr Bullock with a knife?
A No I didn't.
Q109 How do you know that he had a knife with him?
A I didn't I just presumed because he was going for something
in his sock.
Q110 Did you believe that he, when he leant over to reach for his
sock, do you believe that he was pulling a knife, is that
correct?
A Yes I did.
Q111 Do you agree that you stabbed him before he looked like he
was going to get his knife?
A Um I'm not sure, I'm not really clear on that. I may have."

27. Then, after the recording tape was changed, he gave the following explanation,

"Q119 You mentioned earlier that ah you believed that Mr Bullock
had a knife. Why did you think this?
A Um he was going, he was trying to get something out of his
sock.
Q120 Have you ever seen Mr Bullock with a knife?
A No
Q121 Has Mr Bullock ever pulled a knife on you before?
A No.
Q122 Have you ever seen Mr Bullock carry a knife in his sock?
A No.
Q123 You mentioned earlier that ah Mr Bullock attempted to king
hit you and then you pushed him away?
A Yes.
Q124 Can you explain to me again just when you drew your knife?
A Um he came back the second time and I pushed him away again
and then um I drew my knife then in self defence.
Q125 Where was Mr Bullock situated at that time?
A Um at that time we had turned around and then he was sitting
in front of me.
Q126 Was he standing up?
A Yes he was
Q127 And you were also standing?
A Yes I was.
Q128 Did Mr, did Mr Bullock lean over at any time at that moment?
A Yes to try and get his something out of his sock.
Q129 Can you explain his movements in relation to that?
A Not clearly I can't, no. I'm pretty vague on the whole
thing at this um it all happened so quickly.
Q130 What did you fear at that stage?
A I feared being beaten up badly.
Q131 Have you ever been assaulted by Mr Bullock before?
A No
Q132 So after, after you saw Mr Bullock lean over you drew your
knife, is that correct?
A Yes.
Q133 And what happened then?
A And then we got back in, I, we got back into a scuffle and I
can't, I'm not absolutely clear on anything there, it all
happened so fast.
Q134 Was Mr Bullock still leaning over when you stabbed him?
A No.
Q135 So by that you're saying that Mr Bullock had already stood
upright again and you could see that he didn't have a knife
on him, is that correct?
A No, I stepped forward and he, and he stood up. I only
wanted to scare him with the knife but he, he didn't go, I
just wanted him to go and leave me alone.
Q136 When you say he stood up did you see any knife in his hand
at that time?
A No. He didn't have to finish um getting it out.
Q137 And when you say you wanted to scare him, can you explain
that to me?
A Well I thought if I pulled the knife out it'd scare him
away, he wouldn't come near me."

28. The applicant did not have a knife or any other weapon. He did at one time reach for his boot. He was not doing so in order to reach for a knife. When he did so Mr Finlay was already presenting his knife at him. I think it is most unlikely that the applicant would in those circumstances have said anything like, "So you want to play with knives."

29. The applicant was not stabbed in the thigh, or anywhere near it. There were two stab wounds in the left chest. There was one stab wound in the upper abdomen. There were lacerations in the right arm and two in the left forearm. That pattern of wounds is far more consistent with the version of the event given by the applicant. I simply do not believe that Mr Finlay had any fear at all that the applicant had a knife, or that he was reaching into his boot to get one. I think that his statements about the applicant reaching for his boot were an exculpatory gloss. There is no need to analyse the legal consequences as if he really had a fear that he was being attacked by a man who was about to pull a knife. The prosecution at his trial may have failed to convince the jury beyond reasonable doubt that he did not have that belief. It is not impossible that he might still have been guilty of an assault even if he did have that belief. But I am satisfied that he did not have such a belief.

30. It is clear that to meet an assault by a glancing blow where the attacker fell to his knees, by a repeated stabbing with a knife, was not a reasonable method of self defence, as Mr Finlay was aware, to judge by the terms of his first description of the incident to Detective Williams.

31. The jury may have entertained a reasonable doubt about whether, at the time of the assault, Mr Finlay had the intention of inflicting grievous bodily harm on the applicant, that being an essential element of the particular crime with which he was charged. But I have no doubt at all that he was not acting reasonably in self defence by using the knife to stab the applicant repeatedly, and he was therefore guilty of an unlawful assault, which constituted criminal conduct within the meaning of S.2 of the Act. It is therefore possible to make an award of compensation in the applicant's favour.

32. It is true, as the Chief Justice commented, that the applicant commenced the incident that occurred by an unprovoked assault upon Mr Finlay. If as a result, he had received a black eye, a bloody nose and some cracked teeth it is very probable that, pursuant to S.15(1)(a), he would not receive an award of compensation.

33. But the injuries that he did receive were so disproportionate to the single blow that he delivered that I consider that he should receive compensation.

34. The criteria referred to in S.15 are extremely wide and vague. They are "behaviour, condition, attitude or disposition", which must contribute to the injury, but may do so "directly or indirectly". One might ask, "Attitude towards whom or about what?", and "Disposition to do what?" The legislative language gives little guidance.

35. "Condition" does not seem relevant to this case. It might have done so had he been, for example, disinhibited by being under the influence of alcohol. But he was not. It was not suggested that he was of a disposition to extract payment of debts by unlawful assaults upon his debtors, as a matter of course. His attitude to his assailant on this particular occasion was perhaps unjustified, but I think that the only element that has any real content in this case was his behaviour. That was, his approach to Mr Finlay and hitting him with his left hand, which was an unprovoked assault, and which indirectly contributed to his injury. I am required to "have regard to" that behaviour. Again, the legislation places no restrictions on, and gives no guidance about, the way in which I should have regard to that behaviour. While acknowledging its unprovoked and unlawful character, I think it is proper to compare its criminality and its direct consequences with the assault and the injuries that he received. I do not think it is proper to approach the exercise on the basis that if he had not struck the first blow there would not have been any assault upon him. Broader considerations of causation are called for in this context, as well as in the law of torts. I think that justice would be served by an award which is of the order of 20 percent less than he would have received had the attack upon him been completely unprovoked.

36. The assault occurred in 1991. The grievous injuries have been described above. The applicant spent about 6 weeks in hospital. Dr Craigie reported in July 1993 that he was still on sickness benefit as a result of his injuries, and still had scars on his abdomen and chest. He continues to suffer pain in the stomach and abdomen, the chest, and under the left arm and shoulder. Both arms and hands are weaker. There is no suggestion that his injuries and disabilities are not permanent. He is 25 years of age.

37. On the basis of a full compensation for a tortious injury without any deduction for his own behaviour, he would in my opinion receive an award for his pain and suffering and loss of amenity of at least $60,000. There is no claim for medical expenses, which were met by Medicare. There was no evidence, either, about loss of income or of future income earning capacity.

38. I think that I should first arrive at a decision about a full award of compensation, and apply the reduction authorised by S.15(2), before applying the limit imposed by S.7 of the Act. On that basis, having regard to his behaviour, a proper award of compensation for his injury would be $48,000.

39. The expenses of bringing the application were $112.

40. I award compensation to the applicant of $48,112.00.