Re An Application Under the Criminal Injuries Compensation ACT and Warren Lin Wang [1995] ACTSC 55 (22 June 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
AND WARREN LIN WANG
No. CIC 138 of 1992
Number of pages - 5
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Knife wounds - Charge of intentionally inflicting grievous bodily harm - Defence of accident - Acquittal by jury - Entitlement to compensation - Assault.

HEARING

CANBERRA, 9 March 1995
22:6:1995

Counsel for the Applicant: Mr B. Colleary

Instructing Solicitors: Bernard Colleary and Associates

Counsel for the Territory: Mr P. Walker

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. An interim award of compensation be made to the applicant in the sum of $50,000.00.

DECISION

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

2. On 24 May 1993 Mr Li Li was indicted in this Court on a charge that on 13 December 1991 he intentionally inflicted grievous bodily harm on the applicant. On 27 May 1993 the jury returned a verdict of not guilty.

3. The applicant is a single man, who was born in China on 4 April 1968. He came to Australia in 1989 in order to study English. He was granted permanent residency status in July 1994, and is now employed as a sales manager by a computer company.

4. In July 1991 he had purchased the business of the Cook Takeaway shop in partnership with Mr Li Li. On 13 December 1991 an argument took place between them. It ended with the applicant's receiving a number of stab wounds from a knife held by Mr Li Li.

5. By consent, the evidence given at Mr Li Li's trial was admitted as evidence on this application. Both the applicant and the accused gave evidence and were cross-examined in the course of the trial.

6. Mr Li Li's case there did not deny that the applicant had received injuries which amounted to grievous bodily harm. It was that, in the course of the argument, when the applicant was approaching him in a threatening manner, he picked up a knife and waved it at the applicant as a means of self defence. He claimed that he did not deliberately use it to stab the applicant in self defence, but that what happened thereafter was entirely a matter of accident. He claimed that, unperturbed by the knife in his hand, the applicant came at him, grabbed for the knife with one hand, and tried to get him in a headlock with the other hand. It was in the course of the ensuing struggle and wrestling, he claimed, that the knife accidentally inflicted the wounds.

7. In order to acquit the accused, the jury did not need to accept that version of the facts as the truth. It was necessary for them to be satisfied beyond reasonable doubt that it was false, before they would be obliged to convict.

8. The issue before me is quite different. In order to obtain an order for compensation the applicant must satisfy me, on the balance of probabilities, that his injury resulted from the "criminal conduct" of Mr Li Li. "Criminal conduct" is defined to mean an offence against a law in force in the Territory.

9. It would be sufficient to found an order for compensation that the applicant's injuries resulted from any criminal offence. It does not have to be the particular offence with which Li Li was charged. An essential element of that particular offence was that Li Li had, at the time of the stabbing, a particular intention, namely to inflict grievous bodily harm on the applicant. It would be sufficient to found an order for compensation if Li Li had been guilty of simple assault, if the injuries resulted from that assault.

10. Both the applicant and Mr Li Li gave evidence and were cross-examined on the hearing of this application. In both cases the evidence was limited to matters other than the incident on December 1991. There was nothing in the evidence or the demeanour of either of them that gave me any indication about which of them had been telling the truth at the trial.

11. In his affidavit which was read on this application the applicant described the incident as follows:
"In early December 1991 personal differences arose between myself

and Li Li, mainly over the conduct of the business. At about 1.00
p.m. on 13 December 1991 I was standing in the kitchen of our
business and Li Li and I had a verbal argument. Li Li punched me
once on the right shoulder and I slapped his face and at that stage
the Chef who worked at the restaurant, Kevin Chen separated Li Li
and myself. I saw Kevin Chen push Li Li out of the kitchen. A few
minutes later whilst I was standing in the kitchen facing Kevin Chen
talking to him about some food preparation, I heard the door into
the kitchen swing and I turned around. Li Li came running up to me
with a knife in his right hand and almost instantly he stabbed me in
the left groin first and another time in my stomach. I fell to the
ground, Kevin bent over me and I heard him yelling at Li Li. Kevin
was saying words to the effect, "Call an ambulance, call an
ambulance". The next thing I remember is being spoken to by a
person I now know to be an ambulance officer who had told me to open
my eyes."

12. In his evidence at the trial the applicant stated that Li Li complained to him about speaking on the phone while working. Li Li went into the kitchen. The applicant followed him. There was a further argument. Punches, kicks and slaps to the face were exchanged. The chef, Mr Chen, separated them. Li Li brandished a rolling pin, and the applicant a strainer, while Mr Chen remonstrated. They each put down the items they were holding. The chef pushed Li Li out of the kitchen. The applicant began to work at the kitchen bench. After a couple of minutes he heard a noise, and turned to see Li Li rush into the kitchen, holding a knife in his right hand at about hip level. Li Li stabbed him with the knife, first in the groin area and then in the stomach. He fell to the floor. Li Li left the kitchen. He adhered to that evidence in his cross-examination.

13. Mr Li Li gave evidence also about an initial altercation which was broken up by the chef, after which he left the kitchen. When he returned to the kitchen a short time later to prepare more food, he said that the applicant started another argument, in the course of which the applicant pushed and then punched him. The applicant tried to put his left arm around his neck, he lost his balance and leaned backwards on to the bench. When he did so he touched a knife that was on the cutting board. He picked up the knife and waved it at the applicant.

14. At one point in his evidence he said that he said to the applicant, "Don't touch me". Later, he was asked whether he said anything when he gestured with the knife, to which he answered, "No I didn't, he just rush towards me." Then he was asked, "And did you say anything?" The answer recorded is "No I didn't. I - yes, I said, 'Don't touch me.'"

15. The applicant, he said, then rushed towards him and tried to take the knife from him by twisting his wrist. There was a struggle for a few seconds. The applicant stopped grabbing for the knife, and he walked away. The chef took the knife from him. He did not intend to stab the applicant, or intend to injury him.

16. The chef, Mr Chen, gave evidence that he heard an argument between the applicant and Mr Li Li about finishing a hamburger before answering the phone. The applicant punched Li Li on the face. Li Li picked up a rolling pin. The applicant picked up an oil filter. He rushed over and pushed them apart. Li Li left, and the applicant remained in the kitchen. He turned to the sink to continue washing some ice cream containers. He heard a noise. He looked to see that Li Li was in the kitchen, and that he had a knife in his hand. The two men were facing each other. He said, "I think I saw him, you know, waving the knife a few times but I'm not sure, you know whether he really did or not."

17. He then saw Mr Li Li walk towards a refrigerator. He took the knife from him. It has some blood on it. He took it and washed it. Li Li left the kitchen. Mr Chen turned around a short time later to see the applicant collapsing slowing to the floor.

18. Mr Chen gave his evidence through an interpreter. Allowance must be made for misunderstanding of questions which were not always clear and simple. But I think that he saw something that he did not want to talk about, namely the actual inflicting of the knife wound.

19. But his version of events leading up to the final struggle, whatever it was, does not corroborate Li Li's story about returning to the kitchen, another argument, and a struggle while the applicant put his arm around his neck, forcing him against the bench where he picked up the knife, followed by a wounding in the course of a continuous struggle. It is consistent, however, with Li Li's having come quickly into the kitchen, stabbed the applicant, and, by the time Mr Chen turned around, the applicant's having been already wounded.

20. The police officer who first spoke to Li Li after the incident was Constable Chew. Li Li told him that there had been "an argument over a customer on the phone, and he hit me", and then he said that he picked up a knife to wave at him, "and he came at me and lunge onto knife."

21. The other significant evidence, to my mind, is the nature and position of the wounds inflicted on the applicant. There was, according to Dr Chong, a 7.5 centimetre wound in the upper abdomen, between the umbilicus and the xiphoid process. There was another wound, about 2 centimetres long, just to the right of the umbilicus, and a third, 10 centimetres long, just below the inguinal ligament in the upper part of the thigh.

22. It is improbable in the first place that an unarmed man would attack, or lunge at, another who is waving a knife at him, especially a knife capable of inflicting those wounds. It is even less likely that if he did so he would accidentally receive three such wounds, so separate and apart from each other.

23. There were a number of other factual issues discussed at the trial, such as the relationship between the applicant and the witness Wendy Zhu. I regard them as peripheral. I am more impressed by the actual evidence of the three men who were in the kitchen when the wounds were inflicted. On the probabilities I am persuaded that, either before or after returning to the kitchen, Mr Li Li armed himself with a knife, and inflicted the three wounds on the applicant, the applicant then being unarmed.

24. It does not matter whether the applicant was then threatening him, or had shortly before been threatening him. I am satisfied that the wounding was not accidental. It was therefore an unlawful assault, and the applicant is entitled to an award of compensation.

25. The two wounds to the stomach, according to Dr Chong, injured the liver, pancreas, stomach and duodenum, and the one to the left groin severed the iliacus muscle and the femoral nerve.

26. At the time of arrival at the casualty ward of Woden Valley Hospital the applicant was without measurable blood pressure or pulse and lost consciousness on the way to the operating theatre. It was Dr Chong's opinion that the applicant was near death at that stage. Following what Dr Chong described as a "stormy convalescence", the applicant was discharged from hospital on 24 January 1992.

27. He underwent a further operation by Dr Ferguson on 5 March 1992 for repair of the femoral nerve. The applicant in his evidence stated that his leg was still very weak and that he was unable to walk for long distances or carry heavy objects. Whereas before the incident the applicant was involved in a wide variety of sports, including soccer, basketball, volley ball and badminton, he has now given up all sporting activity because of his injuries. He is also unable to drive a manual car because he is unable to operate a clutch. He is left with permanent scars.

28. There was some contest at the hearing about the applicant's economic loss. In the light of the injuries he received, the suffering he underwent during his convalescence, and the permanent disabilities that he now has I do not think that I need to make any findings about them.

29. I do not suggest that, in the events that led up to the stabbing, the applicant was completely blameless. If he had suffered abrasions and bruises in a fist fight there would be a substantial reduction in any compensation that might be warded to him. But the attack that he did suffer went so far beyond any provocation that he might have offered that it could not possibly, to my mind, reduce an award to below the statutory limit.

30. For his pain and suffering I award $50,000.

31. The evidence about expenses was confused. A claim was made for $799 for expenses both under s.6(1)(a) and s.5(4) of the Act. The first element is subsumed in the award of $50,000. The second can be added on, but I have no evidence of the amount.

32. I will therefore make an interim award of compensation in the sum of $50,000, and if counsel wish to be heard on the amount of expenses under s.5(4) they may be dealt with in a final award.

33. I make an interim award of compensation to the applicant of $50,000.00.