An Application of An Award Under the Criminal Injuries Compensation Act 1983 the Australian Capital Territory v Ricky Shane Bullock [1995] ACTSC 63 (28 June 1995)

SUPREME COURT OF THE ACT

AN APPLICATION FOR AN AWARD UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983
THE AUSTRALIAN CAPITAL TERRITORY v. RICKY SHANE BULLOCK
No. SCA79 of 1994
Number of pages - 15
Criminal Law - Criminal Injuries Compensation - Practice And Procedure

COURT

IN THE FULL COURT OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ(1), GALLOP(2) AND HIGGINS(3) JJ

CATCHWORDS

Criminal Law - claim for criminal injuries compensation following incident involving grievous bodily harm - Master approved claim at first instance and made an award - appeal against decision of the Master as to the finding that there was a "prescribed injury" and as to the application of s15(1)(a) of the Criminal Injuries Compensation Act 1983 (ACT) - dispute as to events leading to claimant's injuries - examination of facts giving rise to "prescribed injury" and compensation claim - consequences of failure of applicant to demonstrate on balance of probabilities that assailant did not act in self-defence - examination of victim's prior record of violence and previous dealings with assailant - relevance of these factors to the making of an award for compensation.

Criminal Injuries Compensation - appeal against decision of the Master as to the finding that there was a "prescribed injury" and as to the application of s15(1)(a) of the Criminal Injuries Compensation Act 1983 (ACT) - meaning of "prescribed injury" - consideration of factors relevant to reduction of compensation pursuant to s15(1)(a) of the Criminal Injuries Compensation Act 1983 (ACT) - relevance of public interest considerations - circumstances in which injuries occurred relevant to consideration of appropriateness of making an award.

Practice And Procedure - appeal against decision of the Master as to an award of criminal injuries compensation - consideration of nature of appeal from criminal injuries compensation decision - Master entitled to form his own opinion of the facts - matter for court or judge hearing the appeal to determine the extent to which appeal should be conducted de novo - factors to be considered in making determination - court should avoid inconsistency with jury verdict.

Criminal Injuries Compensation Act 1983 (ACT), ss4, 15(1)(a)
Crimes Act (NSW)1900 as amended in its application to the ACT, ss2(i), 19, 20, 21, 23, 24, 25, 47

CIC Application - Millgate, unreported, Supreme Court, Australian Capital Territory, Higgins J, 10 November 1994

R v D (1984) 3 NSWLR 29
R v Leskinen (1978) 23 ACTR 1
Commonwealth v Pillifeant (1990) 93 ALR 641 (Full Federal Court)
Re Hondros (1973) WAR 1
Application of Ann-Maree Hanratty (1984) 14 A Crim R 36
Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645
R v Honeysett (1987) 10 NSWLR 638
Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1
Lean and Aland (1993) 66 A Crim R 296
Conlon (1993) 69 A Crim R 92
Loter v Bruza et anor (1983) 32 SASR 333
Re Holt and Crimes Compensation Tribunal (1987) 1 VAR 367
Re Carroll and Crimes Compensation Tribunal (1988) 2 VAR 231
Cadman v The Commonwealth, unreported, Supreme Court, Australian Capital

Territory, Kelly J, 22 February 1989

Re Koot and Crimes Compensation Tribunal (1989) 3 VAR 142
Commonwealth v Pillifeant, unreported, Supreme Court, Australian Capital

Territory, Miles CJ, 28 November 1990
Application of Gary Robert McKenzie, unreported, Magistrates Court of the Australian Capital Territory, Magistrate Burns, 21 April 1993
Warman v ACT, unreported, Magistrates Court of the Australian Capital Territory, Magistrate Somes, 3 September 1993

HEARING

CANBERRA, 30 January 1995
28:6:1995

Counsel for the Appellant: Ms P Burton

Instructing solicitors: ACT Government Solicitor

Counsel for the Respondent: Mr G Stretton

Instructing solicitors: Snedden Hall and Gallop

ORDER

THE COURT ORDERS THAT:
1. The appeal be allowed.

2. The award of the Master be set aside.

3. There be liberty to apply on the question of costs.

DECISION

MILES CJ The factual background and relevant legislative provisions are set out in the judgment of Higgins J, a draft of which I have read.

2. I agree with the Master that the respondent has proved on the balance of probabilities that his injuries were as a result of criminal conduct on the part of Mr. Finlay. I would find that, even allowing for the predicament in which he found himself, Mr. Finlay was not justified in law in doing what he did, in that he lacked reasonable grounds for any belief he held that it was necessary to stab the respondent repeatedly in the chest and abdomen.

3. On the other hand, I agree with Higgins J that, in the light of all the circumstances, the conduct of the respondent was such that the Court should decline to make an award of compensation in his favour. The evidence is eloquent that the respondent was the initial aggressor in an incident which had its origins in some transaction between the two men over illicit drugs and which had led to a situation where Mr. Finlay was understandably fearful of standover tactics on the part of the respondent. The incident was thus so tainted, and the respondent so much the author of his own misfortune, that the Court should exercise its discretion to refuse an award of compensation altogether. I would uphold the appeal and set aside the Master's award of compensation.

GALLOP J I have read the judgments of Miles CJ and Higgins J in draft form.

2. Like Miles CJ, I too agree with the conclusions of Higgins J and his reasons.

3. The appeal should be allowed and the award made by the Master set aside.

4. If the appellant seeks an order for costs, we should hear the parties further.

HIGGINS J This is an appeal from a decision of Master Hogan given on 11 August 1994. The Master decided to award the respondent the sum of $48,112.00 under the provisions of the Criminal Injuries Compensation Act 1983 (ACT) (the CIC Act).

2. The claim arose out of an incident which took place on 16 May 1991. That lead to one Brett Gregory Finlay being arraigned in this Court upon an indictment alleging that he had, in the course of that incident, intentionally inflicted grievous bodily harm upon the respondent.

3. The arraignment took place on 21 August 1992. The trial proceeded before Miles CJ until 27 August 1992 when the jury returned a verdict of "not guilty".

4. There was no doubt that the respondent sustained serious injuries at the hands of Mr Finlay. They were nearly fatal. There was no contention that, if the injuries attracted compensation, the Master had awarded an excessive sum.

5. The factual material concerning the events leading to the respondent's injuries was less clearly free of dispute. The original application was supported by statements made to police shortly after the incident by the respondent and his brother, Dean Robert Bullock. There was a police "criminal offence report". The Master was also given a copy of the transcript of the trial and Mr Finlay's record of interview with police dated 16 May 1991. However, no person who gave evidence at the trial gave evidence before the Master.

6. It was not disputed that the respondent, as at 16 May 1991, was asserting that Mr Finlay owed money to him. Mr Finlay did not dispute that he had owed money to the respondent but took the view that he had paid it off.

7. The respondent chanced upon Mr Finlay in the Currong flats carpark, near Civic Centre. He told police that he approached Mr Finlay and demanded his money. Mr Finlay responded, "Here's your fucking money", produced a knife and stabbed him. Dean Bullock came upon the scene shortly after that event.

8. In his record of interview, Mr Finlay claimed that the respondent came over to him and, without warning, struck him in the head. He attempted unsuccessfully to push the respondent away. As he had had a broken shoulder, he felt unable to defend himself effectively and for that reason produced the knife in question. Nothing was said other than that he said to the respondent "Fuck off, and leave me alone". Mr Finlay claimed to have seen the respondent then apparently attempt to get something out of his sock. As he did so the respondent said, "So you want to play with knives do you?". Mr Finlay presumed it was a knife or other weapon. He stabbed at the respondent to prevent him producing such a weapon. He claimed he only produced the knife "in self-defence". He claimed to have been in fear because of the respondent's reputation "for fighting and beating up people pretty bad" as well as because of the unprovoked attack upon him immediately before he produced the knife.

9. He claimed further that he had intended only to inflict minor injuries on the respondent, "to hurt him so he'd leave me alone".

10. In fact, the respondent received two stab wounds in the left chest wall. There was a laceration to the left arm and two on the left forearm. There was also a stab wound to the left upper abdomen.

11. In the course of his evidence, the respondent conceded that as he asked for his money he had struck Mr Finlay about the head, "hard enough to ... let me (sic "him") know that I wanted my money". In fact, the blow glanced off Mr Finlay and the momentum of it caused the respondent to fall to the ground. It was then, he said, that Mr Finlay produced the knife saying "Here's your fucking money".

12. He further conceded that, on seeing the knife, he went back a couple of feet and tried to take his boot off in order to "have a go at kicking at the knife". He denied he had said anything to indicate that he had a knife in his boot. Specifically, he denied saying anything to the effect of "So you want to play with knives do you?" as he reached towards his boot.

13. Mr Finlay gave evidence in his own defence. He swore that he acted as he did in the belief that the respondent was about to beat him up and had a knife or some weapon in his boot. He said he had not intended serious injury.

14. Following the verdict, the learned Chief Justice, having regard to the evidence he had heard concerning, in effect, a "feud" involving Mr Finlay and associates of his and of the respondent and his associates, bound both men over to keep the peace for three years.

15. Insofar as this may have indicated a view of the facts formed by the Chief Justice relevant to the application before him, the Master was entitled to form his own opinion of the facts. It was a protective order which the Chief Justice had made which, in any event, did not depend upon acceptance of one version of the facts rather than the other.

16. The Master was conscious of the need, nevertheless, to arrive at a version of the facts consistent with the jury's verdict. There were two possible hypotheses or a combination thereof, which could have explained the verdict. The jury, or some members of it, might not have been persuaded that self-defence was excluded beyond reasonable doubt. The jury, or some members of it, might not have been persuaded beyond reasonable doubt that Mr Finlay had intended to inflict, or was reckless as to whether he would inflict, grievous bodily harm.

17. The Master expressed himself as satisfied, on the balance of probabilities that Mr Finlay had no belief that he was acting in reasonable self-defence. Further, even if he did not have the intention necessary for an offence against s19 of the Crimes Act 1900 (intentionally inflict grievous bodily harm) he was, at least, guilty of unlawful assault as a result of the rejection by the Master of Mr Finlay's claim to have acted in self-defence.

18. It is clear that the respondent provoked retaliation by first assaulting Mr Finlay. The Master so concluded. He applied s15(1)(a) of the CIC Act to reduce the amount which otherwise would represent a proper figure, that is $60,000.00, by 20%. Thus, $48,000.00 (plus expenses of $112.00) was awarded.

19. The appellant challenges two findings of the Master. The first is the finding that there was "a prescribed injury". That is, a contention that it was not reasonably open to the Master to find that the injury to the respondent was caused by the criminal conduct of another person. The second contention relates to the application of s15(1)(a) of the CIC Act so as to reduce the award by only 20%. The appellant submits that a proper application of s15(1) would exclude an award altogether or, at least, to a much greater extent than 20%.

1. Prescribed Injury
20. The injury sustained by the respondent resulted from a number of knife wounds. If the actions of Mr Finlay in inflicting those wounds was, at least, an unlawful assault then the wounds were caused by "criminal conduct".

21. "Criminal conduct" is defined in s2(i) of the CIC Act as "an act or omission that constitutes, or is an element of, an offence". As I pointed out in CIC Application -Millgate, unreported, Supreme Court, Australian Capital Territory, 10 November 1994, that requires that the act or acts complained of form part of a criminal offence. Where assault is the relevant offence, the application of the force complained of must not only be unlawful but also accompanied by the necessary criminal intent. To act in reasonable self-defence is not to use unlawful force. To engage in conduct not intended to result in unreasonable force would lack the necessary intent unless that intent be established by reference to recklessness.

22. It should be noted, however, that not only was Mr Finlay acquitted of an offence against s19 of the Crimes Act, he was also, by virtue of s47 thereof, implicitly acquitted of offences against s20 (recklessly inflicting grievous bodily harm), s21 (intentional wounding), and s23 (intentionally or recklessly inflicting actual bodily harm). They were all available alternative verdicts. Nevertheless, the verdict implies no finding negativing of the offences of assault or causing grievous bodily harm by a negligent act or omission: see ss23, 24 and 25 Crimes Act.

23. The intent necessary for those offences was discussed by me in Millgate (supra). I need not further mention intention with respect to assault: see ss23 and 25, Crimes Act. The state of mind for an offence under s24 is that which would, if death had resulted, be sufficient for manslaughter: see R v D (1984) 3 NSWLR 29; R v Leskinen (1978) 23 ACTR 1.

24. The nature of an appeal from a decision such as the present, and the powers of the Court in reviewing the decision appealed from, were considered by a Full Court of the Federal Court in Commonwealth v Pillifeant (1990) 93 ALR 641.

25. The Court (Kelly, Neaves and Lee JJ) concluded that it is a matter for the court or judge hearing the appeal to decide to what extent it should be conducted de novo. There is power to receive additional evidence. The matter is to be decided on the law and circumstances as they currently are if they differ from the situation at the time when the matter was initially considered.

26. Where primary facts are found by the original decision maker, this Court, on appeal, should determine for itself, having due regard to the effect of demeanour of witnesses on those findings, what inferences, including factual inferences, should be drawn from those primary facts. The fact that the primary decision-maker exercises discretionary judgment in reaching certain conclusions does not require a narrow view to be taken of this Court's power to review those conclusions.

27. In this case, the Master's findings in no way depend on the demeanour of any witness. Rather they depend, so far as the evidence of the respondent and Mr Finlay were in conflict, on the inherent improbability of the latter's claim to have acted in self-defence and without intending serious harm.

28. This Court must act on its own view of the facts but, in doing so, must avoid inconsistency with the jury's verdict: see Re Hondros (1973) WAR 1; Application of Ann-Maree Hanratty (1984) 14 A Crim R 36. However, in neither of the latter two cases could additional evidence as to guilt or innocence of the alleged offender be introduced. In this case, whilst it may have been permissible for further evidence to be produced, it was not. The evidence given at the trial was relied upon by the respondent to establish his claim for compensation without any additional evidence.

29. The test to be applied to determine whether an accused person may be said not to have acted in self-defence is determined by the decision of the High Court in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645. At 662, Wilson, Dawson and Toohey JJ stated the test to be as follows (it related to a murder charge but the test is the same for assault or other unlawful violence offences):

A killing which is done in self-defence is done with justification
or excuse and is not unlawful, though it be done with intent to kill
or do grievous bodily harm. However, a person who kills with the
intention of killing or of doing serious bodily harm can hardly
believe on reasonable grounds that it is necessary to do so in order
to defend himself unless he perceives a threat which calls for that
response. A threat does not ordinarily call for that response
unless it causes a reasonable apprehension on the part of that
person of death or serious bodily harm. If the response of an
accused goes beyond what he believed to be necessary to defend
himself or if there were no reasonable grounds for a belief on his
part that the response was necessary in defence of himself ...

30. A judgment as to the presence or absence of self-defence will depend on a realistic appreciation of the "predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection": see Zecevic, (supra) 663.

31. A person who has induced or provoked the original assault will not thereby be precluded from raising self-defence. It is necessary to consider whether the original aggression has ceased, 663:

...so as to have enabled the accused to form a belief, upon
reasonable grounds, that his actions were necessary in self-defence.
For this purpose, it will be relevant to consider the extent to
which the accused declined further conflict and quit the use of
force or retreated from it ... Indeed, even in circumstances in
which the accused was not the original aggressor, retreat in the
face of a threat of violence before resort to force may be relevant
to the belief of the accused or the reasonableness of the grounds
upon which the accused based his belief. There is, however, no
longer any rule that the accused must have retreated as far as
possible before attempting to defend himself.

32. There is no question here, of course, of any lack of legal capacity on the part of either man which would have involved a consideration of s4 of the CIC Act.

33. There is also no question but that the assault by the respondent upon Mr Finlay was both unprovoked and unlawful. It was also sudden and would have seemed reasonably likely to be repeated. If, as seems to have been the unchallenged evidence before the Master, the respondent was a person both considerably more physically powerful than Mr Finlay and with a reputation, deserved or not, for serious violence, then it would not be a disproportionate response to endeavour to frighten the respondent away by threatening him with a knife.

34. However, it would not have been a proportionate response for Mr Finlay to have deliberately stabbed the respondent in the chest and abdomen with the knife of which he was possessed in the absence of an apparent intention by the respondent to continue his aggression. The attack did not confer on Mr Finlay any licence to use lethal force or to cause serious injury. However, if the respondent had insisted on ignoring his warnings to desist or had produced or seemed about to produce a weapon, it may be that a use of lethal force would be reasonable. Indeed, had the respondent been about to produce a weapon in circumstances such as those alleged by Mr Finlay, even a pre-emptive strike using disabling force, which risked being lethal, might be a reasonable response and perceived as such by Mr Finlay.

35. It was not in issue that the respondent reached for his boot. He said he was intending to use it to defend himself after he had fallen to the ground to avoid being stabbed. Mr Finlay's account was that before the respondent reached for his boot, he had produced the knife and told the respondent to leave him alone. The latter then said, whilst reaching for his boot, "You want to play with fucking knives do you?". He began to rise as he did so. Mr Finlay then stabbed at the respondent, intending, he claimed, to stab him in the thigh.

36. It is apparent that the account given by Mr Finlay is improbable. The number of stab wounds and their position is not consistent with the account he gave of the event. The respondent's version of the event is the more probable. However, that does not resolve the issue.

37. It is probable that Mr Finlay produced the knife and used it to end or ward off an attack by the respondent upon him. It is not improbable that he interpreted the respondent's attempt to take off his boot as reaching for a weapon, such as a knife, concealed therein.

38. What is improbable is that he first warned the respondent to back off or was merely aiming to strike his thigh. It is also improbable that he was attacked twice before he drew the knife. He claimed that the respondent advanced upon him whilst reaching for his boot. It seems to me unlikely that the respondent would have returned to his attack in the face of a knife held by an opponent. On the other hand, it is not improbable that his apparent attempt to obtain a counter-weapon was inspired by a reasonable fear that he would be stabbed (as indeed he was). It seems to me not improbable that Mr Finlay was acting in the reasonable belief he would be attacked with a knife by the respondent. The fact that the respondent had a different intent is not to the point.

39. In my view, the number of injuries is inconsistent with the view that Mr Finlay had first warned the respondent, whether by word or deed, that he should desist or be at risk of a stabbing injury.

40. The more probable sequence of events was that, after the first blow, as the respondent began to rise, Mr Finlay, in a state of fear, drew the knife. The respondent fell down on his hands and knees from the momentum imparted by the blow he had struck. He reached for his boot to ward off the knife which he now realised Mr Finlay had. He no doubt feared that Mr Finlay would attempt to stab him. Unfortunately, this was interpreted by Mr Finlay as a threat to continue the attack with a weapon. He stabbed the respondent in a panic, so as to disable him and fled.

41. The question is, if that scenario be accepted, did Mr Finlay act in self-defence? Had the respondent suffered fatal injury, there is little doubt, in my mind, that Mr Finlay would not have been guilty of murder. If his response was as I have found it, not improbably, to be, the worst result would be manslaughter.

42. Such a finding in the present case would result in a decision that, insofar as Mr Finlay went beyond self-defence, he engaged in criminal conduct. He intentionally (or recklessly) inflicted grievous bodily harm. That harm included three stab wounds. I think it likely the lacerations to the arms were associated with one or more of those stab wounds. Each was struck in the belief that it was necessary to prevent an assault upon himself possibly with a knife.

43. In R v Honeysett (1987) 10 NSWLR 638, Hunt J referred to the question of proportionality of response, at 643:

... a person who kills with the intention of doing so or of
inflicting serious bodily harm can hardly believe on reasonable
grounds that it is necessary to do so in order to defend himself
unless he perceives a threat which calls for such a response. A
threat does not ordinarily call for that response unless it causes
a reasonable apprehension on the part of that person of death or
serious bodily harm.

44. The proportionality of the response is relevant only to whether it can be regarded as reasonably possible (in the current case, as likely as not) that the accused person had such a mental state.

45. It does not matter, for the purposes of concluding that self-defence is not excluded, that the accused person misinterpreted the situation and acted pre-emptively: see Saunders v Herold [1991] ACTSC 82; (1991) 105 FLR 1.

46. In Lean and Aland (1993) 66 A Crim R 296 the Court of Criminal Appeal (NSW) held that it was a misdirection to regard excessive force being used in self-defence as excluding the defence.

47. In the latter case, the accused women, L and A, had engaged in offensive verbal abuse of the victim in a hotel bar. He took hold of each by the arm to lead them out. L struck him in the face with a glass repeatedly until it broke and cut him. A did likewise. They alleged that they had abused the victim because he had sexually assaulted them. Each of A and L claimed that she was frightened of what the victim would do when he got them outside. Hunt CJ at CL held that it was a factual question as to whether their perception, assuming they had it, would amount to a reasonable response as they perceived it. Smart and James JJ concurred.

48. Conlon (1993) 69 A Crim R 92 was a murder case tried before a judge alone. The accused had disturbed two men, H and N, stealing his marijuana plants. He was assaulted by them. Accordingly, he armed himself with a rifle and shot both of them causing serious wounds. He fired a further shot at H which struck his head. He then clubbed N about the head and stabbed him. H died as a result of the bullet wound to the head. N died from one or other of the blows to the head. The accused was intoxicated and, in any event, suffered from a schizoid personality disorder.

49. Hunt CJ, at CL, the trial judge, accepted that the accused, when he first fired the rifle, may have feared that H and N were not escaping, as in fact they were at that time, but posed further threat of attack. In so finding, his Honour took account of the effect that the accused's perception was reduced by intoxication. Although he may have been angry at the attack upon him, that did not exclude the hypothesis that his dominant motive was fear of further attack. It was submitted by the Crown that, even if this was so, there had been no reasonable grounds for the accused's fear.

50. His Honour noted, at 98:

It is well established that a person defending himself from a
threatened attack and who has to react instantly to imminent danger
cannot be expected to weigh precisely the exact measure of
self-defence action which is required ... The accused was not
obliged to wait until the attack upon him was repeated. If he
honestly believed that the attack would be repeated, he was entitled
to take steps to forestall that threatened attack before it was
begun ...

51. The question whether reasonable grounds existed for a belief actually held is to be answered by reference to the belief of the accused not that of the hypothetical reasonable person.

52. In making that assessment, the tribunal of fact should take into account even voluntary intoxication as, at 101:

... it may have affected his (the accused's) appreciation of the
gravity of the threat which he faced or the reasonableness of his
response to that danger ...

53. Thus self-defence could not be ruled out in the case of H.

54. However, he knew N was no longer a threat when he clubbed and stabbed him. He was minded, he had said, to "put him out of his misery". Thus self-defence was excluded when the fatal blows were struck.

55. It is true that on the balance of probabilities, Mr Finlay lied about the statement attributed to the respondent "so you want to play with knives do you?". Nevertheless, it is not unlikely that Mr Finlay was there expressing in words attributed to the respondent what he feared the respondent was about to do. The fact that he lied in doing so does not make it more likely than not that he did not have a belief that he was about to be further attacked and with a knife. Further, the fact that he did not strike the respondent in the thigh but either intentionally or recklessly stabbed him in the chest or abdomen, is not inconsistent with fear of the respondent being his motive. Indeed, it is the more likely motive. That he falsely claims to have intended merely to stab the respondent in the thigh, merely indicates to me that Mr Finlay was endeavouring to put a more exculpatory gloss on the truth.

56. It is apparent from the respondent's evidence at the trial that, whilst the knife was produced by Mr Finlay before he attempted to remove his boot, he was not stabbed until after that event. That indicates to me that it is not unlikely that the stabbing was prompted by the respondent's movement towards his boot.

57. Further, although he asserted that Mr Finlay was "running" at him with the knife, it is by no means the case that the respondent's credit was untarnished by cross-examination at the trial. He had not mentioned to police that he had started the incident by striking Mr Finlay. His account of what Mr Finlay said was also open to doubt.

58. It seems to me not unlikely that the stab wounds were all suffered in one flurry of blows.

59. In those circumstances, it could not, in my view, be said to be improbable that Mr Finlay acted in self-defence as defined in Zecevic. It is, of course, possible that Mr Finlay produced the knife and stabbed the respondent to retaliate for the blow the latter had struck him. However, in my view, that is just as likely, and it may be even less so, as the possibility that he feared the respondent would continue to beat him and had a knife (or similar object) with which he might seriously injure him if he was able to get it from inside his boot.

60. It is the perception of Mr Finlay, in the circumstances in which he found himself which is to be assessed, not the objective circumstances apart from that perception.

61. In my opinion, the applicant has not demonstrated that, on the balance of probabilities, Mr Finlay did not act in reasonable self-defence.

62. It follows that the application should have been refused.

2. Section 15
63. Even if a person has suffered a prescribed injury, it does not automatically follow that he or she is entitled to full compensation for that injury. Section 15 provides (so far as relevant):

(1) In determining -
(a) whether or not to make an order awarding compensation; or
(b) the amount of compensation to be awarded,
the court shall have regard to any behaviour, condition, attitude or
disposition of the applicant ...

64. It will be noted that this sub-section focuses on the circumstances of the victim relevant to the suffering by the victim of the prescribed injury. That sub-section becomes relevant only if criminal conduct has caused the injury complained of.

65. An innocent person, injured because he or she was perceived wrongly as a threat to another, may be unable to get compensation, whilst a person who unlawfully provokes an attack upon him or her might receive compensation if the response is criminal conduct as defined and causes injury. The latter person may, however, find s15(1) applied to deny or reduce compensation.

66. It is, strictly speaking, unnecessary to apply s15(1) as I have found that injury by criminal conduct has not been proved.

67. However, in case I am incorrect in that conclusion, I will consider the application of s15(1).

68. In Loter v Bruza et anor (1983) 32 SASR 333 there was consideration given by Mohr J to the construction of a similar provision. The question was whether a reduction should be applied to the statutory maximum or to the sum which would be warranted if full compensation was able to be awarded. His Honour concluded, at 335:

... firstly the court should assess the compensation under ordinary
common law principles and assess it at large. It should then, if
appropriate, have regard to the conduct of the victim ... and if
that conduct is found to be such as to warrant some reduction in the
overall figure arrived at that reduction should be made and then the
provisions of subs.(8) (the statutory maximum) should be applied to
arrive at the award of compensation which is appropriate.

69. That is an approach analogous to that used for the reduction of verdicts for damages for negligence where a court may find contributory negligence but have a statutory limit on its jurisdiction. It was the method used by the Master in the present case. I would respectfully support that method of assessment as the correct approach.

70. The nature and effect of alleged contributory conduct, attitude or disposition has received considerable attention.

71. In Re Holt and Crimes Compensation Tribunal (1987) 1 VAR 367, the applicant was the injured survivor of a shoot-out between himself and another person. The Tribunal, though accepting that the applicant for compensation had acted in self-defence, found, at 368, that he:

(a) has criminal convictions for violence and the possession or arms
and that he has taken part in an armed hold up in which his partner
discharged a firearm;
(b) remains an active and potentially violent criminal as was the
deceased before his death;
(c) entered the hotel armed with a loaded gun;
(d) was aware of the pugnacious nature of the deceased;
(e) exchanged abusive words with the deceased shortly prior to their
shooting each other in the hotel.

72. Those factors led the Tribunal to conclude that compensation should be refused. It was stated, at 368:

The aim of the legislation, in my view, is to grant modest benefits
to innocent victims of crime but is not to compensate those who
"live by the sword" if they are hurt in the process.

73. In the subsequent case of Re Carroll and Crimes Compensation Tribunal (1988) 2 VAR 231, the Tribunal refused an award on similar grounds.

74. That kind of situation may be distinguished from a case of simple provocation. For example, in the matter of Cadman v The Commonwealth, unreported, Supreme Court, Australian Capital Territory, 22 February 1989, Kelly J considered an application for an award in respect of an assault victim who had provoked the assault by directing racial slurs and other verbal abuse towards the offender and by upsetting the latter's table in a bar thus spilling his and his friend's drinks. His Honour said, at 6:

I think that the duty of the Court under that sub-section may be
equated generally with its duty when considering whether a plaintiff
seeking damages for personal injury is liable to have those damages
reduced because of contributory negligence. The applicant's
behaviour, attitude or disposition afforded no excuse to Mr Sitauti
for what he did. They did, however, contribute substantially to the
assault. The provocation which I am satisfied the applicant gave to
Mr Sitauti, while no defence to the malicious wounding, has to be
taken into account under s.15(1) of the Ordinance. In the
circumstances, I think it just and equitable to reduce by 20% the
amount of compensation which would otherwise be payable to the

applicant.

75. In that case, it did not appear that the applicant was disposed to make racial taunts or behave disruptively in bars. There was no prior history of discord with the offender. It was, therefore, only the behaviour contributing to the assault upon him which was relevant for the purposes of s15(1).

76. In Re Koot and Crimes Compensation Tribunal (1989) 3 VAR 142 the applicants had been involved in the illicit drug scene. They were assaulted as a result of attempts made by them to withdraw from that scene. The Tribunal accepted that, by becoming involved in the illicit drug scene, the applicants had to some extent accepted the risk of such injury in the course of that criminal involvement. The award was reduced to 60% of the maximum.

77. In Commonwealth v Pillifeant, unreported, Supreme Court, Australian Capital Territory, Miles CJ, 28 November 1990, s15(1) was again considered. The applicant was the victim of two unprovoked assaults. Later, he saw his assailant and followed him outside. There, a fight ensued. The assailant started it but the applicant responded. The relevant injuries occurred in the latter exchange. His Honour said, at 6:

On reflection, I do not think that the law relating to contributory
negligence or to contribution among tortfeasors has any relevance.
I should think that the word "contributed" in sub-s.15(1) involves
more than a chronological connection. In a sense the mere presence
of Mr Pillifeant at the tavern contributed directly or indirectly to
his injury. If he had not gone there he would not have been
injured. But I think that there has to be some quality about the
behaviour that is relevant. Behaviour which contributes simply in
the sense of providing a step in the chronological sequence leading
to the injury is, I think, insufficient.

78. His Honour accepted that the applicant had not gone outside to engage in a fight with his assailant. He was already dazed and confused as a result of drink and the previous assaults. Consequently, no reduction was ordered.

79. I note also that on 21 April 1993, Magistrate Burns reduced an award by 40% where an applicant for compensation, Gary Robert McKenzie, had provoked an assault upon himself by indecently assaulting the perpetrator. In Warman v ACT, on 3 September 1993, Magistrate Somes refused an award where the applicant had provoked an assault upon him by running off from a taxi without paying. The taxi driver struck the applicant with the taxi and then with a torch. The applicant was intoxicated at the time. His Worship had regard to both those matters as both constituting "behaviour" and "condition". It was the unlawful conduct of the applicant which had, in his view, precipitated the attack.

80. In this case, it is relevant to consider the prior dealings between the applicant and Mr Finlay. The applicant's reputation for violence is relevant as indicating "attitude or disposition". There was some evidence at the trial suggesting that the applicant had, in effect, previously engaged in extortion and stand-over tactics in relation to Mr Finlay. The applicant claimed, in the course of his assault on Mr Finlay, that the debt was partly to do with drugs. It partly arose from the sale of a motor cycle. It was arbitrarily raised by $1,000 at the applicant's whim. Mr Finlay also deposed that he was in fear of "the Bullocks" by reason of menacing demands for money made upon him by the applicant and his brother on previous occasions.

81. The applicant and his brother denied those allegations. However, they each admitted to previous violent offences in relation to other persons. Their denials are not, in my view, more probably true than Mr Finlay's allegations. Indeed, the admitted conduct of the applicant on the occasion of the stabbing incident is, to my mind, more consistent with the truth of the allegations made by Mr Finlay than with their denial by the applicant and his brother.

82. Whilst I would agree with the Master's assessment of the contribution of the behaviour of the applicant on the occasion in question to his injury, I consider that his prior record for violence, his previous dealings with Mr Finlay were such as to warrant refusal of any award.

83. That is not only because the prior conduct of the applicant seems to have caused Mr Finlay to go about armed with a knife. It certainly led him to conclude he would be severely beaten and, then to fear that the applicant also had a knife or like weapon. The demand for money made by the applicant was, on the balance of probabilities, unwarranted. It amounted to extortion.

84. The extortion attempt backfired, as it happened. However, I do not consider the public interest would be served by rewarding the sort of conduct which led to the applicant receiving his injuries.

85. It follows that even if Mr Finlay had not been acting in reasonable self-defence, the circumstances were such as to warrant the refusal of an award. I would therefore uphold the appeal and set aside the award.