Re the Criminal Injuries Compensation Act 1983 and Re An Application By Andrew Martin Kearney [1997] ACTSC 22 (23 April 1997)

SUPREME COURT OF THE ACT

IN THE MATTER OF THE CRIMINAL INJURIES COMPENSATION ACT 1983
AND IN THE MATTER OF AN APPLICATION BY ANDREW MARTIN KEARNEY
Nos. SCA48 of 1996 and CIC232 of 1995
Number of pages - 13
Appeal - Criminal Law

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY HIGGINS J

CATCHWORDS

Appeal - appeal from a decision of the Acting Registrar granting an application for compensation pursuant to s28 of the Criminal Injuries Compensation Act 1983 - power of the Supreme Court to affirm, set aside or vary the determination of the Registrar.

Criminal Law - self defence - subjective element - whether, having regard to the circumstances, the respondent believed it was reasonable to act in self-defence - onus of proof upon applicant to establish absence of self defence - whether the respondent is to be permitted to rely upon self-defence when it was neither raised at first instance or in the notice of appeal - whether the raising of the new point on appeal will create unfairness or injustice - onus of proof upon respondent under s15 of the Criminal Injuries Compensation Act 1983 - onus of proof upon the applicant in respect of criminal conduct.

Criminal Injuries Compensation Act 1983 (ACT), ss2(1), 3, 4, 11(3), 15, 28(3), 28(4)

Commonwealth of Australia v Pillifeant (1990) 93 ALR 641 Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 R v Hawes (1994) 35 NSWLR 294 Re Ritherdon (1993) 116 FLR 181 Re Millgate (1994) 118 FLR 77 Davison v Vickery's Motors Ltd (In Liquidation) [1925] HCA 47; (1925) 37 CLR 1 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 O'Brien v Rosedale, Shire of [1969] VR 645 David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416 North Sydney Investment & Tramway Co Ltd, Re (1893) 14 LR (NSW) Eq 367 Ravinder Rohini Pty Ltd v Krizaic [1991] FCA 318; (1991) 30 FCR 300 State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1996) 141 ALR 353 ACT v Bullock, unreported, Supreme Court, Australian Capital Territory, Miles CJ, Gallop and Higgins JJ, 28 June 1995 Cadman v The Commonwealth, unreported, Supreme Court, Australian Capital Territory, Kelly J, 22 February 1989

HEARING

CANBERRA, 20 February 1997 23:4:1997

Counsel for the Appellant: Mr A Twigg Instructing solicitors: Scott Sheils & Glover

Counsel for the Respondent: Mr K Holmes Instructing solicitors: ACT Government Solicitor's Office

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed. 2. The cross-appeal be upheld. 3. The application be dismissed. 4. The applicant pay the respondent's costs of and incidental to this appeal and cross-appeal.

DECISION

HIGGINS J
1. This is an appeal from a decision of Acting Registrar Circosta (Registrar) granting an application for compensation pursuant to the Criminal Injuries Compensation Act 1983 (ACT) (CIC Act). The Registrar of this Court has such a power conferred upon him or her pursuant to s11(3) of the CIC Act. Registrar Circosta awarded the applicant $1,500.00.

2. That result satisfied neither the applicant/appellant nor the respondent (the Australian Capital Territory). The applicant submits that the award is inadequate. He contends that the Registrar was in error in giving any or as much weight as she did to conduct of his which she considered to have amounted to "provocation". The respondent, by its cross-appeal, contends that by reason of the conduct of the applicant, no award at all should have been made. That contention was based on one or other of two propositions. The conduct of the applicant was said to deny to the actions of the alleged perpetrator the character of criminal conduct and/or to have contributed to the applicant's injury so as to reduce or deny recovery of compensation.

The Factual Evidence 3. There was some dispute as to the facts, though there was also much common ground.

4. The applicant, a civilian employed at RAAF Base, Fairbairn, was present in a recreation room or "crib" at about 10.00am on 21 October 1994. There were other persons present being civilian or service members of staff of the RAAF transport section.

5. The applicant's affidavit described the incident which resulted in his injury in the following terms, 2. We were having morning tea at approximately 10.00am when some word play started on the pronunciation of the names of canoes which are known as "wobby gongs". This word was mispronounced by several members of staff present. One of the mispronunciations of the words was gobble dong. 3. I placed my hand in front of my trousers adjacent to the zipper. I simulated a penis with my index finger and approached LAC David Neilson who was seated at the time. 4. LAC Neilson reacted by attempting to elbow me in the groin. I retaliated by lightly slapping him on the shoulder in a sweeping motion. 5. LAC Neilson got up from his chair and threw a punch with a clenched fist. I had no warning that a punch would be thrown. 6. As I bent over LAC Neilson then grabbed my throat firmly with one hand placed under my chin. We were separated by other people present.

6. As a result of the blow referred to, the applicant had two of his front teeth knocked loose. His gum and mouth were lacerated. The two teeth had to be removed and, subsequently, a dental plate was fitted. The applicant said he had been quoted $3,500.00 for "a permanent plate". However, no support for that assertion was referred to or adduced in evidence.

7. Approximately 1 1/2 hours after the incident, the applicant gave a statement to service police. That statement, accepted by the applicant as reflecting accurately what he had said, was in the following terms (omitting irrelevant parts), At approximately 0930 hours 21 Oct 94, I entered the smoko room Transport Section Fairbairn. After eating my smoko I moved to the area where the sink is, and stood on an angle behind LAC Dave Neilson, who was sitting at the table. During this time we were joking around and someone mentioned about Dave going back to Airmovements. Dave then said if it meant he could stay there he would "Gobble", which I took that he meant he would "Gobble" someone off. At this time I motioned in front of my fly with my right index finger simulating a penis. At no time did I undo my fly or belt. Dave went to elbow me in the groin but made only light contact. I retaliated by slapping him on his left shoulder, I noticed him getting up out of the chair and felt a blow to the left side of my mouth. I bent forward and noticed blood on the floor. LAC Neilson at this time had two fingers on either side of my throat. I could hear CPL Jacobs saying "Stop it". I then stood up and realised that I had lost two front teeth, and had a laceration to my lower lip. ...

8. In both statements, the applicant agrees to approaching LAC Neilson pretending that he had exposed his penis in the context of references to "gobble dongs". In both statements, he described LAC Neilson's reaction to that approach as elbowing him away.

9. However, the applicant did not desist from further contact. He says in his police statement that he then "retaliated by slapping him [LAC Neilson] on his left shoulder". In his affidavit he minimised that activity further by describing it as "lightly slapping him on the shoulder in a sweeping motion".

10. Then, either as LAC Neilson rose from his chair or immediately following doing so, the applicant was struck by a single blow to his mouth. It was obviously a forceful blow. LAC Neilson then held the applicant until they were separated. The applicant did not allege that more than one blow was aimed at or struck him.

11. In his evidence the applicant described the contact he made with LAC Neilson's shoulder as, I sort of, in a sweeping motion like that with me hand, brushed him on the shoulder and said words to the effect, "Oh, come on" meaning what's the matter, or you know - - - He denied his fist was clenched. His evidence seems further to have minimised his action in response to being elbowed away by LAC Neilson compared with each of his previous statements.

12. There had not, he said, been any prior history of animosity between himself and LAC Neilson.

13. In cross-examination, the applicant appeared to resile from his statement that he had approached LAC Neilson using his finger to simulate an exposed penis. It was not disputed, it should be added, that the applicant had approached LAC Neilson from his side and to the rear of him. LAC Neilson was then seated.

14. Counsel for the Territory, Mr Holmes, had the following exchange with the applicant in cross-examination, ... I want to suggest to you, in fact, you're on oath now, worse things have happened in crib rooms through Australia. In fact you didn't just put your three fingers inside your belt and leave the end of a finger on your belt buckle. In fact, you actually fumbled in your groin area and you had your finger, index finger, or one of the fingers of your hand and you wriggled it to simulate a penis. Now isn't that what you did? ---No. That question of itself was so complex that the denial could be taken to deny only some unascertained part of it. However, there was more. Mr Holmes then asked, ... you were sky-larking, I mean there's worse things have happened in crib rooms, but you were sky-larking and in the context of the word play you wanted to give LAC Neilson a bit of a surprise by making him think that it was your penis that was somewhere in the vicinity of his ear. That was your intention, wasn't it?---No, it was not. I didn't do it. He rejected a suggestion from Mr Holmes that he had struck LAC Neilson with a closed fist on the shoulder or chest area immediately after the latter had elbowed him away.

15. The finger pointing incident was referred to later in the cross- examination in the following terms, Now, I want to go back to the finger pointing and I want to go back to the gesture you did. Was it your intention to give LAC Neilson a bit of a fright in the context of the horseplay? ---No, it was [sic]. It wasn't?---No. So, in fact you just - you put your hand into the front of your pants with no intention at all of giving LAC Neilson a bit of a fright?---No. None whatsoever?---No. But you did though, didn't you?---I've admitted I had my hand in the top of my trousers. All right?---But I certainly didn't do what you suggested. It would be open to conclude that the applicant was not being entirely frank in his account of the incident with LAC Neilson.

16. LAC Neilson also gave evidence.

17. He said that he was sitting down and that he was aware of the sky- larking. He then became aware of someone coming into his peripheral vision. His evidence continued, Could you tell the court what that was?---Okay. we were talking about the wobbly-gong and other names that come around and don't recall exactly what I'd said or exactly what other people had said. Andy [the applicant] had said, "Dave's a gobble-donger" as one of the words that came up and out of my peripheral vision I heard a zip come down and I saw a white slender object wiggling off to my right. ... ... And did you form any view as to what that white slender object was?---I thought it may have been Andy's penis. ... And what did you do?---I just sort of pushed him away like that before I sort of turned to see what was going on and next minute I got punched in the chest. ... Who punched you in the chest?---Andrew Kearney. ... Okay. So after you were struck in the chest what did you do then?---Well, I honestly thought there was going to be a fight because he just out of the blue hit me so I stood up, turned to his direction and sort of as I turned him around I hit him and - - - ... ... Okay, you hit him in the mouth and what happened then, what did you see happen then?---After I'd hit him I sort of held him against the wall, sort of, as you know, just to settle down, everyone settle down, and the sergeant sort of yelled, "What are you doing" and after that I just let him go and walked away.

18. The effect of this evidence, if accepted, would warrant a conclusion that LAC Neilson struck the applicant in the belief that he was being seriously physically attacked and that such attack might continue. He struck only one blow and then held the applicant to prevent further attack. He was not expressly asked whether he struck the blow he did merely to prevent further attack or whether he was retaliating but either conclusion would be open.

19. Whether his response was reasonable or not in the circumstances, obviously depends greatly, not so much on the finger gesture episode, but on whether the applicant struck a hard blow to LAC Neilson's chest area, giving the appearance of an angry response to the brush-off gesture which LAC Neilson made and which would objectively support LAC Neilson's claimed apprehension.

20. In cross-examination, LAC Neilson contended that he had a mark on his chest from the blow struck by the applicant. He conceded that he had been dealt with under service regulations in respect of the incident and sentenced to seven days' confinement to barracks. He denied that he had intended to strike the applicant in the head or mouth, though he conceded that he had intended to strike the applicant's body.

The decision 21. The Registrar gave the following decision ex tempore, Yes, In this matter I am satisfied that the applicant was assaulted at the RAAF Base at Fairbairn, that he was punched in the mouth and as a consequence to that he lost two teeth. There is a conflict as to how that assault occurred between the assailant and the applicant. On the balance of probabilities I am satisfied that the assailant struck the applicant in the mouth but not without some provocation. In determining the amount of compensation I have therefore taken into account section 15 of the Act and in the circumstances I consider an appropriate amount of compensation to be $1500.

22. There are some matters these reasons leave uncertain. It does not appear that the Registrar gave any consideration to the role of self- defence. She does not expressly reject the suggestion put by LAC Neilson that he acted only to stop a further assault upon him. Nor is it clear what the "provocation" was that she made reference to. If it was merely "finger wriggling" and a light brush on the shoulder, then the "provocation" could only be regarded as relatively slight. If, however, the applicant had struck a blow as alleged by LAC Neilson, the response could be regarded, even if not self-defence, as no more than the applicant himself had invited. There was, also, no finding, in that context, as to whether LAC Neilson had responded disproportionately by aiming at the applicant's face or whether, as he claimed, that was accidental.

23. So far as self-defence is concerned, it is fair to point out that it was not raised as an issue by Mr Holmes before the Registrar. He relied solely on s15 of the CIC Act.

24. Indeed, the question of self-defence, so far as it is relevant to s2(1) (criminal conduct), was not raised by the Territory's notice of cross-appeal.

25. The issue was first raised in addresses.

26. There are, therefore, several issues requiring resolution. The first is whether the question of self-defence is open on the evidence and, if so, whether the applicant has, on the balance of probabilities, excluded it. Then there is an issue as to whether, even if the question of self-defence could have been relied upon, it is now open to the Territory to raise it. The applicant did not object to the Territory relying on it.

27. Even if there was criminal conduct which caused the injury complained of, a further question arises whether s15, CIC Act, requires a different result than that reached by the Registrar.

Powers of the Court on Appeal 28. The right of appeal is conferred by s28, CIC Act. It is "by way of re-hearing", s28(3). Under s28(4) of the CIC Act, the Court has power to, (a) affirm, set aside or vary the determination of the Registrar of the Supreme Court; and (b) make such other order as it considers just.

29. In Commonwealth of Australia v Pillifeant (1990) 93 ALR 641, Kelly, Neaves, and Lee JJ considered the nature of that right of appeal. Their Honours held, at 653, The requirement in s28(3) that the appeal be by way of a re-hearing obliges the Supreme Court to decide the appeal by applying the law as it exists when the matter comes before that court to the circumstances as they then exist. The power to receive further evidence is, therefore, implicit in the very nature of the function which the Supreme Court is required to perform ... s28(3) is to be construed as conferring a very wide discretion upon the Supreme Court, ...

30. Although findings referable to the demeanour and credibility of witnesses must be accorded due deference it was not, in their Honours' view, necessary to apply the usual reservation as to interference by an appellate court with a discretionary judgment exercised at first instance. Indeed, it was acknowledged that this Court might, if it considered it appropriate to do so, proceed de novo.

31. On the hearing of this appeal, despite the lack of any clear findings by the Registrar on a number of key factual issues, neither party sought to tender any additional evidence or recall either of the witnesses who gave oral evidence, despite the power to permit that course being drawn to their attention.

32. Thus, I have to make findings as to disputed facts without the benefit of observing the witnesses or of any clear findings as to their relative credibility.

Relevant findings of fact 33. Mr Holmes submitted that I should prefer the version given by LAC Neilson where it conflicted with that of the applicant. There were two bases for that submission. First, the applicant gave apparently inconsistent accounts of the "finger wriggling" episode and varying accounts of the "slap" to LAC Neilson's shoulder indicating a desire to minimise that contact. Thus, it was contended, his version of events should be considered to be lacking in credibility. Second, the onus was on the applicant to persuade the Court that his account of the "slap" or "light slap" to, or "brushing" of LAC Neilson's shoulder should be preferred to the latter's account of a hard punch to the chest. In the absence of any finding as to credibility adverse to LAC Neilson, Mr Holmes submitted that there was no reason to prefer the applicant's version of events, each account being equally uncorroborated by the evidence of any of the other persons present.

34. Mr Twigg, for the applicant, urged me to accept the applicant's version of events. He supported this contention by inviting me to conclude that the Registrar had preferred the applicant's evidence. He had to concede, however, that nothing said by the Registrar in her reasons supported that contention.

35. Mr Twigg also sought to rely upon LAC Neilson's concession that he had been penalised by a service tribunal of some kind. He submitted that such concession demonstrated that LAC Neilson had, on the balance of probabilities, been found guilty of assaulting the applicant by a competent tribunal. It may be that LAC Neilson was charged under service regulations with assaulting the applicant and found guilty. However, that is not a "conviction" within the meaning of s3, CIC Act. Further, it would have no evidentiary consequence even if that had been the tribunal's finding. However, the evidence does not, in any event, establish whether the adverse finding was based on a finding of assault or merely of a breach of discipline falling short of assault. It may be that the tribunal concerned had an adverse view of LAC Neilson's credibility. I simply do not know. It follows that this evidence does not assist to determine the issues raised in this appeal.

36. I therefore accept the submissions made by Mr Holmes as to the approach to the findings on matters of fact. In any event, it seems to me, that the account given by LAC Neilson has greater apparent credibility.

Did the alleged perpetrator act in self-defence? 37. The High Court in Zecevic v Director of Public Prosecutions (Vic) [1987] HCA 26; (1987) 162 CLR 645 affirmed that a person does not commit a crime of physical violence such as assault if that person acted in self- defence. Self-defence was defined as embracing acts done by a person in the reasonable belief that what he or she was doing was reasonable and necessary to prevent or avoid an unjustified attack. Even an accused who was the original aggressor may be entitled to claim self- defence if the original aggression had ceased so as to make it reasonable for that person to then act in self-defence.

38. Of course, it is logically possible that each party to a conflict, from their own perspective, may be acting in self-defence. That is because, as Hunt CJ at CL pointed out in R v Hawes (1994) 35 NSWLR 294, the reasonableness of the belief of the person claiming to have acted in self defence is not to be assessed on a wholly objective basis. It is the person's belief based on the circumstances as he or she perceived them to be which has to be reasonable. It is not the belief which a hypothetical reasonable person in those circumstances would have had.

39. In the present case, the onus is on the applicant to demonstrate that LAC Neilson did not act in self-defence. That, for the purposes of these proceedings, needs to be established on the balance of probabilities.

40. In turn, that seems to me to depend on whether the applicant unexpectedly, and without any apparent cause, struck LAC Neilson a heavy blow to the chest area. That conduct would not only be provocative but might well lead the person so struck to fear that there would be further blows. To respond by striking a similar blow and then holding the attacker so as to prevent further aggression is not so disproportionate a response as to be apparently unreasonable. Nor could it be said to be unnecessary. LAC Neilson had not responded unreasonably to the applicant's "sky-larking" whatever the precise form of it. He had merely elbowed him away. The blow LAC Neilson claims he received was clearly disproportionate to that action. If he was struck hard with a closed fist to the chest as he claimed, it was reasonable for LAC Neilson to believe that the applicant intended to "fight" him.

41. LAC Neilson did not expressly state that he feared further blows from the applicant, but that inference is plainly open from his evidence. It is also open to infer that he believed that what he did was necessary to prevent further blows from the applicant. If LAC Neilson was retaliating to provocation and intended to seek revenge on the applicant, I think he would have struck more than one blow. Indeed, he said that his intention after he struck the applicant was "just to settle down, everyone settle down". That is consistent with his perception that he was then acting in self-defence.

42. LAC Neilson may, of course, have misinterpreted the applicant's intentions. The applicant may have only intended a playful smack or blow and unintentionally struck a hard blow. However, that is not the point. The point is whether the applicant has established that LAC Neilson did not act in self-defence. The onus is on him so to do. For the reasons stated earlier, it is not open to prefer the applicant's account. Indeed, as I have already noted, the evidence of LAC Neilson seems more probable.

Consequences in law of finding that LAC Neilson might have acted in self-defence 43. The only circumstances where an award may be made, notwithstanding a lack of proof of criminal conduct on the part of the perpetrator, are referred to in s4, CIC Act. That section 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. Otherwise, it is necessary that the conduct causing the injury complained of be "criminal" in the usual sense of that term.

44. In Re Ritherdon (1993) 116 FLR 181, where a cyclist negligently injured a pedestrian, there was no doubt that force had been unjustifiably applied to the victim. Had it been applied intentionally, it might well have been "criminal conduct". The application of force is, in one sense, an "element" of an offence within the meaning of "criminal conduct" as defined in s2(1), CIC Act. However, the application of force is not an element of an offence unless it is accompanied by such other circumstances as make the application of force "criminal". In that case, the force applied was not such as to give rise to anything other than civil liability.

45. I also declined, in Re Millgate (1994) 118 FLR 77, to characterise as "criminal conduct" force applied by a person in horseplay where there was no intention to hurt or injure nor any reckless indifference to that consequence in the face of a serious risk thereof.

46. A fortiori, it seems to me, where force is applied in reasonable self-defence, is not criminal conduct. Injury resulting from such an application of force is therefore not compensable under the CIC Act.

Is the respondent to be permitted to rely upon self-defence when it was not raised at first instance or in the notice of appeal? 47. Counsel for the applicant did not directly object to the respondent relying upon the absence of criminal conduct rather than the presence of contributing conduct in opposing the application.

48. In general, a party is not permitted, on appeal, to raise a point or contest an issue not raised or litigated at first instance, see Davison v Vickery's Motors Ltd (In Liquidation) [1925] HCA 47; (1925) 37 CLR 1. This is particularly relevant where, had the point been then raised, further evidence might have been called to address the questions of fact raised thereby, see Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418.

49. However, it is otherwise if the point made is neither curable by nor dependant upon further evidence, see O'Brien v Rosedale, Shire of [1969] VR 645; David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416.

50. Further, where there is an opportunity to call further evidence on appeal, particularly where the appeal is by way of re-hearing, the raising of a new point may more readily be permitted, see North Sydney Investment & Tramway Co Ltd, Re (1893) 14 LR (NSW) Eq 367.

51. Ultimately, the question is whether by allowing the new point to be raised, unfairness or injustice will be created, see Ravinder Rohini Pty Ltd v Krizaic [1991] FCA 318; (1991) 30 FCR 300.

52. The High Court, in State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1996) 141 ALR 353, recently affirmed the view that substantive justice should take precedence over case management principles which would otherwise militate against raising new defences at a hearing. By analogy, it seems to me a party to an appeal should be permitted to raise a new point if it can be done without unfairness to the other party.

53. The present appeal is by way of re-hearing. Though given the opportunity to do so, neither party sought to re-call any witness or to call additional evidence. The question of self-defence, though not perceived at first instance, clearly arises from the evidence of LAC Neilson. The issue was raised and addressed on appeal by both parties without objection from the applicant. The same facts are relied upon to support the finding that LAC Neilson acted in self-defence as are relied on to support the respondent's claim that s15, CIC Act requires the refusal or reduction of the applicant's claim.

54. The difference, of course, is that under s15, the onus is on the respondent to prove the circumstances or conduct by reason of which compensation should be reduced or denied. The applicant has to prove an injury caused by criminal conduct and thus bears the onus of refuting self-defence.

55. However, as I have concluded that the account given by LAC Neilson is more probable than that of the applicant, there is no injustice occasioned to the applicant by enabling the respondent now to submit that there was no criminal conduct. The applicant could have called further evidence or recalled evidence already given but chose not to do so. Nor is any such injustice alleged on behalf of the applicant. It seems to me, therefore, that it is proper to permit the respondent to rely upon the failure of the applicant to prove that his injury was the result of "criminal conduct".

56. Criminal conduct has not been proved. For that reason alone the cross-appeal must be upheld and the application dismissed. Nevertheless, I will give consideration to the alternative ground argued on the hearing of the appeal.

Should the award be denied or reduced by reason of the conduct of the applicant? 57. The Registrar found that the applicant had been guilty of conduct which justified reducing the award substantially. Absent such contributing conduct, the parties were agreed that the award would have been at least $6,000.00. I think that is a reasonable concession. Thus, although the Registrar did not specify what it was that constituted the "provocation" she referred to, nor the degree of reduction she made on account of it, it is not inconsistent with the reduction she seems to have made that she accepted the version of the event deposed to by LAC Neilson, albeit without consideration of self- defence as an issue, that matter not having been raised before her.

58. Section 15(1) CIC Act provides, relevantly, 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 ... Even if faced by a disproportionate response to an attack, a person who has provoked an attack might find an award denied or reduced as a result of that conduct, see ACT v Bullock, unreported, Supreme Court, Australian Capital Territory, Miles CJ, Gallop and Higgins JJ, 28 June 1995.

59. What reduction should be made depends on the conduct engaged in and the circumstances in which it occurred. Kelly J in Cadman v The Commonwealth, unreported, Supreme Court, Australian Capital Territory, 22 February 1989, reduced an award by 20% where an assault on the applicant had been provoked by racial slurs and verbal abuse.

60. I reviewed a number of such cases in ACT v Bullock (supra). I concluded in that case that the applicant's prior behaviour, reputation and current actions in first assaulting the perpetrator in an attempt to extort money from him justified denial of an award even if the response was, in some part, retaliatory or disproportionate.

61. In this case, the issue very much depends on which version of events is accepted. Certainly, the conduct of the applicant in the "finger wriggling" episode was annoying and offensive. If LAC Neilson had responded to it by striking the applicant in the mouth, then that blow would have been an assault though an award for the injury caused by it might have been reduced by reason of the provocation offered. Such provocative conduct would not have entitled LAC Neilson to strike such a blow. There would have been no reason for him to fear a physical attack of an unjustifiable kind.

62. If the blow to the mouth had occurred not only after that annoying and offensive conduct but also following the further action alleged by the complainant, that is, a light slap on the shoulder, then the reduction for that provocation might have been even larger, but that slap would not have caused LAC Neilson reasonably to believe that he needed to protect himself by striking the applicant as forcefully as he did.

63. An estimated reduction of 75% seems larger than would be warranted if the applicant had only acted as he claimed to have done. It is more consistent with the applicant striking LAC Neilson a heavy blow as the latter claimed he did. Even viewed only as "provocation", such conduct becomes such as should, in my view, have prevented any award being made. It was, itself, an unlawful assault by the applicant on LAC Neilson.

64. The Registrar, however, considered that, even if the applicant struck LAC Neilson heavily as the latter asserted, an award should have been made, I respectfully disagree with that conclusion.

65. A person should not be entitled to start a fight and then complain of injury received in the course of it. No doubt, had LAC Neilson responded disproportionately in the sense of using a weapon rather than his fist, the situation might well be otherwise. It was or should have been, entirely foreseeable by the applicant that if he punched LAC Neilson without any apparent cause, the latter might retaliate in kind.

66. It follows that on this ground also, the cross-appeal should be upheld. The appeal must be dismissed. The applicant should pay the respondent's costs of the appeal and cross-appeal.