WRONGS AMENDMENT (PRISONER RELATED COMPENSATION) ACT 2015 (NO. 22 OF 2015) - SECT 3 New Part VBAA inserted
WRONGS AMENDMENT (PRISONER RELATED COMPENSATION) ACT 2015 (NO. 22 OF 2015) - SECT 3
New Part VBAA insertedAfter Part VB of the Wrongs Act 1958 insert —
" Part VBAA—Awards of damages related to death or injury of prisoners
28LAD Definitions
In this Part—
"claimant" means a person who makes, or is entitled to make, a claim for the recovery of damages for non-economic loss in respect of mental harm caused by the death or injury of a prisoner;
"court" includes tribunal, and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined;
"criminal record", in relation to a person, means a document that sets out—
(a) all the person's previous convictions; and
(b) in relation to each previous conviction—
(i) the date of the conviction; and
(ii) the court in which the conviction took place; and
(iii) the place of sitting of that court; and
(iv) the offence committed; and
(v) the sentence imposed;
"Crown Prosecutor" has the same meaning as in the Criminal Procedure Act 2009 ;
"damages" includes any form of monetary compensation;
"legal practitioner" has the same meaning as in the Criminal Procedure Act 2009 ;
"mental harm" means psychological or psychiatric injury;
"non-economic loss" means any one or more of the following—
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life;
"police officer" has the same meaning as in the Victoria Police Act 2013 ;
"prisoner" means a person referred to in section 28LAE(1)(a);
"profit motivated offence" means—
(a) an offence referred to in Schedule 2 to the Confiscation Act 1997 , and if circumstances are specified in that Schedule in relation to that offence, means an offence committed in those circumstances; or
(b) an offence that, at the time it was committed, was an offence referred to in Schedule 2 to the Confiscation Act 1997 , and if circumstances were specified in that Schedule in relation to that offence, means an offence committed in those circumstances.
28LAE Application of Part
(1) This Part applies to an award of damages for non-economic loss in respect of mental harm if—
(a) the mental harm is caused by the death or injury of a person who was, when the death or injury occurred, the subject of—
(i) a sentence of imprisonment imposed by a court; or
(ii) a preventative detention order within the meaning of the Terrorism (Community Protection) Act 2003 or an order for a person's detention made under a corresponding preventative detention law within the meaning of that Act; or
(iii) a detention order or interim detention order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 ; and
(b) the claimant, as an adult, has been convicted of an offence.
(2) This Part applies in addition to any other provision of this Act applicable to an award of damages of a kind described in subsection (1).
(3) If there is an inconsistency between a provision of this Part and a provision of any other Part of this Act, the provision of this Part prevails to the extent of the inconsistency.
28LAF Assessment of damages
(1) In determining an award of damages to which this Part applies, the jury or the court if the trial is without a jury, must—
(a) consider the factors set out in subsection (2); and
(b) having regard to those factors, reduce the amount of damages—
(i) in the case of a claimant who has been convicted of an offence other than a profit motivated offence—by a percentage that the jury or the court (as the case requires) considers appropriate;
(ii) in the case of a claimant who has been convicted of an offence that is a profit motivated offence—by a percentage that the jury or the court (as the case requires) considers appropriate, being a percentage that is not less than 90 per cent.
(2) For the purposes of subsection (1), the factors are—
(a) the number and seriousness of the claimant's previous convictions; and
(b) the nature of the relationship between the claimant and the prisoner including any agreement, arrangement or understanding with respect to criminal activity; and
(c) the relationship (if any) between the conduct constituting an offence for which the claimant has been convicted and the conduct constituting an offence for which the prisoner has been convicted; and
(d) the claimant's character, behaviour or attitude at any time, whether before, during or after the commission of an offence for which the claimant has been convicted, including any evidence of rehabilitation, remorse or subsequent offending; and
(e) any other factor that the court considers relevant.
(3) The jury or the court (as the case requires) may determine a reduction of 100 per cent, with the result that the claim for damages is defeated.
(4) The jury or the court (as the case requires) must specify the percentage by which the amount of damages is reduced under this Part.
(5) Except as provided by this Part, nothing in this Part affects any other law relating to the discounting of sums awarded as damages.
28LAG Criminal record
(1) For the purposes of this Part, the court may require the production of a claimant's criminal record.
(2) A claimant's criminal record is inadmissible as evidence unless it is signed by—
(a) a police officer; or
(b) a Crown Prosecutor; or
(c) a member of staff of the Office of Public Prosecutions established under the Public Prosecutions Act 1994 who is a legal practitioner.
Note
Section 178 of the Evidence Act 2008 provides for proof of previous convictions by the filing of a certificate.
28LAH Transitional
(1) This Part applies to an award of damages irrespective of when the act or omission causing the death or injury and giving rise to the claim for the recovery of damages occurred.
(2) Despite section 14(2) of the Interpretation of Legislation Act 1984 , this Part applies to an award of damages in a proceeding that immediately before the commencement of the Wrongs Amendment (Prisoner Related Compensation) Act 2015 has commenced but has not been finally determined.".