Derek David Rowe v Sasha Alexander Manevski and the State of South Australia No. SCGRG 93/1523 Judgment No. 4629 Number of Pages 15 Criminal Injuries Compensation - [1994] SASC 4629

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), PRIOR(3) AND PERRY(1) JJ

CWDS
Criminal injuries compensation - discharge of firearm "without reasonable cause" - Victim of shooting accident alleged breach of s.51 of the SummaryOffences Act 1953 as basis fo claim for compensation under the CriminalInjuries Compensation Act 1978 - held on appeal that on the facts, the person handling the rifle which had been discharged so as to injure the plaintiff had satisfied the onus on him of proving that he had discharged the rifle "with reasonable cause" - trial Judge held to have applied the wrong test in holding that there was a failure to prove reasonable cause if there was a failure to exercise reasonable care - satisfaction of the elements of the offence of discharging a firearm without reasonable cause in the circumstances of this case required something more than a departure from the civil standard of proof of negligence. Criminal Injuries Compensation Act 1978s7 and s8 and Summary Offences Act 1953s5 and s51. Hayward v Whitbread (1966) SASR 1; He Kaw Teh v R (1985) 157 CLR 523; Black v City of Melbourne (1963) VR 34; Commonwealth of Australia v Connors (1989) 86 ALR 447; Taylor v Haves (1990) 53 SASR 282; Young v Gilmore and Anor (Full Court) Judgment No 4025, 3 August 1993; De Vries and Anor v Australian National Railways Commission and Anor (1993) 112 ALR 641; Wilson v R (1992) 174 CLR 313 and R v Bacon (1977) 2 NSWLR 507, considered.

HRNG ADELAIDE, 10 June 1994 #DATE 22:7:1994

Counsel for appellant: Mr P.J. Humphries

Solicitors for appellant: Reilly Basheer Downe and
Humphries

Counsel for respondent Manevski: Mr G.A. Britton

Solicitors for respondent Manevski: Adams Kandelaars

Counsel for respondent SA: Mr M.R. Penhale

Solicitors for respondent SA: Mr B.M. Selway,
Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 PERRY J The appellant, together with the State of South Australia, was the respondent to an application by Sasha Alexander Manevski in the Central District Criminal Court for an award of compensation under the CriminalInjuries Compensation Act 1978 ("the Act") in respect of injuries suffered by Manevski on Saturday 8 September 1990 at Lake Caddy approximately 110 kilometres from Coober Pedy.

2. After hearing the evidence, the learned trial Judge found in favour of Manevski on the issue of his entitlement to compensation, and awarded the agreed sum of $20,000 against the appellant and the State of South Australia. The appeal to this Court is against that award.

3. On the day preceding the incident in question, Manevski, the appellant and another man, Darren Joseph Hrotek, left Coober Pedy, where they resided, on a rabbit shooting trip. Each of them was armed with a .22 calibre rifle. They camped overnight in the bush about 100 kilometres out of Coober Pedy. Early the following morning they left the vehicle in which they had been travelling and went off on foot in search…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Derek David Rowe v Sasha Alexander Manevski and the State of South Australia No. SCGRG 93/1523 Judgment No. 4629 Number of Pages 15 Criminal Injuries Compensation [1994] SASC 4629
Case: [1994] SASC 4629
Decision Date: 22 July 1994

CaseChat Overview and Summary

The appeal was against the award of compensation to Sasha Alexander Manevski under the Criminal Injuries Compensation Act 1978, following an incident in which he was shot in the leg by Derek David Rowe while they were target shooting. The trial judge found that Rowe had discharged his firearm without reasonable cause, and awarded compensation. The Full Court allowed the appeal and dismissed Manevski's claim. The court held that the trial judge had applied the wrong legal test in finding that a failure to exercise reasonable care was sufficient to establish a failure to prove reasonable cause. The court found that Rowe had discharged the onus of proving that he had reasonable cause to fire the rifle, and accordingly the appeal was allowed and the claim for compensation dismissed.

Orders