Criminal Law (Vict.)—Compensation—Injury by or as result of criminal act—Nervous shock suffered by child caused by murder of mother—Criminal Injuries Compensation Act 1972(Vict.),s 3(1)
Decisions
September 14. The following written judgments were delivered:- MASON AND WILSON JJ. This appeal by special leave from the Full Court of the Supreme Court of Victoria concerns the construction of the Criminal Injuries Compensation Act 1972 (Vict.), as amended, ("the Act"). That Act established the Crimes Compensation Tribunal ("the Tribunal") which has power to award compensation to persons who suffer injury or are killed "by or as a result of a criminal act". Claims were made before the Tribunal on behalf of five children of the one family in circumstances set out below. The Tribunal made awards in favour of the three oldest children but refused to do so in respect of the two younger children. (at p668)
2. The facts may be shortly stated. On 17 February 1978 a married woman, one Mary Anne Fagan, was stabbed to death at about midday at her home in Melbourne by some person unknown. There were five children of the marriage, namely, Anthony, born on 21 December 1962, Katherine, born on 23 March 1964, Rebecca, born on 2 June 1965, Collins, born on 5 December 1972 and Patrick, born on 21 September 1976. At the time of the murder Mrs Fagan and the baby were in the house, the other children being at school. The three older children discovered their mother's body on their return from school in mid afternoon. The next child, Collins, (called "Jack"), was then aged five and had been taken to school by his mother on the day of the murder and would in the ordinary course of events have been brought home by her from school in the early afternoon. In the circumstances he waited some time not knowing what had happened to his mother. Late in the afternoon arrangements were made for him to be picked up at school by relatives. Jack was told of the death a few days afterwards but in his father's written evidence before the Tribunal he said that he thought that Jack had already heard of her death before that time because of what had appeared on television and what he had heard from other children at the school. His father said that "Jack was now very much a 'loner' and withdrawn. Communication with him was difficult". (at p668)
3. The medical evidence was apparently all in writing but the documents are not before us. We are therefore restricted to the comments made on the medical evidence by the Tribunal. Mr. Scurry Q.C., who constituted the Tribunal, said, "Dr. Applebe says that there has been a profound impact on them (i.e. all the children), and that the psychological damage will be with them for a long time", but added,…
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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AGLC
Fagan v Crimes Compensation Tribunal [1982] HCA 49
Case
[1982] HCA 49
Decision Date
CaseChat Overview and Summary
The applicant, Fagan, sought judicial review of a decision by the Crimes Compensation Tribunal. The Tribunal had refused to make an order for compensation to Fagan, who had suffered injuries during an incident involving a police officer. The dispute centred on whether the injuries sustained by Fagan were a result of a criminal act or omission by the police officer, as required by the relevant legislation for compensation to be awarded. The matter came before the High Court of Australia.
The primary legal issue before the High Court was whether the conduct of the police officer, in driving a police vehicle onto the applicant's foot, constituted a criminal act or omission within the meaning of the relevant compensation legislation. Specifically, the Court had to determine if the officer's actions, which were found to be negligent but not intentional, met the threshold for criminal conduct necessary to ground a claim for compensation.
The High Court, in a joint judgment, held that the officer's conduct, while negligent, did not amount to a criminal act or omission. The Court reasoned that for an act to be considered criminal in this context, it required a degree of intent or recklessness beyond mere negligence. The legislation contemplated a more serious form of culpability. As the officer's actions were found to be an unintended consequence of a negligent act, the statutory requirement for a criminal act or omission was not satisfied. Consequently, the Tribunal's decision to refuse compensation was upheld.