Morris v State of South Australia and Szopory

[2005] SADC 160

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal Injuries Compensation Division)

MORRIS v STATE OF SOUTH AUSTRALIA AND SZOPORY

Judgment of His Honour Judge David

13 December 2005

CRIMINAL LAW

Compensation for injuries – claim for compensation by man injured when air rifle accidentally discharged from car – owner of air rifle found guilty without conviction of carrying a loaded firearm but not discharging the firearm.

HELD – injury to the victim was a consequence of the offence of carrying a loaded firearm – damages as agreed award.

Criminal Injuries Compensation Act 1978; Summary Offences Act 1953, referred to.
Turrell v State of South Australia and Turrell 155 LSJS 403, considered.

MORRIS v STATE OF SOUTH AUSTRALIA AND SZOPORY
[2005] SADC 160

1. On the 9^th February 1997 the plaintiff who was then 17 years of age was walking along North Terrace, East Mount Gambier at about 9.30 at night when he was hit by a projectile which was discharged from an air rifle which was in the possession of the second defendant.  At the time the second defendant was sitting in the back seat of a vehicle.  Two other young men were sitting in the front.  They had been shooting birds and were just driving around.   The rifle was on the lap of the second defendant and was loaded.  There is no evidence before me as to how exactly the rifle discharged but it has been agreed between the parties that there is no question that the rifle was deliberately fired and therefore the discharge was accidental. 

2. As a result of being hit in the head by the projectile the plaintiff went to hospital and has suffered damage.  It has been agreed that the second defendant in relation to the discharge of the firearm which caused damage to the plaintiff pleaded guilty in the Youth Court of South Australia sitting at Mount Gambier on the 18^th June 1997 to the offence of carrying a loaded firearm contrary to Section 15(1a)(a) of the Summary Offences Act 1953. He was fined $50 with Court fees amounting to $72 and a levy of $14. The learned Special Magistrate did not record a conviction.

3. The plaintiff now brings this action pursuant to the now repealed Criminal Injuries Compensation Act 1978 for compensation for injury arising from the above offence which the second defendant pleaded guilty. Quantum has been agreed in the amount of $7,500.

4. I set out the relevant Sections of the relevant Act:-

   Application for compensation

   7. (1) A victim of an offence may, within three years of the day on which the offence was committed, apply to the court for an order for compensation in respect of the injury arising from the offence.

   ….

   Interpretation

   4. In this Act, unless the contrary intention appears-

   …    “victim”, in relation to an offence, means a person who suffers injury in consequence of the commission of the offence;

   …

   Proof and evidence

   8. (1) Subject to this Act, any fact to be proved by a claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities.

   (1a)No order for compensation may be made (except by consent) on an application under this Act unless-

   (a)     the commission of the offence to which the application relates has been proved beyond reasonable doubt; and

   (b)     a causal connection between the commission of the offence and the injury or death to which the application relates has been proved on the balance of probabilities.

   (1b)    Where an order for compensation is sought in respect of an offence, and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, is not sufficient to establish the commission of the offence.

   (2)     In any proceedings under this Act, the court may receive in evidence any transcript of evidence in proceedings in any other court, and may draw any conclusions of fact that it considers proper.

5. As the matter has been argued I find that it has been proved beyond reasonable doubt pursuant to Section 8(1a)(a) that the commission of the offence to which the application relates has been proved beyond reasonable doubt.  The question to be decided is whether pursuant to Section 8(1a)(b) it has been proved on the balance of probabilities that there is a causal connection between the commission of the offence and the injury suffered by the plaintiff.  I turn to that question.

6. It is argued by both defendants that the offence of carrying a loaded firearm creates no causal connection between that offence and the injury caused to the plaintiff.  The argument is that it was the discharge of that firearm which caused injury to the plaintiff and the mere carrying of that loaded firearm of itself caused no injury.  It is therefore argued that the plaintiff is not a victim in relation to this offence because injury was not suffered as a consequence of this offence.

7. The plaintiff argues that the significance of the offence to which the second defendant pleaded guilty is the fact that it was a loaded firearm.  He argues that the very first stage of the causation process is having that loaded firearm in his possession.  It would be different if it was for instance an unregistered firearm or some other regulatory offence.  However it is argued that the fact that the offence is carrying a loaded firearm indicates that the purpose of that Section is to make sure that an injury is not caused by a loaded firearm being carried around.  And it is in that regard that the plaintiff distinguishes the decision of Judge Bowering of this Court in Turrell v State of South Australia and Turrell (155 LSJS 403). In that case the learned Judge dismissed the plaintiff’s claim for compensation under the same Act when a sawn-off shotgun was discharged as a consequence of which the plaintiff in that case sustained injury to her leg. However the offences to which the defendant in that case was convicted did not include carrying a “loaded firearm”. The offences in Turrell’s case involved carrying an offensive weapon, being in possession of a dangerous firearm and having an unregistered and an unlicensed firearm.  It is argued that the aspect of carrying a loaded firearm distinguishes that case from the present.

8. In my view the plaintiff’s interpretation of the present factual situation is the correct one.  The purpose of the offence of carrying a loaded firearm is clearly to prevent the consequences of such behaviour.  Such consequences would involve accidental discharge as happened in this case.  In my view the facts which involve the commission of that offence in this case namely that a loaded firearm was sitting on the lap of the second defendant whilst he was in a vehicle which was being driven along a road with open windows is the starting point in the course of events whereby it was discharged and the pellet hit the plaintiff causing him injury.  I therefore find on the balance of probabilities that there is a causal connection between the commission of the offence and the injury suffered by the plaintiff.

9. There will be judgment for the plaintiff in the sum of $7,500 against both defendants.