Morris v The State of South Australia & Szopory No. Dccic-00-73

[2002] SADC 173

MORRIS v STATE OF SOUTH AUSTRALIA & SZOPORY
[2002] SADC 173

Judge Anderson
Civil

1. The Plaintiff instituted proceedings pursuant to the provisions of the Criminal Injuries Compensation Act 1978 (“the Act”) on 8 February 2000. By the Amended Statement of Claim filed thereafter, he pleads, inter alia,

   “2.On 9^th February, 1997 the plaintiff was struck on the back of the head by a slug fired from a firearm carried by the second defendant.

   3.The carrying of the loaded firearm by the second defendant constituted the commission of an offence.

   3A.The discharge of the firearm also constituted an offence under section 51(1) of the Summary Offences Act namely to discharge a firearm without reasonable excuse and so as to be likely to injure or frighten any person or be likely to damage any property.

   4.The second defendant was subsequently convicted of the offence of carrying a loaded firearm.

   5.The plaintiff is a victim of the offences within the meaning of the Act and has suffered physical and mental injury thereby.”

2. The Plaintiff seeks compensation pursuant to the provisions of the Act.

3. By an Amended Defence the second Defendant “denies that the Plaintiff was the victim of offences within the meaning of the Act and does not know, and therefore cannot admit, that the Plaintiff has suffered the alleged injury” (paragraph 5).  In addition, the second Defendant places in issue that any action by him was causative of any injury to the Plaintiff (paragraph 6).

4. Thereafter, it seems to have been decided that the matter would come on for the determination of a preliminary point.  That occurred in Mt Gambier on 23 October 2002.  This application seems to have been precipitated by the Crown Solicitor acting for the first Defendant.

5. Unusually, there has been no determination of any factual position, except for what can be gathered from the pleadings.

6. What is not admitted on the pleadings is that the Plaintiff was hit by a slug fired from a firearm carried by the second Defendant and any associated offending by that Defendant.  It is denied that the second Defendant was convicted of carrying a loaded firearm and that the Plaintiff sustained any injury as a consequence of offending by the second Defendant.  It seems, however, that in fact the second Defendant was convicted of that offence in the Mt Gambier Youth Court.

7. The pleadings place in issue whether the Plaintiff is a victim. That word is given the following meaning in Section 4 of the Act:

   “..... a person who suffers injury in consequence of the commission of the offence;”

8. That section gives the following meaning to the word “offence”:

   “......... an offence, whether indictable or not, committed by one or more persons and includes conduct on the part of a person that would constitute an offence if it were not for that person’s age, or the existence of a defence of insanity;”

9. Section 7(1) of the Act provides that only “the 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.”

10. Section 8(1a) is in these terms:

    “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.”

11. Essentially, the Plaintiff relies upon the second Defendant being convicted of the offence of carrying a loaded firearm.  There is nothing to suggest that he was convicted of any other offence and consequently no such offence has been proved beyond reasonable doubt as required in Section 8(1a)(a).  That being so, there can be no causal connection between any such commission and the injury relied upon by the Plaintiff.  Certainly, it is impossible to say that such a connection has been proved on the balance of probabilities as Section 8(1a)(b) requires.

12. At this stage of the matter, Section 8(1b) is of no assistance to the Plaintiff.

13. That being so, I am unable to ascertain how it is that the Plaintiff is able to bring himself within the parameters of the Act.

14. Mr Smith made detailed submissions as to the scope of the relevant words in Section 8(1a).  Without intending any disrespect to those submissions, I am unable to ascertain that it is possible to apply to this narrow issue his various submissions because the necessary factual base has not been proved.

15. The argument has shown that in the absence of either findings of fact or agreement on all relevant facts what, on the papers seems to be a narrow point, cannot be successfully resolved.

16. As the matter presently stands, there are several difficulties with the Plaintiff’s position.  Not least, on the present pleadings, there is no basis to support the existence of the required causal connection.  However, it is impossible to finally determine what the factual matrix may be after trial, notwithstanding that it seems that the Plaintiff has a very difficult task on that topic.

17. In the circumstances, there can be no order finalising what originally was seen as a narrow point.  The matter should proceed to trial if that is the Plaintiff’s wish after he has considered the not insignificant forensic difficulties which he seems to face.

18. The costs of this hearing should be costs in the cause.