Puric v State of South Australia - [2009] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
PURIC v STATE OF SOUTH AUSTRALIA
[2009] SASC 107
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Kourakis)
24 April 2009
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT
Appeal against dismissal of application for statutory compensation pursuant to section 18(5) of the Victims of Crime Act - appellant claimed assaulted on 31 October 2005 and for compensation for physical and mental injuries sustained in addition to resultant economic loss - trial Judge dismissed the application on basis that commission of the offence to which the application related had not been proved beyond reasonable doubt - whether proof of offence beyond reasonable doubt required by section 22 of the Victims of Crime Act 2001 (SA) - whether section 22(2)(a)(i) applicable to criminal proceedings - whether claims under the Act and the commission of the offence the subject of the claim require proof on the balance of probabilities - whether trial Judge erred in failing to accept appellant's own evidence - whether trial Judge erred in failing to draw Jones v Dunkel inference in favour of appellant.
Held: appeal dismissed - offence subject of claim for compensation pursuant to section 22 of the Victims of Crime Act 2001 (SA) require proof beyond reasonable doubt - Jones v Dunkel inference of little assistance in cases where credibility as opposed to reliability in issue - rarely appropriate to interfere with trial Judge’s assessment of witnesses.
Victims of Crime Act 2001 (SA) s 18, s 22 and s 24; Criminal Law Consolidation Act 1935 (SA) s 15, referred to.
Devries v Australian National Railways Commission (1993) 177 CLR 472; Rosenberg v Percival (2001) 205 CLR 434; Jones v Dunkel (1958) 101 CLR 298; R v Buckland [1977] 2 NSWLR 452; Fox v Percy (2003) 214 CLR 118; R v Lahides (1983) 34 SASR 355; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1; O'Donnell v Reichard [1975] VR 916; Beaumont v South Australia (1990) 156 LSJS 479; Bartsch v McIlroy (1980) 24 SASR 506; Edmunds v Edmunds [1935] VLR 177; Weissensteiner v The Queen (1993) 178 CLR 217; Evans v Sparrow (1973) 6 SASR 519; Dyers v The Queen (2002) 210 CLR 285, considered.

PURIC v STATE OF SOUTH AUSTRALIA
[2009] SASC 107
Full Court Gray, Sulan and Kourakis JJ
GRAY and SULAN JJ.

This is an appeal pursuant to section 24(1) of the Victims of Crime Act 2001 (SA). The appellant has appealed against the dismissal of his application for statutory compensation.
The appellant made a claim for statutory compensation pursuant to section 18(5) of the Victims of Crime Act. The appellant claimed that he was assaulted outside the Serbian Club, 1 Mary Street, Hindmarsh at approximately 1.00am on 31 October 2005. The appellant claimed compensation for the physical and mental injuries he sustained in addition to resultant economic loss.
On 27 June 2008 the trial Judge dismissed the application on the basis that, in the absence of any reliable evidence, he was unable to find that the commission of the offence to which the application related had been proved beyond reasonable doubt. In so doing the Judge acted in accordance with section 22(2)(a)(i) of the Victims of Crime Act.
The powers of the Supreme Court on such an appeal are dealt with in section 24(3) of the Victims of Crime Act, which provides:
The Supreme Court may—
(a)dismiss the appeal; or
(b)quash the order and, if it thinks fit, substitute any other order that the court in the first instance could have made; or
(c)vary the order in any respect; or
(d)remit the subject matter of the appeal for rehearing,
and may make such other ancillary orders (including, subject to this Act, orders relating to the costs of the appeal) as it thinks fit.
Rule 292 of the Supreme Court Rules 2006 provides that an appeal is to be by way of rehearing unless the law under which the appeal is brought provides to the contrary. The appeal pursuant to section 24(3) is therefore an appeal by way of rehearing.
The Trial
The appellant gave evidence in addition to calling Marko Zuvela, his general practitioner. The respondent called three witnesses: Djuro Radinovic and Mr Vjestica, who were both present at the Serbian Club on the night at the time that the appellant was injured, and Brevet Sergeant Rhett Vormelker of the South Australian Police who investigated the complaint originally made to the police.
As no suspect was ever charged and convicted of assaulting the appellant, it fell to the appellant to prove that he had in fact been assaulted and that such assault was the cause of his injuries and loss. An assault consists of the unlawful application of force without consent.[1] In the view of the Judge, section 22 of the Victims of Crime Act required proof beyond reasonable doubt of an offence, that is, proof of the commission of all elements of an offence beyond reasonable doubt. The respondent’s defence put in dispute the question of the unlawfulness of any assault committed upon the appellant.
[1] See Criminal Law Consolidation Act 1935 (SA) sections 20 and 39 (now repealed).
The Judge found that the appellant suffered injury in the fight that occurred, in particular, a broken cheekbone which required surgery. The Judge accepted the evidence of Dr Zuvela that a very large degree of force, consistent with a punch or kick, would have been required to fracture the appellant’s cheekbone. Dr Zuvela conceded that the injuries were consistent with a fall, depending on the mechanism of the fall. The Judge was satisfied that it was not possible that all of the appellant’s injuries were the result of falling over.
The Judge went on to state that the appellant, Dr Radinovic and Mr Vjestica were “singularly unimpressive in the witness box”. They were reluctant to answer any questions, were often evasive in their answers and were argumentative. The Judge was satisfied that none of them told him the whole truth and that none of them attempted to do so. The Judge went on to make the following findings:
That the appellant, Nikolic and Radinovic were all significantly affected by alcohol. That Nikolic attended the event at the Serbian Club with the appellant on the night in question, but did not give evidence. The Judge accepted Radinovic’s evidence that he had consumed up to five beers and up to four vodka cruisers over the course of the evening. Further, the Judge accepted Vjestica’s evidence regarding the appellant and Nikolic. Vjestica stated in evidence that he could recognise that both the appellant and Nikolic were affected by alcohol by his observations of their appearance and demeanour. Further, the Judge accepted the evidence contained in the Emergency Department Record for the Royal Adelaide Hospital, which recorded the appellant’s blood alcohol reading on his arrival at the RAH at 1.37am on the morning of 31 October 2005 as 0.101.
That the fight occurred between the men because the appellant and his friend Nikolic behaved improperly towards a young woman. The trial Judge found that this portion of Radinovic and Vjestica’s evidence had a “ring of truth to it”. The Judge stated that this finding, made in the face of the appellant’s persistent assertions that there was no incident involving a young woman, indicated that the appellant was being deliberately untruthful about this aspect of his evidence. The Judge stated that the appellant’s repeated denials of the incident caused him to be very wary of the rest of his evidence about the events outside the Club.
That the appellant had been treated violently and accepted that the injuries corroborated such violence.
That the appellant was not the victim of an unprovoked attack. This finding was based upon the trial Judge’s finding that the appellant’s evidence was unreliable.
That the appellant had provoked the violence.
That regardless of provocation, he was unable to be satisfied that the response to the appellant’s provocation constituted an assault due to the deficiency in the evidence.
It was put to the Judge by the appellant that regardless of the provocation, even if the men acting in response were doing so in self-defence, their response was excessive and amounted to assault. The Judge observed that he did not have enough facts to make any findings on this issue, and could not “apply the self defence provisions of section 15 of the Criminal Law Consolidation Act 1935 (SA) in a factual vacuum”.
The Judge concluded that the appellant’s evidence, and the evidence of Dr Radinovic and Mr Vjestica called by the respondent, was unreliable.
In the absence of sufficient evidence of the circumstances in which the injuries were inflicted upon the appellant, the Judge considered that it was not open to find the commission of the offence proved beyond reasonable doubt. The Judge could not determine the factual circumstances in which the appellant sustained his injuries and, therefore, could not determine either the issue of cause or the issue of unlawfulness.
Grounds for Appeal
Onus of proof
Section 22 of the Victims of Crime Act provides:
(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.
(2)No order for statutory compensation may be made (except by consent of the Crown) on an application unless—
(a) the commission of the offence to which the application relates—
(i)has been admitted, or proved beyond reasonable doubt, in proceedings before a court; or
(ii)has been admitted in statutory proceedings related to the offence or can be reasonably inferred from admissions made in any such proceedings; and
(b) the other facts on which the application is based have been proved on the balance of probabilities.
(3)If 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.
(4)In proceedings under this Act, the court may receive in evidence a transcript of evidence in proceedings in any other court, and may draw any conclusions of fact that it considers proper.
The appellant submitted that the section did not require proof of an offence beyond reasonable doubt. The appellant contended that the phrase “proof beyond reasonable doubt, in proceedings before a court” in section 22(2)(a)(i) did not refer to proceedings on an application for compensation under the Victims of Crime Act. The appellant said that this subsection referred only to criminal proceedings and that by implication left claims under the Victims of Crime Act, and the commission of the offence giving rise to such a claim, to be proved on the balance of probabilities.
In our view the clear intent of the section is to require proof of the commission of an offence to the standard of proof beyond reasonable doubt. In particular, the reference in section 22(2)(b) to other facts being proved on the balance of probabilities reinforces the conclusion that the commission of the offence is to be proved beyond reasonable doubt. The appellant’s submission is untenable.
Credibility and reliability
The appellant’s submission was that the trial Judge erred in failing to accept the appellant’s own evidence.
It is well-established principle that it is rarely appropriate for an appellate court to interfere with a trial judge’s findings in relation to the credibility of a witness. In Devries v Australian National Railways Commission[2] Brennan, Gaudron and McHugh JJ observed:
More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’. (footnotes omitted)
Similarly, in Rosenberg v Percival[3] McHugh J noted that:
One of the consequences of the “advantage” of seeing and hearing the witnesses is that the trial judge is in a far better position than an appellate court to know what individual weight should be assigned to the various factors - credibility, matters for and matters against - that must be evaluated in making the ultimate findings of fact in the case. Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the finding on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case. The common law tradition is an oral tradition. Trial by transcript can seldom be an adequate representation of an oral trial before a judge or an oral trial before a judge and jury.
There is nothing extraordinary or unusual about the approach of the Judge which would provide good reason for this Court to interfere with the findings of credit made by him. In this case there are no “incontrovertible facts” or “uncontested testimony” which demonstrate that the Judge has fallen into error in his assessment of the evidence.[4] To the contrary, this is an example of a case where, having concluded that none of the relevant witnesses is credible, the trier of fact is left with the conclusion that he cannot determine where the truth of the matter lies, and therefore the party who bears the onus of proof must fail.[5]
[2]    Devries v Australian National Railways Commission (1993) 177 CLR 472, 479.
[3]    Rosenberg v Percival (2001) 205 CLR 434, 586 at [41].
[4]    See Fox v Percy (2003) 214 CLR 118, 128 at [28].
[5]    R v Calides (1983) 34 SASR 355, 358-9; Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1, 21.
The Judge’s conclusion that the injuries sustained by the appellant were the product of the violence in which he became involved is not inconsistent with the conclusion that the Judge could not determine on the evidence whether or not an assault had occurred. The respondent contended that the Judge has been particular in his choice of the word “violence”. The intention, it was said, was to avoid having to differentiate between an unlawful, intentional and non-consensual assault, the lawful application of force, a reckless non-consensual assault or an accident. Accordingly, the finding that the injuries were the product of the violence cannot be considered a finding synonymous with the injuries being the product of an unlawful, intentional and non-consensual assault or a reckless, non-consensual assault. There being no capacity to find a particular assault or causal act, the Judge used the general descriptor “violence”.
The Judge’s reasoning process is clear and unambiguous. On the evidence the Judge could not determine what the particular force was that caused the injuries sustained by the appellant and could not determine the circumstances in which that force was applied. There being no independent objective evidence, the Judge was left with the evidence of the appellant, Mr Radinovic and Mr Vjestica. In each case a want of truthfulness and reliability has constrained the trial Judge in his ability to make findings of fact.
Absent the capacity to identify a particular act or series of acts that caused the injuries sustained by the appellant and to be satisfied of the same beyond reasonable doubt, the Judge could not proceed to determine whether or not the acts causative of the injuries were performed lawfully.
The drawing of inferences
The appellant complained that the trial Judge failed to draw a Jones v Dunkel[6] inference in his favour and in so doing failed to have regard to a relevant consideration in reaching his factual conclusions. In this respect the Judge, in the course of his reasons, observed:[7]
There was no explanation for Ms Sinikovic’s absence. She was plainly in the respondent’s “camp”. I must not, of course, speculate upon what she might have said and I am not prepared to draw any inference adverse to the respondent’s case on account of her absence. I should only do that if there was some ground in the evidence for my drawing an inference favourable to Puric. If I were able to do that, then the absence of the young woman might be a ground for my being more confident about drawing such an inference.[8] For the reasons which I have given, I can draw no inference favourable to Puric.
[6]    Jones v Dunkel (1958) 101 CLR 298.
[7]    Puric v State of South Australia [2008] SADC 82 at [15].
[8]    Jones v Dunkel (1958) 101 CLR 298.
It is clear from the Judge’s reasons that his approach to the question of whether to draw any inference adverse to the respondent, or favourable to the appellant, was influenced by his finding that the evidence given by the appellant, as well as that given by the respondent’s witnesses Vjestica and Radinovic, was unreliable and self-serving.
This is not a case where the evidence of the appellant was uncontradicted, and the failure of the respondent to call Ms Sinikovic would allow the court to more readily accept the appellant’s account.[9] The Judge found that the appellant did not tell the whole truth, and did not even try to do so. The respondent’s failure to call Ms Sinikovic could not make up for this fundamental defect in the appellant’s case. In Buckland[10] Street J said:
At its highest, however, the inference does not ordinarily extend beyond a negation of favourable evidence from the absent witness. Failure to call a witness will not support a positive inference that the witness would have in fact given evidence damaging to the case of the party who omitted to call him. Failure to call a witness will assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party, but it will not ordinarily provide a legitimate basis for supplying what is a clear deficiency in the case of the opposing party.
[9] See Weissensteiner v The Queen (1993) 178 CLR 217, 227-8.
[10] R v Buckland [1977] 2 NSWLR 452, 458; See also O’Donnell v Reichard [1975] VR 916, 929.
In this case drawing an inference adverse to the respondent due to the failure to call Ms Sinikovic would not advance the appellant’s case. The inference that Ms Sinikovic’s evidence would not assist the respondent, which is not the same as inferring that such evidence would be contrary to the respondent’s case, could not alter the fact that the appellant was not truthful and made no attempt to tell the whole truth. The Jones v Dunkel inference has very little work to do, if any, in cases where credibility as opposed to reliability is in issue.
Conclusion
In our view there is no substance to the grounds of appeal advanced by the appellant. The appeal should be dismissed.
KOURAKIS J: This is an appeal against the dismissal of the appellant’s claim for compensation pursuant to the Victims of Crime Act 2001 (the Act).
By his statement of claim, the appellant alleged that he was the victim of an assault committed by a person or persons unknown outside the Serbian Club in Mary Street, Hindmarsh on 31 October 2005. The trial of the appellant’s claim was conducted on the basis that he carried the onus of proving the commission of the offence with respect to which he claimed compensation beyond reasonable doubt. Only three persons who were present outside the Serbian Club on that night were called to give evidence. They were the appellant, Djuro Radinovic and Miodrag Vjestica. The last two mentioned men admitted in their evidence that they had fought with the appellant on the night in question. They testified that they fought back in self defence after the appellant attacked them. The Judge who presided over the trial found that none of the witnesses gave evidence truthfully. Indeed, he found that they did not even try to honour their oaths. The Judge described all three men as singularly unimpressive witnesses who were often reluctant to answer questions and who were evasive and argumentative.

Given those credibility findings, it is not surprising that the Judge was not satisfied that the appellant had discharged the high onus of proof which he had accepted. Notwithstanding those findings, the appellant complains on this appeal that the Judge failed to take proper account of certain admissions made by Radinovic and Vjestica of striking him, in circumstances that the appellant contends could not possibly have amounted to self defence. The appellant also complains that the Judge erred in failing to draw an inference adverse to the respondent by reason of its failure to call a relevant witness. Finally, the appellant submits that, notwithstanding his concession at trial, he did not as a matter of law carry the onus to prove the commission of the offence beyond reasonable doubt.
For the reasons that follow I have concluded that the appellant carried the criminal onus of proof. I would also hold that the Judge did not err in finding that the admissions, such as they were, did not discharge that onus, and that the failure of the respondent to call the witness was an immaterial consideration in the circumstances of this case.
The evidence
The appellant and his friend Nikolic were at the Serbian Club in Hindmarsh from about 8:00pm on 30 October 2005. The appellant did not call Nikolic as a witness, but the evidence showed that he had unsuccessfully attempted to serve a subpoena on him. The appellant drank enough alcohol on the night to be at least a little drunk by the time of the fight. His blood alcohol concentration was .101 per cent when a sample of his blood was taken at the Royal Adelaide Hospital, where he went for treatment after the fight.
The fight started just outside the Serbian Club at about 1:00am. The appellant and Nikolic were on one side. Opposing them were Radinovic, Vjestica, and possibly others. In the course of the fight the appellant’s cheekbone was fractured and he suffered some form of injury to his ribs, although it was not clear from the evidence whether any ribs were in fact broken. The appellant’s general practitioner gave evidence that a very large degree of force would have been required to fracture the appellant’s cheekbone, and that a single fall was unlikely to have caused all of his injuries.
The evidence I have summarised so far was largely common ground and was accepted by the Judge. Just about everything else about the fighting and the cause of the appellant’s injuries was much disputed.
The appellant testified that the attack on him was unprovoked. He gave evidence that his first involvement in any trouble outside the hall was when he attempted to diffuse a dispute between his friend Nikolic on the one hand and Radinovic and Vjestica on the other. He testified that when he attempted to do so, Radinovic and Vjestica abused him, and then set upon him and punched and kicked him. He claimed that they were part of a larger group of men who attacked him.
Radinovic and Vjestica, on the other hand, testified that they were waiting outside the Serbian Club for Vjestica’s girlfriend, Gorana Sinikovic, to arrive. They saw the appellant and Nikolic approach her and heard them speak very crudely to her. They remonstrated with the appellant, who abused Radinovic and then swung punches at him. Radinovic testified that two of his teeth were broken in the fight that ensued.
Even though the appellant had insisted in his evidence that there was no incident involving a young woman, the Judge found that at least that part of the evidence of Radinovic and Vjestica had the ring of truth about it. The Judge said:
I am also satisfied, and I find, that the fight began because Puric and Nikolic behaved improperly towards the young woman. That part, at least, of the evidence of Radinovic and Vjestica has the ring of truth to it. That latter finding makes one aspect of Puric’s evidence especially telling. He insisted that there was no incident involving a young woman. I am satisfied that he was being deliberately untruthful about that. His repeated denials of the incident cause me to be very wary indeed of the rest of his evidence about the events outside the Club.[11]
[11] Puric v State of South Australia [2008] SADC 82 at [14].
It is now convenient to set out those passages of the evidence in which the admissions made by Radinovic and Vjestica, on which the appellant relies, can be found. Mr Radinovic gave the following evidence:
Q:You just told me that Mr Puric approached you and swung at you.
A:Yes.
Q:When you say he ‘swung’ at you, did you do anything or say anything.
A:He came to me and hit me and I retaliated.
Q:Did you hit him back.
A:Yes.
Q:Where.
A:I don’t know.
Q:How many times did you hit him.
A:I don’t know.
Q:How many times did he hit you.
A:I don’t know.
…
A:He was addressing, he was talking to her. Then I said ‘Why are you saying that? You could be her father?’ And he said ‘What do you want? Fuck your mother’ and walked up to me attempting to hit me. I defended myself and that’s how the fight started, and that’s how the fight finished.
…
Q:Did Mr Vjestica ever fight with Mr Puric.
A:In that fight I wouldn’t know, I was trying to defend myself and not to be punched as much as was going on, just trying to protect myself, and I couldn’t observe what’s happening on the side as much as was going on.
…
A:He started towards me, he walked up to me, he swung his hand at me and swore at my mother, and he may have hit me, but when somebody swears at my mother I have to retaliate.
…
Q:I’m not asking you about somebody, or what you might do if somebody did something. I’m asking you specifically did Mr Puric push you in the chest, or did you just think that might be going to.
A:He went to hit me.
His HonourWhat Mr Mitchell has asked you is to show me what Mr Puric did when he went to hit you. What did you see. You demonstrate.
A:When somebody swears at me, at my mother, and swings the fist and wants to hit you, that’s it.
Q:I’m not criticising you, I’m not asking you to explain or say anything. I want you to show me – don’t say anything – show me by demonstrating what you say Mr Puric did.
…
Q:Particularly if they say to you ‘Fuck your mother’.
A:Normally yes, and for that I would break somebody’s neck.
…
A:He [Puric] started towards me, he walked up to me, he swung his hand at me and swore at my mother, and he may have hit me, but when somebody swears at my mother I have to retaliate.
…
Q:I suggest you hit him and knocked him to the ground.
A:I did not.
Q:And that when he was on the ground you and other men kicked him many times.
A:I don’t know, I didn’t, and I state here that I didn’t and he can say what he likes.
Q:And that he went inside to try and fix himself up, or went down the street or something, he came back shortly after that and yo got stuck into him again.
A:Did anybody see that?
Q:I’m telling you that that’s what happened. What do you say.
A:I say ‘No’.
It is to be noted that although Radinovic spoke at times of retaliation, he also insisted that he had acted in self defence and he denied kicking Puric.
Mr Vjestica gave evidence that early in the fight, when the appellant was attacking Radinovic, he had found it easy to push the appellant away. He said that he concluded from the ease with which he was able to do so that the appellant must have been drunk.
Mr Vjestica testified that at a later stage in the fight when he was attempting to help Radinovic, who was being attacked by Nikolic, he felt the appellant punching him on the back of the head. He said:
Then I felt somebody hitting me in the back of the head and I turned back and I saw Branko [the appellant] punching me … then I hit him, I think, twice, maximum of two times somewhere in the body and I remember once kicking him with my foot in here [indicates left rib cage].
In cross examination the following evidence was given by Vjestica:
Q:So you did say that you pushed Branko and found that was easy and you assumed that’s because he was drunk. Do you remember saying words to that effect.
A:That’s correct.
Q:Did you push him over.
A:Yes, because I went to help Djuro.
Q:You went to help Djuro, and so you pushed Branko down on the ground.
A:No, I just push him away from Djuro.
Q:Did he fall down on the ground.
A:I already said that I haven’t seen it, I just push him away.
Q:Did you at any time see Branko Puric on the ground, on the footpath, having been knocked over or fallen over.
A:No, I didn’t.
Q:After you pushed Branko away why did you hit Dejan Nikolic, why didn’t you just pull him off.
A:I didn’t get a chance to do that. What would you do in such situation if you were in my shoes? He’s much stronger, much bigger than myself and it was the only option what I had in such situation.
Q:So you commenced to punch Dejan Nikolic. How many times did you hit him and where.
A:Two to three times in the head.
Q:Then you say Branko came into it and started to punch you.
A:Yes.
Q:Then you punched him.
A:Yes.
Q:To defend yourself.
A:Yes, indeed.
Q:And you punched him twice.
A:Yes.
Q:And kicked him.
A:Yes, that’s correct.
Q:How come he wasn’t knocked down by two punches and one kick from you.
A:Probably I didn’t punch him very hard.
Q:Why wouldn’t you; if the man is punching you, why wouldn’t you want to punch the man.
A:Because I wasn’t in such a situation that I could hit him hard.
Q:I suggest that either you or Djuro did punch him hard and knocked him to the ground; what do you say about that.
A:No, definitely not.
Q:And when he was on the ground you and Djuro and some others kicked him.
A:I haven’t seen him lying on the ground, I already said that, and I can’t understand why you are asking me again about it.
In summary, Vjestica maintained throughout that he had acted in self defence. Although he admitted kicking the appellant, it follows from his denial that he ever saw the appellant on the ground that, on Vjestica’s evidence, the appellant must have been standing when he did so.
The standard of proof
I will deal first with the appellant’s submission that the appellant was only required to prove the commission of the offence on the balance of probabilities, and not beyond reasonable doubt as was accepted at trial. It is convenient to do so because my conclusion on that issue must necessarily affect my consideration of the other two complaints made by the appellant, namely that the Judge failed to take proper account of the admissions made by Radinovic and Vjestica, and that he failed to draw an adverse inference from the respondent’s failure to call the young woman, Ms Sinikovic, as a witness.
Section 22 of the Act provides:
(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.
(2)No order for statutory compensation may be made (except by consent of the Crown) on an application unless—
(a) the commission of the offence to which the application relates—
(i)has been admitted, or proved beyond reasonable doubt, in proceedings before a court; or
(ii)has been admitted in statutory proceedings related to the offence or can be reasonably inferred from admissions made in any such proceedings; and
(b) the other facts on which the application is based have been proved on the balance of probabilities.
(3)If 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.
(4)In proceedings under this Act, the court may receive in evidence a transcript of evidence in proceedings in any other court, and may draw any conclusions of fact that it considers proper.
The following matters can be observed on the face of the section and from its statutory context. First, even though s 22(1) of the Act imposes a civil onus on a claimant to prove the facts which give rise to an entitlement to compensation pursuant to ss 17-21 of the Act, including the commission of an offence, that subsection is subject to the remainder of s 22 and the Act as a whole. Section 22(2)(b) expressly recognises that s 22(2)(a) qualifies the operation of s 22(1).
Secondly, s 22(2) of the Act operates as a pre-condition to the exercise of the power to award compensation, irrespective of proof of an entitlement on the balance of probabilities in accordance with s 22(1). It follows that even if an applicant were to prove the commission of an offence on the balance of probabilities in compliance with s 22(1) of the Act, the Court is powerless to award compensation unless the offence is proved on the criminal onus or is admitted in judicial or statutory proceedings pursuant to s 22(2) of the Act.
Thirdly, it is the commission of an offence that must be proved beyond reasonable doubt or admitted. It is not sufficient that some incriminatory conduct falling short of the commission of the offence is proved or admitted.
Fourthly, the words in parenthesis in s 22(2) of the Act show that an order can be made with the consent of the Crown and without a hearing. However, by necessary implication, the pre-conditions to the making of an order must be satisfied in all other cases.
Fifthly, where the applicant shows that the offence has been proved beyond reasonable doubt in criminal proceedings, or admitted in judicial or statutory proceedings, the better view is that the applicant need not prove the commission of the offence at all. That would seem to follow from the words “the other facts on which the application is based have been proved on the balance of probabilities” in s 22(2)(b) of the Act. Those words suggest that where the claimant shows that the offender has been convicted or has acknowledged his guilt in other proceedings, the commission of the offence need not be proved again by evidence in the claim for compensation made under the Act.
Sixthly, the phrase “proceedings before a court” in s 22(2)(a)(i) must include the court in which the claim for compensation under the Act is made. If that were not so, a claimant could never receive an award for compensation with respect to an offence which had not been prosecuted successfully to a conviction in a criminal court, even if he or she proved its commission beyond reasonable doubt in the compensation proceedings. That could not have been the intention of the Parliament given the existence of s 22(3) of the Act; the requirement for corroboration in that subsection can only sensibly apply to the hearing of a claim for compensation where there is no relevant conviction. It follows that “proceedings before a court” in subs 22(2)(a)(i) of the Act must include proceedings brought under the Act.
Seventhly, the phrase “has been admitted in statutory proceedings” suggests something in the nature of a formal admission. That phrase is inapt to refer to admissions in evidence. Admissions made in evidence are dealt with by s 22(4) of the Act. Moreover, a witness who admits the incriminatory conduct in the proceedings for compensation may not be a party to those proceedings. Indeed, that was the case here. In those circumstances it would be a very strained construction of the phrase to say of such a witness that he or she had “admitted the commission of an offence in statutory proceedings”.
Finally, the phrase “statutory proceedings” used in subs 22(2)(a)(ii) is inapt to refer to proceedings under the Act for compensation. The phrase “statutory proceedings” most likely refers to proceedings before disciplinary authorities and other tribunals. It is also likely to be a reference to the caution procedure in s 8 of the Young Offenders Act 1993 or the Family Conference Procedure in ss 11 and 12 of the Young Offenders Act 1993. If “statutory proceedings” is so construed, the purpose of the phrase “reasonably inferred” from admissions made in such proceedings can be readily seen. Complaints made in disciplinary tribunals may not always allege misconduct in a way that strictly conforms with the elements of an offence. Similarly, the conduct of a youth when cautioned may provide a sufficient basis from which to infer guilt.
It is now convenient to deal more directly with the appellant’s submissions that s 22 of the Act imposes no more than the civil onus on a claimant for compensation.
The appellant contends that the phrase “proved beyond reasonable doubt, in proceedings before a court” in s 22(2)(a)(i) of the Act does not refer to proceedings on an application for compensation under the Act. The appellant submits that the reference to proof beyond reasonable doubt in that sub-paragraph refers to criminal proceedings only, leaving claims under the Act, and the commission of the offence giving rise to the claim, to be proved on the balance of probabilities. That submission must be rejected because it is directly inconsistent with the second feature of s 22 of the Act noted in para [45] above.
I add the following remarks by way of elaboration. It is impossible on the face of the plain words of s 22(2)(a) of the Act to see how a court could make an award of compensation under the Act where the offender is unknown, unless the word “proceedings” included proceedings brought under the Act. If the appellant is right about the construction of subs 22(2)(a)(i), the victim of an offence committed by an unknown offender could only be compensated with the consent of the Crown, because neither judicial nor statutory proceedings can be brought against an unknown offender. There is plainly no basis in the text or structure of the Act, which is very obviously intended to be beneficial legislation, to read down the phrase “proceedings in a court” in a way that would deny compensation to the victims of unknown offenders.
The legislative history of the Act, like its text and structure, is also inconsistent with the appellants’ submission that under the Act a victim of crime need only prove its commission on the balance of probabilities. The Criminal Injuries Compensation Act 1978 provided that a victim of an offence may, within 12 months of the day on which the offence was committed, apply to the appropriate court for an order for compensation in respect of the injury suffered. The appropriate court was the court in which the offender was tried, and if no offender had been brought to trial, the District Criminal Court. Section 8 of the Criminal Injuries Compensation Act 1978 provided:
(1)Any fact to be proved by a claimant in proceedings under this Act shall be sufficient to be proved if it is proved on the balance of probabilities.
(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 there from that it considers proper.
Section 8 was amended by the Criminal Injuries Compensation Act Amendment Act 1982. That Act inserted the words “subject to this section” at the commencement of the existing s 8(1), and added two further sub-sections to s 8, namely subs (1a) and (1b), as follows:
(1a)No order for compensation shall be made in proceedings under this Act (except by consent) unless the commission of an offence and a causal connection between the commission of the offence and the injury in respect of which compensation is sought, are established beyond reasonable doubt.
(1b)Where an order for compensation is sought in respect of an offence and no person has been brought to trial charged with the commission of the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, shall not be sufficient to establish the commission of the offence.

Difficulties had arisen under those provisions as to the proof of the commission of an offence where an offender had been convicted. The position of victims was ameliorated in Beaumont v South Australia,[12] where it was held that although a certificate of conviction was not admissible to prove an offence in compensation proceedings, it was an abuse of process for a defendant to contest proceedings where he had earlier been convicted on a criminal trial. That conclusion still left open the question whether the applicant was nonetheless required to lead evidence of the offence, even though the offender could not then contest that evidence. The converse situation was considered in Bartsch v McIlroy.[13] Mohr J held that an acquittal in a court of summary jurisdiction bound, by way of estoppel, the applicant for criminal compensation where he was also the complainant in those proceedings. That conclusion was open to some doubt because of the different onus which then applied in compensation proceedings. Difficulties of this nature would appear to be the mischief to which s 22 generally, and s 22(2)(a)(ii) in particular, were directed. That mischief is a further reason to construe s 22(2) of the Act, in the way suggested by the fifth observation I made in para [48], as relieving a claimant from having to prove the commission of an offence over again by direct evidence where there is a conviction for, or formal admission of, the offence on the record of judicial or statutory proceedings.
[12] (1990) 156 LSJS 479.
[13] (1980) 24 SASR 506.
In introducing the Victims of Crime Act 2001, the Attorney-General referred to three reports that he had received, each entitled “Review on Victims of Crime”. The third report discussed in some detail the policy considerations affecting the choice of the standard of proof in criminal injury compensation cases. It noted that the 1978 Act provided that any fact had to be proved by the victim on the balance of probability, but that the amendment made in 1982 required victims to prove the commission of the offence and the injury that it caused beyond reasonable doubt. The report noted that South Australia was the only jurisdiction to require proof beyond reasonable doubt. It then summarised the competing policy considerations. The report recommended that the criminal standard of proof should be retained and that information on the operation of the Act be more widely distributed.
The report concluded:
To ensure victims are generally treated the same, the standard of proof in cases where the offender is unknown or has not been prosecuted should remain beyond reasonable doubt. This would ensure that these victims are subject to the same burden as those who are faced the prospect of having their evidence challenged in Court. As mentioned, in both South Australia and the Australian Capital Territory the higher standard deals with dubious claims.
It can be seen that replacing the criminal onus with the lower civil standard would have been a substantial policy change, and one made against the recommendation of the very report to which the Attorney-General referred. The absence of any reference to such a momentous change of policy in the second reading speech tells strongly against the appellant’s construction of the section.
Admitted in statutory proceedings
It is now convenient to deal with the appellant’s submissions on the construction of the phrase “admitted in statutory proceedings”. As I have already observed, ordinarily the appellant’s construction of s 22(2)(a)(i) would mean that no victim could be compensated, even if the offender is known, where, as is the case with the appellant, no one has been prosecuted to a conviction for the offence which has caused the injury. However, in his case, the appellant claims that the testimonial admissions, made in the compensation proceedings themselves by Radinovic and Vjestica, bring him within the terms of s 22(2)(a)(ii) thereby empowering the Court to make an award, even in the absence of a finding that the offence was proved beyond reasonable doubt.
If the appellant’s construction were to be accepted, it would give s 22 of the Act a paradoxical operation that is far too absurd to accept. It would mean that a claimant could bring proceedings under the Act, on which the Court is powerless to make an award because no offence has been proved beyond reasonable doubt in a criminal court, or in any other proceedings falling within s 22(2)(a)(i) of the Act, in the hope that although the claimant could not rely on that provision to enliven the power of the Court to make an award, the respondent may be so unwise as to call a witness who will, in the course of his or her evidence, make admissions that will fall within s 22(2)(a)(ii) of the Act.
Fortunately, on a proper construction of s 22 of the Act, that absurd result is avoided. The essential reasons for that construction are given in the seventh and eighth observations made in paras [50] and [51] above. I need only explain in a little more detail the incoherence between sub-paragraphs (i) and (ii) of s 22(2)(a) of the Act that the appellant’s construction of the phrase “has been admitted in statutory proceedings” would cause. For the reasons I have given, the condition for the exercise of the power to award compensation imposed by s 22(2)(a)(i) of the Act is that the offence is admitted or proved beyond reasonable doubt in judicial proceedings. However, on the construction urged by the appellant, s 22(2)(a)(ii) of the Act allows the Court to award compensation where there is merely a testimonial admission to incriminatory conduct from which the commission of the offence could be “reasonably inferred”. If, as I have held, s 22(2)(a)(i) provides that the power of the Court to make an award can be enlivened by proving the commission of the offence beyond reasonable doubt in the compensation proceedings, it would be anomalous to construe sub-paragraph (ii) in a way that allowed the power to be enlivened by no more than a testimonial admission in those proceedings, that may well be found to be unreliable or fall short of a confession of the offence itself.
There is a world of difference between proving the commission of an offence beyond reasonable doubt and adducing evidence that merely supports a reasonable inference that the offence was committed. I can discern no rational reason why Parliament would make proof of the commission of the offence on the balance of probabilities a sufficient condition to enliven the power to award compensation where the evidential foundation includes an admission of fact, however slight the weight of that admission might be, and yet require proof beyond reasonable doubt where no such admission is made. If the phrase “admitted in statutory proceedings” extended to an admission of fact made in evidence rather than a formal admission of liability, quite anomalous results would follow.
The anomaly can be simply illustrated. Consider two cases, in both of which the commission of an offence is established on the balance of probabilities. Let the evidence offered in one of those cases include evidence of an incriminating admission and assume that there is no such evidence in the other. The evidence in the latter may be nonetheless much stronger than in the former, but still just fail to prove the crime beyond reasonable doubt. It would be absurd to construe s 22(2) of the Act in a way that would result in an award of compensation in the former, weaker, case but not the latter.
On the other hand, if “admitted the commission of the offence” means an admission of liability in the sense of a formal acknowledgement that the offence was committed, s 22(2)(a) would operate in both a rational and practical way. Its purpose is to avoid the legitimate sense of grievance and appearance of injustice that would result if an offender or the Crown were allowed to take a position in proceedings under the Act which was inconsistent with the result, on the public record, in other statutory proceedings. For that reason, I would also construe the words “the other facts” in subs 22(2)(b) of the Act to mean that where, in a compensation claim under the Act, the claimant shows that the offence itself has been formally admitted in other judicial or statutory proceedings, the claimant need only prove the facts other than the commission of the offence on the balance of probabilities in accordance with s 22(1) of the Act.
For the above reasons, I would hold that the appellant was subject to a burden of proving the offence beyond reasonable doubt. The Judge made no error in holding the appellant to that requirement, and the appellant’s complaint on that ground must be dismissed.
Insufficiency of the admissions
The appellant submits that the Judge failed to properly consider the admissions made by Radinovic and Vjestica of striking the appellant. He argues that those admissions, in the circumstances of this case, were enough to prove the offence beyond reasonable doubt.
However, the Judge’s reasons show that he was not satisfied beyond reasonable doubt of the commission of the offence alleged by the appellant, because he was not prepared to act on the testimony of the very unsatisfactory witnesses he had heard.
The appeal to this Court is by way of re-hearing, and it has been conducted in this case on the papers. The appeal can only be allowed and judgment entered for the appellant if the Court can be satisfied beyond reasonable doubt that the offences of which the appellant complains were committed. Plainly, the testimony of the appellant alone cannot so satisfy the Court in the light of the Judge’s findings.
It can be accepted that the appellant was struck at least to the extent of the punches and kick admitted by Radinovic and Vjestica. However, the issue on which the appellant failed before the Judge was whether the force used against him was justified by self defence or defence of another. The medical evidence that a very large degree of force would have been required to fracture the appellant’s cheekbone cannot, of itself, establish that the force used was excessive or disproportionate. The Judge was right to find that the injuries in this case were not, standing alone, capable of negating self defence.
Radinovic maintained that he only punched the appellant in self defence. Even though there is room to doubt that he was motivated by that alone, if the appellant had insulted his mother as he claimed, no amount of incredulity can turn Radinovic’s claim into proof beyond reasonable doubt of its opposite.[14] Radinovic’s evidence that he would cause serious harm to any person who insulted his mother does not necessarily lead to the conclusion that he attacked the appellant for that reason. At the very least, it was open to the Judge to find that Radinovic’s own evidence did not prove an unjustified assault beyond reasonable doubt.
[14] Edmunds v Edmunds [1935] VLR 177 at 186.
Vjestica was, on his account, helping his friend Radinovic fend off an attack from Nikolic, who was described as a large and strong man. Accepting, as I think this Court must, the Judge’s findings about the unsatisfactory nature of the testimony of all three men, it is impossible to find beyond reasonable doubt that Vjestica’s response was excessive in the context of a fight between a group of large, aggressive, drunken men. That is the case even taking into account Vjestica’s boast that he had, a little earlier, been able to push Puric to one side quite easily and that Puric appeared to be drunk. Drunken men are responsible for many cases of serious injury that come before this Court. Vjestica may have decided to make quite certain that Puric did not quickly rejoin the fray, but it is impossible to be satisfied that it was unreasonable or disproportionate to do so in all of the circumstances.
Having regard to the credit finding made by the Judge, and in the circumstances of the melee that took place outside the hall, I am not persuaded that the testimonial admissions made by Radinovic and Vjestica, such as they are, are capable of proving beyond reasonable doubt that the force used against the appellant was excessive. The appellant has not shown that the Judge erred, in fact, on this ground.
Failure to draw inference
The appellant complains that the Judge erred in failing to draw an adverse inference against the respondent on account of the failure to call Ms Sinikovic. The Judge said:
There was no explanation for Ms Sinikovic’s absence. She was plainly in the respondent’s “camp”. I must not, of course, speculate upon what she might have said and I am not prepared to draw any inference adverse to the respondent’s case on account of her absence. I should only do that if there was some ground in the evidence for my drawing an inference available to Puric. If I were able to do that, then the absence of the young woman might be a ground for my being more confident about drawing such an inference. For the reasons which I have given I can draw no inference favourable to Puric.[15]
[15] Puric v State of South Australia [2008] SADC 82 at [15].
In my view the Judge’s approach to the failure to call Ms Sinikovic is completely orthodox.
The failure to call a witness will not support a positive inference that the witness would have given evidence damaging to the party who omitted to call him or her, and make up for a deficiency in the case of the opposing party.[16] For that reason, to speak of an adverse inference is apt to mislead. The failure to call a witness does not support an inference of guilt in the way that circumstantial evidence does. It cannot be maintained that as a matter of human experience a failure of a party to call a material witness in his or her “camp” makes it more probable that the allegations made against that party are true. The failure to call a witness is not a species of circumstantial evidence; it is an absence of evidence. The only effect of an unexplained failure to call a witness in the party’s “camp” is to “assist materially in determining what findings or inferences might fairly be made or drawn from the evidence of the opposing party”.[17] Doubts about the reliability of witnesses, or the inferences that can be drawn safely from the evidence, may be more readily discounted in the absence of evidence from a party who might be expected to give or call it.[18]
[16] R v Buckland [1977] 2 NSWLR 452 at 458 per Street CJ.
[17] R v Buckland [1977] 2 NSWLR 452 at 458 per Street CJ.
[18] Weissensteiner v The Queen (1993) 178 CLR 217 at 227-8 per Mason CJ, Deane and Dawson JJ.
As the Judge correctly observed, the evidence of the appellant was so unsatisfactory that the Judge was left with no material evidence in the appellant’s favour. The respondent’s failure to call a material witness was inconsequential, because the evidence called by the appellant was not capable of proving the commission of an offence beyond reasonable doubt.[19] Puric’s evidence was incapable of doing so because he was not believed. The case based on the “admissions” made by Radinovic and Vjestica was too weak to satisfy the onus for the reasons I have given. Where a party’s case is so weak or equivocal that to act on it is fraught with the risk of miscarriage, the failure of the opposing party to call a witness or any evidence at all does not in any material way make it safer to act on the unsatisfactory evidence that has been tendered.
[19] Evans v Sparrow (1973) 6 SASR 519.
In Dyers v The Queen[20] the High Court considered the significance of a failure to call evidence in the context of a criminal prosecution. Gaudron and Hayne JJ held that the trial Judge in that case had erred in giving the jury a Jones v Dunkel direction for three principal reasons. The first was:
As was pointed out in RPS, it will seldom, if ever, be reasonable to conclude that an accused in a criminal trial would be expected to give evidence. Not only is the accused not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The mode of reasoning which is spoken of in R v Burdett and Jones v Dunkel ordinarily, therefore, cannot be applied to a defendant in a criminal trial. That mode of reasoning depends upon a premise that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so. The conclusion that an accused could shed light on the subject matter of the charge is a conclusion that would ordinarily be reached very easily. But given the accusatorial nature of a criminal trial, it cannot be said that, in such a proceeding, the accused would ordinarily be expected to give evidence. So to hold would be to deny that it is for the prosecution to prove its case beyond reasonable doubt. That is why the majority of the Court concluded, in RPS and in Azzopardi, that it is ordinarily inappropriate to tell the jury that some inference can be drawn from the fact that the accused has not given evidence. To the extent to which earlier decisions of intermediate courts held to the contrary they were overruled.
The reasoning which underpinned the decisions in RPS and in Azzopardi cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.[21] (original emphasis, footnotes omitted)
[20] (2002) 210 CLR 285.
[21] Dyers v The Queen (2002) 210 CLR 285 at 292, [9]-[10].
In my view the reasoning in the above passage proceeds from the nature of the criminal onus of proof. I acknowledge that the second principal reason given by Gaudron and Hayne JJ for holding that a Jones v Dunkel direction should not have been given[22] is related to the prosecutorial obligation to call all material witnesses, an obligation that the plaintiff in an application for criminal injuries compensation does not have. Nonetheless, that additional reason does not detract from first principal reason, which, in my view, is a logical consequence of the onerous nature of the criminal burden of proof.
[22] Dyers v The Queen (2002) 210 CLR 285 at 292-3, [11] per Gaudron and Hayne JJ.
In these proceedings the appellant carried that onus. In my view, the onus carried by the appellant was so high that there was very little scope for the failure to call Ms Sinikovic to influence the result.[23] Given the credibility findings made by the Judge, the failure to call Ms Sinikovic was immaterial.
[23] Dyers v The Queen (2002) 210 CLR 285 at 298, [27] per McHugh J.
The appellant has not made out an error of law or fact in the way in which the Judge considered the failure to call Ms Sinikovic.
Conclusion
I am left in no doubt that where an offender has not been convicted of the offence on which proceedings under the Act are brought, the power of the Court to make an award is enlivened if the claimant proves the commission of the offence beyond reasonable doubt in the compensation proceedings. A testimonial admission made by a witness in the compensation proceedings, from which the commission of the offence can be inferred, is not sufficient. I would also hold that the word “proceedings” in s 22(2)(a)(ii) does not include proceedings brought under the Act. Without attempting to definitely list the matters to which the sub-paragraph refers, it appears to include proceedings which are administrative in character, like disciplinary proceedings brought against members of professions which are regulated by statute and the proceedings relating to young offenders to which I have referred.
Further, I do not consider that the admissions made during evidence by the two witnesses for the respondent were enough to prove the offence in this case beyond reasonable doubt, nor do I think that the Judge erred in failing to draw an inference adverse to the respondent on the basis of its failure to call Ms Sinikovic as a witness.

I would therefore dismiss the appeal.