Richards, Sansbury, Wanganeen v State of Sa

[1997] SADC 3577

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour the Chief Judge

Hearing

05/03/97.

Catchwords

COMPENSATION FOR INJURIES Plaintiff in each action claims compensation pursuant to Criminal Injuries Compensation Act 1978 from the first defendant - three claims arise out of the same incident - incident occurred at the rear of premises of the second defendant and his wife - group of seven men, including the plaintiffs, intruded into the backyard of the second defendant's home with a view to stealing cannabis plants being grown - on becoming aware of intruders, a verbal exchange took place between the second defendant, his wife and the intruders - the second defendant then produced a rifle and fired a shot in the air and in the general direction of the fleeing intruders - bullet struck one Wilson who subsequently died. First defendant conceded that each of the plaintiffs suffered "mental shock" and consequential psychological injury - whether compensation should be refused entirely or reduced in quantum having regard to the provisions of sub-section 7(9) of the Act - questions of public policy arise as to whether a person who suffers injury as a consequence, at least in part, of his own unlawful actions, should receive compensation from the public purse for that injury. To deny compensation altogether in the circumstances would be unjust - plaintiffs must accept a high degree of culpability for their injuries - plaintiffs to recover 40% of the amount of compensation assessed by consent.

Materials Considered

• Criminal Injuries Compenation Act 1978 ss7(8) and 7(9), referred to.
• South Australia v Nguyen &; Anor (1991) 57 SASR 252;
• Wundersitz v South Australia (1988) 143 LSJS 258;
• Chester v The State of South Australia (Judge Lunn, 12 December 1996, D3501, unreported), applied.

Representation

Plaintiff ANTHONY TROY RICHARDS:
Counsel: MR S W TILMOUTH QC - Solicitors: ABORIGINAL LEGAL RIGHTS MOVEMENT INC

Plaintiff DOUGLAS WAYNE SANSBURY:
Counsel: MR S W TILMOUTH QC - Solicitors: ABORIGINAL LEGAL RIGHTS MOVEMENT INC

Plaintiff CLIFFORD JAMES WANGANEEN:
Counsel: MR S W TILMOUTH QC - Solicitors: CROWN SOLICITOR

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MR J TELFER - Solicitors: CROWN SOLICITOR

Defendant MILAN TOMAC:
No Attendance

CICD-96-109, CICD-96-122, CICD-96-334

Judgment No. D3577

17 March 1997

(Criminal Injuries Compensation Division)

RICHARDS v STATE OF SA & TOMAC

SANSBURY v STATE OF SA & TOMAC

WANGANEEN v STATE OF SA & TOMAC

Criminal Injuries Compensation

The Chief Judge

In each of these three actions, the plaintiff claims from the first defendant compensation pursuant to the provisions of the Criminal Injuries CompensationAct 1978.I shall refer to that Act simply as "the Act."

The three claims arise out of the same incident.With the consent of all parties, they were heard together upon the basis that all of the evidence tendered should be received in each case.

The incident which gives rise to the claims occurred on 18 March, 1995 at the rear of premises situated at 4 Down Court, Para Hills.At that time, those premises were the home of the second defendant and his wife.

During the course of the incident, a man named Anthony Mark Wilson received injuries from which he died.Wilson was a close friend of the plaintiffs, each of whom was in the close vicinity at the time when Wilson was wounded and remained in the vicinity until Wilson was taken from the scene by ambulance.

The second defendant was charged with murder as a result of the incident and of Wilson's death.The second defendant was not convicted of that crime, but he was convicted of the lesser offence of manslaughter.By consent, the transcript of the evidence taken at the criminal trial was tendered as evidence at the joint hearing of these actions.There was little, if any, dispute between the plaintiffs and the first defendant on factual matters.The second defendant, whilst served, did not appear at any pre-trial hearing or at the trial itself.

The evidence shows, and I find, that the three plaintiffs, Wilson and a man named Young, attended a football match during the afternoon of 18 March, 1995. During the course of the afternoon, the group were drinking beer whilst watching the football.Later in the afternoon, conversation in the group turned to the subject of cannabis.The plaintiff Wanganeen and the plaintiff Sansbury had been shown previously two houses in the north-eastern suburbs at which cannabis plants were growing.The question was asked at the football as to whether the plants were still growing.Late in the afternoon, the five men whose names I have mentioned decided to drive to one of the houses, a house at Ingle Farm, to see whether the plants were still growing, and if so, whether they might be able to steal the plants.After leaving the football match, the group first visited the plaintiff Sansbury's house briefly and then drove to the house at Ingle Farm.They found that the cannabis plants at that house were still growing.On making that discovery, they all entered the premises and began helping themselves to the plants.Whilst they were doing so, a male occupant came to the back door of the house and challenged the group.The plaintiff, Wanganeen, picked up a crow-bar that was close at hand and banged the bar against the back door of the house so that the man on the other side of the door would be frightened and stay inside the house.At least one of the intruders threw some pieces of brick and some stones at the door whilst the remaining members of the group made good their escape.

The group went back to the plaintiff Sansbury's house.Whilst they were there they were joined by two other men, Newchurch and Agius.There was discussion about the fact that the stolen cannabis did not seem sufficient to meet the demands of the enlarged group.The plaintiff Sansbury spoke of the cannabis that was known to have been growing in the back yard of the second defendant's house at Para Hills.It was then decided that the group, now comprising seven men, should go to Para Hills with a view to stealing cannabis from the second defendant's home. All of the members of the group squeezed into the plaintiff Sansbury's vehicle, which was then driven by the plaintiff Wanganeen to a laneway at the rear of the second defendant's home.The plaintiff Wanganeen parked the vehicle whilst the other members of the party advanced towards the back fence of the house.He joined them outside the back fence shortly afterwards.

The plaintiffs Sansbury and Richards together with Agius and Newchurch then climbed the fence and descended on the other side.Shortly afterwards they gained access to an enclosed area in the second defendant's back yard in which a number of cannabis plants were growing.The plaintiff Sansbury climbed to the roof of a shed and tried from that position to pull up the growing cannabis plants.

The second defendant and his wife became aware of the fact that there were intruders in their back yard.Mrs Tomac was the first to come out of the house.After coming through the back door she called out asking the intruders what they were doing.One of them replied to the effect that "We have come for your dope.If you don't give it to us, we'll call the cops."

Following this exchange, the second defendant came outside.After he had enquired what was going on, he was given a similar answer.He responded to the effect of "I'll show you."The second defendant then went into a nearby shed and emerged very shortly afterwards carrying a rifle.

The plaintiff Sansbury saw the rifle and noted that the second defendant was pointing it in his direction.Sansbury shouted to the other intruders that the second defendant had a gun.On hearing this, all of the trespassers, including Sansbury, made their way to and over the boundary fence as quickly as they could.The second defendant fired a shot from the rifle.He was later to say to the police, and in evidence at his trial, that he had fired at the ground. There was, however, an independent witness to what was taking place.The witness was a female occupant of an adjoining house.She was adamant in her evidence at the criminal trial that the second defendant had aimed the rifle from the shoulder with its muzzle pointing upwards.It is apparent, from the verdict of the jury, that the jury accepted her evidence as reliable.The trial judge's sentencing remarks indicate that he had also been satisfied that the second defendant had not fired at the ground.It was not suggested that I should make any different finding and, accordingly, I too find that the second defendant fired in the air and in the general direction of the fleeing intruders.

The plaintiff Sansbury stated that he had heard the sound of the bullet passing close to him as he climbed over the fence.The bullet did not strike Sansbury, but it did strike Wilson who was seeking to take shelter on the far side of the fence from where the second defendant was standing.

At first, the members of the group scattered in search of protection in case further shots were fired.It soon became apparent, however, that Wilson had been hit.Members of the group gathered around him whilst others ran to a nearby house to ask that an ambulance be called.It was clear that Wilson had suffered serious injury.

It is conceded by the first defendant that each of the plaintiffs suffered "mental shock" and consequential psychological injury.Indeed, it is agreed between the parties that, subject to the matters to be discussed shortly, each plaintiff would be entitled to recover the sum of $7,000 for compensation. That figure has been agreed after taking into account the rules contained in sub-section 7(8) of the Act.

Having regard to the matters agreed between the parties, the only question to be decided in each of these cases is whether compensation should be refused entirely or reduced in quantum having regard to the provisions of sub-section 7(9) of the Act.The amended defence filed in each of the actions raises the issues in the following terms:-

"1. The conduct of the plaintiff, namely his involvement in an attempt to steal marijuana plants from the second defendant contributed, directly or indirectly, to the commission of the offence and to the injury suffered by him.

2. The conduct of the plaintiff in attempting to steal involved him in a course of conduct which either directly or indirectly, led to the commission of the offence and to the injury suffered by him.

3. Further or in the alternative, that the plaintiff with the full knowledge of the risk of injury or damage to himself by his conduct voluntarily consented to accept such risk and injury.

4. That the behaviour of the plaintiff in knowingly becoming involved in criminal activity was such that the circumstances of his behaviour should exclude from him from any claim for compensation."

At all times material to this case, sub-section 7(9) has read, and still reads, as follows:-

"7(9) In determining an application for, and the quantum of, compensation, the court must have regard to -

(a) any conduct on the part of the victim (whether or not forming part of the circumstances immediately surrounding the offence or injury) that contributed, directly or indirectly, to the commission of the offence, or to the injury to the victim;and

(b) such other circumstances as it considers relevant."

Those provisions and their predecessors, which omitted the words in parentheses, have received the attention of the courts on a number of occasions.Mr Tilmouth QC quite properly conceded on behalf of the plaintiffs that their conduct did form part of the circumstances immediately surrounding the commission of the offence by the second defendant.He conceded, therefore, that the circumstances of these cases brought them within the purview of placitum (a) of the sub-section.It is apparent from the decided cases that the circumstances are such as to bring them also within the purview of placitum (b).

Mr Tilmouth argued that a balance must be struck between the unlawful acts of the plaintiffs on the one hand and those of the second defendant on the other. He contended that the offending of the plaintiffs was relatively minor whilst that of the second defendant was far more serious.In that regard, he contended that it is important that the plaintiffs had taken fright and were running away at the time when the second defendant fired the gun.He urged the view that the misconduct of the plaintiffs had run its course by the time that the second defendant committed his unlawful act.He urged the view that, in those circumstances, compensation for the plaintiffs should neither be denied nor reduced.

Counsel for the first defendant argued that the plaintiffs' conduct was of such a nature that a confrontation was to be expected.He argued that, for the group to proceed with their plans, was to invite trouble, especially having regard to the size of the group.He urged the court to take the view that the plaintiffs' actions had been totally unacceptable and that compensation should be refused on the grounds of public policy.In the alternative, he argued for a substantial reduction in the compensation that would otherwise be awarded.

Both counsel referred me to the decision of the Full Court in South Australia v Nguyen & Anor (1991) 57 SASR 252.That case turned upon the proper interpretation of placitum (b) of sub-section 7(9) of the Act.Placitum (a) had not then been amended.The facts of the case were unusual.A group of men of Vietnamese origin had gathered at Nguyen's home.All of the members of the group were drinking beer and some smoked cannabis.Many, including Nguyen, were affected by the substances that they had ingested.An argument developed between Nguyen and other members of the group.Nguyen became increasingly angry and, finally, obtained a long knife from an adjoining room.He returned and pointed the knife in the direction of the members of the group and demanded that they should leave the house.At this, one of the members of the group, a man named Tran, produced a knife from his pocket, unsheathed the blade of it and attacked Nguyen.Tran was also quite inebriated.He managed, however, to inflict quite serious injury upon Nguyen.

Tran was subsequently prosecuted and found guilty of wounding Nguyen with intent to do him grievous bodily harm.Some sixteen months later, and a few weeks after Tran had been released from prison, Nguyen shot Tran with a point .22 calibre rifle and injured him.It was accepted that Nguyen believed that Tran was still a threat to him.

Nguyen sought compensation for his injuries pursuant to the provisions of the Act.After assessing the amount that would otherwise be payable, the learned trial judge reduced that amount by 40% to take into account Nguyen's provocative behaviour immediately prior to Tran's attack.The trial judge declined to take into account the subsequent attack by Nguyen on Tran.

In considering the State's appeal, the members of the Full Court approved my reasoning in Wundersitz v South Australia (1988) 143 LSJS 258.In that case, I had said, at p262:-

"I respectfully agree with the learned judge [who decided Faehrmann v The State of South Australia, delivered 22 February 1985, unreported] that sub-section 7(9) will, in appropriate cases, enable questions of public policy to be considered by the court.Of course, the circumstances to be considered must be 'relevant' to the issue of determining either the entitlement to or the quantum of compensation.Having given careful consideration to the circumstances that I have before me in the present case, I have come to the conclusion that there is not a sufficient nexus between the applicants' disrespect for the law with regard to the possession and use of illicit drugs on the one hand and the assaults committed upon them on the other hand for it to be said that the circumstance of their being heroin users is relevant to the determination of their applications for compensation.It seems to me that to deny the applicants the right to compensation in the present circumstances would be to deny them, as drug users, the right to compensation under the Act in all circumstances.I see no justification for taking that course in the words of the particular sub-section or in the frame-work of the Act as a whole. Likewise, I see no justification in the present circumstances for reducing the amount of compensation to be awarded to them."

The majority in South Australia v Nguyen (supra) said (at pp266-7):-

"... The essential scheme of the statute is to create what is prima facie an entitlement to compensation, subject only to satisfaction of certain prerequisite jurisdictional requirements.However, it remains open to the court to moderate that entitlement in circumstances in which it is considered, as a proper exercise of judicial discretion, that certain factors of the type identified in s7(9) arise for appropriate consideration.Where those factors arise the court must have due regard to them.In an extreme case they may be of such weight as to warrant a total denial of compensation."

They also said (at pp269-270):-

"Whilst there is no doubt that subs(9)(b) clearly contemplates a sphere of consideration wider than that specifically identified in subpar (a) it must, nonetheless, take its flavour from the section as a whole.Like the learned trial judge, I am of the view that the sub-section does not contemplate the taking into account of considerations which are so removed in point of time or relationship to the injury sustained by a victim that, logically, they can have no bearing upon it or the award of compensation in relation to it."

In the result, the majority found that Nguyen's subsequent attack on Tran should not be taken into account.They did, however, increase the amount by which Nguyen's assessed damages were to be reduced from 40% to 50%.

Matheson J, in the minority, would have refused Nguyen compensation on the basis that "public policy considerations clearly, in my view, stand in the way of condoning such a serious disregard for the law.In my view, Nguyen's disregard of the law had a sufficient nexus with the wounding of him by Tran." (see p262).

Clearly, questions of public policy do arise as to whether a person who suffers injury as a consequence, at least in part, of his own unlawful actions, should receive compensation from the public purse for that injury.Nguyen's conduct prior to Tran's attack was no doubt threatening and unlawful.On the other hand, Tran's response was extremely serious.The majority in the Full Court determined that Nguyen should not be denied compensation altogether.

In Chester v The State of South Australia (Judge Lunn, 12 December 1996, D3501, unreported) the learned judge considered the issues of public policy. In that case, Chester entered the grounds of premises in the evening and was looking at cars parked on the property with a view to seeing what he might be able to steal from them.Whilst he was so engaged, he was confronted by three men, one of whom was carrying an iron bar.Chester was pushed to the ground and struck with the iron bar.He was then pinned to the ground until such time as the police could be summoned.In that case, the learned judge said, at p7 of the judgment:-

"It is a question of public policy:Wundersitz v State of SA (1988) 143 LSJS
258.There is little authority on the point.The respective degrees of criminality of the plaintiff and the offender are relevant.Here the plaintiff was committing a minor summary offence whereas a serious indictable offence was committed against him.I consider that the public policy considerations of the case are met by reducing the compensation by half under s(9)(b).This reflects that the plaintiff should not be able to profit from his criminal activity, but recognises that he has suffered a substantial injury which he did not deserve."

It is clear, as I have said, that both placita of sub-section 7(9) apply in the circumstances of the present case.Mr Tilmouth submitted that the plaintiffs' unlawful conduct was of a minor nature, but I disagree.The plaintiffs unlawfully entered upon the second defendant's land.They did so in numbers.When challenged, they responded aggressively.They showed no sign of withdrawal until the second defendant produced the gun.It was only then that they took flight.It would appear likely that, had the gun not been produced, the intruders would not have left without taking at least some of the cannabis plants with them.The chances of some other form of violence would have been high.

Of course, the second defendant's actions were ill advised and seriously unlawful.His conduct was even more serious than that of the plaintiffs, but it must be remembered that it was the plaintiffs' actions which brought on the inappropriate response from the second defendant.I respectfully agree with Judge Lunn's conclusion that the authorities have established that the respective degrees of criminality of the plaintiff and the offender are relevant.

It has been suggested in at least one case that circumstances such as the present should lead to a denial of all compensation.On reflection, I consider that that would be too hard on the plaintiffs.Whilst they must accept much of the responsibility for what took place on the night in question, the second defendant's response was clearly outrageous.It is significant that the plaintiffs had abandoned their unlawful activity before the second defendant fired the gun.To deny compensation altogether in the circumstances would be unjust.The plaintiffs must, however, accept a high degree of culpability for their injuries.I think justice will be done if they recover 40% of the amount agreed and, in each case, I will order accordingly.

In each case there will be an order that the plaintiff be paid by the Crown the sum of $2,800 by way of compensation under the Act.I will hear counsel on any ancillary matters.