The State of South Australia v Anthony Troy Richards, Douglas Wayne Sansbury and Clifford James Wanganeen No. Scgrg-97-506 Judgment No. 6320 Number of Pages 9 Criminal Law

[1997] SASC 6320

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

DOYLE CJ, MATHESON AND BLEBY JJ

Criminal law - compensation for injuries - Criminal Injuries & Compensation Act - discretion as to making of award or reduction of award pursuant to s7(9) of the Act - whether respondents' entitlement should be reduced by virtue of their engagement in a criminal activity. South Australia v Nguyen (1991) 57 SASR 252, considered.

ADELAIDE, 8 August 1997 (hearing), 8 August 1997 (decision)

#DATE 8:8:1997

#ADD 5:9:1997

Appearances :

Counsel for appellant: Mr J A Telfer

Solicitors for appellant: Crown Solicitor's Office (SA)

Counsel for respondent: Mr J Hyde

Solicitors for respondent: Aboriginal Legal Rights Movement

Order: Appeal dismissed.

DOYLE CJ

This is an appeal against a decision of the District Court. The respondents made application for compensation under the Criminal Injuries Compensation Act of 1978. I will refer to the Act hereafter as "the Act". It was agreed that, subject to one matter, each of them was entitled to recover $7000.

The only matter in issue was whether the respondents should recover nothing at all or should recover a reduced amount by virtue of the operation of s.7(9) of the Act. In the end, the judge reduced each award by 60 per cent and ordered payment of the sum of $2,800.

The State appeals against that decision. It argues that the respondents were disentitled from recovering anything at all. Alternatively, it argues that the reduction should have been greater.

S.7(9) of the Act provides as follows:

"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."

The section has been considered by this court. In South Australia v Nguyen
(1991) 57 SASR 252 the Full Court acknowledged that the provision was wide enough to enable questions of public policy to be considered. It accepted that the circumstances to be considered might be of sufficient weight to support a decision to reduce an entitlement to nothing.

The facts of the present case are straightforward. The respondents and three other men went to a house intending to steal marijuana plants that they thought might be growing there in the backyard. When the occupant of the house came to the door they behaved in an intimidating manner. They made their escape with some stolen marijuana.

Later, two others joined the group. All seven then went to yet another house to steal more marijuana. They scaled the back fence and moved to a place where the plants were growing. At that stage Mrs Tomac, one of the occupants, came outside and she was shortly followed by Mr Tomac.

The men apparently said, in a somewhat threatening manner, that if the Tomacs did not let them take the marijuana they would "Call the cops". By this they meant, presumably, that they would report the Tomacs to the police for producing marijuana.

Mr Tomac then went into a shed and came out carrying a rifle. The men then fled scaling the back fence as best they could. One of them apparently took shelter behind the fence. Mr Tomac fired a shot which narrowly missed one of the men and then passed through the fence and killed the man sheltering behind it.

Mr Tomac was convicted of manslaughter on the basis that the killing, while not intentional, was caused by an unlawful and dangerous act.

As a result of this incident it was agreed each of the respondents suffered mental shock and psychological injury.

The judge gave careful consideration to the application of s.7(9) of the Act. He found that the men entered the land unlawfully and responded aggressively when challenged by Mr and Mrs Tomac. They took flight only when Mr Tomac produced a gun.

He rejected a submission that the unlawful conduct of the men could be described as minor. I agree with him. Their unlawful conduct was not minor. The conduct of the men was both unlawful, likely to be frightening to the occupants and clearly involved a risk of some violence occurring. The occupants of the house were entitled to resist the unlawful entry, although not, of course, in the manner in which Mr Tomac did so.

The judge then said that the degree of criminality on either side must be balanced. In a general sense that is true, although it is not simply an exercise of balancing criminality, and it is also true that Mr Tomac's criminality was the greater. The judge declined to deny the respondents all compensation. He relied upon the fact that Mr Tomac's response was "clearly outrageous" and on the fact that the men were fleeing the scene when the shot was fired. On that basis he fixed upon a 60 per cent reduction.

It follows that the judge clearly considered whether the compensation should be reduced to nil, but decided against that. He did not overlook the point.

I mention that he appears not to have put any weight on the fact that there had been a similar incident a little earlier. I have referred to that previously. In my opinion, he was entitled not to put any weight on that further incident in this particular case.

In this particular case, I do not think the earlier incident has much to do with the question of whether there should be recovery or for how much. The earlier incident did make the course of conduct one that involved somewhat greater criminality because there were two incidents of criminality rather than one. Nevertheless, in this particular case, I do not think that the earlier incident altered significantly the degree of criminality involved in the whole course of conduct. There will be some cases in which it does.

All I say is that on the facts of this particular case, I do not think that the earlier incident was of such importance as to require a conclusion different from which the judge reached.

It is clear that the men's conduct contributed, to a significant degree, to the injury that they suffered and to the offence that gave rise to their claim. There was an obvious risk that the householder would resist their enterprise. The contribution by their conduct to the events warranted a significant reduction. Moreover, the fact that their behaviour was itself a breach of the law was also relevant.

In my opinion, the court is entitled to make a further deduction on that account on the grounds that conduct, which contributes to an injury, and also is in breach of the law, warrants a greater reduction in conduct than conduct which contributes which is not unlawful.

In Nguyen's case the court rejected an argument that s.7(9)(b) brought into play the consideration of public policy at large. It held that sub-para.(b) must take its flavour from sub-para.(a).

I refer, in particular, to the judgment of Olsson J at pp.269 to 270. The court specifically accepted the fact that contributing conduct by a claimant, is itself criminal activity, is relevant and might support a decision to refuse to make an award. I refer to the judgment of Olsson J at p.270.

However, I do not accept or agree that the fact that the men behaved unlawfully of itself disentitles them from recovery. If Parliament had intended that a person who engages in unlawful conduct should more or less as of course not recover, it would have been easy for Parliament to so provide.

What it has done is to give the court a discretion, and it is in the exercise of that discretion that the court takes account of the unlawful quality of the conduct. The fact that criminal conduct was involved is to be taken into account, but, as I have said, does not automatically lead to a refusal to make an award.

In that context in the present case, it is appropriate to bear in mind that the response of Mr Tomac was disproportionate. His was the more serious wrong.

The outcome under s.7(9) is one on which minds will easily differ, but in my opinion the judge was right in deciding not to reduce the entitlement to nil. The conduct of the men contributed to what happened, but I would not call it the sole or the main cause of the offence or of their injury.

The response of Mr Tomac in shooting near the men was not an obvious or predictable response, although I agree that it was, in a general sense, of a foreseeable kind, but as I have said already, it was a disproportionate response.

I would say that the conduct of the claimants played a part in their own injury, but was not the real cause of it. I, therefore, agree with the judge in that respect. I would not have reduced the entitlement to nil having regard to the extent to which their conduct contributed, or having regard to the criminality involved.

In that context, I also reject the submission that at this stage of the process the judge should have considered only the conduct of the respondents. In my opinion, even at this stage it is necessary to consider the conduct in its context.

I turn then to the question of the extent to which the judge reduced the award. Reducing to a percentage the factors that have to be considered here is particularly difficult. It is especially difficult when one comes to consider the reduction that should be made on account of the degree of criminality. I begin with the obvious point, that 60 per cent is a substantial reduction.

In relation to the extent of the reduction, it cannot be said that the judge erred in principle. He proceeded on the basis that he must weigh up the contribution that the claimants made to their own injury and the fact that their conduct was unlawful. In other words, he had regard to the appropriate factors.

I think that I would have made about the same reduction, although it might have been a little more or a little less. If anything probably a little more. A forceful response by Mr Tomac to the incident was clearly foreseeable, and there was an element of unpredictability in the situation that the men created. The unlawfulness of their behaviour is a relevant circumstance, but as I have already said, that in itself is not a disqualifying event, and it is a matter of deciding the degree of reduction that should be attributed to that.

As I have said, I consider that I would have reduced the respondents' award by around about 60 per cent. I consider that a reduction in this order was called for to reflect the significance of their contributing conduct and the significance of their criminality, but precision in these matters is impossible, and I am certainly not able to say the reduction of 60 per cent is indicative of error. All I can say is that in my opinion it was around about the mark.

For those reasons I would dismiss the appeal.

MATHESON J

I agree with most of what the Chief Justice has said. The only aspect about the appeal that has occasioned me any anxiety is the appellant's argument that the learned judge did not, in accordance with s7(9)(b) of the Act, take into account what in my view was a relevant circumstance, namely the earlier criminal course of conduct at Ingle Farm on the night in question - conduct that also included some violence on the part of the respondents.

The Ingle Farm incident was clearly closely connected in time with the later incident and together the incidents amounted to a serious course of criminal conduct on the night in question. It is true that his Honour referred to the Ingle Farm incident early in his reasons, but in the end result I do not think he took it into account in the way that, in my view, he was required to do.

Having regard to the whole of the respondents' conduct on the night in question, I do not think that I would have reduced the awards by only 60 per cent. However, that is not the test. In the end, I am persuaded that this court should not interfere with the percentage fixed. With some hesitation, therefore, I would also dismiss the appeal.

BLEBY J

I agree that the appeal should be dismissed, and I agree generally with the reasons of the Chief Justice. I just add a couple of remarks of my own.

This court in State of South Australia v Abdul-Ghani judgment no.S6179, in its decision handed down on 28 May 1997, accepted that there was a two stage process in the application of s7(9) of the Criminal Injuries Compensation Act, namely in assessment as to whether the conduct disentitled the applicant to compensation, and a second step, if it did not do so, as to what effect the conduct should have on the assessment of the compensation.

It was argued that the trial judge in this case missed the first step. In my opinion that is not the case, and it was made clear by the learned trial judge in his reasons for decision that he did consider the question as to whether the conduct disentitled the applicants to compensation by saying:

"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."

It was also suggested that in that first step it was inappropriate to consider the conduct of the offender. In my opinion that is not what Abdul-Ghani's case decided, and the Full Court in that case itself took into account the conduct of the offender in analysing that first step.

I agree that the earlier conduct of the applicants in this case that evening, that is their stealing of marijuana from other premises before coming to the premises of Mr and Mrs Tomac, was relevant conduct for the purposes of para.(b) of s7(9), in the sense that it was conduct which it was open for the court to consider. It appears from the reasons of the learned trial judge that although he recited that conduct, it did not weigh in the assessment of the compensation.

However, in my view, although that might be considered to be relevant conduct under sub-para.(b), in the circumstances of this case it makes no practical difference to the outcome, certainly no practical difference when it comes to this court considering whether or not it should interfere with the award of compensation.

I agree with other members of this court that opinions will differ both as to the weight that should be given to such conduct and the effect of the reduction overall in any given circumstance, but in the circumstances of this case, I cannot see that there has been any error of principle, and I would, therefore, dismiss the appeal.