In a record of interview between the police and Murphy which record of interview was tendered in evidence, Murphy admitted that he did not have a Victorian Driver's Licence but initially said he had an Irish driver's licence and then said he had a current New South Wales driving licence. However, also in the record of interview, Murphy admitted that he had been in Victoria for a period of in excess of 12 months and had not bothered to obtain a Victorian driving licence.

Murphy was charged with exceeding the blood alcohol limit of .05 percent, unlicensed driving and careless driving, however, he absconded and has not faced those criminal charges. I am informed that a warrant has been issued for Murphy's arrest.

The matters to be considered in exercising the Tribunal's discretion pursuant to s. 20(3), were stated in Hunter Valley Development Pty Ltd v Minister for Home Affairs and Environment [1984] FCA 176; (1984) 58 ALR 305, the case was subsequently considered by the Appeal Division of the Supreme Court Victoria in Dix v Crimes Compensation Tribunal [1993] VicRp 21; (1993) 1 VR 297. Dix's case approved what was said in the Hunter Valley case save and except that it was stated by the Supreme Court in Dix's case that a failure to explain the delay in making an application was not a condition precedent to the grant of an extension of time, but was rather a matter to be taken into account with other matters in deciding whether to grant an extension of time.

The applicant stated that she did not make an application until May of 1997, because that was the first opportunity after the accident she became aware of her right to make such an application. The applicant gave evidence that she employed solicitors Arnold Thomas and Becker, from 1991 until approximately December 1995. She then employed Galbally & O'Brien from January 1996 until approximately mid 1996, and then she employed her current solicitors, Grice & Grice. The applicant stated that her solicitors were only concerned with making a claim pursuant to the Transport Accident Act, and she did not at any stage receive advice in relation to making a claim pursuant to the Criminal Injuries Compensation Act. She stated that at a time after her application to the County Court for a declaration of "serious injury" had failed, she was reading a book concerned with Family Law and in that book she read about the Criminal Injuries Compensation Act. Upon reading such material she contacted her current solicitors and they forthwith after that time made arrangements for her to make the application herein to the respondent.

It was said by Mr O'Connor, Counsel for the applicant, that the applicant's explanation of delay is sufficient explanation for such a delay. Further, Mr O'Connor stated that the applicant had employed solicitors and the solicitors should have informed her of her rights and if they failed to inform her of such rights the applicant cannot be blamed, as she was a person not aware of her legal rights and totally reliant upon her solicitors.

In this particular instance, the delay is what I would describe as relatively lengthy that is, over 7 years since the alleged criminal act.

The applicant, did not call to give evidence, any of her previous solicitors so they could state precisely what were their instructions. That is, were their instructions to do whatever possible to have the applicant obtain some type of compensation as a result of the motor vehicle accident, or were their instructions just to pursue the Transport Accident Commission? The applicant did not give evidence about this matter, and I cannot assume, that she gave her solicitors wide instructions to obtain for her whatever compensation they could. It would have been relatively easy for the applicant herself to give evidence or have the evidence supported by solicitors as to precisely what instructions were so given. If the applicant did not give instructions to her first solicitors to obtain whatever compensation they could for her, it would not be open to her to say that she had employed solicitors to advice her on this matter. In which case this would become a situation of delay simpliciter.

Thus, while there is some explanation for the delay in making the application, I do not believe the explanation is entirely satisfactory and it does leave me with considerable doubt in my mind as to the bona fides of the applicant.

Mr Heathcote stated that there was prejudice to the respondent by the delay, because the time has elapsed to such an extent that memories would have faded and it may be difficult to obtain witnesses. While the matters stated by Mr Heathcote may in fact be correct, there does not appear in this instance to be a great deal of prejudice to the respondent in the making of the application out of time. There are a number of medical reports available, which were made a number of years ago, which could be used if necessary to assess the applicant's entitlement pursuant to s. 18 of the Act.

One of the more difficult questions in this application was whether the applicant had demonstrated that she had an arguable case as to be able to finally succeed in her application.

In order to be successful in her application, the applicant must show she was a victim, which in turn for the purposes of the Act means she must show that her injuries were caused by a criminal act. Put another way in the light of this application, the applicant must show that Murphy's driving was a criminal act within the meaning of the Criminal Injuries Compensation Act. The Criminal Injuries Compensation Act defines criminal act to mean:

(a) which is an offence punishable by imprisonment (other than imprisonment in default of distress for non payment of a fine), whether or not punishable on indictment or on summary conviction, and whether or not also punishable by another penalty; or

(b) which is not an offence described in paragraph (a) of this interpretation only because a person is incapable of forming a criminal intention (whether due to age, insanity, drunkenness or other legal incapacity to form a criminal intention)."

It was conceded that the only act for which Murphy was charged for which he could be imprisoned was unlicensed driving. It would seem clear that as Murphy had been resident in Victoria for 12 months or more, it is likely that he committed a criminal act within the meaning of the definition in the Criminal Injuries Compensation Act, that is unlicensed driving. Because of Murphy's period of residence in Victoria was in excess of 12 months, his holding of an Irish or New South Wales licence was irrelevant.

However, s. 19(1) of the Criminal Injuries Compensation Act forbids the making of an award pursuant to, inter alia, s. 18, if the applicant has made a claim pursuant to the Transport Accident Act unless the criminal act was an offence within the Crimes Act. S. 19(1) reads as follows:

"The tribunal shall not make an award of compensation under ss. 15, 16, 17 or 18 to a person who has made, or entitled to make, or to the dependants of a person who has made, a claim under the Motor Car Accidents Act 1973 or the Transport Accident Act 1986 arising out of the same criminal act unless the act is an offence under the Crimes Act 1958."

It is abundantly clear that the applicant has made a claim pursuant to the Transport Accident Act, and indeed by her own admission has been paid a sum of money pursuant to that Act by way of a whole person permanent impairment of 20%.

The applicant needs to show on the civil standard of proof that Murphy's driving was an offence pursuant to the Crimes Act see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 363 where Dixon J stated:

"When, in a civil proceeding a question arises where a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues. ... but consistent with this opinion, weight is given to the presumption of innocence and exactness of proof is expected."

And commenting upon the type of proof required His Honour stated that p362:

"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters `reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

Mr O'Connor submitted, that Murphy's conduct came within both s. 18 and s. 22 of the Crimes Act. Those sections read as follows:

"18. A person, who, without lawful excuse, intentionally or recklessly causes in jury to another person is guilty of an indictable offence ..."

"22. A person, who, without lawful excuse, recklessly endangers in conduct that places or may place another person in danger of death is guilty of an indictable offence."

In this particular instance, there is insufficient evidence to show that there was any intention on the part of Murphy to cause death or injury so the question must now be asked was his conduct "reckless" within the meaning of s. 18 or s. 22?

In R v Coleman (1990) 19 NSW LR 467, the New South Wales Supreme Court suggested that "reckless" involves persistence in the doing of an act in spite of the realisation of the risk of injury. In this particular instance there is no evidence or no sufficient evidence that Murphy realised the danger of the way he was driving.

Deputy President Galvin, was called upon to analyse what reckless conduct meant within the meaning of the Crimes Act in re Reginato v Crimes Compensation Tribunal (1994) 6 VAR 222 at 225 where the Deputy President stated:

"In this case, there was no evidence of intention or any advertence to danger on the part of the person in control of the power boat. That person's intention and state of awareness at the relevant time must remain matters of speculation. The evidence does not warrant a finding that because the power boat was travelling fast enough to have its bow out of the water, that recklessness is to be inferred."

In this particular situation, I do not believe, that because the applicant was travelling at a speed perhaps in excess of a speed limit (I do not accept the applicant's evidence that Mr Murphy was travelling at 140 to a 160 kilometres an hour) that that conduct would amount to recklessness.

In Reginato's case, the Deputy President went on to say:

"A person is negligent if he or she fails to meet a standard of care which a reasonable person would consider appropriate in the circumstances. However, criminal liability for negligence involves culpable negligence R v Newman [1948] VicLawRp 16; (1948) VLR 61. In Newman's case at 67 Barry J said:

`... a man is not liable in the Criminal Court if his conduct was merely negligent. It must be culpably negligent, that is, it must be negligence of such a kind that it shocks the conscience or causes a tribunal to think that it goes beyond the mere matter of compensation as between the person concerned, the person who does the inquiry and the person who receives it, and requires some punishment at the hands of the Criminal Law.'

In R v Shields [1981] VicRp 68; (1981) VR 717, which was concerned with a provision of the Act making it a criminal offence to negligently do or admit to do any act causing grievous bodily harm to another, Supreme Court held that the measure required the degree of negligence appropriate to manslaughter. The facts of the case were that at night, a motor car stuck four young men who were on the roadway killing one and injuring the others. The driver was charged with culpably driving causing death. The particular culpability being alleged to the negligence. He was also charged with negligently causing grievous bodily harm. He was found guilty only on one count of negligently causing grievous bodily harm. He sought leave of the Court of Appeal against his conviction relying inter alia upon the ground that the Judge had misdirected the jury as to the meaning of `negligently' on the relevant statutory provision.

`It seems unlikely to have been intended that an indictable offence should be committed by a man who negligibly slams a carriage door and crushes a passenger's finger, or by a dentist who, in drawing a tooth negligently breaks the patient's jaw, or the pedestrian who, hurrying along the footpath, negligently bumps into another, causing him to lose his balance and fall, breaking a leg, assuming in each case that the negligence was no more than such as would sustain an action for damages.' "

In my view, applying the civil standard of proof with exactness as it required by Dixon J in Brigenshaw (supra), it is most unlikely that a tribunal who ultimately hears this application, could be satisfied that Murphy's driving amounted to recklessness within the meaning of s. 18 or s. 22 of the Crimes Act. Thus, the applicant has failed to show that she could arguably "get over the hurdle" imposed by s. 19(1) of the Act. That is, she could not show that there was an offence under the Crimes Act 1958.

Even if the applicant was able to overcome the problem to which I have referred which arises because of s. 19(1), she would still have to overcome the problem of convincing a tribunal that it should make an award, bearing in mind the circumstances of the case. That is, she was a passenger in her own motor vehicle with Murphy driving on an errand for her, and she failed to demand or request, Murphy to drive in a different manner or indeed stop the car altogether.

"In determining whether to make an award of compensation, or the amount of an award, the tribunal shall have regard to any behaviour, condition, attitude or disposition of a victim which directly or indirectly contributed to the victim's injury or death and to all other circumstances it considers relevant."

In my view, the applicant's failure to take any action whatsoever to make Murphy drive in a more reasonable fashion or stop altogether, would be fatal to the applicant's application. It is not good enough for the applicant to say that she believed that if she had requested Murphy to drive in a different manner he would have become worse. She did not really appear to have any reason for stating this apart from the fact that she said he was laughing and he appeared to be a changed person from when he offered to drive her. The only conclusion that one can draw from her failure to act against Murphy's method of driving, was that she was concurring with the method of driving. Someone who concurs by silence, with the type of driving that Murphy was displaying immediately prior to the accident, in my view is the type of person that is meant to be excluded altogether by the provisions of s. 20(1) of the Act.

Therefore in my view, because of the provisions of s. 20(1) of the Act, it would be found, that the applicant as a victim would have "directly or indirectly" contributed to her own injury. As a result of the matters contained in s. 19(1) and s. 20(1) of the Act, the applicant would be unable to seriously argue that she is entitled to compensation. Thus I find the applicant has failed to show that she has an arguable case.

Taking all the matters into account which I have mentioned that are referred to in Dix's case, namely the paucity of her explanation of delay and that she has failed to demonstrate the merits of her substantial application by showing an arguable case, I do not believe an extension of time should be granted. Therefore this application should be dismissed and the decision affirmed.

I certify that this and the preceding 13 pages are a true and correct copy of the reasons for decision of Mr Robert W Davis, Presiding Member of the Victorian Civil and Administrative Tribunal.