Gulcan v Victims of Crime Assistance Tribunal (General) [2007] VCAT 642

The decision of the respondent is set aside and the applications are remitted to the respondent for reconsideration in accordance with the finding that Mrs Fatima Gulcan was a victim of an act of violence as defined.

Ms R Ellyard of counsel instructed by Victorian Government Solicitor

1 On 3 January 2000, tragedy struck the Gulcan family. A single vehicle fatal collision occurred when a car driven by Mr Brendan Folvig collided with four pedestrians in Footscray. The four pedestrians were members of the Gulcan family. Mrs Fatima Gulcan was fatally injured. The applicants in this proceeding, Mr Ismail Gulcan and Mr Ergun Gulcan were Mrs Gulcan's husband and son respectively. They were not present with other family members when the accident occurred.

2 The coronial findings were as follows :

On Monday 3rd January 2000 a single vehicle fatal collision occurred when a Ford sedan collided with four pedestrians and a shop front.

The collision occurred on the north east corner of Paisley and Albert Street in Footscray when the driver of the sedan suffered an epileptic seizure. The vehicle continued on its path, north along Paisley Street, swerving and crossing onto the incorrect side of the road, passing through an intersection narrowly missing a bus. The vehicle continued until it mounted the footpath, colliding with the pedestrians and coming to rest against the shop front.

Fatima Gulcan, aged 58, along with members of her family, all suffered serious injuries. Ms Gulcan had been standing nearest the road when struck by the vehicle. Ms Gulcan was transported to the Western Hospital, however died a short time later.

The driver of the vehicle, Brendan Folvig, had been an epileptic for over 2 years and was taking anti-convulsant medication to prevent fits. At the time of the incident Mr Folvig's medication level was at the lower limit of the therapeutic range. Morris Odell, Forensic Medical Officer, opined that Mr Folvig appeared to have suffered an epileptic seizure while driving which precipitated the collision and that there was evidence in his blood test of consumption of cannabis however it was not possible to give an opinion regarding any effect on driving ability. Mr Odell also considered it "unlikely that his consumption of cannabis would have any bearing on his likelihood of suffering an epileptic fit".

A reconstruction in relation to the pre impact speed of the sedan revealed that it was travelling at approximately 58 kilometres per hour when it entered the intersection at Paisley Street.

Tragically Fatima Gulcan died from multiple injuries suffered in the motor vehicle collision.

3 I understand that Mr Folvig has not been charged with any offence related to the accident.

4 Both Mr Ismail Gulcan and Mr Ergun Gulcan lodged applications for assistance with the Victims of Crime Assistance Tribunal in 2000. They indicated on the application forms that they claimed as "related victims".

5 There is no dispute about their entitlement to claim in that capacity, because they were close family members of Mrs Gulcan. However, for the Messrs Gulcan to be eligible for any assistance as related victims, I first have to be satisfied that Mrs Gulcan herself was a "primary victim", one who died as a direct result of "an act of violence".

6 That latter term is defined in s 3 of the Victims of Crime Assistance Act 1996, to mean :

"act of violence" means a criminal act or a series of related criminal acts, whether committed by one or more persons, that has -

(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;

7 That definition takes us to the definition of "criminal act" in s.3 of the Act, which says :

"criminal act" means an act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it on account of -

(a) age, mental impairment or other legal incapacity preventing him or her from having a required fault element; or

8 Finally, "relevant offence" is defined in s 3 for these purposes in (a) as follows :

(a) an offence, punishable on conviction by imprisonment, that involves an assault on, or injury or a threat of injury to, a person; ...

9 In September 2006 the Victims of Crime Assistance Tribunal rejected the claim for assistance because it was not satisfied that Mr Folvig's epileptic seizure was a "mental impairment" for the purposes of the definition of "criminal act". The Gulcans applied to this Tribunal for review of that decision.

10 In summary, the central issue for me to decide is whether there has been an act of violence, which turns on whether there is a "criminal act" as defined.

11 The hearing proceeded before me by way of submissions.

12 Mr Hebb put the case for the Gulcans in three ways. First, that the epileptic seizure suffered by Mr Folvig was a "mental impairment" for the purposes of sub-clause (a). Secondly, that the seizure prevented Mr Folvig from having the relevant element of fault and thus there was a legal incapacity for the purposes of sub-clause (a). Thirdly, even were the circumstances such that they did not come within the provisions of sub-clause (a), he submitted I could be satisfied that Mr Folvig had in fact committed a "relevant offence" such as culpable or dangerous driving.

13 Ms Ellyard made submissions in reply.

Can I be satisfied Mr Folvig committed a "relevant offence"?

14 Turning to the third submission first. I accept Mr Hebb's submission that a person can still be a victim when an alleged offender has not been charged with an offence or has been charged and acquitted and that the civil standard of proof applies in the circumstances[1].

15 Mr Hebb submitted that it was arguable that I could find on balance that Mr Folvig had committed the offence of culpable or dangerous driving, both of which are "a relevant offence".

16 Mr Hebb relied on a decision of the New South Wales Court of Criminal appeal in Gillett v R [2006] NSWCCA 370 in support of his submission. In that case too, the driver had suffered an epileptic seizure. The driver was convicted of three counts of driving in a manner dangerous to other persons occasioning death.

17 Mr Hebb drew a comparison with that case and this one. He submitted that I could be satisfied Mr Folvig knew he suffered from epilepsy, was non-compliant with his medication; used cannabis and was aware of the possibility he might have a seizure and was aware if he had a seizure it could cause serious injury.

18 I expressed reluctance about making any such findings in the absence of giving Mr Folvig the opportunity to be heard and Mr Hebb conceded that difficulty.

19 In any event, the facts in this case are quite different from those in Gillett's case. I agree with Ms Ellyard's submissions that it is not open to me to find the offences pressed by Mr Hebb along the lines of Gillett's case. In that case, Mr Gillett, had been epileptic for many years. He had had a prior multiple motor vehicle accident involving an epileptic seizure; had repeatedly lied to the Road Traffic Authority when renewing his licence, because he knew that telling the truth would lead to disclosure of the risk of having a seizure while driving; and knew he represented a danger to other road users which was not just some fanciful risk, but so serious a risk as to be in reality a danger to other people.

20 Here, whilst it is clear Mr Folvig knew he suffered from epilepsy, he had suffered for two years not ten years. The forensic evidence was not that he was non-compliant but that his medication level was at the lower limit of the therapeutic range. Further that whilst blood tests showed the consumption of cannabis, it was not possible for the forensic medical officer to give an opinion regarding any effect on driving ability and further that it was unlikely that the consumption of cannabis would have had any bearing on the likelihood of Mr Folvig suffering an epileptic fit. In those circumstances, I am not satisfied I could make a finding that Mr Folvig knew he represented a danger to other road users such that I could find he committed a "relevant offence".

21 Mr Hebb's next submission was that Mr Folvig's epileptic seizure is a "mental impairment" for the purposes of the definition of "criminal act" which prevented Mr Folvig from having the requisite element of fault. He pointed out that "mental impairment" was not defined in the Act and he referred to its ordinary dictionary meaning of "total loss of mental function". He relied on a neurologist's report. Associate Professor Richard Starke had prepared a report which was tendered in evidence. The Professor had been asked to comment on whether "an epileptic seizure could amount to a mental impairment for the legislation". He said :

It is reasonable to conclude that a temporary mental impairment would include the inability to be aware of surroundings or interact with surroundings in such a fashion as would occur during an epileptic seizure.

22 Counsel submitted that given that it is remedial legislation, to include epilepsy in the category of mental impairment does not strain its meaning.

23 As Ms Ellyard pointed out, Professor Starke's report describes the physical features of different types of epileptic seizures and the effects they have on one's levels of consciousness and she submitted his report supports a conclusion that Mr Folvig was not driving voluntarily. I note that the report goes on to express opinion about whether or not in such cases one should be held responsible for one's actions during a seizure, given the mental effects during a seizure.

24 Ms Ellyard drew my attention to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. She submitted that the meaning of "mental impairment" in the Victims of Crime Assistance Act 1996, should have the same meaning as it has under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 given that the legislation is concerned with criminal acts. Under that Act there is a statutory defence of mental impairment replacing the common law defence of insanity. The defence if established, means the person must be found not guilty because of mental impairment, and is established if at the time of engaging in conduct constituting the offence the person was suffering from a mental impairment that had the effect that -

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

25 Mental impairment must be one that has the effects described, not one where one is simply unaware of what is happening. It is one thing to say that someone should not be held responsible for one's actions during a seizure, but it is an entirely different thing to claim a seizure, the effects of which are that one is unaware of what is happening at all, constitutes a "mental impairment" where used in the Act. I do not accept that an epileptic seizure comes within the meaning of "mental impairment" for the purposes of the definition of "criminal act".

Is the seizure a legal incapacity which prevented Mr Folvig from having a required fault element?

26 The third submission for the Gulcans concerns the interpretation of the definition of "criminal act". I agree with Mr Hebb that there are two parts to the definition. The first defines it to mean an act or omission constituting a relevant offence - an offence involving an assault on or injury to a person which is punishable on conviction by imprisonment.

27 He submitted that the second part of the definition extends the meaning of criminal act to mean an act or omission that would constitute a relevant offence if the person had not been incapable of being criminally responsible for the act or omission, on account of age, mental impairment or other legal incapacity which prevented the person from having a required fault element, or where any other lawful defence existed.

28 Mr Hebb submitted that this second part means

if the reasons for the incapacity set out apply, the Tribunal need only determine that the 'actus reus' elements of the offence are made out. It need not assess the 'mens rea' elements as long as the offender was incapable of having the requisite 'mens rea' for one of the reasons set out. Such an offender could not be charged with a criminal offence but his act nevertheless comes within the ambit of a criminal act in the VOCA Act and as such the victim is the victim of an act of violence. Such a discrepancy between the criminal law and this Act comes about because the focus of this Act is on the victim and not on the offender.

This definition of criminal act enables people who are clearly victims of criminal acts to make a claim under the Act even though the offender cannot be charged. A person who is assaulted by a person who is insane or by a person under the age of criminal responsibility would still be a victim of a criminal act under subparagraph (a).

.... it is submitted the proper procedure to be adopted . ..... in the event that the second part of the definition of criminal act is invoked is to analyse the factual circumstances to assess whether the 'actus reus' of a relevant offence is made out without regard to the mental element.

His submissions proceeded to list a number of possible criminal offences, ranging from manslaughter to culpable driving, and their elements, which might apply in the circumstances.

29 Ms Ellyard submitted that this extended definition of "criminal act" does not remove the need for proof that the person concerned did, consciously or voluntarily, the acts or omissions which constitute the relevant offence[2]. She submitted that what the extended definition does is to include firstly cases where those conscious and voluntary actions are done by someone who did not have criminal intent because of age, mental impairment or other legal incapacity preventing them from having the required fault element, or secondly where it was extended by sub-clause (b) to those cases where there is a legal defence such as self defence or provocation.

30 Counsel further submitted that each of the potential offences Mr Folvig could have been charged with require conscious and deliberate acts, combined with the necessary mental elements of negligence or recklessness. She submitted that one has to ask whether Mr Folvig acted voluntarily when he caused Ms Gulcan's death. As I understand Ms Ellyard's submission, because he was not driving voluntarily and consciously at the time of the accident, there were no acts or omissions constituting a relevant offence and the Gulcans' application for assistance cannot succeed.

31 Whilst I am not satisfied that Mr Folvig's epileptic seizure is a mental impairment that prevents him from having a required fault element, is it a "legal incapacity" that prevents him from having that required element, where "legal incapacity" is not defined?

32 The thrust of Ms Ellyard's submission is that to come within the definition of criminal act the person has to have voluntarily done the act. Thus, when one looked at the defences of "age", "mental impairment" and "self defence", all are acts consciously and voluntarily done, but the necessary criminal intent is lacking. Thus, in the circumstances of this case, where the conscious and voluntary elements are missing, there is no criminal act, so the argument goes.

33 One could well understand that were a person to drive their vehicle consciously and voluntarily up onto a footpath where there were pedestrians, and intended to run them over and killed someone, that then would be a relevant criminal act, as defined.

34 In the same situation, but where the voluntariness and consciousness are lacking, as is the case here, does the extended definition of criminal act apply?

35 These are all difficult questions but an examination of the history of the provision is instructive. The first Act, the Criminal Injuries Compensation Act 1972 deemed a person to have intended an act or omission notwithstanding that by reason of age, insanity, drunkenness, or otherwise, a person was legally incapable of forming a criminal intent[3].

36 The 1972 Act was repealed by the Criminal Injuries Compensation Act 1983. Section 3 of the 1983 Act states :

3. In this Act unless inconsistent with the context or subject matter -

(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).

37 Again, as with the 1972 Act, the focus is on forming a criminal intention and whether a person is incapable of forming a criminal intention due to age, insanity, drunkenness or other legal incapacity.

38 There is nothing in the Second Reading Speech for the 1983 Bill or anything in the notes or clauses for that Bill that assists with the meaning of "other legal incapacity to form a criminal intention".

39 The definition of "criminal act" in the 1996 Act is significantly different. No longer does the word "intention" feature in the definition. There is a shift to a consideration of whether a person was "incapable of being criminally responsible" on account of things which prevent the person from having a required fault element whatever the reason, or significantly, if there is some other lawful defence.

40 Again, there is nothing in the second reading speech or the explanatory memorandum that might assist in the interpretation. Whilst Mr Hebb drew my attention to comments in the Second Reading Speech of the Victims of Crime Assistance (Amendment) Bill 2000, the comments he drew my attention to were comments about the Bill redressing the lack of any recompense for victims' pain and suffering - highlighting that for the previous three years, victims had missed out on such recompense in a number of circumstances including "if the offender was incapable of forming criminal intent, despite having obviously committed a crime". The comments are more referable to earlier definitions of "criminal act" because of the use of the words "criminal intent", rather than the definition in the 1996 Act. The 2000 amending Bill did not amend the definition of "criminal act", and the definition has not been amended since the 1996 Act was introduced. In those circumstances, the comments are of limited assistance.

41 One thing that is clear is that the legislation contemplates assistance even in circumstances not only where conviction has not occurred, but where as a matter of law it could not have occurred because, for example, the act was by a person under the age of 10 years.

42 In my view, the expression "legal incapacity preventing him or her from having a required fault element" is in all the circumstances wide enough to encompass the situation in this case. The epileptic seizure prevented Mr Folvig from being criminally liable and in the absence of his epileptic seizure, I am satisfied that there would have been a relevant criminal act.

43 Thus, I am satisfied that Mrs Gulcan was a victim of an act of violence and that the Gulcans may claim assistance as related victims.

44 For the above reasons I set aside the decision of the Victims of Crime Assistance Tribunal and remit the applications for reconsideration in accordance with the finding that Mrs Gulcan was a victim of an act of violence as defined.

45 I have remitted these applications because I do not know whether or not the applicants are the only related victims.

[1] S 50(4) of the Act provides that an award of assistance may be made in respect of an act of violence even though no person has been charged with or convicted of an offence arising out of the commission of that act of violence.

[2] See Jiminez v R [1992] HCA 14

[3] see s 3(4) Criminal Injuries Compensation Act 1972

(4) For the purpose of this Act a person shall be deemed to have intended an act or omission notwithstanding that by reason of age, insanity, drunkenness, or otherwise he was legally incapable of forming a criminal intent.