Lanyon v NT of Australia & Anor [2002] NTSC 6

[2]

After refusing to issue an assistance certificate pursuant to s 10 of the Act, the learned magistrate indicated that if he had been minded to issue a certificate he would have specified an amount "in the area of $20,000" by way of assistance for the injury suffered by the appellant. Mr Young, who appeared on behalf of the first respondent, submitted that the learned magistrate's refusal to issue an assistance certificate was correct in law. However, in the event that this Court concluded that the appellant was entitled to an assistance certificate, Mr Young conceded that an amount of $20,000 was an appropriate starting point for assessment of the amount to be provided by way of assistance for the injury suffered by the appellant. Mr Young further submitted that this amount should be reduced substantially having regard to the extent to which the appellant's conduct contributed to his injury. Mr Grant, counsel for the appellant submitted that the figure of $20,000 was appropriate. In his submission, if there was to be any reduction on account of the appellant's conduct, this should be limited to 10% to 15% of $20,000.

[3]

The learned magistrate found that the appellant was injured "much as he (the appellant) alleges". This finding was not based on the appellant's evidence, but rather the evidence of Finn Mitchell, a friend of the appellant's, who had witnessed part of the relevant events.

[4]

In brief, the learned magistrate appears to have found that on 30 August 1999, the second respondent attended at the appellant's home (a rented room in a boarding house). The appellant was not present at the time. The second respondent took up a position outside the appellant's room and waited for him to return. The appellant returned and the second respondent demanded morphine tablets. The second respondent drew a knife and pushed the appellant down onto his bed holding the knife to the appellant's throat. The appellant attempted to push the second respondent's arm away and in the ensuing struggle was stabbed in the neck. The second respondent then proceeded to an area in the appellant's room where morphine tablets were located. The appellant grabbed a large 'Bowie' knife from a box beside his bed and cut the second respondent on the left upper arm. The second respondent disarmed the appellant and during the course of a struggle stabbed him again in the chest region.

[5]

As a result of the stab wound to the appellant's neck, he suffered a significant blood loss. He was stabilised at the scene by ambulance officers and then taken to the Royal Darwin Hospital. He underwent surgery to repair the wound and stem the blood loss.

[6]

The second respondent was subsequently convicted (upon his own plea) of aggravated assault in relation to the incident.

[7]

The learned magistrate made a number of findings beyond the bare facts of how the appellant came to be injured by the second respondent. I am bound to say that, with all due respect to His Worship, the style and brevity adopted in expressing his findings has caused some difficulty in being certain as to the precise extent of such findings. Some matters are clear - in particular, the learned magistrate found that:

(a)

the appellant was a person who had no credibility. His Worship based this finding on:

(i)

the appellant's admission that he had cheated at cards to win a substantial amount of money;

(ii)

the appellant lied on oath (either in giving evidence before the learned magistrate or at the second respondent's committal proceedings) as to the source of that substantial amount of money;

(iii)

inconsistencies between the appellant's evidence and what he had told the police as to the number of morphine tablets stolen by the second respondent;

(iv)

inconsistencies between the appellant's evidence and what he had told the police as to the source of $700 cash stolen from him by the second respondent;

(v)

inconsistencies between the appellant's evidence and what he had told the police as to why he kept a large Bowie knife in his room; and

(vi)

the appellant's admission that he unlawfully purchased morphine tablets in the Darwin Mall;

(b)

the appellant was a dealer in morphine tablets; and

(c)

the appellant kept a large Bowie knife in his room for "emergencies".

[8]

The appellant's lack of any credibility and his status as a drug dealer was not the subject of challenge in the present appeal. However, counsel for the appellant and the first respondent differed as to the extent of the appellant's drug dealing as found by the learned magistrate.

[9]

Mr Grant submitted that His Worship had found that the appellant was a "small dealer", in that the appellant would on occasions lend one morphine tablet in exchange for the promise of two such tablets in the future. Mr Young submitted that it was inherent in the learned magistrate's findings that the appellant was dealing in morphine tablets for money. In this regard, Mr Young referred to the following passages of His Worship's reasons for decision:

"And I find myself considering him, his credibility and his character. I find myself considering him quite unsatisfied that he was not dealing for money, quite satisfied that he would on occasions, lend one tablet in exchange for two, totally convinced that it was an ordinary part of his lifestyle in the sub-culture in which he moves, to borrow where one is short and to lend where one has a temporary surplus, and in short I'm satisfied that he has been a small dealer at least.

And I'm satisfied that at the price for which he could get his supplies, it cannot be said that he was dealing to support a habit." (emphasis added)

[10]

Mr Young emphasised that the learned magistrate had accepted that 20 morphine tablets could be obtained by the appellant on prescription for less than $4, while individual tablets had a 'street value' of $50-55 dollars currently (and $80 previously).

[11]

It is clear that the learned magistrate rejected the appellant's explanations of the source of the $700 cash allegedly stolen from him by the second respondent. His evidence was that the money was the proceeds of gambling, while he had previously told the police that the money was "savings". I consider that, having regard to the words emphasised above in the learned magistrate's reasons, His Worship found that the appellant dealt in drugs for money. However, whether I am right or wrong in my assessment of the learned magistrate's findings as to the extent of the appellant's drug dealing is of less significance than His Worship's finding that the appellant was

"... dealing with a known junkie, who was obviously from his shivering, in need of a fix, going through the process of withdrawal and attempting to do business with him whether it was a credit sale or a loan."

[12]

The evidence of Finn Mitchell (who the learned magistrate found "truthful enough") was that upon the return of the appellant to the boarding house, the second respondent was sitting on a chair outside the appellant's room. The second respondent appeared to be withdrawing from "morphine or something". The second respondent said: "I would like to have a word with Rodney (the appellant)" and the appellant replied: "Oh, yeah". The appellant and the second respondent went into the appellant's room. Mitchell could not say what occurred after that, until he heard the appellant and the second respondent "screaming".

[13]

It is clear from the findings of the learned magistrate (albeit the findings could have made it clearer) that His Worship found that the appellant was attempting to negotiate a drug "deal" (whether for money or the promise of future morphine tablets) before any demands were made, or violence used, by the second respondent. It is also clear that His Worship found that the second respondent was known to the appellant as a drug abuser and that the appellant would have recognised the signs of drug withdrawal displayed by the second respondent at the time of their encounter. It is against this background, I now turn to s 10 of the Act.

[14]

The learned magistrate's refusal to issue an assistance certificate was based on s 10 of the Act.

[15]

Section 10 provides:

"(1) In considering an application for assistance, and in assessing the amount of assistance to be specified in an assistance certificate, the Court shall have regard to the conduct of the victim and to any other matters it considers relevant.

(2) Where the Court, on having regard under sub-section (1) to the conduct of the victim, is satisfied that the victim's conduct contributed to the injury or death of the victim it shall reduce the amount of assistance specified in the assistance certificate by such amount as it considers appropriate in all the circumstances."

[16]

After the learned magistrate had found the appellant was attempting to deal in drugs with a person who was known to him as a drug abuser and who was displaying obvious signs of withdrawal from the effects of drugs, His Worship continued:

"I think that sort of behaviour was not the sort of action that Parliament contemplated would result in a diminution of an award under section 10. I think Parliament contemplated that people who got themselves in the sort of trouble he got into in these circumstances, so far from suffering a reduction of 10 to 15%, would be denied recovery all together."

[17]

In Mr Grant's submission, the only conduct properly taken into account for the purposes of s 10 is conduct that forms part of the circumstances immediately surrounding the offence or injury, which conduct is a real cause of the injury. In the appellant's submission, s 10 does not permit consideration of such issues as a victim's character or actions which bear no immediate causal relationship to the injury. Mr Grant submitted that the conduct contemplated by s 10 is limited to provocation causative of an assault, the consensual entry into a fight and like matters. In short, in the appellant's submission, the phrase "contributed to the injury" connotes a direct and causal relationship between a victim's conduct and his injury.

[18]

Mr Grant contrasted the reference in s 10(2) to conduct which "contributed to the injury" with State legislation concerning the provision of compensation or assistance to victims of crime. For example, in South Australia, the equivalent provision to s 10 of the Act refers to:

"... any conduct on the part of the victim (whether or not forming part of the circumstances immediately surrounding the offence or injury) that contributes directly or indirectly to the commission of the offence or to the injury to the victim ..." (Section 7(9) of the Criminal Injuries Compensation Act (SA))

[19]

In New South Wales, s 437(3) of the Crimes Act 1900 (NSW) requires the Court to have regard to:

"... any behaviour of the aggrieved person which directly or indirectly contributed to the injury ..."

[20]

In Victoria, s 20(1) of the Criminal Injuries Compensation Act 1983 states:

"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 the victim which directly or indirectly contributed to the victim's injury or death and to all other circumstances it considers relevant."

[21]

In the appellant's submission, s 10 of the Act contains no provision which would operate to extend the notion of contributory conduct beyond a direct and causal relationship in the manner adopted by the above provisions. Mr Grant stressed the beneficial nature of the legislation and submitted that a generous and liberal approach to its construction should be adopted with a view to providing a victim with fair assistance, conditioned in an appropriate case, by the victim's own conduct where it had directly contributed to the injury.

[22]

In the present case, Mr Grant submitted, the appellant should not have been denied any assistance under the Act because of his apparent dependence on prescribed morphine coupled with a lifestyle which might involve, from time to time, lending and borrowing tablets from other users. In his submission, the nexus between the appellant's conduct and the injury he suffered at the hands of the second respondent was too remote to fall within the ambit of s 10; the violence perpetrated by the second respondent was not invited by the conduct of the appellant; and the conduct of the appellant was not causative of the injury.

[23]

On behalf of the appellant, Mr Grant submitted in the alternative that, if the learned magistrate was not in error in finding that the appellant's conduct contributed to his injury, His Worship was wrong in concluding that such contribution amounted to 100%. For reasons which will become apparent, it is not necessary to refer to this alternative submission in any detail.

[24]

The main thrust of Mr Young's submissions on behalf of the first respondent was that the appellant's approach to the findings of the learned magistrate was misconceived. In particular, the learned magistrate had not, as Mr Grant had suggested, denied the appellant an assistance certificate on broad public policy grounds concerned with the appellant's disreputable character, chaotic lifestyle, reliance on prescription morphine tablets and occasional unlawful drug dealing. The learned magistrate had relied upon the appellant's conduct in holding himself as a drug dealer who had initially entertained negotiations with the second respondent for the supply of morphine tablets. In Mr Young's submission, the risks of attempting to do business with a person known to him as a drug abuser at a time when that person was displaying signs of withdrawal must have been obvious. The appellant was a person who, on his own evidence, had previously been the target of theft by those seeking drugs and kept a large knife in his room for just such "emergencies". In Mr Young's submission, applying a common-sense test of causation (March v Stramare [1991] HCA 12; (1990) 171 CLR 506) would merit the conclusion that, had the appellant not been a drug dealer, the second respondent would not have approached him. Further, in Mr Young's submission, physical injury to the appellant was entirely foreseeable in circumstances where the appellant was initially willing to negotiate with the second respondent despite the latter displaying signs of drug withdrawal and had a large knife to hand to deal with the risk of being a target for robbery.

[25]

In applying s 10 of the Act to the findings of the learned magistrate in the present case, I do not think it is necessary or convenient to interpret s 10 by reference to corresponding legislation in other jurisdictions. Section 10(1) requires the Local Court to have regard "to the conduct of the victim and to any other matters it considers relevant". Section 10(2) requires the Local Court to make an appropriate reduction in the amount of assistance specified in an assistance certificate where the Court is satisfied that "the victim's conduct contributed to the injury or death of the victim".

[26]

It is apparent that s 10 of the Act grants a large measure of discretion to the Local Court. Counsel referred me to a number of cases in other jurisdictions where unlawful conduct on the part of a victim has not been held to entirely exclude a grant of assistance or compensation (eg South Australia v Nguyen (1991) 57 SASR 252; South Australia v Richards (1997) 69 SASR 263; R v McDonald (1979) NSWLR 451). It is not necessary for present purposes to consider such cases in detail. I think it is clear that the Act does not contemplate that unlawful conduct on the part of a victim will necessarily act as a complete bar to an award of assistance. If the Legislature had intended such a result, no doubt such a provision would have been included in s 12 of the Act (which prescribes certain circumstances where an assistance certificate is not to be issued). Whether or not a victim's unlawful conduct will preclude any assistance or reduce the amount of assistance must be a matter of fact and degree to be determined in light of the particular circumstances of a case by applying a common-sense test of causation. No doubt there are circumstances where it would be inappropriate to make a reduction in the amount to be specified in an assistance certificate despite some unlawful conduct on the part of the victim. These would be cases where the unlawfulness of the victim's conduct made no substantial contribution to the injury suffered by the victim. On the other hand, there may be circumstances where the victim's conduct so contributed to his injury that the amount of assistance to be awarded should be reduced substantially or eliminated entirely.

[27]

In my view, the present case falls into the latter category. I agree with the submissions of Mr Young that the appellant's contribution to his injury was so substantial that it was appropriate for the learned magistrate to exercise his discretion by refusing to issue an assistance certificate.

[28]

The learned magistrate's findings, reduced to the essentials, were that the appellant was a drug dealer who was injured as a result of his attempts to negotiate a drug deal with a person who he knew was both a drug abuser and desperate for an immediate dose of morphine.

[29]

In all the circumstances, the appellant was entirely the author of his own misfortune. On the basis of the learned magistrate's findings, (none of which have been, or could be, subject to challenge in the light of the evidence) the second respondent was willing to put himself in "harm's way" and had a weapon to hand to deal with just the type of situation which arose in this case. The general public would undoubtedly be outraged if a drug dealer was assisted by public funds for injuries received in the course of a drug deal gone sour. (I say "public funds" as in this case there is no realistic prospect of recovery from the second respondent). However, I do not suggest that 'public outrage' should be the test for reduction or elimination of assistance under s 10 of the Act. Rather, I would stress that nothing has been advanced on behalf of the appellant to indicate that the learned magistrate misapprehended the facts or erred in law in concluding that the appellant's conduct in contributing to his own injury was sufficient to disentitle him to any assistance under the Act. I am not persuaded that there is any valid basis for this Court to interfere with the exercise of His Worship's discretion under s 10 of the Act.

[30]

In all the circumstances, the appeal is dismissed.

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