No award to victim of crime due to his involvement in a separate crime

In the matter of Thomson v Francis [2016] WADC 154, the District Court of Western Australia quashed an award of an Assessor of Criminal Injuries Compensation to the value of $75,000 and dismissed Mr Francis application for compensation outright.

In December of 2012, Mr Francis was attacked by Ms Thomson and her partner and sustained various severe injuries. Both Ms Thomson and partner were arrested, tried and convicted of various offences and sentenced to respective jail terms. During the trial Mr Francis gave evidence for which he sought the protection of section 11 of the Evidence Act 1906, which provides that a witness may decline to answer questions which may incriminate him unless a judge provides a certificate protecting him from prosecution for having committed an offence. This was duly granted and Mr Francis, in evidence, admitted to having committed three separate offences, whilst in the presence of Ms Thomson and her partner.

Section 39 of the Criminal Injuries Compensation Act 2003 (Act) provides that if an assessor is satisfied that a person was injured as a consequence of the commission of an offence and that injury was suffered when the person was committing a separate offence, the assessor must not make a compensation award in favour of the person. Mr Francis admitted being in possession of cannabis, cocaine and a self-loading pistol (without the adequate licence) at the time of his assault by Ms Thomson and partner.

In analysing section 39 of the Act, the Court indicated that it was clear that the intention of the legislature (in enacting that section) did not intend that a causal connection is required between the offence committed by a claimant for compensation and the offence giving rise to that person’s injuries. The court indicated that all that was required is a temporal connection in that the injury was suffered when the person was committing a separate offence. If that be the case, the assessor may not make an award.

In the circumstances the court concluded that because Mr Francis was committing an offence (unrelated to his attack) at the time he was assaulted, there was a temporal connection between the commission of the offences giving rise to his injuries and the commission of his offences for being in possession of the drugs and unlicensed weapon.