Foilsiú
F/586 (4 July 2022)
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of a Single Member
Name of applicant: [ ]
Name of deceased: [ ]
Date of death: [ ]
Application number: F/586
Date of incident: [ ]
Date of application: [ ]
Decision outcome: The death did not arise out of a crime, and in any event the deceased’s involvement in the incident extinguished any claim pursuant to paragraph 12 of the Scheme.
1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’). The completed application was received by the Tribunal [ ].
2. The applicant is the mother of [ ] (hereafter ‘the deceased’) who died on [ ] as a consequence of a fatal stab wound . The claim is made under paragraph 3(c) of the Scheme, which allows dependents of a person who has died as a result of injuries criminally inflicted to claim compensation.
3. It is very clear from the papers supplied to the Tribunal that the applicant was traumatised by the loss of her son in such violent circumstances. At the outset the Tribunal wishes to express deep sympathy to the applicant. It notes however that it is constrained by the terms of the Scheme and has no power to go beyond those terms even where it has great sympathy for the people involved.
4. A time limit to make applications applies under paragraph 21 of the Scheme (the wording is replicated in paragraph 22 of the updated Scheme which came into effect in April 2021). This paragraph reads:
“Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury”.
5. In this case the application was made nearly six years after the incident that caused the death of the deceased. That no reason is supplied for this delay is not surprising given a letter from the Tribunal’s Secretariat to the Applicant’s solicitor, dated [ ] which states that “the time limit will not apply in this case as it is a fatal injury”.
6. The Tribunal Secretariat was wrong in its assertion: the time limit does apply in fatal injury cases. However, in the sixteen years after making this incorrect assertion it was at no point corrected by the Tribunal Secretariat. The Tribunal finds that this in itself amounts to a circumstance which warrants the exceptional treatment of admitting the application for consideration.
7. However the application has further frailties. First it is noted that the application form states that the applicant has other children at home. A likely inference is that these are siblings of the deceased. A father is also mentioned. For the purpose of the Scheme these people fall into the definition of ‘dependents’, which takes its definition from the Civil Liabilities Acts as family members comprising a:
“wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister”.
No information in respect of any siblings’ or father’s claim, or applicable waivers, are on file.
8. On [ ] the Secretariat wrote to the applicant seeking birth certificates/waivers in respect of the remainder of the deceased’s dependents. This letter was replied to by the Applicant’s solicitor on [ ] asserting that the deceased had no dependents. This appears to have been a mis-reading of the term ‘dependents’, but it is noted that the point was not followed up on by the Tribunal Secretariat.
9. A second point raised with the Applicant is whether a crime of violence occurred. It appears from the Garda report that the deceased was with a group of friends who had become involved in an argument with [ ] on the night in question. The [ ] were assaulted by members of the group. The Garda statement reports that the [ ] followed the group and that one of the [ ] had then stabbed the deceased causing his death. This [ ] was charged with [ ] in respect of the stabbing incident that caused the deceased’s death. It appears that he raised self-defence as a defence. He successfully argued that he was attacked by some youths and he took his knife out to protect himself. He stated that the deceased [ ]. A jury found the accused not guilty of both [ ] and [ ].
10. On [ ] the Tribunal Secretariat forwarded the Garda Report to the Applicant’s solicitor and asked for their comments in relation to Articles 13 and 14 of the Scheme, both of which may reduce or extinguish entitlements to compensation. (These paragraphs were subsequently renumbered 12 and 13 in the amendment to the Scheme in April 2021). Paragraph 12 reads:
“No compensation will be payable where the Tribunal is satisfied that the victim was responsible, either because of provocation or otherwise, for the offence giving rise to his injuries and the Tribunal may reduce the amount of award where, in its opinion, the victim has been partially responsible for the offence”
Article 13 refers to the way of life and character of the applicant rendering an award inappropriate.
11. A response to this dated [ ] is on file. It sought to put culpability on the person who stood accused of [ ], and posited that the deceased was not part of or centrally involved in the attack on the accused and his companion. It is noted that this relies on the Garda statement that the deceased had no criminal record.
12. On [ ] the Tribunal Secretariat wrote again to the Applicant’s solicitor. In this letter it the question was raised as to whether, if the accused had been found not guilty of [ ], a crime had been committed such that the claim fell under the terms of the Scheme. It sets out the facts as found by a jury and seeks comment on the assertion that “the victim did not die as a result of a crime of violence, as required by the Scheme”.
13. No response to this letter was received. On [ ] the Tribunal Secretariat wrote to the Applicant’s solicitor asking whether the application was to be pursued, and if so to furnish outstanding documents and responses by [ ]. No response was received to this letter.
14. In considering this case the Tribunal has a garda report of the incident and the outcome of the hearing. From that report the following facts can be established without controversy:
(i) The deceased and [ ] were involved in an argument in which a knife was wielded;
(ii) The deceased sustained a stab wound to [ ];
(iii) The person who stabbed the deceased successfully raised the defence of self-defence.
15. The criminal trial assessed the evidence as to whether the accused was guilty of [ ] beyond reasonable doubt; it heard oral evidence close in time to the events in question, which evidence was tested in court. The Tribunal must assess the evidence as to whether the deceased was a victim of crime on the lower civil standard, being the balance of probabilities. The evidence before it in respect of the incident leading to the deceased’s death is of lesser quality than that which was heard in the criminal trial. It comprises a synthesis in report form of the investigation and hearing and assertions and opinions from the deceased’s mother. However there is no witness statement from any person who was present when the incident occurred.
16. The Tribunal has had regard to the Applicant’s submission that the deceased was not a central actor in the fracas. It notes however that this is drawn from inference from the Garda report rather than first-hand witnessing of the events. The Tribunal cannot accept this as a likely reflection of the events given the central position which would have been required for the deceased to sustain a singular but fatal stab wound [ ]. It also finds it inconsistent with the acceptance by a jury that the accused was defending himself and that the deceased [ ]. On the balance of probabilities, the Tribunal finds that the deceased was an active participant in the fracas which ultimately led to his death.
17. As stated, the person who inflicted the stab wound convinced a jury that he was acting in self-defence. To succeed in so doing he would have had to convince the jury that he had used reasonable force in the prevailing circumstances as appeared to him to be reasonably necessary: AG v Christopher Dwyer [1972] IR 416; O’Carroll v the DPP [2004] IECA16. The impact of successfully invoking this defence is that the intentionality of both [ ] is extinguished: a crime was not committed. In the criminal courts the accused succeeded therefore in establishing that he had used no more force than was reasonably necessary in the course of a fracas in which the Tribunal has found the deceased to be centrally involved.
18. In light of the foregoing two conclusions pertinent to the application of the Scheme can be drawn. First, the stab wound did not result from a crime and therefore it cannot ground a claim under the Scheme which applies when injuries have been sustained from a crime of violence. Second, if one takes a wider view, that each of the assaults and counter assaults were crimes in themselves, the finding that the deceased was an active participant in the fracas engages paragraph 12 of the Scheme. The deceased shared significant responsibility for the incident that led to his death.
19. Each of these findings leads to the same conclusion, though by two separate routes. The incident in which the applicant’s son was killed does not form the basis upon which compensation can be awarded under the Scheme.
Tricia Sheehy Skeffington
Member, Criminal Injuries Compensation Tribunal
4 July 2022