Since 1969, South Australia has provided compensation to injured victims of crime even if the offender cannot be found or cannot pay.
Injuries caused by crimes committed between 1 July 1978 and 31 December 2002, are dealt with under the repealed Criminal Injuries Compensation Act 1978 (SA) and the Victims of Crime (Transitional) Regulations 2017 (SA).
Injuries caused by crimes committed on or after 31 December 2002 are dealt with under the Victims of Crime Act 2001 (SA).
These Acts are referred to in this section as the scheme.
The scheme compensates people who are injured by a crime, for example, a person who is assaulted, raped or robbed. This can include mental as well as physical injury - for example, a person who suffers an anxiety disorder after a home invasion or an armed robbery can be compensated even if they were not physically harmed. It can also include pregnancy resulting from a sexual offence. Close family members of a homicide victim can also be compensated.
The scheme does not compensate for property loss or damage as a result of a crime. For example, it will not cover the cost of replacing a stolen car or items burgled from a home, nor clothing or personal belongings damaged in an assault. The victim has two possible remedies. If the offender is prosecuted, the sentencing court can order the offender to pay compensation to the victim. This money is collected by the court. It is important to let the prosecutor know if you want to ask for this compensation, as the request is dealt with when the offender is sentenced.
Alternatively, the victim can sue the offender for damages. However, either procedure may be of little use to the victim if the offender cannot be found or has no money to pay the victim.
Cover for the risk that property will be stolen or damaged can be bought from commercial insurers.
Further information about the Victims of Crime Compensation scheme can be located on the Attorney-General's Department (SA) website.
Who can claim compensation depends on thetypeof compensation being sought. Below is a summary of the different types of claims and to whom they apply.
Claim for injury
Only a person who is an immediate victim of an offence can claim compensation for injury caused by the offence [see Victims of Crime Act 2001 (SA) s 17(1)].
In addition the offence must meet one of the following criteria:
- It involved the use of violence (or threat of violence) against the person or a member of their immediate family; or
- It created a reasonable fear of imminent harm to the person or a member of their immediate family; or
- It was a sexual offence; or
- It caused death or physical injury.
An immediate victim of an offence includes:
- A person who suffers physical injury as a result of the offence;
- A person who suffers psychological injury as a result of the direct circumstances of the offence or from operations in the immediate aftermath;
- A parent or guardian of a child if the offence was committed against a child;
- A member of the immediate family of the deceased where a victim dies as a result of the offence.
Common offences that can cause injury include assault, robbery, and home invasion, but a claim can arise from any offence. For example, an offence under the Dog and Cat Management Act 1995 (SA) when a dog is not properly controlled and attacks a person is included. It also includes the situation where the injured person was not the subject of the attack - for instance, a person shocked by witnessing an offence may claim for mental injury.
One incident of injury normally gives rise to one claim, even if there were several offenders involved, or if several offences were committed on the same occasion.
Even if an alleged offender cannot be found or prosecuted, or is acquitted because they are under 10 years of age (the age at which people can be legally responsible for crimes) or because of mental impairment, a claim can still be made.
Claim for grief
A spouse or domestic partner of a homicide victim can claim compensation for grief as can a child of the victim (if they were aged under 18 at the time the offence was committed) [ss 17(2)(a)-(ab)]. In instances where the deceased victim was a child, aparent can claim compensation [s 17(2)(b)].
Claim for financial loss
A claim for financial loss can be made on behalf of dependants of a deceased victim if the victim died as a result of an injury caused by the offence. However, a claim cannot be made if a previous order for statutory compensation has been made for the injury.
Claim for funeral expenses
If a victim has died as a consequence of an offence and a person has paid, or is responsible for payment of, the victim’s funeral expenses they are eligible to claim compensation for these expenses.
Children and young people
A child, like any other victim of crime, can apply for compensation for injury caused by a criminal offence. Child victims have until three years after the date of their 18th birthday to lodge a claim, however, they do not need to wait until adulthood to bring a claim.
For further information about time limits and procedure see Making the claim.
A victim may choose an appropriate representative to exercise their rights under the Victims of Crime Act 2001 (SA) or any other Act that gives victims rights [Victims of Crime Act 2001 (SA) s 32A]. Such rights would include the right to request information, to make a compensation claim, and to present a victim impact statement.
An appropriate representative can only be:
- an officer of the court;
- the Commissioner for Victims' Rights, or a person acting on behalf of the Commissioner for Victims' Rights;
- an officer or employee of an organisation whose functions consist of, or include, the provision of support or services to victims of crime;
- a relative of the victim (there is no definition of who is included as a 'relative');
- another person who, in the opinion of the Commissioner for Victims' Rights, would be suitable to act as an appropriate representative.
Compensation is only available if an offence can be proved beyond reasonable doubt. If the offender was successfully prosecuted there will be no difficulty in proving the offence [Victims of Crime Act 2001 (SA) s 22(2)].
It can happen that no offender is caught, or that someone is charged but the prosecution does not go ahead. It may even be the case that the case proceeds but it does not result in a conviction. In those cases a claim can still succeed if there is enough evidence that the victim’s injuries resulted from a crime. Independent evidence corroborating the crime will be required [s 22(3)]. This can take many forms and is not limited to eyewitness evidence.
For some cases where the offence cannot be proved a grace payment may be available, see Discretionary payments by the Attorney-General.
The victim can claim compensation for:
- pain and suffering (non financial loss);
- financial losses such as loss of earnings or reduced ability to earn; and
- past and future treatment costs.
The amount the victim will receive depends on several factors:
- when the offence happened;
- how severe the injury was;
- whether the victim’s own actions contributed to the offence or to the injury;
- whether the victim co-operated with police enquiries;
and, for offences after 1 January, 2003:
- whether the victim has taken reasonable steps to keep their loss to a minimum.
As of 1 July 2015 the following limits apply to payments for compensation:
- payments for grief are capped at $20 000 (indexed);
- funeral expenses are capped at $14 000 (indexed);
- the maximum amount* of compensation (including for aggregate amounts for financial and non-financial loss) is $100 000.
The maximum amounts of compensation payable under the respective legislation are:
22 January 1970 to 10 April 1974 $1 000.00
11 April 1974 to 30 June 1978 $2 000.00
1 July 1978 to 30 July 1987 $10 000.00
1 August 1987 to 31 August 1990 $20 000.00
Since 1 September 1990 $50 000.00
However, in working out whether the maximum payment has been reached, funeral expenses are not taken into account. These can be claimed separately.
Calculating the claim
The exact rules about the amount claimable depend on the date of the offence.
If the offence occurred between 1 September 1990 and 12 August 1993, the amount of compensation for the injury is calculated as follows:
- for claims up to $2000 - that amount
- for claims exceeding $2000 - the sum of $2000 plus 3/4 of the balance of the claim as assessed
- for claims exceeding $50 000 - the sum of $50 000.
For injuries incurred as a result of offences committed after 12 August 1993 the entitlement to compensation for financial loss is determined in the same way. However, a claim for pain and suffering is assessed on a points scale of between 0 and 50 (with 50 being the most serious possible injury). One point on the scale is equivalent to $1000 compensation. An injury must be worth at least one point for the plaintiff to receive any compensation, so very minor injuries are excluded. The statutory limit for compensation is $50 000.
For claims arising from offences on or after 1 January 2003 and before 1 July 2015, there is no payment for pain and suffering unless the injury equates to more than 2 points on the scale, but there is no threshold for a claim for financial loss. The formula limiting financial loss claims is the same as above, as is the statutory limit [Victims of Crime Act 2001 (SA) s 20(3)].
For claims arising from offences committed on or after 1 July 2015:
- in cases of financial loss: if the amount to be awarded exceeds $2 000 the amount will be $2 000 plus three-quarters of the excess;
- in cases of non-financial loss: the total non-financial loss must be assigned a numerical value on a scale of 0 to 60 and if the value assigned is 2 or less no award will be made. Where the value assigned is greater than 2, the amount awarded will be determined by reference to Schedule a1 of the Victims of Crime Act 2001 (SA) e.g. if assigned a value of 35 then the amount to be awarded will be $40 333 (indexed).
Further limits on compensation
The victim cannot be compensated for losses that have already been compensated, or could be compensated, from another source. For example, medical or hospital expenses that are recoverable from a private health fund or from Medicare, cannot be claimed. Likewise, if the victim has an entitlement to compensation under the Return to Work Act 2014 (SA) or has an insurance policy that covers the loss, this will be taken into account.
In cases where an offence has been committed by more than one offender, or where one offender has committed a series of offences consecutively or simultaneously, the victim is entitled to only one claim for compensation [s 23].
Victim contributing to the offence or injury
If the victim’s own actions contributed to the offence or to the injury, the claim will be reduced or my be rejected [ Victims of Crime Act 2001 (SA) s 20(4)]. For example, if the victim provoked the offender into assaulting him or her by taunting or challenging the offender to fight, the claim may be reduced to reflect this. The conduct does not have to be physical - it can be words, or it could be a condition such as drunkenness.
However, doing things that are lawful and reasonable, such as visiting a place that has a high crime rate, going out alone at night, or wearing a particular style of clothing, are unlikely to lead to a reduction.
Failure to co-operate with police without good reason
The court cannot award compensation if the victim, without good reason, failed to co-operate with police investigation of the offence [s 20(7)]. This includes reporting the offence in good time, providing any information the victim has about the offender’s identity or whereabouts, and giving evidence in court if required.
However, compensation may still be paid if the victim has a good reason for not co-operating. This might happen, for example, if the victim and the offender are family members, and the victim fears further violence. A person in this situation should seek legal advice urgently so that they can be referred to sources of help and protection.
Claimant committing an indictable offence
If the claimant was committing an indictable offence at the time of the injury, compensation may be refused [s 20(5)].
Failure to reduce harm
In cases arising from offences on and after 1 January 2003, compensation can also be reduced if the victim fails to take up appropriate medical and rehabilitative therapy, or to take other reasonable steps to reduce the harm resulting from the offence [s 20(8)].
The dependants of a homicide* victim can claim compensation for loss of the person’s financial support. The maximum amount of compensation that can be awarded is $100 000 (indexed) [Victims of Crime Act 2001 (SA) s 20(3)]. This amount will be distributed between the different claimants as the court thinks fit [s 20(1)(b)].
A dependant is defined as a spouse, domestic partner, parent or child who was financially dependent on the deceased. 'Domestic partner' for the purpose of such a claim is defined in the Family Relationships Act 1975 (SA). One claim is made on behalf of all the dependants by a person suitable to represent them. For example, if a breadwinner is killed, the dependent spouse or domestic partner may claim for his or her loss and that of their children, or if an adult who was supporting his or her elderly parents is killed, one of the parents may bring a claim on behalf of them both.
The person who pays or is responsible to pay for the funeral can claim reimbursement of the cost of the funeral, up to a maximum of $14 000 (indexed) [s 20(1)(d)].
The spouse or domestic partner of a homicide victim; the parent of a child homicide victim; or a minor child of a homicide victim, are eligible for compensation for grief up to $20 000 (indexed) [ss 17(2), 20(1)(c)].
* Homicide means murder, or manslaughter, or criminal neglect causing death under section 14 of the Criminal Law Consolidation Act 1935 (SA).
Injury claims must normally be made within three years of the date of the offence. Extra time may be available if the victim is unable to manage his or her own legal affairs because of mental incapacity.
Death claims must be made within twelve months of the death of the victim.
Late claims can be made if the court allows them, but it is best to get legal advice well before the time limit runs out. If you have a claim but time has run out seek legal advice about an extension.
See also Children and young people.
Legal advice – risks of unsuccessful claims
Victims seeking compensation for criminal injuries should get legal advice. The cost of a successful claim is limited by law and is generally paid by the Fund. The victim, however, bears the cost of an unsuccessful claim unless there is some other arrangement with the lawyer. A lawyer can usually tell you at an early stage whether your claim is likely to succeed or not.
Steps in making a claim
The first step in making a claim is to send the Crown Solicitor the information and documents required by law [see Victims of Crime (Statutory Compensation) Regulations 2004 (SA) Parts 1 and 2]. This includes:
- information about the victim and the claimant;
- details of the offence and when it was reported to police;
- details of the nature and extent of the injury and the losses caused;
- in cases of homicide, the relationship of the claimant to the victim and details of the date of death and the date of the funeral;
- police records and statements;
- hospital reports or reports from general practitioner or dentist;
- photographs (where a claim is being made for permanent disability due to scarring or disfigurement);
- statement of loss of earnings.
If you have a lawyer they will do this for you.
The Crown considers this information and, if the claim is accepted, can negotiate a payment with the victim or the victim’s lawyer. Many cases are resolved without going to court and without the victim having any further contact with the offender.
The application must be served on the offender unless their identity is unknown or the Crown Solicitor exempts the claimant from this requirement on the grounds that the offender’s whereabouts are unknown or cannot be easily determined [Victims of Crime 2001 (SA) s 18(4)(c)]. The Crown Solicitor may disclose to a victim any information concerning the whereabouts of an offender for the purpose of facilitating service of documents on the offender [s 34A].
If the claim is not settled
If the claim is not settled between the claimant and the Crown Solicitor within three months, an application for compensation can be issued in the Criminal Injuries Division of the District Court [s18(5)]. The State of South Australia and the offender (if known) are defendants to this action. It will proceed to trial unless the parties agree on some other result.
An application to the court must be made either within the initial application period (i.e. 3 years from the date of the offence) or within 6 months immediately after the negotiation period has ended. Whichever is the later of these two dates will be the deadline by which the application must be lodged [s 18(6)]. The court may extend this limitation period “for any proper reason”.
A party dissatisfied with a decision of the Court can appeal to the Supreme Court within 21 days (or any longer period the Court allows.
Under section 45(1) of the Limitation of Actions Act 1936 (SA) children have three years from the date of their 18th birthday to make a claim for compensation.
It is not necessary for a child to wait until they reach adulthood to bring a claim. An adult, such as a parent or guardian, can bring the claim on the child’s behalf. The person who brings the case on the child’s behalf is called a “next friend”. If the adult decides to settle the case for less than the maximum sum, the court will need a barrister’s confirmation that the settlement is in the child’s interests.
Compensation for children is usually held in trust by the Public Trustee until the child reaches 18, although the Public Trustee may be able to advance money to pay for the child’s support and education.
A person will not be eligible to receive victims of crime compensation in the following instances [ Victims of Crime Act 2001(SA) s 17(5)]:
- Where injury or death was caused by a motor accident and the claim is one covered by compulsory third party insurance or by the Nominal Defendant scheme* see Motor vehicle accidents. This is the case even if the accident was the result of a criminal offence being committed;
- Where injury or death is caused by a breach of statutory duty by the person’s employer that occurred within the course of the person’s employment under the Return to Work Act 2014 (SA);
- Where the person has received, or is eligible to receive, payment or damages in respect of death or non-economic loss for the same injury;
- Where the person has recovered, or is eligible to recover, compensation for hospital or medical expenses from a health insurance scheme or fund;
- Where a prisoner has received a psychological injury as a result of an offence committed in prison, unless the prisoner was assaulted or suffered physical injury.
There is also no claim if the victim was injured in committing an indictable offence and the criminal conduct contributed materially to the risk of injury. For instance, in the case of a home invasion, the homeowner might try to fight off the intruder and might injure him or her. Even if the homeowner uses excessive force, and so commits the offence of assault, the intruder will not be able to claim compensation from the fund.
* There may be some motor accident criminal injuries that are not covered by these schemes and in that case a claim may be possible. A lawyer can help you determine whether any and which source of compensation applies.
Compensation is paid from the Victims of Crime Fund. The fund includes money provided by Parliament, a proportion of fines paid by offenders, confiscated proceeds of crime, and a levy imposed on convictions and on expiation of offences (payment of on-the-spot-fines).
The scheme intends that, where possible, offenders should pay for the harm they have done. Accordingly, the Attorney-General can claim back from the offender compensation paid to victims from the Fund. This is why, if the offender’s identity is known, he or she must usually be notified of any claim for compensation, and has the right to take part in the court case. Money recovered from the offender is paid into the fund.
A victim who is in financial hardship can request an advance on their compensation (an interim payment). This will only be made if the claim is likely to succeed [Victims of Crime Act 2001 (SA) s 27(4)(a)]. If, however, the claim ultimately fails, the interim payment has to be paid back. In instances where the amount eventually awarded is less than the amount provided under interim payment, the shortfall must be repaid [s 29(1)].
In some cases where a claim cannot succeed for legal reasons, the Attorney-General can make a grace (or ex gratia) payment.
Examples of when grace payments can be made include:
- where there cannot be a conviction because the suspect has a legal defence of intoxication, duress or automatism; or
- where the offence occurred, and the offender was convicted, in another jurisdiction, but the victim has tried unsuccessfully to obtain compensation through the legal system there. The victim must normally live in South Australia, and the Attorney-General must be satisfied that the victim would have been entitled to compensation if the offence had happened here; or
- in other cases where, for any other reason, the Attorney-General thinks it is in keeping with the Act to make a payment.
In this way, the Attorney-General can compensate people who have suffered harm as a result of criminal conduct, even if a conviction is not obtained. There is, however, no legal entitlement to these payments. It is up to the Attorney-General to decide whether any payment should be made, and if so, how much.
Further, for offences committed on or after 1 January 2003, the Attorney-General has power to make a grace payment to help a victim recover from the effects of criminal offending or to advance their interests in any other way [s 31(2)]. This applies whether or not the victim was injured. A victim can request a payment by writing to the Attorney-General via the Crown Solicitor’s office.
As discussed above, interim payments of statutory compensation can be recovered from a claimant where an order for compensation is not made in their favour, or where the order is for less than the amount of the interim payment [s 29(1)].
A claimant can also have statutory compensation recovered from them where they receive compensation from another source which was not taken into account when the order for statutory compensation was made. The amount recovered cannot be more than that received from the other source [s 29(2)]. In such instances, a claimant must notify the Attorney-General in writing within 30 days after being paid compensation. The maximum penalty for failure to comply is $1 250 [s 29(3)].
Where a payment is made to a claimant, the Attorney-General takes over the rights of any action by the claimant against the offender, and of the offender against any insurer or any other person indemnifying the offender [s 28(1)].
Where a claim is settled by agreement (i.e. without court proceedings) and the offender was not a party to the agreement, the offender can apply within one month to have the judgment set aside or varied [s 28(4)].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.