Who can claim compensation depends on the type of compensation being sought. Below is a summary of the different types of claims and to whom they apply.

Claim for injury

Only an immediate victim of an offence can claim compensation for injury caused by the offence [Victims of Crime Act 2001 (SA) s 17(1)].

The offence must meet one of the following criteria:

An immediate victim of an offence means [s 4]:

Immediate family of a person means [s 4]:

Common offences that can cause injury include assault, robbery, and home invasion, but a claim can arise from any offence. By way of example, it can include injury caused by an offence under the Dog and Cat Management Act 1995 (SA) when a dog is not properly controlled and attacks a person. 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 usually 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 cannot be prosecuted due to their age or some other reason, 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 under 18 at the time the offence was committed) [s 17(2)(a)-(ab)]. If the deceased victim was a child, a parent can claim compensation for grief [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 [s 17(3)]. 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 18^th 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.

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)].

Sometimes the offender is never found. Sometimes a prosecution does not proceed, or proceeds but does not result in a conviction. In such cases, a compensation claim may 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.

In 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:

The amount the victim will receive depends on several factors:

and, for offences after 1 January 2003:

Maximum payments

As of 1 July 2015 the following limits apply to payments for compensation:

The maximum amounts of compensation payable under the respective legislation are:

See Victims of Crime Act 2001 (SA) s 20; Schedule a1.

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 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 $1,000 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:

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.

Joint offences

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].

In some circumstances, the conduct of the victim may affect their award of compensation.

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 may be rejected [Victims of Crime Act 2001 (SA) s 20(4)]. For example, if the victim provoked the offender into assaulting them by taunting or challenging the offender to fight, or by verbally abusing them, the claim may be reduced to reflect this.

However, lawful and reasonable conduct, such as visiting a place that has a high crime rate, going out alone at night, or wearing a particular style of clothing, is unlikely to lead to a reduction in compensation.

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 the police investigation of the offence [s 20(7)]. This includes reporting the offence within a reasonable 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 if the victim's offending conduct contributed to the risk of injury [s 20(5)].

Failure to reduce harm

In claims 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 [s 4]. Domestic partner for the purpose of such a claim takes the meaning as defined in s 11A of the Family Relationships Act 1975 (SA).

One claim is made on behalf of all of the dependants by a person suitable to represent them. For example, if a married person with children dies, their dependent spouse may claim for their loss and that of their children. If an adult financially supporting their 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).

Time limits

Injury claims must normally be made within 3 years of the date of the offence. Extra time may be available if the victim is unable to manage their own legal affairs because of mental incapacity.

Death claims must be made within 12 months of the death of the victim.

Late claims may be made if the court allows them, but it is best to get legal advice well before the time limit runs out. If a victim has a claim but time has run out, they should 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 Victims of Crime 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 the victim at an early stage whether their 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 2019 (SA) Schedule 1 Parts 1 and 2]. This includes:

If the claimant has a lawyer, they will collate and prepare the application.

The Crown Solicitor 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.

If the claim is not settled

If the claim is not settled between the claimant and the Crown Solicitor within 3 months, an application for compensation may be made in the Criminal Injuries Division of the District Court [s 18(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.

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]. However, the court may exempt the claimant from the requirement to serve a copy of the application on the defendant, in which case the defendant does not become a party to the proceedings [s 19(3)(b)].

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 [s 18(7)].

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).

Children who are victims of a crime may also be eligible to seek victims of crime 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.

Under section 45(1) of the Limitation of Actions Act 1936 (SA) children have three years from the date of their 18^th birthday to make a claim for compensation.

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)]:

A claim will also be refused if the victim was injured while committing an indictable offence if their conduct contributed materially to the risk of injury [s 20(5)]. For example, a person will not be eligible for compensation if they break into someone's home and the homeowner assaults them, even if the homeowner's use of force is excessive.

* 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 [Victims of Crime Act 2001 (SA) s 31]. The Fund includes money provided by Parliament, a proportion of fines paid by offenders, confiscated proceeds of crime, and money paid pursuant to the levy imposed on convictions and on expiation of offences (payment of on-the-spot-fines) under s 32.

Recovering compensation from the offender

The scheme intends that, where possible, offenders should pay for the harm they have caused. Accordingly, the Attorney-General can claim back from the offender compensation paid to victims from the Fund (excluding ex gratia payments). Money recovered from the offender is paid into the Fund.

Section 28 of the Victims of Crime Act 2001 (SA) permits the Attorney-General to apply to the District Court for summary judgment against the offender.

The Attorney-General (usually represented by the Crown Solicitor) must file a certificate that certifies the amount of the compensation that has been paid and any legal costs that have been incurred.

Upon the Attorney-General’s application, the Court must enter judgment in favour of the Attorney-General and against the offender in the amount indicated in the filed certificate.

If the compensation was paid under an agreement reached between the Attorney-General and the victim, and the offender was not a party to that settlement agreement, the offender may apply to have the judgment varied or set aside within 1 month of receiving notice of the summary judgment [s 28(4)].

If compensation was paid by agreement without court proceedings, or if compensation was paid following court proceedings in which the offender was not a party, the offender may apply to the Court to prevent judgment being made against them within 1 month of receiving notice of the Attorney-General’s application [s 28(6)]. The offender must be able to show the Court that there is good reason not to enter judgment for the Attorney-General.

The onus is on the offender to establish a “good reason” not to enter judgment against them. Asserting innocence in respect of the offending to which the victims of crime compensation relates is unlikely to amount to a good reason (and the appropriate pathway for such an assertion is a criminal appeal against conviction).

Once judgment has been entered in favour of the Attorney-General, the Fines Enforcement and Recovery Unit assumes responsibility for recovering the debt from the offender [s 28(7)]. The Fines Enforcement and Recovery Unit may exercise any of its powers under the Fines Enforcement and Debt Recovery Act 2017 (SA) as if the debt is owed in relation to an enforcement determination made in respect of an expiation notice.

However, FERU cannot require the offender to complete community service pursuant to s 20 of the Fines Enforcement and Debt Recovery Act 2017 (SA), or waive payment of the debt except with the approval of the Attorney-General [s 28(8)].

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:

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.