Common offence 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 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.

For a claim arising from an offence it is necessary to prove that the offence:

and also that the victim was:

Note that, even if the suspect cannot be prosecuted, or is acquitted, because they are under ten years old (the age at which people can be legally responsible for crimes) or because of mental impairment, a claim can still be made.

Note also that the one incident of injury normally only gives rise to one claim, even if there were several offender involved, or if several offences were committed on the same occasion.

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.

It can happen that no offender is caught, or that someone is charged but the prosecution does not go ahead, or it goes ahead but fails. 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 may be needed. 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 later.

The victim can claim compensation for pain and suffering, financial losses such as loss of earnings or reduced ability to earn, and for 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.

Claims for offences since 1 September 1990 are limited to a maximum payment of $50 000. For offences between 1 August, 1987 and 1 September, 1990, the maximum is $20 000 and for offences between 1978 and 1 August, 1987, the maximum is $10 000. For offences committed in the period 1975 to 1977, the maximum is $2000 and for offences between 1969 and 1974, $1000.

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 $1000 compensation. An injury must be worth at least one point for the plaintiff to receive any compensation, so very minor injuries are excluded.

For claims arising from offences on or after 1 January, 2003, 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.

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 Workcover or has an insurance policy that covers the loss, this will be taken into account. If there are payments of this kind, the case will be referred to the Attorney-General, who can reduce the amount payable to take account of these other entitlements. The Attorney-General can also decide whether legal costs should be paid, so, if there is some other source of compensation, it is wise to get legal advice before deciding whether to claim on the Fund.

If the victim’s own actions contributed to the offence or to the injury, the claim will be reduced. 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.

The court cannot award compensation if the victim, without good reason, failed to co-operate with police investigation of the offence. 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.

Further, if the victim was committing an indictable offence at the time of the injury, compensation may be refused.

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.

The dependants of a homicide victim can claim compensation for loss of the person’s financial support. A dependant is 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. 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 $5 000.

The spouse or domestic partner of a homicide victim can also claim compensation of up to $4200 for grief. A parent or parents of a child victim of these offence can also claim up to $3000 for grief.

Injury claims must normally be made within three years of the date of the offence. Children, however, can claim at any time up to their 21st birthday under the Limitation of Actions Act 1936 [s.45]. Also, if the victim is unable to manage his or her own legal affairs through mental incapacity, extra time may be available. 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.

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.

The first step in making a claim is to send the Crown Solicitor the information and documents required by law. This includes information about the victim, the offence, the injuries and the losses they have caused. 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.

Some claims cannot be resolved by negotiation with the Crown. In that case, an application for compensation is issued in the Criminal Injuries Division of the District Court. The State of South Australia and the offender (if known) are defendant to this action. It will proceed to trial unless the parties agree on some other result.

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).

A child does not need 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. However, 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.

The scheme does not apply to injury or death caused by a motor accident, even if criminal offence were committed, if the claim is one that is covered by compulsory third party insurance or by the Nominal Defendant scheme see motor vehicle accidents. 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.

There is 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.

Also, since 1 January, 2003, although prisoners can claim for criminal injuries inflicted in gaol, a prisoner cannot claim for psychological injury from an offence against him or her in gaol unless the prisoner was also assaulted or physically injured.

Compensation is paid from the Victims of Crime Fund. The fund includes money provided by Parliament, a proportion of fines paid by offender, confiscated proceeds of crime, and a levy imposed on convictions and on expiation of offence (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. If, however, the claim ultimately fails, the interim payment has to be paid back.

In some cases where a claim cannot succeed for legal reasons, the Attorney-General can make a grace (or ex gratia) payment. Grace payments can be made, for example:

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. 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.