Ellacott v Bilston [1998] QCA 169

1 [1998] QCA 169 COURT OF APPEAL McPHERSON JA DERRINGTON J WHITE J CA No 158 of 1998 MALCOLM JOHN ELLACOTT Appellant (Defendant) v. JUSTINE JULIA BILSTON Respondent (Plaintiff) BRISBANE ..DATE 05/05/98 JUDGMENT -- 1 of 10 -- 2 JUDGMENT McPHERSON JA: This is an application for leave to appeal in respect of an assessment of damages for criminal compensation. The sequence of events relevant to the application is that the applicant was first tried in about 1996 before Judge Robertson and a jury in the District Court on an indictment charging him with five counts of offences against the complainant Miss Bilston. The five counts were first, wilful damage to a door, the property of the complainant; secondly, damage to a refrigerator also her property; thirdly, a count of indecent assault on her; fourthly damage to a door panel of a motor vehicle, also her property; and, fifthly, that he had stalked her between December 1994 and 11 September 1995. The count alleging the offence of stalking was accompanied by a circumstance of aggravation, as I understand it, that he threatened to use unlawful violence against another person or another person's property, who I take it to have been the complainant and her family. The applicant was convicted at that trial in -- 2 of 10 -- 3 JUDGMENT respect of all the counts in the indictment. There was then an appeal to this Court, which succeeded, and a re-trial was ordered. The re-trial took place before Judge McGuire in about January or February of 1997. On that occasion the jury returned verdicts of guilty to count 1, which was the damage to the door, and to count 5 which was the unlawful stalking. In respect of the other counts numbered 2, 3 and 4, the applicant was found not guilty and acquitted. This application arises out of the assessment, as I have said, of criminal compensation on an application made by the complainant, which was heard by Judge Robertson in the District Court at Ipswich on 10 December 1997. The result of the application was that his Honour on the same day assessed the compensation to be paid by the applicant before us at the figure of $20,500. What is said in support of the application for leave to appeal is that evidence was admitted at that hearing which was strictly speaking not admissible, and that his Honour acted upon it in -- 3 of 10 -- 4 JUDGMENT arriving at that assessment figure of $20,500. What is sought is that the assessment or award be set aside and that there be a re-hearing of it. The evidence that it is said ought not to have been admitted consisted of all the statements which, together, were taken from the complainant by the police in relation to all the offences that were made the subject of the indictment to which I have referred, which included counts 2, 3 and 4 of which he was later acquitted. It is right to point out both that no objection was taken to those statements being admitted at the hearing of the criminal compensation application before Judge Robertson, but also that the applicant on that occasion was not legally represented. That, perhaps, explains why there was no formal objection to the statements, but of course, once they were before the Court, the Court was not free to act on those parts of them that were not relevant to the application for compensation that was being heard. So far as that aspect of the matter is concerned, the result is that his Honour would not have been entitled to act on so much of the statements of the complainant as went to the three counts in the indictment, numbers 2, 3 and 4, in respect of -- 4 of 10 -- 5 JUDGMENT which the applicant before us was acquitted by the jury at the second trial. There is, however, no evidence that his Honour did act on those statements, or that he was ignorant of the acquittals that had taken place in the trial before Judge McGuire. On the contrary, it is quite clear from what he said in the course of the hearing that he regarded the outcome of the second trial as having limited the issues with which he was concerned on the hearing of the application for compensation. By way of example, in the course of submissions by counsel for the Crown, who was also counsel for the Crown before us in this Court, some reference was made to his Honour's sentencing remarks in the criminal trial before him. His Honour was quick to point out that they were not relevant. "They don't count", he said; to which Mr Clark for the Crown said, "No, they don't, I must have misread it". The only other point which can possibly be made, in my opinion, in favour of this application before us is that his Honour did not have before him the transcript of the proceedings in the second criminal trial before Judge McGuire. It was said, or perhaps implied, that in those -- 5 of 10 -- 6 JUDGMENT circumstances he could not have known what the evidence was at that trial on the strength of which the applicant before us was then convicted, and on which, and only on which, an assessment of compensation could properly be made; and that he must therefore have acted on what he knew from the first trial. Some stress was placed on a passage in his Honour's reasons for judgment which is to the following effect. "The first trial having been before myself resulted in a successful appeal and a retrial before his Honour Judge McGuire in Brisbane on 28 January 1997. As a consequence I am familiar with the circumstances of the offence. It was a particularly bad example of stalking involving conduct that was designed to intimidate, terrify and crush the respondent and to a large extent having regard to the report of Dr Reddan the respondent was 'successful' if I could use that word in her intentions." The force of that point, such as it is, is to my mind considerably diminished by the fact that it was conceded before us that the complainant's evidence at both trials was the same. It may be, of course, that the applicant's own evidence, if -- 6 of 10 -- 7 JUDGMENT he gave evidence at both trials, diverged; or in some way was directed to impeaching the evidence of the complainant in respect of the two counts as to which he was convicted. Even so, there could not have been much, if any, difference in the evidence of the complainant concerning the two counts of which the applicant before us was convicted. That being so, it does not seem to be a reasonable supposition that his Honour acted on any evidence that went beyond that which he was justified in taking account of in determining this application. It was essentially the complainant's evidence on which his Honour acted in making the assessment, and it was the same at both trials. It seems to my mind perfectly clear from that that what his Honour was saying was no more than that he was familiar with the circumstances of the offence of stalking and was therefore in a position properly to assess the compensation for the injuries suffered by the complainant that were caused in the course of that offence. It is plain that, if his Honour regarded the stalking offence as the primary offence for which the complainant was to be compensated, he was -- 7 of 10 -- 8 JUDGMENT perfectly correct, and no proper challenge can be made to his decision on that basis. The concession that the evidence for the prosecution in both cases was the same, or even only much the same, has the consequence to my mind that his Honour was justified in making the remark he did; and conversely it also demonstrates quite clearly that he was not acting on evidence that was not admissible on the compensation hearing for the reason that it had not been presented at the trial before Judge McGuire. When all these matters are considered, I have come to the conclusion that the applicant has failed to demonstrate before us that his Honour misdirected himself, or that his judgment in making the assessment in any way miscarried. The consequence is in my view that the application cannot succeed and should be dismissed. DERRINGTON J: I agree. WHITE J: I agree and would just add to demonstrate further that his Honour had firmly in mind that he was considering compensation in respect only of two offences and, without doubt, -- 8 of 10 -- 9 JUDGMENT it was the stalking offence that would give rise to the compensation, was his mention on page 3 of his reasons of the two reports of Dr Jill Reddan, psychiatrist. He mentions the updated report dated 30 July 1997 and when recourse is had to that report, it is clear, that the complainant/applicant's instructing solicitors had drawn to her attention the fact that there were now only two convictions recorded against the applicant. She concluded by saying that the behaviour associated with the stalking had led to the respondent developing the disorder that was the subject of her major report. I agree with the order of the learned presiding Judge. McPHERSON JA: Yes, I would, with respect, associate myself with the remarks that Justice White has just made. DERRINGTON J: I too. McPHERSON JA: Now? MR CLARK: I would ask for costs, Your Honour. McPHERSON JA: Can you oppose that? MR GOODWIN: No, Your Honour. -- 9 of 10 -- 10 JUDGMENT McPHERSON JA: I would order that the applicant pay the costs of and incidental to this application of the respondent. WHITE J: I agree. McPHERSON JA: That will be the order of the Court. ----- -- 10 of 10 --