Facer v Bennett & Anor [2001] QCA 395

[3] PHILIPPIDES J: This is an application for leave to appeal pursuant to s 118 District Court Act 1967 (Qld) from a decision of a District Court Judge ordering the applicants to pay the respondent, Mr Facer, $18,750 by way of criminal compensation for injuries suffered by the respondent on 26 June 1997 in respect of which the applicants were each convicted on 20 April 1998 of the offence of grievous bodily harm.

[4] Leave to appeal is sought on the following specified grounds; namely that the learned trial judge:

"(a) ...erred in law and failed to give fair conduct prior to the proceedings on the fifth day of March 2001;

(b) ...erred in law and personally did not allow fair conduct during the proceedings on the fifth day of March 2001;

(c) ... failed to abide by previous court orders made by him via telephone link ups during the proceedings on the fifth day of March 2001; and

(d) ... erred in law by ordering that the accused pay to the plaintiff the sum of $18,750.00 in way of compensation."

[5] The Notice of Appeal sets out the following grounds of appeal; namely that the learned trial judge:

"(a) ... erred in law and failed to give fair conduct prior to the proceedings on the fifth day of March 2001;

(b) ... erred in law and he personally did not allow fair conduct during the proceedings on the fifth day of March 2001;

(c) ... failed to abide by previous court orders made by him via telephone link ups;

(d) ... interrupted at all times, questions put to the claimant while he was being cross examined;

(e) ... intercepted questions put to the claimant that might incriminate him by instructing him not to answer;

(f) ... made a court order to protect the claimant from evidence that accused him of provoking his own injuries;

(g) ... did not recognise legal police documents as being true and correct;

(h) ... allowed the council for the respondent to deal only with the credibility of the claimant, yet assisted the claimant in giving wrong evidence about his 35 criminal convictions;

(i) ...failed to listen and act on the fact that the claimant stated that the respondent never contributed to his injuries; and

(j) ...did not allow the respondent to give evidence in the proceedings on the fifth day of March 2001."

[6] Upon the application, argument was principally focused on the following matters:

(a) making rulings precluding certain evidence from being adduced by the applicants going to the issue of contribution by the respondent to his injuries and in precluding cross examination of such matters;

(b) not allowing meteorological evidence as to whether it was dark or not at the time of the incident;

(d) concerning certain procedural matters as to the manner in which the trial was conducted.

[7] Section 25 (7) of the Criminal Offence Victims Act 1995 (`the Act") provides that:

"In deciding whether an amount, or what amount should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury."

[8] The learned trial judge in determining the application for criminal compensation on 5 March 2001 held that the respondent's conduct neither directly nor indirectly contributed to his injuries for which he was entitled to compensation.

[9] It is to be noted that His Honour took the unusual course of permitting Mr J Bennett to act, not only as a McKenzie friend, but also to speak on behalf of both applicants throughout the proceedings. On 14 February 2001, prior to the hearing of the criminal compensation application, the learned trial judge made a preliminary ruling as to the evidence which could be adduced, ruling that, subject to any further submissions, "issues such as self-defence and provocation were not relevant to [the criminal compensation] proceedings"[1], and invited any objections to affidavit material to be made on the basis of that ruling. The following extract illustrates his Honour's preliminary ruling made on that day:[2]

"Mr J Bennett: ... does it limit me now that I can't say he caused the fight? Does it mean I cannot even do that?

His Honour: ... you will be given every opportunity to challenge the case in relation to the quantum of the award ...but, so far as the liability to pay is concerned ... as presently advised I don't think you can go into the liability as to who caused what ...

Mr J Bennett: You mean to say we can't even talk about he owed Lindsay money; they came to the house here; they argued over the money ...

His Honour: That all goes to contributions, to liability, in my opinion, and it's too remote, and the other issues have been determined by the jury ... that's the ruling that I've presently made and you can both prepare your cases and arrange for objections and so on based on that ruling ..."

[10] At the hearing of the criminal compensation proceeding on 5 March 2001, objection was taken to the affidavit material sought to be relied upon by the present applicants.[3] His Honour referred to these objections, as:

"... broadly [being] ... in two categories, one is that in relation to the matters of purely self-defence this was decided at the criminal trial and should not be ... re-litigated in this forum today ... and the other aspect is the allegation by the respondents [to the application for compensation] that what contributed to the assaults was a dispute concerning money which ultimately led to the fight between the [parties]".[4]

[11] On 5 March 2001, the learned trial judge made a further ruling concerning that material as follows:[5]

"... I agree generally with the objections that have been made in the letter by the solicitors for the applicant [Mr Facer]... It is not however, proper for the Court to take account of matters that were disposed of adversely to the respondents at trial. In the present case conduct of the applicant was raised at the trial as affording the respondents a defence of self-defence, see pages 415,440,441 and 449 of my summing up at the trial. See also ... my sentencing remarks.

That defence was rejected by the jury as was the submission by counsel on sentencing that the defence might simply have been rejected because the respondents used too much force when assaulting the applicant.

I say it is not proper to take account of the self defence issue because of the jury's finding and my finding on sentence and because of what was said in Rogers 6086 of 1997, a decision of Justice Helman, Bowen and Others, (1969) 90 WN Pt 1 NSW 82 at 84 and Hondros [1973] WAR 1 ...

In the present case material is sought to be relied on by the respondents which raises conduct of the applicant as affording the respondents a defence of self-defence. It is said that the applicant's behaviour directly, or indirectly contributed to any injury suffered by him. For the above reasons that material is not relevant and I rule accordingly.

The other issue raised by the respondents in their material is one essentially concerned with money. It is said that the applicant treated the respondent Lindsay Bennett unfairly by not paying him what he was entitled to under an employment contract.

Mr Bennett has mentioned from the Bar Table this morning that the amount involved was $1,189.54.

It cannot be said that the jury or myself at trial disposed of this issue and it is not the case that a respondent is precluded from adducing evidence at this stage which goes to the issue of contribution. See Stannard v Lane [QSC 86 para15] .... a broad commonsense approach is required and in my opinion the impugned evidence is so remote that it cannot in the legal sense, be regarded as capable of going to the contribution issue....

I note also the amount of the money involved and I also note that it could be argued that what led to the dispute and the ultimate physical violence was not necessarily the dispute about money but was triggered rather by a remark, this is on the respondent's version, made by the applicant's wife, a matter, of course, for which the applicant himself is not responsible.

Looking at it in these various ways I am of the opinion that the proposed evidence is remote and adopting the approach that I have suggested, I am of the opinion that the evidence is not relevant."

[12] The matter of self defence had been dealt with by the learned trial judge in his summing up as follows:[6]

"... It may be that you find that the accused John Leslie Bennett did not say, "Get me gun, get me gun."... but that the complainant, Mr Facer, said something to the effect that he was going to get a gun.

If he did that... if Mr Facer said ...words to that effect,... that may have been an unlawful assault on his part which was not provoked by the accused persons Linday James Bennett and George Edward Bennett..."

... Each [of the accused] says that he was aiding in the self-defence of the other. That aiding in self-defence might have been, as in the case of the accused, John Leslie Bennett, against either a provoked or an unprovoked assault and in that regard the same directions I gave you in respect of the accused, John Leslie Bennett, apply in the cases of the accused persons Linday James Bennett and George Edward Bennett. That is to say it may be that you determine that the accused John Leslie Bennett did not assault the complainant Mr Facer by saying, "Get me gun. Get me gun.", in which case you would be concerned with aiding in self-defence of an unprovoked assault, or it may be that you determine that there was an assault by the three accused, a response by Mr Facer and a further response by each of the accused men Linday James Bennett and George Edward Bennett. That would be aiding in self-defence of a provoked assault.

[Counsel] said the self-defence for these two accused arises from what was said in the records of interview... He said that his clients might have honestly thought that Mr Facer was getting a gun. The word "gun" was used by Mr Facer, he submitted. He said that his clients might well have been mistaken that a gun was being sought by Mr Facer."

[13] It appears that the issue of self-defence had been raised at the sentencing of the applicants, no doubt by way of mitigation. In his sentencing remarks the learned trial judge referred to the matter of self-defence as follows:[7]

"[It was] said in the course of ... submissions that there was a real basis for saying in this case that the two offenders believed they were acting in self-defence but that they used too much force. I have considered that matter and I am of the view - and I am satisfied about this beyond reasonable doubt - that there was no basis for the defence of self-defence in relation to the two offenders. Having said that, I appreciate that this was not a case as though there was no reason for the attack. As I said earlier on, money, wages, was at the background of it and it was not an attack without any reason at all."

It is clear that His Honour's view of the evidence when passing sentence was that the applicants had initiated the attack and that Mr Facer had not made any statements to induce it.

[14] During the course of the criminal compensation proceedings on 5 March 2001, the applicants sought to adduce evidence and to cross-examine in relation to the issue of contribution as the following passage[8] of submissions made on behalf of the applicants, by Mr J Bennett, the applicant's McKenzie friend, reveals:

"He [Mr Facer] was the fellow reaching for a gun and that's why it wasn't over that money you were talking [about] earlier today ... The reason the fight started - the only reason was [Mr Facer] had knocked Lindsay down and ...run in to get his car to get his gun. He got to the door, George hit him here and he turned around and came at George and George had to stick him back ..."

[15] His Honour held that this line of cross-examination of the respondent was contrary to his ruling, was irrelevant and disallowed it. The following is another example of his Honour's ruling:[9]

"Mr J Bennett: I can't mention the fact about [Mr Facer] going for his gun or anything like that.

[16] His Honour's ruling was, as mentioned, based on the reasoning in Re Rogers [10], a decision of Helman J, R v Bowen,[11] and Re Hondros[12]. In Re Rogers Helman J said:

"The question then arises whether the applicant was guilty of `behaviour ... which directly or indirectly contributed to the injury suffered by [him]' within the meaning of those words in s 663B(2). The applicant's account of the incident which gave rise to the charge is more favourable to him than was the understanding of the facts on which I sentenced the respondent. Since, however, this application is ancillary to the proceedings before me on 11 April 1995 it is not open to me to proceed now on a view of the incident different from that which I took then: see Re Hondros ... In that case, Jackson CJ said at p 3 that, in considering an application for compensation after a trial, it seemed clear to him that he must act on his view of the testimony given at the trial because the relevant Act did not contemplate that an issue such as the one I am referring to should be relitigated on the compensation application. He referred to R v Bowen ... The same principle applies in my view to a compensation application which follows the sentencing of an offender. I took the view on sentencing the respondent that the applicant had been behaving in a threatening way towards him and that as a consequence he was fearful of the applicant. In those circumstances it is clear that the applicant's behaviour led to the commission of the offence ..."

[17] Although directed to the legislation which preceded the Act in question here, the approach taken by Helman J in my opinion represents the correct approach to be taken in respect of a compensation proceeding under the Act, since it also is ancillary to the criminal trial[13].

[18] In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury's verdict in the criminal trial. In certain circumstances, where the jury's verdict leaves open a number of possibilities as to the evidence, the sentencing judge may be required to form his own view of the evidence for sentencing purposes, provided it is not inconsistent with the jury's verdict[14]. In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s 25(7) of the Act[15] to the issue of contribution. Thus although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury's verdict or the view taken of the evidence on sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.

[19] In so far as the applicants sought to adduce evidence that the respondent called for his gun, that evidence was before the jury and therefore the sentencing judge in the form of statements made by the applicants to the police, the applicants not giving evidence at the trial. The trial judge formed a view adverse to the applicants as to whether the respondent asked for his gun. Such a view was open to him[16]. Although in his ruling and during the course of the compensation hearing, His Honour made statements to the effect that the evidence in question would not be permitted to be adduced because it was not relevant, a fair reading of the whole of his ruling on 5 March 2001 reveals that the true basis of His Honour's decision is that the matter in respect of which evidence was sought to be lead had been disposed of and therefore could not be re-litigated.

[20] In those circumstances, I do not consider that the learned trial judge erred in failing to allow the applicants to adduce evidence concerning the respondent's conduct, since it was directed to contradicting the view His Honour took on that matter at sentencing and re-litigating a matter that had been disposed of.

[21] As regards His Honour's ruling in relation to the evidence sought to be led concerning the claim that money was owed to one of the applicants, that matter was not disposed of at the criminal trial, however I consider that the learned trial judge did not err in his ruling that that matter was too remote. Further, to the extent that a provocative comment by Mr Facer's spouse may have helped to set matters in motion, this could not be regarded as `behaviour of the applicant' and therefore could not qualify as contribution under s 25(7) of the Act.

[22] The applicants also assert that the learned trial judge erred in failing to allow the applicants to adduce meteorological evidence as to sunset times and to cross-examine on the issue as to whether it was dark at the time of the assault on the respondent. This submission appears to go to the issue of the respondent's credibility as to what he saw and therefore to the issue of quantum[17]. However, I do not consider that the learned trial judge erred in failing to permit evidence as to this matter. Nor do I consider the proceedings would have been relevantly advanced by such evidence.

(c) Miscalculation of Compensation Allowable

[23] On appeal it was contended by the applicants that the learned trial judge erred in calculating the quantum of compensation that could be awarded under the Act for post traumatic stress disorder, submitting that the award for psychiatric damage was restricted to a percentage of $25,000 rather than the $75,000 used in His Honour. Regulation 2 of the Criminal Offence Victims Regulation 1995 clearly specifies the prescribed amount for the purposes of s 25 of the Act as being $75,000. In my opinion, the trial judge made no error in the manner in which he calculated the amount of compensation for post traumatic stress disorder.

[24] In addition, the applicants contended that His Honour failed to properly consider the evidence by Dr Cameron that the respondent was physically capable of returning to work. That evidence was a matter for His Honour to assess together with other evidence. There is nothing to suggest that His Honour failed to properly consider that evidence.

[25] The applicants also contended that any psychological problems suffered by the respondent such as post traumatic stress disorder were attributable to conduct by the applicants' father, Mr J Bennett and not to them. In this regard, they referred to evidence that the respondent's nightmares centred around Mr J Bennett's conduct, rather than that of the applicants. The extent to which the acts of Mr J Bennett may have contributed to the respondent's condition does not necessarily destroy the effect of the criminal acts of the applicants as a sufficient cause of it. This also was a matter for the learned trial judge to assess. I find no error in His Honour's decision in that regard.

[26] The remaining grounds of appeal raised relate to the learned trial judge's conduct of the claim for compensation; for example that his Honour "intercepted questions put to the claimant that might incriminate him" and "interrupted" questions put to the claimant, and that his Honour allowed the applicants insufficient time in which to conduct their case.

[27] I do not find that any of those matters raise grounds on which the applicants can succeed. It appears that those grounds are no more than a reflection of the difficulties encountered by a lay person such as Mr J Bennett, in assisting in the presentation of the applicants' case as their McKenzie friend, and of his being hampered by his unfamiliarity with the litigation process.

[28] In the circumstances, I would refuse leave to appeal and dismiss the application with no order as to costs.

[1] See transcript of hearing on 14 February 2001 pp 12-15 (Record pp 243-5).

[2] See transcript of hearing on 14 February 2001 pp 12-13 (Record pp 243-4).

[3] See exhibit 1 (letter from Messrs Anderssen & Company dated 21 February 2001).

[4] See transcript p 4 of proceedings of 5 March 2001.

[6] See summing up 5 June 1998 pp 440-442,449.

[7] See sentencing remarks 25 November 1998 pp 8-9.

[8] See transcript of 5 March 2001 p 46.

[9] See transcript of 5 March 2001 p 53.

[11] (1969) 90 W.N.(Pt.1) N.S.W. 82 at 84.

[12] [1973] WAR 1 at 2-3.

[14] See R v Haselich [1967] Qd R 183; R v Pryor [1987] 2 Qd R 768; 772.

[15] Stannard v Lane [2000] QSC 86 at [15].

[16] See R v Olbrich [1999] HCA 54; (1999) 73 ALJR 1550 at 1555.

[17] See transcript of 5 March 2001 p 46, pp 53-54.