Kaplan v Lee-Archer [2007] VSCA 42

[2007] VSCA 42

Court of Appeal (Vic)|2007-03-19|Before: BUCHANAN, VINCENT and NETTLE, JJA

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Source facts

Court

Court of Appeal (Vic)

Decision date

2007-03-19

Before

BUCHANAN, VINCENT and NETTLE, JJA

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

Criminal law - Compensation - Whether injury was a direct result of offence - Offence need not be the sole cause of injury - Meaning of "direct" - Exercise of discretion to entertain application for compensation under s 85B of the Sentencing Act 1991 did not miscarry - Costs of application for compensation awarded to applicant.

[2]

1 After a trial in the County Court the applicant was found guilty of 53 counts of theft from a commercial nursery conducted at the Waverly campus of the Holmesglen Institute of TAFE. Students of the Institute were employed growing plants and selling plants and other nursery products. The applicant was the manager of the campus.

2 Evidence was led at the applicant's trial that he instructed the students working in the nursery to remove from the tills the sums referred to in the counts in the presentment. The applicant directed the students to enter the sums as refunds by pressing the refund button on the till register although, according to the Crown, no refunds occurred and the applicant retained for his own use the money taken from the till. The respondent was employed in the nursery as a sales assistant. He gave evidence that the tills in the nursery were equipped with a refund button and a no sale button. The former generated a refund slip and the latter operated the till drawer. The respondent said that the applicant attended the nursery each day and pressed the no sale button or asked one of the employees to do so. He would then order the staff to record a refund. The applicant took the refund slip and money from the till and put the money in his pocket.

[23]

10 The case mounted by the respondent was that he ceased working at the nursery on 27 February 2001 and was unemployed for the next nine months. The respondent gave evidence. He said that he had difficulty sleeping, suffered sweating at night and lost weight. He was loth to go outside his house. The respondent was treated with sleeping pills, valium and antidepressants. He gave up social and sporting activities. He said that on several occasions he attempted to commit suicide.

11 Evidence was also given by the respondent's treating psychologist and a psychiatrist. The psychologist said that the respondent suffered from post-traumatic stress disorder and that "the major phenomena which contributed to the onset of this disorder was ... the behaviour ... taking money from the till and pressing the refund button." The psychiatrist also diagnosed the respondent as suffering from post-traumatic stress disorder, which he ascribed to the respondent's participation in the thefts by the applicant and to a threat to slit the respondent's throat.

12 The respondent said that in a telephone conversation a security guard at the Institute said that he had heard the applicant utter the threat to slit the respondent's throat. At trial the guard denied that he had said any such thing, and another witness, in whose presence the threat was said to have been made, denied that any threat had been uttered.

13 It does not appear to have been contested that the respondent suffered injury within the meaning of s.85A of the Act. Rather, the issue was whether the injury, constituted by the post-traumatic stress disorder identified by the medical specialists, was a direct result of the offences of which the applicant had been convicted.

14 In cross-examination of the respondent, his treating psychologist and the psychiatrist, counsel for the applicant canvassed events other than the thefts, which the respondent related to the psychologist, the psychiatrist and other medical practitioners, and which may have caused or contributed to the post-traumatic stress disorder. Those events were the threat to the respondent's life to which I have referred, sexual harassment by other staff at the nursery, being compelled to work in a confined space with toxic chemicals, accusations of fraud made against him by WorkCover and being followed and receiving intimidating telephone calls after he resigned from his employment at the nursery.

15 When the hearing of the respondent's application commenced, counsel for the applicant submitted that the case was not one that should be determined summarily pursuant to the provisions of Division 2 of Part 4 of the Act because of the existence of several possible causes of the injury apart from the commission of the offences by the applicant. It was said that this was not an example of the clear, simple cases which the Act contemplated, for it was difficult to unravel the effect of the many stressful experiences which the respondent had undergone. It was submitted that the respondent's claim should be disposed of in a civil action. The County Court judge rejected this submission and proceeded to hear the respondent's application. His Honour said that the issues were not so complex "as to make it necessary to refuse hearing the present application."

16 After evidence was led on behalf of the respondent and submissions were made by counsel for the parties, the sentencing judge granted the respondent's application and awarded him $40,000 as compensation for his injury. His Honour disposed of the threat to slit the respondent's throat, saying, "while I accept that the applicant was an honest witness, I do not find on the balance of probabilities that that telephone call was in fact made to him." The sentencing judge accepted the evidence of the psychiatrist that the respondent's condition was "caused primarily by the respondent's involvement of the applicant in conduct that, at least as far as the respondent is concerned, was fraudulent."

17 The applicant seeks leave to appeal against the compensation order pursuant to the provisions of s.567 of the Crimes Act 1958.[1]

18 The first ground of the application was that the sentencing judge erred "in holding that there was jurisdiction to entertain an application for compensation pursuant to s.85B of the Act and, in particular, holding that the respondent suffered an injury as a direct result of the offence for which the applicant was convicted." Associated grounds were that the sentencing judge erred:

[26]

19 Counsel for the applicant argued these grounds together. He submitted that the overwhelming preponderance of the evidence was that the respondent's injury was caused by the threat to slit his throat, not the thefts committed by the applicant. Accordingly, it was not open to his Honour to find that the claimed injury was a direct result of the thefts.

20 The short answer to this contention is that the sentencing judge found that no threat was made. It is not contended that this finding was in error. The applicant's resistance to the claim for compensation at first instance bore a schizophrenic air: the applicant contended that he had made no threat to slit the respondent's throat, and at the same time argued that the respondent's disorder was due to the threat. In my view, the success of the first contention entailed the failure of the second.

21 Counsel for the applicant also submitted that compensation could only be awarded under s.85B of the Act if the offence was the sole cause of the injury. He said that was not so in this case for there were other factors which caused or contributed to the respondent's post-traumatic stress disorder.

22 In Martin v Crimes Compensation Tribunal[2] Hansen J held that compensation could be awarded to a victim of crime even if the crime was not the sole cause of the victim's injury. Statements to the same effect were made by the High Court in Fagan v Crimes Compensation Tribunal[3] and the Full Court in Savage v Crimes Compensation Tribunal[4].

23 These cases dealt with legislation which preceded s.85B of the Act and was in different terms. Section 3 of the Criminal Injuries Compensation Act 1983, the legislation considered in Martin and Savage, provided for the award of compensation to a "victim" defined as a "person injured or killed in Victoria by the criminal act of another person." The Criminal Injuries Compensation Act 1972, the legislation considered in Fagan, provided for the award of compensation to persons who suffered injury or were killed "by or as a result of a criminal act."

24 Nevertheless, in my opinion, the addition of the requirement that the result be "direct" does not mean that there can be no step between the cause and the consequence[5], or that the consequence must be solely due to the cause. As Lord Sumner said in Weld-Blundell v Stephens:

[28]

25 Nor do I think that "direct" is a synonym for "immediate" or "proximate" or "obvious". An injury may be directly caused by a crime notwithstanding that the injury develops gradually or becomes manifest only after a lapse of time or, as will often be the case with psychological or mental injury, is revealed only by expert diagnosis of multiple symptoms. In a scheme of compensation which was designed to be a cheap and expeditious remedy tacked on to a criminal trial, in my view the introduction of the adjective "direct" is intended to exclude those results which are but tenuously related to crimes in that their contribution is a minor factor in the production of the injury. Examples of injuries which, in my view, are not the direct result of crimes are where the crime is merely part of the background, one of a large number of circumstances, and by no means prominent, which produces the injury, or where there is another, supervening cause which overshadows the commission of the crime.

26 In the present case the sentencing judge found that the thefts were "the first and in layman's terms a significant factor in the development of the [respondent's] psychological disorder." In my view the finding was open on the evidence. The other pressures upon the respondent now relied upon by the applicant could be described, as the sentencing judge did, as "factors [which] possibly contributed to the [respondent's] ill health" by rendering him "a more vulnerable victim". The sentencing judge found, and in my view was entitled to find, that the respondent was affected by his involvement in the acts constituting the thefts in that the thefts led directly to the development of a post-traumatic stress disorder.

27 Another distinction between the Act and earlier legislation, which was relied upon by counsel for the applicant as justifying a strict, rather than remedial construction of the Act, was that the compensation awarded under the earlier legislation in the first instance was payable out of the Consolidated Fund, although the offender could be ordered to refund compensation paid from the Consolidated Fund. The regime established by Division 2 of Part 4 of the Act, on the other hand, is concerned only with the recovery of compensation from offenders. Another Act, the Victims of Crime Assistance Act 1996, deals with compensation payable from the Consolidated Fund. In my view the altered structure of the system for awarding compensation to victims of crime is of limited significance for present purposes for, like the Act, the Victims of Crime Assistance Act limits compensation to those affected as a "direct result" of acts of violence and events, such as arrest and rescue, associated with acts of violence.

28 In tort law an act may be the direct cause of injury yet be too remote to found liability. In The Wagon Mound[7] it was held that the test of the extent of liability in the tort of negligence should be the same as the test of its existence, that is, reasonable foreseeability. The decision in Re Polemis[8], holding that a defendant could be liable in negligence for unforeseeable damage "so long as the damage is in fact directly traceable to the negligent act"[9] was overruled. I do not think that the word "direct" in s.85B of the Act was intended to revive Re Polemis. Compensation under the section should extend no further than that recoverable at common law.[10] In my view the adjective was inserted to emphasise that the crime is to play a significant role in bringing about the compensable injury.

29 Ground 2 of the application was:

[57]

54 Additionally, inasmuch as s 85B of the Sentencing Act 1991 was intended to provide an alternative to civil proceedings for the recovery of damages, it would be illogical and therefore surprising if the nature of causation required to be established were not in each case the same. That adds to the probability that "direct result" is used in s 85B in the same sense as Mason and Wilson, JJ. conceived of it in Fagan.

55 Just as importantly, whereas in Container Handlers[22] the second reading speech presented a clear statement of intention to reverse the effect of the decision in Dickinson, and so to foreclose what was feared would be a flood of claims for injuries not previously conceived of as covered by the statutory policy, there is nothing in the second reading speech or other extrinsic materials relating to s 85B of the Sentencing Act 1991 that suggests an intention to reduce the scope of recovery. To the contrary, the emphasis is upon expanding the reach of the compensatory provisions to persons not previously assisted.

56 I have therefore come to the view that when the draftsman of s 85B chose the expression "as a direct result of the offence" he or she had in mind the sense in which the expression was used in relation to the injury in Fagan, which is to say an injury that is judged as a matter of fact, according to commonsense and experience, to have been caused by the offence.[23]

57 But to that I would add three qualifications. First, just as commonsense notions of causation may differ as between everyday experience and litigious contexts, so too may the notion of "direct result" differ as between everyday and litigious contexts. In particular, in cases where expert evidence is called to explain a connection between an offence and a result, the "educative effect" of the expert evidence may infuse commonsense notions of causation with an educated perspective and so warrant a finding of direct result not open to an ordinary person uninstructed by the expert evidence.[24]

58 Secondly, just as the several notions of causation involved in particular statutory regimes are to be understood by reference to the object of the statute in view,[25] so too is the notion of "direct result" in s 85B to be understood by reference to the object of the section - of providing victims of crime with a speedy and low cost option for seeking recompense from offenders without having to resort to civil proceedings.

59 Thirdly, since claims under s 85B are in effect limited to compensation for personal injuries suffered as a result of an offence,[26] and since Part IVAA of the Wrongs Act 1958 applies only to claims for economic loss and damage to property or under Part 9 of the Fair Trading Act 1999 (scil. consumer and trader disputes and small claims),[27] I consider that Part IVAA of the Wrongs Act 1958 does not apply to a claim for compensation under s 85B. In my view, if a judge is persuaded that the victim has suffered injury as a result of an offence, the judge should calculate the amount of compensation without reduction by way apportionment of the kind for which Part IVAA provides.

60 Like Buchanan, J.A., however, I consider that Part IV of the Wrongs Act does apply - in the sense that, if an award of compensation is made against an offender pursuant to s 85B of the Sentencing Act, the offender is entitled to seek compensation from any person jointly liable for the same damage. But I think that in practice it is unlikely that a claim for contribution will be dealt with at the same time as the victim's claim for compensation. The method of s 85B is to provide a quick low cost mechanism for the victim to recover compensation. Accordingly, if in any matter it appears to a judge that there are substantial questions of contribution to be investigated, the judge is likely to conclude that the matter is inappropriate to be dealt with under the section.