Regina v Skaf

It is observed that this statement was made in the context of the jurisdiction of the Federal Court, noting that an appeal to a Full Court lies from a judgment which is entered upon a verdict in a criminal trial and not a verdict, because s4 of the Federal Court Act does not include the verdict of a jury in its definition of judgment. 29 Senior counsel relied upon the circumstance that on 10 December Nield DCJ formally included in his remarks on sentence the words "for each of the three offences to which you have pleaded you are guilty, you are convicted" and contended that this, added to the total compensation order exceeding the amount available if conviction occurred before 8 December demonstrated that his Honour did not intend and had not convicted the appellant until 10 December. 30 Whilst I would acknowledge that conviction did not take place upon the pleas of guilty being made at the arraignment hearing on 19 September, I am of opinion that guilt had been determined and conviction had taken place by the conclusion of the hearing on 19 November. His Honour had received the evidence in the Crown case and specifically adjourned for the purpose of reading it. That he had done so was manifest in some of the questions which he asked during the evidence on behalf of the appellant which followed. His final remark that the appellant would be sentenced upon his return from circuit plainly conveyed that his Honour had been satisfied of and had therefore determined the guilt of the appellant at that point. 31 In Maxwell , Gaudron and Gummow JJ had opined that "……. conviction only occurs when the court does some act which indicates that it has determined guilt or, which is the same thing, that it has accepted that the accused is criminally responsible for the offence in question" @ p 531. Their Honours went on to cite with approval R v Jerome & McMahon 1964 Qd R 595 where it was said that (conviction) may appear "……. even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained." As at 19 November 1999 the proceedings had gone far beyond that, evidence relevant to guilt and to sentence had been received and completed, addresses had concluded and there remained only imposition and accompanying remarks both of which necessarily follow subsequent to conviction. 32 Part 4 of the Victims Support and Rehabilitation Act was therefore not applicable to the proceedings and any question of compensation was governed by s71(1) of the Victims Compensation Act. 33 That provision was: "71(1) If a person is convicted by a court of an offence, the court may (on the conviction or at any time afterwards) on notice given to the offender direct that a sum not exceeding $50,000 be paid out of the property of the offender: (a) to any aggrieved person, or (b) to any aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any injury or loss sustained through, or by reason of, the offence or, if applicable, any other offence taken into account (under section 21 of the Criminal Procedure Act 1986) when sentence was passed on the offender for that offence." 34 The appellant contends that there is no causal connection between any offence committed by him and the loss by the Romeos. His Honour made no finding of what specific conduct of the appellant (comprised in which offence or offences) caused their loss. The absence of findings upon which the order was based or reasons for it, is demonstrative of error and the matter is thereby opened up for reassessment by this Court. 35 I understood senior counsel for the Crown to rely upon the offences charged in count 2 of the indictment and the first on Form 1 as providing a sufficient basis for the order. None of the other offences could conceivably be causally connected with loss by the Romeos. I agree that the words "through, or by reason of" in s71(1) should be construed in a broad and comprehensive fashion: cf Fagan v The Crimes Compensation Tribunal 1982 150 CLR 666 but construction must be applied in a commonsense way. 36 I have already extracted his Honour's epitome of the facts concerning count 2 in the indictment. The evidence (in the form of the material tendered by the Crown) shows that when the Romeos paid "Ahmet Oz" they received no registration papers and I am unable to perceive any significant nexus between what the appellant had done on 3 December previously and their loss. Given that the person presenting himself as "Ahmet Oz" was not the appellant and that the Romeos paid him their money in exchange for delivery of the vehicle without registration papers it is open to inference that the transaction would have taken place no matter what name in which the vehicle was registered provided the fraudster with whom they were obviously willing to deal, adopted that name. 37 Although it must be conceded that there was a link in the sense that the particular vehicle which was handed over was registered in the name of Ahmet Oz and the appellant had procured that registration I do not consider that that supports a finding that the registration was causative of Romeos' loss. 38 It was submitted by the Crown that, but for the appellant's action, if Mr Paul Romeo checked with REVS (the Register of Encumbered Vehicles maintained by the Department of Fair Trading) he would have learned that the vehicle had been stolen. It was accepted however that REVS is not a register of title. There is no evidence whether it was ever the subject of encumbrance. I am unpersuaded that the finding suggested should be made. 39 The acts or omissions of the appellant constituting the first offence listed in the Form 1 are difficult to identify beyond what was charged in counts 2 and 3 of the indictment. As I have indicated I am unpersuaded that the isolated act of re-registration of the car caused the loss to the Romeos. The Crown has not pointed to any other facts giving rise to potential liability. More importantly, the learned sentencing judge did not make any finding as to what constituted the appellant's offence first scheduled on the Form 1 beyond that he had procured the registration of the vehicle which the Romeos in fact purchased. The deficiency was mentioned in argument but the relief sought was limited to seeking a quashing of the compensation order. In a general sense there is almost by definition a nexus between the actions of an accessory before the fact to a crime and the victim of that crime and the seeming incongruity of finding that it is absent in this case is not overlooked. However, in the circumstances it will suffice to make the order sought by the appellant without exploring other possible forms of relief. 40 In the light of those views, even if I am wrong in concluding that conviction occurred before 8 December 1999, the orders for compensation should not be sustained. I have, however, expressed my opinion on the "conviction" point in deference to the argument presented by both parties in that regard. 41 I propose the following orders:

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (9 paragraphs)

Parties

Cases Cited (4)

Cited By (3)