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  • {solid} Appeal Determined (QCA)

RZ v PAE

 

[2007] QCA 166

Reported at [2008] 1 Qd R 393

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

DELIVERED ON:

25 May 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 April 2007

JUDGES:

de Jersey CJ, McMurdo P and Philippides J

Joint reasons for judgment of McMurdo P and Philippides J; separate reasons of de Jersey CJ dissenting

ORDER:

1.Application for leave to appeal granted but limited to the question of whether the offence to which the respondent subjected the appellant was a "personal offence" under the Criminal Offence Victims Act 1995 (Qld)

2.Appeal allowed with costs to be assessed

3.The order of the District Court of 27 November 2006 is set aside

4.Instead, the respondent is to pay the appellant $7,500

5.Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld)

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where respondent convicted of attempting unlawfully to procure a child to commit an indecent act – whether an attempt to procure amounts to a “personal offence” under Criminal Offence Victims Act 1995 (Qld)

CRIMINAL LAW – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – OTHER OFFENCES AGAINST THE PERSON – SEXUAL OFFENCES – PROCURATION – where respondent convicted of attempting unlawfully to procure a child to commit an indecent act – whether offence that does not involve physical contact with victim is a “personal offence”

Appeal Costs Fund Act 1973 (Qld), s 15

Criminal Code Act 1899 (Qld), s 4, s 210(1)(b), s 535, s 663B

Criminal Offence Victims Act 1995 (Qld), s 5, s 18(4), s 19(1)(a), s 20, s 21, s 24

District Court of Queensland Act 1967 (Qld), s 118(3)

CRP v Hettrick [2005] QDC 125; BD578 of 2005, 26 May 2005, disapproved

French v Green CA No 4481 of 1997, 19 December 1997, considered

R v Moors; ex parte Alex [1994] 2 Qd R 315, applied

SM obo M-H v NK [2005] QDC 408; 291 of 2005, 26 September 2005, approved

Summers v Dougherty [2000] QSC 365; S8503 of 2000, S8505 of 2000, S8508 of 2000, 19 October 2000, considered

COUNSEL:

A F Maher for the appellant

The respondent appeared on his own behalf

K A Mellifont for the intervenor

SOLICITORS:

Trilby Misso for the appellant

The respondent appeared on his own behalf

Crown Law for the intervenor

[1]  de JERSEY CJ:  The respondent pleaded guilty in the District Court to a charge of attempting unlawfully to procure the applicant, a child aged under 16 years, to commit an indecent act (ss 210(1)(b), 535 Criminal Code Act 1899 (Qld)).  The factual basis of the charge was that the respondent, a 46 year old man, said to the 13 year old applicant:  “I’ll give you $100 if you let me suck your dick”.  The applicant declined.  There was no physical contact.

[2] The applicant applied for compensation under the Criminal Offence Victims Act 1995 (Qld).  That Act establishes a scheme for the payment of compensation for an applicant’s injury consequent upon a “personal offence” committed against the applicant (s 19(1)(a)).  A “personal offence” is defined as “an indictable offence committed against the person of someone” (s 21).

[3] The learned primary Judge dismissed the application because he concluded the offence committed by the respondent was not a “personal offence committed against the applicant”, saying that “in a case where the charge is an attempt to procure, there will be no personal offence”.  The issue now is whether that conclusion was correct.

[4] His Honour agreed with a decision of McGill DCJ given on 26 May 2005, CRP v Hettrick [2005] QDC 125.  The charge in question there was comparable, an attempt to procure a minor for a child abuse photograph, conduct proscribed by s 18 of the Classification of Publications Act 1991 (Qld).  The offender and the child had entered into an arrangement that the child would pose naked, so that the offender might photograph him.  McGill DCJ referred to the definition of “personal offence” in s 21, an offence “committed against the person of someone”.  He expressed the view that for that to apply, an offender must have done something to the body of the applicant, or have done something directed against the body of the applicant.

[5] On the other hand, Dearden DCJ, in SM obo M-H v NK [2005] QDC 408, on facts similar to those of the present case, found that a “personal offence” had been committed.  His Honour adopted a “benign” construction of this remedial legislation (R v Callaghan and Fleming, ex parte Power [1986] 1 Qd R 457, 458).

[6] Notwithstanding that he dismissed the application, the learned primary Judge notionally assessed compensation, in the amount of $7,500, based on a finding of minor mental or nervous shock, which he assessed at 10 per cent of the scheme maximum.  The Judge proceeded on the basis, quoting a psychiatrist, that “to a large degree [the applicant’s] disability may have preceded the incident”.  Further, he did not consider clause 1A(1) of the Criminal Offence Victims Regulation 1995 (Qld) applied, because the relevant “adverse impacts” formed part of the condition attracting the $7,500 assessment. 

[7] The applicant seeks leave to appeal, under s 118(3) of the District Court of Queensland Act 1967 (Qld).  Leave should be granted, but limited to the question whether the subject offence was a “personal offence”, so that this court may resolve the conflict between the present decision and Hettrick on the one hand, and NK on the other.  There is nothing sufficiently special, or arguably wrong, about the notional assessment, to warrant its reconsideration on appeal.

[8] Mr Maher, who appeared for the applicant, referring to Hettrick, submitted that the act of wanting to commit oral sex upon the applicant involved “violence against, and touching of, the body of the applicant”, though obviously in a metaphorical sense only:  the offence, he submitted, had a sufficient “relationship” to the body of the applicant.  He separately submitted that the word “person” in this context is not in any case a reference to the body of the victim, but to the victim as an individual person.

[9] It is possible to dispose of the latter point at once.  It ignores the language of s 21, defining a “personal offence” as an offence “committed against the person of someone”.  Had the legislature not intended to refer to the person’s body, it would have omitted the words “the person of”, and said simply:  an offence “committed against someone”. 

[10]  The repealed s 663B(1) of the Criminal Code provided for compensation following conviction for an indictable offence “relating to the person of any person”.  In French v Green CA No 4481 of 1997, unreported, 19 December 1997 (BC9707425), the Court of Appeal held that the words “the person” there meant “some part of a human being less than the totality”.  It was a case of fraud, where the victims had sought compensation for nervous shock etc.  The Court, comprising Thomas, Dowsett and Helman JJ, said:

 

“Argument focussed upon the meaning of the words ‘any indictable offence relating to the person of any person’.  The applicant sought to establish that an offence of the present kind (namely dishonesty concerning money) was such an offence…


In R v Moors ex parte Alex [1994] 2 Qd R 315 Mackenzie J (Thomas J concurring) said of s 663B at p 320: 

‘The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property…’

That view effectively answers the applicant’s argument in the present case.  The use of the expression ‘any indictable offence relating to the person of any person’ is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person.  The word ‘person’ is capable of bearing numerous meanings.  As appears from the Shorter Oxford English Dictionary it may mean ‘an individual human being; a man, woman or child’.  It is unlikely that the word, where first used in the section, is intended to have this comprehensive meaning as that result could have been achieved by referring to ‘an indictable offence relating to any person’.  The use of the expression ‘the person of any person’ is clearly intended to narrow the class of offences in question by requiring that they relate to some part of a human being less than the totality of his or her existence.

An alternative definition given by the same authority is ‘the living body of a human being; either (a) the actual body, as distinct from clothing, etc, or from the mind or soul, or (b) the body with its clothing etc’.  It may be that parliament intended to distinguish between the body on the one hand and the mind or soul on the other as suggested by this definition, but in any event, it is quite clear that the reference to the ‘person of any person’ is a reference to the physical person and not to a person’s property.  Further, it is the offence which must relate to the person, not any injury caused thereby.  In order that compensation be payable, the offence as charged must have a relationship to the person of the applicant.  There is no sense in which the offences charged in the present case can be so described.” (emphasis added)

[11]  That analysis is equally applicable to s 21 of the Criminal Offence Victims Act.

[12]  Any other construction of s 21 would, in any event, render the legislation discordant with the Criminal Code, which the legislature would have been careful to avoid.  The Criminal Code distinguishes between “offences against the person” and “offences relating to property” (Part 6).  An ordinary, natural construction of references to “the person” in these provisions – which cover such offences as assault, homicide, rape etc – is that they have in mind the particular human body in question, and are not references to some abstract concept of individuality.

[13]  I turn to the characterization of the instant offence.  The scope of the exercise is defined by s 21 of the Criminal Offence Victims Act:  was the subject offence “an indictable offence committed against the person of someone”?  In determining whether it was a personal offence, one looks therefore to the conduct establishing the commission of the offence, not its consequences.

[14]  Accordingly in this case, in determining what sort of offence was committed, one focuses on the words, uttered by the respondent to the applicant child, aged under 16 years.  That the victim was traumatized does not form part of that analysis.  That the Criminal Offence Victims Act defines compensable “injury” as including “mental or nervous shock” (s 20) does not justify a broader approach.  The issue is precise and circumscribed, and the determination is confined to an analysis of the circumstances of the offence establishing its elements, of which consequent injury was not one. 

[15]  The question to be answered is whether this proposal, put to the applicant by the respondent, involved the commission of an offence “against the person” of the applicant.  I note the use of the word “against”, which posits a direct relationship, rather than the less direct relationship which would be contemplated, by contrast, were the words “in respect of” used.  The relevant meaning of “against”, in this context, is “in an opposite direction to, so as to meet; towards; upon; in contact with, or in pressure upon” (Macquarie Dictionary, revised 3rd ed (2001)).  The only relationship between the respondent’s act of communication with the applicant, and the applicant’s person or body, was that the applicant heard the communication.  In my view, that was insufficient to warrant characterizing the offence as an offence committed “against” the applicant’s body.

[16]  In SM obo M-H v NK, Dearden DCJ referred to Summers v Dougherty [2000] QSC 365.  Three applicants were threatened and ordered into a shed at gunpoint, in the course of a “home invasion”.  None was physically assaulted.  White J considered the offences were personal offences.  That situation is however distinguishable from the present, because the definition of assault in s 245 of the Criminal Code embraces threats.  What was said here amounted to a request, albeit grossly offensive, indeed criminally so, but it was not a threat. 

[17]  The feature that the offence proposed by the respondent in making that request would, if committed, have been a personal offence, does not mean that the attempt to commit it was therefore necessarily also a personal offence.  Under s 4 of the Criminal Code, a person attempts to commit an offence if he “begins to put the person’s intention [to commit an offence] into execution…”.  Here, the respondent had not progressed beyond the request.  Had he commenced to remove the applicant’s clothing, he would have reached the point of committing, by his attempt, a personal offence.  But here the attempt had not reached the point of the commission of an offence “against” the applicant’s body.  Had the legislature wished to extend the concept of “personal offence” to embrace all attempts to commit personal offences, it could easily have done so expressly.

[18]  The language of s 21 of the Criminal Offence Victims Act – “an indictable offence committed against the person of someone”, is more confined than the language of the repealed s 663B – “an indictable offence relating to the person of any person”.  The words “relating to”, like “in respect of”, invite a somewhat broader approach than that dictated by s 21. 

[19]  The approach of McGill DCJ in Hettrick, followed by the primary Judge, is in my view compelling.  Ms Mellifont, for the Attorney-General who was granted leave to intervene, emphasized there was here, in essentials, no more than  “a request…to do something, in the future”.

[20]  Had that request been met, and the act carried out, a personal offence would have been committed.  The instant offence, while referable to the body or person of the applicant, was not however committed “against” it.  The instant offence was antecedent to the commission of a personal offence, a precursor which anticipated the commission of a personal offence, but was not itself a personal offence.

[21]  This offence, though occasioning injury to the applicant in the form of mental or nervous shock, is one of a range of offences where persons consequently injured may not recover compensation under the Criminal Offence Victims Act.  Two other examples are fraud which leaves a victim destitute and distressed; and the breaking and entering of a dwelling, which leaves the householder fearful and insecure.

[22]  The Explanatory Notes to the Criminal Offence Victims Bill 1995, under the heading “Statement of policy objectives”, speaks of compensating “the victim of a crime”.  The only definition of “victim” in the Act is in s 5, and it relates expressly to the “Declaration of fundamental principles” (Div 2), though not expressly to the compensation schedule, and the word “victim” does not appear in the compensation schedule.  Section 5 defines “victim” as a person harmed by a crime “that involves violence committed against the person in a direct way”.  On the reasonable assumption that the Explanatory Notes, in dealing with the compensation schedule, intended to refer to “victim” in that same sense, it seems clear that this interpretation of “personal offence” is consistent with the legislative intent.

[23]  There should be orders that leave to appeal is granted, limited to the question whether the subject offence was a “personal offence”; and that the appeal is dismissed.

[24]  McMURDO P and PHILIPPIDES J:  We agree with the Chief Justice that the appellant should be given leave to appeal but limited to the question of whether the offence to which the respondent subjected the appellant was a "personal offence" under the Criminal Offence Victims Act 1995 (Qld) ("the Act").  We would, however, allow the appeal.

[25]  At the respondent's sentence, the prosecution relied on the following circumstances as constituting the offence of attempting to unlawfully procure the appellant child to commit an indecent act.  The respondent was a friend of the child's mother.  When the child and the respondent were seated on a park bench near Sandgate Beach on 20 November 2003, the respondent told the child that he (the respondent) was gay and frequented gay clubs.  The respondent said, "I'll give you $100 if you let me suck your dick."  After the child refused the respondent's offer and walked away, the respondent accepted his refusal and took him home without any coercion or physical contact.  The child was upset by the incident. 

[26]  The respondent was 46 years old and the child 13 years old at the time of the offence.  Although the respondent's criminal history does not appear in full in the material before this Court, the learned sentencing judge's recorded observations show it was extensive and included sexual offences against males and boys and that he had served a lengthy sentence for attempted murder.

[27]  A psychiatric report before the primary judge and this Court recorded that at the time of the offence the child had some knowledge of the respondent's criminal history.  This may well have made the offence particularly frightening.

[28]  The appellant child brought an application for criminal compensation under s 24 of the Act contending that the respondent had been "convicted on indictment of a personal offence" (s 24(1)(a)).  Under s 21 of the Act a "personal offence" is defined as "an indictable offence committed against the person of someone".

[29]  There are divergent views amongst learned judges of the District Court as to whether an offence which has a connection with the person of someone but does not involve personal contact is a "personal offence" under the Act: see CRP v Hettrick[1] (followed by the learned primary judge) and cf SM obo M-H v NK.[2]  As those authorities demonstrate, the answer to the question of whether the present offence is "an indictable offence committed against the person of someone" is not straightforward.  The answer requires a review of the relevant statutory provisions and authorities.

[30]  The Act commences with a statement of the fundamental principles of justice for victims of crime[3] and includes s 18(4) which relevantly provides:

 

"If compensation for injury caused to a victim by a crime against the victim’s person cannot be obtained from the offender or other sources, the victim should have recourse to a criminal injuries compensation scheme provided by the State."

[31]  That scheme is set out in Pt 3 of the Act.[4]  Under s 24 a court may make a compensation order for an amount to be paid by the convicted person to the applicant because of injury suffered by the applicant because of the offence.  As noted above, a convicted person is someone "convicted on indictment of a personal offence" (s 24(1)(a)).  "A 'personal offence' is an indictable offence committed against the person of someone" (s 21).  The scheme allows for compensation for not only bodily injury but also injury constituted by "mental or nervous shock" (s 20).

[32]  The Explanatory Notes to the Act when still in Bill form relevantly provided:

 

"The need for this Bill arises out of concern both nationally and internationally about the position of the victim in the criminal justice system.

 

The primary purpose is to advance the position of victims of crime in the criminal justice process.  This occurs in two ways.  First, the Bill enshrines Fundamental Principles of Justice for Victims of Crime.  These constitute a set of guiding principles for public officers dealing with victims of crime.  Second, the Bill contains provisions governing the making of compensation claims against offenders and the State.  These have been relocated from the Criminal Code and contain several reforms including … simplification of the process of applying for criminal compensation.

 

STATEMENT OF POLICY OBJECTIVES

The basic aim is to ensure that the role of the victim in the criminal justice system is sufficiently recognised.

 

CRIMINAL COMPENSATION

A long-recognised right, conferred by the current Criminal Code, is that of access by the victim of personal violence or sexual offence to a criminal injuries compensation scheme.

 

These provisions will be relocated to the specific legislation for victims of crime. 

The principal reforms are:

(b)Court applications will be dealt with informally;

(c)Amounts will be assessed according to a 'Compensation Table' with the objective of simplifying the process and reducing the inconsistencies in the awards made.

 

The system for compensation is intended to provide some measure of compensation in a summary way to the victim of a crime without the delay, cost and formality of a civil action for damages, for example, for assault or trespass.  The amount paid is a solatium only and does not represent the amount of compensation which would be awarded in a common law action against the offender for damages.

 

ACHIEVEMENT OF POLICY OBJECTIVES

The Fundamental Principles represent the minimum standards which public officers should apply in dealing with victims of crime.

 

The reforms to the system of criminal compensation will ensure that the compensation to victims of personal or sexual violence is paid according to a Compensation Table, so that the awards made are consistent for particular injuries, and to simplify the procedure for applications. …"

[33]  The certificate of conviction describes the offence the subject of this appeal as "Attempted indecent treatment of a child under 16".  It is uncontroversial that it is an indictable offence.  The offence of indecent treatment is against s 210(1)(b) Criminal Code 1899 (Qld) (“Criminal Code”) which relevantly provides:

 

"(1) Any person who -

(b) unlawfully procures a child under the age of 16 years to

commit an indecent act; …

is guilty of an indictable offence."

[34]  Any person who attempts to commit an indictable offence is guilty of an indictable offence: s 535 Criminal Code.

[35]  Section 4 Criminal Code provides, relevantly:

 

(1) When a person, intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfilment, and manifests the person’s intention by some overt act, but does not fulfil the person’s intention to such an extent as to commit the offence, the person is said to attempt to commit the offence."

[36]  Butterworths Australian Legal Dictionary distinguishes between "offences against the person" and "offences against property", defining the former as including:

 

"a wide spectrum of offences involving threatening the person of another with force, or the application of force against the person of another, in each case without the other's consent or any other justification recognised by the law … .  Offences against the person whether at common law or statute include homicide, acts causing danger to life or bodily harm, assaults, abduction and child prostitution and pornography."

[37]  An act may cause danger to life without actual physical contact, for example an attempt to murder by poison which is never ingested by the victim.  An assault, and by extension a robbery which necessarily has assault as an element, may be constituted by a threat from the perpetrator without actual personal contact.  Such offences would plainly be offences against the person although not involving actual contact with the person.

[38]  The Criminal Code does not neatly classify offences as either "offences against property" or "offences against the person".  Offences against the Criminal Code are set out in five Parts: offences against public order (Pt 2),[5] offences against the administration of law and justice and against public authority (Pt 3),[6] acts injurious to the public in general (Pt 4),[7] offences against the person and relating to marriage and parental rights and duties (Pt 5),[8] and offences relating to property and contracts (Pt 6).[9]  The offence the subject of this appeal was neither an offence relating to property within Pt 6 nor an offence against the person under Pt 5.  It fell within Pt 4: ACTS INJURIOUS TO THE PUBLIC IN GENERAL, Ch 22 – OFFENCES AGAINST MORALITY.  As well as the offence of indecent treatment of children under 16, Ch 22 contains offences such as unlawful sodomy with a person under 18 years,[10] owner permitting abuse of children on premises,[11] carnal knowledge with or of children under 16,[12] abuse of intellectually impaired persons,[13] procuring young persons for carnal knowledge,[14] incest,[15] involving a child in and making child exploitation material,[16] and maintaining a sexual relationship with a child.[17]  Many of these offences against Ch 22 would inevitably involve physical contact with the victim and would unquestionably be "offences committed against the person of someone" within s 21 of the Act.  By contrast, Pt 5 (offences against the person etc) includes offences that would not ordinarily or necessarily involve contact with the person of the victim, such as assault,[18] threats[19] and unlawful stalking.[20]

[39]  It seems implausible that the legislature could have intended the criminal compensation scheme under the Act to apply only to victims of indictable offences contained within Pt 5 of the Criminal Code (offences against the person etc) without making that clear statement in the Act.  Such an intention is inconsistent with the statement in the Explanatory Notes that victims of sexual offences have access to a criminal injuries compensation scheme.  The answer to whether the respondent's offence of attempted indecent treatment of a child under 16 years committed on the appellant was a "personal offence" under the Act does not lie in the way offences have been classified under the Criminal Code.  Nor can it be determined by whether the offence requires or is established by there being actual physical contact with the person of the victim.  Such a construction would exclude from the ambit of s 21 offences recognised by the Criminal Code as offences against the person, such as stalking: Ch 33A.

[40]  The Act's compensation scheme replaced an earlier scheme contained in s 663B Criminal Code which relevantly provided:

 

"(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person … the court, on the application by or on behalf of the person aggrieved by the offence … may … order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence … of which the offender is convicted."

[41]  In French v Green[21] this Court considered the meaning of the words "in relation to the person of any person" in s 663B Criminal Code (cf s 24 of the Act) in the course of deciding whether the Frenches could claim compensation under s 663B for mental or nervous shock as victims of Green's commission of property offences (misappropriation with circumstances of aggravation and wilful false promise).  After referring with apparent approval to R v Moors; ex parte Alex,[22] the Court noted:

 

"The use of the expression 'any indictable offence relating to the person of any person' is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person.  The word 'person' is capable of bearing numerous meanings.  As appears from the Shorter Oxford English Dictionary it may mean 'an individual human being, a man, woman or child'.  It is unlikely that the word, where first used in the section, is intended to have this comprehensive meaning as that result could have been achieved by referring to 'an indictable offence relating to any person'.  The use of the expression 'the person of any person' is clearly intended to narrow the class of offences in question by requiring that they relate to some part of a human being less than the totality of his or her existence.

 

An alternative definition given by the same authority is 'the living body of a human being; either (a) the actual body as distinct from clothing, etc, or from the mind or soul, or (b) the body with its clothing etc.'  It may be that parliament intended to distinguish between the body on the one hand and the mind or soul on the other as suggested by this definition, but in any event, it is quite clear that the reference to the ‘person of any person' is a reference to the physical person and not to a person's property.  Further, it is the offence which must relate to the person, not any injury caused thereby.  In order that compensation be payable, the offence as charged must have a relationship to the person of the applicant.  There is no sense in which the offences charged in the present case can be so described."

[42] French v Green was an uncomplicated example of compensation claims for personal injuries brought by victims of offences against property.  The offences of misappropriation and wilful false promise were plainly neither offences relating to "the person of any person" (s 663B) nor offences "committed against the person of someone" (s 21 of the Act).  It provides no particular assistance in answering the more subtle question for determination in the present case.

[43]  In considering the meaning of s 663B Criminal Code in Moors, Mackenzie J, with whom Thomas J agreed, observed at 320:

 

"The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property."

[44]  We respectfully agree and adopt the same approach in construing the meaning of s 21 of the Act: "an offence committed against the person of someone" distinguishes an offence against the person from an offence against property in the same way as does Butterworths Australian Legal Dictionary. 

[45]  For an offence to be an "offence committed against the person of someone", it is not necessary that there be actual contact with the body of the person.  To return to an earlier example, the offence of robbery is frequently committed by pointing a weapon at victims and threatening them with violence in order to obtain property but with no actual physical contact with the person or body of the victims.  Such victims are commonly awarded compensation under the Act because the offence to which they were subjected is plainly an indictable offence committed against the person of someone within s 21 of the Act.  An attempted robbery involving threats alone is no less an indictable offence committed against the person of someone than a like offence involving some actual bodily contact. 

[46]  Although the respondent's offence against the appellant child did not involve physical contact with or a threat of physical contact with the child's person or body, it was certainly not an offence against property.  The respondent proposed that the child let the respondent "suck his dick", an act which, had it been carried out, would unquestionably have involved the child's person or body.  It is not suggested (nor could it sensibly be) that, had the attempted offence actually been committed, it would not have been "an offence committed against the person" of the child.  The respondent desisted before committing the principal offence and in committing the offence of attempted indecent treatment of a child did not make physical contact with the child.  But the 13 year old heard the 46 year old respondent's graphic proposal to procure the child to commit the indecent act of permitting the respondent to suck the child's penis; the child apprehended the proposal knowing something of the respondent's criminal history for like offences and offences of serious violence; the child understandably became upset.  In these circumstances the respondent's attempt to unlawfully procure the appellant child to commit an indecent act was an offence against the child's person or body and "an offence committed against the person" of the appellant child under s 21 of the Act. 

[47]  That interpretation of those words is consistent with the remedial nature of the Act: to provide compensation to injured victims of crime against the victims' person.  Whilst taking into account the actual language of and the meaning fairly open on the words of s 21, they should not be construed narrowly if that would prevent the discharge of the legislative purpose of the Act: Khoury v Government Insurance Office (NSW).[23]  It cannot have been the legislative intent to provide a scheme for compensation to victims of crime for personal injury, including mental or nervous shock, arising from an offence of indecent treatment of a child involving the most minor physical contact, but to refuse compensation for proven personal injury to a victim arising from an offence of attempted indecent treatment with no actual physical contact.  The conclusion we have reached does no injury to the ordinary meaning of the words in s 21 but is entirely consistent with them: cf Victims Compensation Fund Corporation v Brown.[24]  It also sits comfortably with the Explanatory Notes and with the change from the phrase "the person of any person" in the repealed s 663B Criminal Code to the phrase "the person of someone" in s 21.  Had the legislature intended to convey by the words "against the person of" the meaning "against the physical body of" it could easily have done so by express words: cf the preceding s 20 of the Act which specifically includes "bodily injury" in the definition of "injury" for which compensation is payable under the Act.

[48]  The primary judge erred in determining that the offence the subject of this appeal was not "an indictable offence committed against the person of someone" under s 21 of the Act.

[49] The appeal should be allowed with costs to be assessed.  The order of the primary judge of 27 November 2006 dismissing the child's application should be set aside.  Instead, the respondent should be ordered to pay the appellant $7,500 in accordance with the learned primary judge's assessment of damages.  The appeal has succeeded on a question of law.  The respondent is apparently an impecunious prisoner who has not taken an active role at first instance or on appeal.  It is appropriate to grant him an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) in respect of his costs of the appeal.

 

ORDERS:

1.Application for leave to appeal granted but limited to the question of whether the offence to which the respondent subjected the appellant was a "personal offence" under the Criminal Offence Victims Act 1995 (Qld).

 

2.Appeal allowed with costs to be assessed.

 

3.The order of the District Court of 27 November 2006 is set aside.

 

4.Instead, the respondent is to pay the appellant $7,500.

 

5.Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

 

Footnotes

[1] [2005] QDC 125; BD 578/2005, 26 May 2005

[2] [2005] QDC 408; 291/2005, 26 September 2005

[3] ss 4-18

[4] ss 19-41

[5] ss 44-83

[6] ss 85-205

[7] ss 206-243

[8] ss 245-365

[9] ss 390-534

[10] s 208

[11] s 213

[12] s 215

[13] s 216

[14] s 217

[15] ss 222, 223

[16] ss 228A, 228B

[17] s 229B

[18] s 245

[19] s 359

[20] Ch 33A

[21] unreported, Appeal No 4481 of 1997, 19 December 1997

[22] [1994] 2 Qd R 315

[23] (1984) 165 CLR 622, Mason, Brennan, Deane, Dawson JJ, 638

[24] (2003) 77 ALJR 1797, Heydon J, 1804, [33], McHugh ACJ, Gummow, Kirby and Hayne JJ agreeing

Close

Editorial Notes

  • Published Case Name:

    RZ v PAE

  • Shortened Case Name:

    RZ v PAE

  • Reported Citation:

    [2008] 1 Qd R 393

  • MNC:

    [2007] QCA 166

  • Court:

    QCA

  • Judge(s):

    de Jersey CJ, McMurdo P, Philippides J

  • Date:

    25 May 2007

Litigation History

Event Citation or File Date Notes
Primary Judgment DC3010/06 (No Citation) 27 Nov 2006 Application for compensation Criminal Offence Victims Act arising as complainant of attempting to unlawfully procure a child aged under 16 to commit an indecent act; the offence committed by the respondent was not a "personal offence committed against the applicant"; in a case where the charge is an attempt to procure, there will be no personal offence.
Appeal Determined (QCA) [2007] QCA 166 [2008] 1 Qd R 393 25 May 2007 Appeal against dismissal of application for criminal offence compensation arising from unlawfully attempting to procure; primary judge erred in determining that the offence was not "an indictable offence committed against the person of someone" under s 21 of the Criminal Offence Victims Act; leave to appeal on limited ground granted and appeal allowed ordering compensation: de Jersey CJ, McMurdo P and Philippides J (de Jersey CJ dissenting on interpretation of "personal offence").

Appeal Status

{solid} Appeal Determined (QCA)