French v Green[1997] QCA 464

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4481 of 1997

Brisbane

[French v. Green]

BETWEEN:

CAROL FRENCH (Applicant) Appellant

And

RICHARD YALE GREEN (Respondent)

Thomas J

Dowsett J

Helman J

Judgment delivered 19 December 1997

Judgment of the Court

APPLICATION TO AMEND THE NOTICE OF APPEAL TO SEEK LEAVE TO

APPEAL REFUSED AND APPEAL DISMISSED

CATCHWORDS: CRIMINAL LAW - compensation - appeal from decision of District Court disallowing criminal compensation under S. 663B of the Criminal Code for an offence against property - interpretation of the phrase "relating to the person of any person" R v Moors ex parte Alex [1994] 2 Qd.R.315.

Counsel:  Mr A. J. Kimmins for the applicant/appellant

No appearance for the respondent

Solicitors:  McLaughlins for the applicant/appellant

Hearing date:  28 November 1997

REASONS FOR JUDGMENT - THE COURT

On 10 October 1995 the respondent pleaded guilty to twelve counts of misappropriation with circumstances of aggravation and two counts of wilful false promise. He was sentenced to various terms of imprisonment. The complainants in connection with counts 2 to 6 were Allen and Carol French. The Crown Prosecutor gave the following summary of those offences:-

"Counts 2 to 6 concern two complainants, Allen and Carol French. ... In 1993 the Frenches were looking for an investment to provide an income for themselves. Mr French had developed osteo-arthritis and spondylosis. Therefore his working life was essentially at an end. Mrs French suffered a variety of illnesses over the last 23 years. They decided to invest in building four homes.

They met the prisoner in late 1993 ...

In early 1994 the prisoner went to the complainants' residence with a business proposal. He said that he had a contract to lay $120,000 worth of carpet in Cairns but that he needed capital for the business.

He indicated that within five weeks they would have their money back with 10% interest. They then invested $45,000, the amount charged in Count 2... No such business, no such carpet contract ever existed.

Around the same time the Frenches also provided the prisoner with $5,000 which was supposedly to pay carpet and tile-layers the prisoner owed money to. That is charged in count 3. $5,500 to pay for tiles was charged in count 4 and $14,000 to cover a tile deal the prisoner said he was involved in in Melbourne which is charged in count 5, unlawful false promise. There the prisoner said he would repay that $14,000 with interest by 5 May 1994. Of course he never did.

... In June 1994 the prisoner and this person Bolton contacted the Frenches and told them that a shipment of carpet that he had ordered from Melbourne valued at $380,000 had been hijacked, that he had, therefore, suffered great financial loss but was attempting to trade out of his problems and to cover those who had invested with him. Over the next two months he made some small payments to the Frenchs totalling $1,800.

The complainants then sought to supplement their income by starting a cabinet-making business and in September 1994 the prisoner offered his services to the complainants saying that he could market kitchens for them. The prisoner said that he was still recovering from the loss of the carpets that were hijacked and he needed desperately an injection of $35,000 of capital so that he could get his business back operating and that he could, therefore, help out his investors. The prisoner absolutely convinced the complainants that the only way they would ever see their money again would be to give the financial support the prisoner sought so that he could trade his way out of financial difficulties.

They then provided the prisoner with $35,000, which is charged in Count 6."

Their total loss appears to have been $104,500.

The present applicant sought compensation from the respondent pursuant to s. 663B of the Criminal Code. The learned District Court Judge, in considering that application, referred to the following summary of the condition in which both Mr and Mrs French found themselves, which summary was apparently given at the trial:-

"Their personal loss has far exceeded the monetary loss. They feel completely cheated. They trusted the prisoner who, when he was seeking out their money for these alleged investments, would contact them so often and so frequently that they seemed to be involved in every facet of his life and, therefore, came to trust him implicitly. They have lost all self confidence and pride in themselves. In hindsight they now realise what fools they were taken for. They have, as these events unfolded, received death threats. They have suffered anger and torment. Both suffer from nightmares. They find it impossible to lead a normal life. They're now afraid to trust their own judgment. They have lost incentive, self respect and ability to make decisions. They're both under psychiatric care."

His Honour also quoted the evidence of a psychiatrist:-

"As a result of the offence against her, Mrs French has developed significant anxiety and depression and been suicidal at times. She has developed irritability nervousness and has seen considerable strain on her marriage and family lives.

"Such psychological ramifications of the offence committed against her are most definitely and obviously offences against the person and at present psychologically injurious to Mrs French. It shall require considerable time and effort before Mrs French can recover from such injuries."

The learned District Court Judge then considered the relevant wording of s. 663B and concluded:-

"Much as I sympathize with the plight of the applicant, I do not consider the section can be interpreted in such a way as to include the damages for which the claim is made. No authority has been cited which could assist in the interpretation. I consider the phrase "relating to the person of any person" must be considered as a whole and if this is done it must be interpreted in such a way as to restrict the damage for which compensation can be awarded to that resulting directly from actual, threatened or potential physical violence, and cannot include damage for mental stress caused by financial loss arising from an offence such as misappropriation or theft."

The applicant filed a notice of appeal dated 20 May 1997 but subsequently sought to add a prayer for leave to appeal. With effect from 1 August 1997, the appeal provisions of the District Courts Act 1967 (s. 118) were amended by s. 47 of the Courts Reform Amendment Act 1997. Section 50 of the amending Act inserted a new section 138 into the District Courts Act providing that:-

"If, before (1 August 1997) a party dissatisfied with a judgment of a District Court started an appeal, or applied for leave to appeal, under s. 118 as in force immediately before that date, ... the appeal or application, and any appeal allowed on the application, may be dealt with as if the Courts Reform Amendment Act 1997, s. 47 had not been enacted".

The current appeal should be dealt with pursuant to s. 118 as it was prior to 1 August 1997.

Section 118(l)(a), in that form, provided for an appeal as of right "in an action or matter in which the sum sued for exceeds $10,000...". A party not entitled to so appeal might apply to the Court of Appeal for leave, but such leave was to be granted only if an important question of law or justice were involved. See s. 118(2) and (3). In Stimson v Webb-Myer (1995) 79 A.Crim.R. 502, this Court considered an application for leave to appeal against the decision of a District Court Judge fixing criminal compensation in the amount of $35,000. The Court of Appeal proceeded upon the basis that it was empowered to grant leave to appeal pursuant to s. 118(2) (then s. 92(2)) of the District Courts Act and that leave was necessary. However the Court was more concerned with whether the civil appeal procedure prescribed by the District Courts Act or the criminal appeal procedure prescribed by the Criminal Code should be applied to applications of this kind. It did not canvas the question of whether there was a right of appeal pursuant to s. 118(l)(a). Given that the amount awarded in Webb-Myer was in excess of $10,000 and that presumably, the applicant had sought at least that sum, one might well infer that he had sued for more than $10,000. It may be, however, that as in the present case, no amount was stipulated in the application and that it was thought that for this reason the requirements of s. 118(1)(a) were not satisfied.

At the hearing of the present appeal, the Court invited counsel for the applicant to argue the merits, leaving the questions of competence of the appeal and leave to appeal for later consideration if necessary.

Section 663B(1) of the Criminal Code relevantly provides as follows:-

"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, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injuries suffered by the person by reason of the offence ..."

Section 663A of the Act provides that "injury" means "bodily harm and includes pregnancy, mental shock and nervous shock..."

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. Counsel submitted that psychiatric injury might constitute bodily harm for the purposes of the Criminal Code. It was not clear whether "psychiatric injury" meant the same as "mental and nervous shock", but the submission may be accepted for present purposes. It was argued that psychiatric injury could therefore be described as "injury to the person of any person" and that the words "relating to" have a wide operation so that S.663B should be construed to mean that compensation is payable where the offender has been convicted of an offence which had "some concern, link, reference or connection to those parts of the body (of the applicant) responsible for mental and other faculties". In other words, because the offences in question had a consequence which was adverse to the mental health of the applicant, the offences were offences "relating to the person of any person".

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. The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed. The relevant offence is the offence referred to in the indictment."

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. In those circumstances, and having regard to the decision in R v Moors ex parte Alex, it is clear that any appeal in this case must fail. In those circumstances, there is no point in considering whether, in this case, an appeal lay as of right, nor as to whether the circumstances justify leave to appeal.

The application to amend the notice to seek leave to appeal should be refused and the appeal dismissed.