R v Grahame; ex parte Freeman
[2000] QCA 387
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Appeal Determined (QCA)
- R v Grahame; ex parte Freeman[2000] QCA 387
- Add to List
R v Grahame; ex parte Freeman[2000] QCA 387
Reported at [2001] 2 Qd R 406
R v Grahame; ex parte Freeman[2000] QCA 387
Reported at [2001] 2 Qd R 406
SUPREME COURT OF QUEENSLAND
CITATION: | Freeman v Grahame & Ors; Freeman v Grahame & Ors; Moroney v Grahame & Ors [2000] QCA 387 |
PARTIES: | ANDREW FRANCIS FREEMAN (applicant/appellant) v DANIEL ROBERT GRAHAME, ANDREW JAMES GRAHAME, MICHAEL SCOTT TRANQUILLE and DANIEL PETER SMALL (respondents) GLENYS HAZEL FREEMAN (applicant/appellant) v DANIEL ROBERT GRAHAME, ANDREW JAMES GRAHAME, MICHAEL SCOTT TRANQUILLE and DANIEL PETER SMALL (respondents) HAROLD FRANCIS MORONEY (applicant/appellant) v DANIEL ROBERT GRAHAME, ANDREW JAMES GRAHAME, MICHAEL SCOTT TRANQUILLE and DANIEL PETER SMALL (respondents) |
FILE NO/S: | Appeal No 1939 of 2000 Appeal No 1940 of 2000 Appeal No 1941 of 2000 DC No 4907 of 1999 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for leave s 118 DCA (Civil) |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 22 September 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 22 May 2000 |
JUDGES: | de Jersey CJ, McMurdo P and Muir J Separate reasons for judgement of each member of the Court; de Jersey CJ and Muir J concurring as to the orders made, McMurdo P dissenting. |
ORDER: | In each application, extend time for the institution of the appeal to the date of filing the relevant application. Allow the appeals. Set aside the orders made by the District Court on 17 December 1999, together with the associated rider or recommendation, and remit the matter to the District Court for determination afresh in accordance with these reasons for judgment. Order the costs to be costs in the proceedings. |
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 – application for criminal compensation – four respondents convicted of armed robbery in company upon each of the applicants – judge at first instance ordered each of the respondents to pay each of the applicants the sum of $20,000 for “nervous and mental shock” and in the case of one applicant, an additional $8000 for orthopaedic injury – learned trial judge made a rider or recommendation that if payment is made from Consolidated Revenue Fund “each applicant would receive only one total sum from the public purse” – consideration of effect of recommendation or rider on form and effect of the order – consideration of appropriate measure of damages Criminal Code, s 663A, s 663AA, s 663B, s 663D Criminal Offence Victims Act 1995, s 46 Best v West Moreton Regional Health Authority, SC No 2157 of 1995, 20 March 1997, considered Collins v Council of the City of Townsville, DC No 92 of 1993, 15 March 1996, considered Curlile v Council of the Shire of Kilkivan, DC No 12 of 1992, 21 December 1995, considered Curtin v FAI General Insurance Company Ltd, DC No 3762 of 1993, 12 February 1996, considered Gates v City Mutual Life Assurance Society Ltd (1985) 160 CLR 1, referred to In Re Poore; In re Scully and Scully (1973) 6 SASR 308, compared Kybus v Queensland Corrective Services Commission, SC No 78 of 1993, 28 May 1996, considered Jarvis v Australasian Correctional Management Pty Ltd, DC No 633 of 1994, 5 July 1996, considered McClintock v Jones (1995) 79 A CrimR 238, applied McDonald v Brown (1975) 12 SASR 384, referred to R v Bridge and Madams; ex parte Larkin [1989] 1 QdR 554, referred to R v Callaghan and Fleming; ex parte Power [1986] 1 QdR 457, applied R v Johnson; ex parte McLeod [1973] QdR 208, referred to R v Wraight and Dakin; ex parte Fullerton [1980] QdR 582, referred to Zammit v Queensland Corrective Services Commission SC No 186 of 1994, 1 September 1998, considered |
COUNSEL: | C E Hampson QC, with A J Kimmins, for the appellants Respondents appeared on their own behalf |
SOLICITORS: | Ryan & Bosscher for the appellants Respondents appeared on their own behalf |
- de JERSEY CJ: It is well established that where joint offenders inflict injury upon a victim of their crime, the court may, under s 663B of the Criminal Code (if applicable), order each offender to pay, by way of compensation, an amount not exceeding the prescribed maximum. See, on a comparable South Australian provision, In Re Poore; In Re Scully and Scully (1973) 6 SASR 308, 312, 315-6; and in relation to s 663B itself, R v Wraight and Dakin; ex parte Fullerton [1980] QdR 582 and R v Bridge and Madams; ex parte Larkin [1989] 1 QdR 554, 556-7.
- It is also well established that the court should approach the assessment of compensation under that provision “in accordance with the ordinary principles of assessment of damages for personal injuries in civil cases” (McClintock v Jones (1995) 79 ACrimR 238, 242).
- What is not expressly established is whether, in the case, say, of equally culpable offenders, the court may legitimately order an amount equal to the prescribed maximum against each, where that maximum is less than the civil damages to which the victim would be entitled, but the aggregation of the amounts ordered would exceed the amount of those civil damages.
- In Re Poore, supra, decided on comparable legislation, would suggest that the amount assessed for civil damages should in such a case be divided equally between the co-offenders, and the amounts so obtained ordered against each, provided that no amount so ordered exceeds the prescribed maximum.
- That is in my view the correct approach, acknowledging that the section provides for the payment of such sums “by way of compensation for injury suffered”.
- In other words, the total amount of compensation should be calculated by adopting the ordinary civil damages approach. The comparative degrees of responsibility of the respective joint offenders should then be assessed, and their respective “shares” of the compensation calculated accordingly. If, in any case, the amount calculated exceeds a prescribed maximum amount, then only that maximum amount may be ordered against that offender. But otherwise the amounts ordered are those calculated in that way. That would result, were the orders met, in the applicant’s being “compensated”, subject only to the statutorily imposed limitation on the maximum amount for any one offender. This approach reflects the legislative intention implicit in the provision.
- These applicants were the victims of a brutal instance of “home invasion”. Each consequently suffered serious psychological injury, and one of them suffered a physical injury as well.
- The offences were committed by the four respondents on 27 August 1994, which was prior to the commencement of Part III of the Criminal Offence Victims Act 1995. Chapter 65A of the Criminal Code therefore applied, as if not repealed (s 46(2) Criminal Offence Victims Act). Chapter 65A included s 663B.
- The learned District Court judge ordered each of the four respondents to pay each of the three applicants the sum of $20,000 for “nervous and mental shock”, and in the case of Mr Moroney, an additional $8000 for the orthopaedic injury. It is far from clear, however, that the judge contemplated that each applicant might possibly recover from each respondent the full amount ordered against that respondent.
- Section 663C provides that a successful applicant, unpaid by the respondent, may apply to the Minister “for the approval of the Governor in Council for the payment to him from the Consolidated Revenue Fund of the sum so ordered to be paid”. Immediately following the orders as such, the judge said this:
“My recommendation would be clear that, although the respective order for each applicant is against each of the four respondents for the total sum, each applicant would receive only one total sum from the public purse (if there is any payment from the public purse).”
- While that recommendation may not form part of the formal order made by the judge, its terms raise serious doubt whether the judge meant, by that formal order, as its terms would otherwise suggest, that each applicant might properly recover from each respondent the full amount ordered against him.
- Judgments should be unambiguously clear and certain. While this rider stands, it creates real doubt as to the intention behind the judgment proper. It may also well affect the approach of the Executive to the issue of ex gratia payment, in the likely event that the orders will not be satisfied by the respondents – who are in gaol. The applicants are entitled to have the burden of that doubt removed.
- The Judge could rightly have contemplated recovery of the full amount from each respondent only if satisfied, in the case of two of the applicants, that their “damages”, assessed on an ordinary civil basis, would equal or exceed $80,000 ($20,000 multiplied by four), and in the case of the third, $112,000 ($28,000 multiplied by four).
- A further complication attending the case rests in His Honour’s failure to provide any such assessment. In fairness, he was apparently not asked to do so, and was given no assistance with civil court awards which might be thought comparable.
- The judge went no further than to say, with respect to the $20,000 components:
“Each of the three applicants makes a claim for nervous and mental shock. There is ample material to support in detail the said nervous and mental shock. It is not necessary to go into any detail in relation to that particular matter. I am limited to an amount of the maximum of $20,000 for nervous and mental shock in relation to each applicant. If I had the power to award a sum in excess of $20,000 in relation to each applicant I would award a sum clearly in excess of such amount for each applicant.”
What the judge has not said is that the amount “clearly in excess” of $20,000, would reach $80,000.
- It certainly is not clear to me that the amounts to which the applicants would be entitled on an ordinary civil assessment, under the relevant component – that generally styled “pain suffering and loss of amenities”, would reach $80,000 and $112,000 respectively.
- The applicants are Mr and Mrs Freeman, and Mrs Freeman’s father Mr Moroney. The President covers the circumstances of the offences in her reasons for judgment. They would certainly have been terrifying.
- Mr Freeman, then 51 years of age, consequently developed chronic post traumatic stress disorder. Psychological counselling and treatment would cost between $3,000 and $4,650, and would be warranted. His prognosis was, according to the psychologist’s report, “positive”.
- Mrs Freeman was then 43 years old. In her case, the psychologist spoke of consequent chronic post traumatic stress disorder, major depressive disorder, and panic disorder with agoraphobia. Psychological treatment to a similar extent would again be warranted. Her prognosis was, likewise, according to the psychologist, “positive”.
- Each of those applicants referred to economic loss, but there was no basis upon which the amount of such loss could reliably be assessed on the limited evidence put before the judge. There was reference to the loss of a crop, and the sale of a small crops farming property, with relocation to another property. There is suggestion, but no distinct assertion, of overall economic loss to be related to this offence. Beyond that, to quantify an assumed loss would, on the available evidence, involve pure speculation.
- Mr Moroney was then 74 years of age. The psychologist again recommended treatment of similar extent, discerned chronic post traumatic stress disorder and major depressive disorder, and considered the prognosis was, again, “positive”.
- I have considered the evidence before the learned judge: as I have said, it certainly is not clear to me that the damages assessed in respect of the applicants would reach the respective sums of $80,000, $80,000 and $112,000.
- A brief review of some fairly recent decisions supports this concern. I list some of those cases below.
- (a)In Jarvis v Australasian Correctional Management Pty Ltd (633/94), the District Court on 5 July 1996 awarded $45,000 for pain, suffering and loss of amenities to a correctional officer, 35 years old at trial, who developed a post traumatic stress disorder because of exposure to harrowing, threatening conduct on the part of violent prisoners in gaol.
- In Best v West Moreton Regional Health Authority (2157/95) the Supreme Court, on 20 March 1997, awarded a pain, suffering and loss of amenities component of $37,500 to a 57 year old woman assaulted at work by two men. One put a firearm into her mouth, and the other had a bottle filled apparently with kerosene bearing a wick. She developed a post traumatic stress disorder. She could no longer work on a full time basis. She needed an escort when away from home.
- In Zammit v Queensland Corrective Services Commission (186/94) the Supreme Court, on 1 September 1998, awarded $20,000 for pain, suffering and loss of amenities to a 50 year old prison officer who suffered stress related injuries because of exposure to the risk of serious physical and psychiatric harm in prison. He developed post traumatic stress disorder, received psychiatric treatment, and suffered disturbance of employment.
- In Kybus v Queensland Corrective Services Commission (78/93) the Supreme Court, on 28 May 1996, awarded a 45 year old boilermaker, assaulted in the gaol where he worked, by two inmates, fracturing a vertebra, injuring his head, suffering secondary psychiatric problems, post traumatic stress disorder and depression, a component for pain, suffering and loss of amenities of $50,000.
- In Collins v Council of the City of Townsville (92/93) the District Court, on 15 March 1996 awarded a $30,000 pain, suffering and loss of amenities component to a female carpark attendant who, when 30 weeks pregnant, was attacked (punched in the stomach), suffered post traumatic stress disorder with marked phobic anxiety and severe social problems.
- In Curtin v FAI General Insurance Company Ltd (3762/93) the District Court, on 12 February 1996, awarded a pain, suffering and loss of amenities component of $25,000 to a 46 year old woman injured when standing by the freeway with her broken-down vehicle. Another vehicle struck hers, causing her great fear which led into post traumatic stress disorder necessitating psychiatric treatment, with only a 40 per cent to 60 per cent prospect of recovery.
- In Curlile v Council of the Shire of Kilkivan (12/92) the District Court, on 21 December 1995, awarded a pain, suffering and loss of amenities component of $45,000 to a 49 year old man who, because of workplace harassment and bullying, suffered a nervous breakdown, depressive illness with high anxiety and stress, and chronic post traumatic stress disorder – leaving him unemployable.
- As pointed out, neither the primary judge nor this court was favoured with an analysis of decisions which might usefully guide an assessment in the ordinary way of civil damages. I refer to those cases merely to furnish backing for the view that it could not be said, with any degree of confidence, that assessing damages in these instances, for nervous shock, would lead to allowances of the order of $80,000, or, frankly, anything even approaching that amount.
- The focus of the applicants’ submissions before this court was the manner of assessment of compensation orders against joint offenders, in context of this particular “recommendation” or rider to the orders. The applicants would seek simply the deletion of that rider. I accept that it should be removed, but that cannot be done in isolation. Its presence renders the formal judgment also vulnerable to being set aside. That should be done, even though the applicants would obviously prefer simply the deletion of the recommendation.
- The result of the District Court’s necessary consequential reconsideration of the matter, which I envisage, may well be that the ultimate aggregate awards are less in amount than, respectively, $80,000 and $112,000. But this is not a case – as in criminal sentencing at the appellate level - where the applicants should at this stage be given the option of withdrawing their applications. Their focus on the recommendation has pointed up irregularity in process which cannot be allowed to stand uncorrected. The necessary course, in my view, is to set aside these orders and remit the matter for consideration afresh.
- In summary:
- Although the form of the order is consistent with the authoritative interpretation of s 663B, the learned judge has added a rider which seriously erodes any confidence that he intended that it be read that way.
- The judge did not carry out the assessment of compensation in the manner dictated by the cases, that is, as one would ordinarily assess damages in the civil court.
- It is manifestly not clear that such damages would, on the evidence before His Honour, have reached the aggregate amounts which would be recoverable from the respondents were they all to meet the orders – if met, that is, consistently with the orthodox interpretation of the formal orders.
- Because of the absence of such an assessment, one lacks the confidence that His Honour was himself of the view that those amounts would be reached by that ordinary process of assessment, and the form of his words, referring to sums “clearly in excess” of the prescribed maximum for nervous shock, without specifying those sums, tends to increase that lack of confidence.
- The judgment is in my view attended in this unusual case with such uncertainty as to warrant its being set aside and the matter remitted to the District Court for determination afresh. Sufficient reason to extend the time for the institution of the appeals has been established.
- I would therefore, in each case, extend the time for the institution of the appeal to the date of the filing of the relevant application, allow the appeal, set aside the orders made by the District Court on 17 December 1999, together with the associated rider or recommendation, and remit the matter to the District Court for determination afresh in accordance with these reasons for judgement.
- I would order the costs to be costs in the proceedings.
- McMURDO P: This is an application for an extension of time within which to apply for leave to appeal from orders of the District Court that each of the four respondents pay both Andrew Francis Freeman and Glenys Hazel Freeman $20,000 by way of criminal compensation for nervous and mental shock and Harold Francis Moroney $28,000 by way of criminal compensation including $20,000 for nervous and mental shock.
- During the course of this application Mr Hampson QC, who appeared with Mr Kimmins for the applicants, argued the merits of the appeal without objection from the respondents who chose to appear for only part of the hearing and made neither oral nor written submissions. The applicants submit that the primary judge erred in restricting their damages for nervous shock to $20,000 as against all respondents collectively; the maximum award of $20,000 for mental and nervous shock could and should have been ordered against each respondent.
- The four respondents were convicted of armed robbery in company upon each of the applicants; the offences occurred on 27 August 1994. The Criminal Offence Victims Act 1995 commenced on 18 December 1995 but the relevant criminal compensation scheme for injuries suffered through acts done prior to that date is contained in Chapter 65A Criminal Code: see s 46 Criminal Offence Victims Act 1995.
- Section 663B(1) Chapter 65A Criminal Code provides relevantly that:
"Where a person is convicted on indictment of any indictable offence relating to the person of any person … the court, on application by … the person aggrieved by the offence … may … order that person to pay 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".
- Section 663A Criminal Code states that "injury" includes "mental shock and nervous shock". The prescribed amount in the case of mental shock or nervous shock is $20,000: see s 663AA(1) Criminal Code.
- The learned primary judge accepted that all appellants sustained nervous and mental shock but noted in his reasons:
"I am limited to an amount of the maximum of $20,000 for nervous and mental shock in relation to each applicant. If I had the power to award a sum in excess of $20,000 in relation to each applicant, I would award a sum clearly in excess of such amount for each applicant … ".
His Honour concluded:
"… although the respective order for each applicant is against each of the four respondents for the total sum, each applicant would receive only one total sum from the public purse (if there is any payment from the public purse)."
- Under a criminal compensation scheme not relevantly different from Chapter 65A, the South Australian Full Court in In Re Poore (1973) 6 SASR 308 held that where an offence was committed by joint offenders the Court may, where appropriate, order that the maximum amount be paid by each joint offender; effectively the maximum award where there are joint offenders may (if supported by the evidence and all joint offenders are equally liable) be the statutory maximum multiplied by the number of offenders. In Re Poore was applied to Chapter 65A Criminal Code by W B Campbell J (as he then was) in R v Wraight v Dakin; ex parte Fullerton.[1] In 1984, Chapter 65A was amended but the only significance of the amendments for present purposes was to significantly increase the statutory maximum. McPherson J (as he then was) in R v Bridge and Madams ex parte Larkin[2] reaffirmed the established principle that under s 663B(1) Criminal Code each joint offender can, in appropriate cases, be ordered to pay compensation up to the maximum amount. I can see no reason to depart from this accepted interpretation which is consistent with the plain words of s 663B(1) Criminal Code. His Honour did have power to award each applicant up to $80,000 for mental and nervous shock if such an award was supported by the evidence.
- It was not suggested that the primary judge was referred to this line of authority which no doubt explains his Honour's error in recommending in his reasons that "each applicant would receive only one total sum from the public purse (if there is any payment from the public purse)" even though his Honour had earlier concluded that each appellant had suffered nervous and mental shock as a result of the respondents' offences which warranted compensation in excess of $20,000.
- Unfortunately his Honour made no finding as to the hypothetical amount of damages he would have awarded.
- The offences of which the respondents were convicted constituted a terrifying attack by the four masked armed respondents on Mr and Mrs Freeman and Mrs Freeman's father, Mr Moroney, in their own home. Mr Moroney, 74 at the time and 79 now, was tipped from his seat on to the floor and received a significant knee injury for which he required hospital treatment; a gun barrel was held at his forehead throughout much of the incident. The Freemans' hands and feet were bound; Mrs Freeman's head was wrapped in a tablecloth, she was forced to the ground and her breasts were fondled; she understandably feared she would be further sexually assaulted.
- Psychologist Timothy Ryan was of the opinion that all three applicants have developed chronic post traumatic stress disorder and require long term counselling of 20 to 30 sessions at $155 per session. Mrs Freeman has suffered additional psychiatric or psychological problems including a major depressive disorder and panic disorder with agoraphobia.
- Chapter 65A Criminal Code is remedial legislation for the benefit of victims of crime and should be given a benign construction: R v Callaghan and Fleming; ex parte Power.[3] Regard may be had to economic loss suffered because of physical or mental injury: R v Johnson; ex parte McLeod;[4] McDonald v Brown;[5] R v Bridge and Madams; ex parte Larkin.[6] Understandably, the applicants do not suggest that approach (which has long been followed in Queensland) is inappropriate.
- Mr and Mrs Freeman suffered heavy economic loss as they were no longer able to manage their successful small crops farm which previously generated income of between $200,000 to $300,000 per annum. They feared the intruders would return; they eventually sold their property and moved interstate. Mr Moroney, an aged pensioner, also suffered economic loss; he supplemented his pension by working on the Freemans' farm.
- Plainly each applicant has suffered mental and nervous shock and consequential economic loss as a result of the offences of armed robbery in company committed upon them by each respondent; applying civil principles, they would each be entitled to compensable damages of at least $80,000; there is nothing to suggest the four respondents were other than equally responsible for the damage; under s 663B(1) Criminal Code the four respondents should be ordered to pay each applicant $20,000, a total of $80,000 for compensation for mental and nervous shock.
- The applicants' difficulty is that those were the very orders made by the primary judge. In reality the proposed appeals merely take issue with the recommendation made by the judge in his reasons and set out at paragraph [37] of these reasons, not the order or judgment. An appeal must be from an order or judgment, not from a recommendation or comment in the judge's reasons. I have noted in these reasons that the disputed recommendation made by the primary judge was in error. Whilst this may be of importance to the applicants if they make future applications to the Governor-in-Council for an ex gratia payment under s 663D Criminal Code, it cannot result in successful appeals.
- The orders made by the primary judge in each case were correct. I would refuse each application for an extension of time within which to appeal, but make no order as to costs.
- MUIR J: I adopt the analyses of relevant facts in the proposed reasons for judgment of each of the Chief Justice and the President, which I have had the advantage of reading. I agree with the Chief Justice’s reasons and with the orders he proposes. As there is a divergence of viewpoint as to whether this Court is in a position to finally resolve the matters before us without another hearing, I consider it desirable that I make some additional observations.
- The learned trial judge, acting on the assumption that the maximum award for each claim in respect of nervous and mental shock was $20,000, concluded that compensation in each case would clearly exceed this sum. He thus attempted no assessment of the full extent of loss and damage suffered by the applicants. Obviously, it is highly desirable that this Court make its own assessments of compensation if it is in a position to do so. Regrettably, in my view, the state of the evidence does not permit the assessment of damages on the subject claims without resort to an impermissible degree of conjecture or speculation.
- In respect of each of the applicants, there is expert evidence of significant psychiatric harm resulting from the offences of which the respondents were convicted. However, in each case, the evidence is to the effect that, with treatment, the outlook for the applicant is “positive”. Taking that evidence into account, the analysis of damages awards in civil cases undertaken by the Chief Justice suggests that it is unlikely that compensation, calculated by reference to the approach adopted in civil damages cases, would approach $80,000.[7] Even without the evidence suggestive of likely improvement in each applicant’s mental well-being, on the present state of the evidence, I would find it difficult to conclude that any of the applicants were entitled to the maximum compensation permissible.[8]
- As the President observes in her reasons, there is authority for the proposition that economic loss resulting from physical or mental injury suffered by a claimant is recoverable under s 663B(1) of the Criminal Code and its analogues. However, consideration of the evidence of economic loss in respect of each claimant does not lead me to conclude that the total amount of compensation awarded in each case would necessarily reach $80,000. Mr Moroney swears to working on a casual basis for the other applicants on their property prior to the commission of the subject offences. He also swears to not being able to continue to work “due to the commission of these offences and the subsequent sale of that property …”. The evidence does not reveal his level of income at the time of the offences or the likely level and duration of his work related income had the offences not occurred. Mr Moroney was 74 years of age at the time of the offences.
- Mr Moroney’s son-in-law, Andrew Freeman, swears to having owned a property at Jimboomba on which he and his wife (the remaining applicant) grew small crops at the time of the offences. He swears that his farming activity generated income for him and his wife ranging from $200,000 per annum to $300,000 per annum. He swears to losing interest in running the property “after the commission of (the) offences”, to having discontinued small crop farming and to having subdivided and sold the property. He and his wife now conduct stud farming operations on a grazing property in New South Wales. The material does not disclose whether Mr or Mrs Freeman or some entity controlled by them purchased the grazing property.
- The expert psychiatric evidence does not establish an inability on the part of Mr and Mrs Freeman to conduct their small crop farming activity. Nor is it otherwise apparent to me on the existing evidence that the respondents’ unlawful conduct is necessarily legally causative of loss of income from small crop farming. I am even doubtful that there is sufficient evidence to support a conclusion that the loss resulting from the ploughing in of a failed tomato crop (to which Mr and Mrs Freeman refer in affidavits) is compensable. There is, in any event, no evidence from which the quantum of that loss could be calculated.
- There is an added difficulty in that Mr and Mrs Freeman swear to subdividing and selling the Jimboomba farm and to a change in farming activities. These matters are sworn to only in very general terms, but in order to determine whether economic loss has been suffered, and the extent of the loss if any, it would surely be necessary to effect some comparison of Mr Freeman’s financial position, pre and post offences.[9]
Footnotes
[1] [1980] Qd R 582.
[2] [1989] 1 Qd R 554, 556-557.
[3] [1986] 1 Qd R 457, 458.
[4] [1973] Qd R 208
[5] (1975) 12 SASR 384.
[6] [1989] 1 Qd R 554, 556.
[7] The prescribed maximum compensation for mental or nervous shock multiplied by the number of joint offenders.
[8] In the case of Harold Moroney, the trial judge awarded $20,000 on account of nervous and mental shock and $8,000 on account of an orthopaedic injury.
[9] See eg, Gates v City Mutual Life Assurance Society Ltd (1985-1986) 160 CLR 1 at 12.