MBA v AAE[2008] QCA 187

SUPREME COURT OF QUEENSLAND

THE CHIEF JUSTICE:  This proceeding concerns a judgment of the District Court, given on the 26th March 2008, awarding the present respondent, MBA, the amount of $3,375 compensation under the Criminal Offence Victims Act 1995.

On the 14th April, 2008, the present applicant, AAE, filed an application for extension of time for the filing of a notice of appeal.  Because the amount of the judgment is less than $50,000, it was necessary for AAE to obtain leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld).  She needed to file that application within 28 days of the decision.  The date of the filing of the extension application, 14th April 2008, fell within that 28 day period, so that an extension of time was not necessary.

The application specifies grounds said to justify the granting of leave to appeal.  The application filed on 14th April 2008 should therefore be treated as the necessary application for leave to appeal.

It is convenient to refer to the parties by their names.  AAE does not seek to challenge the learned Judge's primary assessment, which was in the amount of $6750.  The issue between the parties relates to the Judge's reduction of that amount by one-half, to arrive at the amount awarded because of MBA’s conduct, which he considered a "significant contributing factor to the events that occurred."

AAE now contends that assessment was unduly favourable to MBA:  in line with MBA’s conduct, the level of contribution should have been set at 100 per cent, or alternatively 80 per cent.  AAE would additionally seek to contend that MBA’s conduct precluded any award, because MBA’s injury was caused by "an offence to which (MBA) was a party."  (s 19(2)).

The latter contention was apparently not ventilated before the primary Judge although it is important to note that AAE was not represented before him.

The application before His Honour arose out of offences of burglary and assault occasioning bodily harm committed by AAE at MBA’s house.  In determining the compensation application, His Honour relied on these facts put before the sentencing Judge, "KA was in a relationship with a person named AL.  AL lived with his mother, MBA, in Townsville.  MBA is the complainant on count one.  On 28 December 2005, KA ran away from home causing understandably some concern for the parents, including the prisoner, AAE. 

That night, the prisoner was seen to be quite distressed about the whereabouts of KA.  Later in the night the prisoner spoke to police and received some information that KA was at MBA’s address.  The respondent, AAE, and her eldest son were driven to MBA’s residence by another woman and AAE forced her way through a screen door into the residence.  The complainant, MBA, began to call the police, however she was unable to do so.  MBA cannot recall if the phone was forced out of her hands or whether she put the phone down when the prisoner came through the door.  MBA recalls that the prisoner, AAE, was hysterical.  The prisoner picked up a fine china vase which was on top of the microwave in the kitchen and struck MBA on the head with it.  MBA stated that she raised her arm in defence and was struck on the arm as well. 

The prisoner and her son then forced KA out of the house and into the waiting van they had arrived in."

The injuries to MBA comprised an abrasion and soft tissue injury to the right temple, and mental or nervous shock of minor proportion. 

The learned Judge chose not to rely on MBA’s account of the event referred to in a report by a psychiatrist, Dr Likely, and MBA’s victim impact statement.

His Honour recounted these statements by MBA in that context:

"When she came to the gate of the courtyard I asked her not to come in.  She came in through the gate and was swearing and abusing me, so I turned to call the police.  By the time I had called OOO she had torn the security door off and was standing beside me.  She grabbed the phone off me and hung it up and pushed me against the wall.  She hit me with a vase on the head and arm and was still abusing me.  I was in a state of shock.  I cannot believe that she had ripped my door off and was inside my unit.  I did not know what to do.  She then picked up a cup holder and hit me on the same arm with that."

If accepted, that account would have put MBA in a more favourable position and AAE in a less favourable position.  The Judge chose not to rely on it because he considered it inconsistent with the account given by the prosecutor at the sentencing.

As mentioned, AAE would seek to contend that the compensation provisions of the legislation were simply inapplicable because of the applicability of s 19(2) of the Act.  It provides as follows:

"(2) The part does not allow anyone to apply to a court or to the State for the payment of an amount for-

(a) injury caused to the applicant by an offence to which the applicant was a party…"

The injury to MBA was plainly caused by the offence of assault occasioning bodily harm committed upon her by AAE.  AAE however asserts that the injury was the result of MBA’s alleged offence arising from MBA permitting KA, who was under 16 years of age, to carry out a sexual relationship with MBA’s son, at MBA’s residence.

Reference was made to s 213 of the Criminal Code 1899 (Qld), which renders it unlawful for the occupier of a house knowingly to permit the presence of a child under 16 for the purpose of someone having carnal knowledge of the child.  (See s 215.)

AAE contends, "On her own evidence at the committal proceedings, she, MBA, agreed she knew KA was aged 15 and that she was sleeping in the same bed as her 17 year old son in her house."

That is hardly sufficient to establish that MBA was guilty of the suggested offence.  Neither could the other material before the Judge, as Mr White, who appeared for the applicant, properly conceded before this Court. 

But the presently relevant point is that while any acquiescence in, or indeed encouragement of any relationship between KA and her son on the part of MBA, may even have provoked AAE into assaulting MBA, it was that assault which caused MBA’s injuries, not any criminal conduct on MBA’s own part, especially bearing in mind that this is an application for leave to appeal, it is highly significant that, as pointed out by Mr Hamlyn-Harris for MBA, no evidence was put before the sentencing Judge or the primary Judge that MBA was acting unlawfully and neither is there any such evidence before this Court.

This aspect of the matter, which constituted AAE’s primary submission before this Court, could not realistically warrant a grant of appeal.  That is because an appeal based on that ground would be doomed to fail.

The essential circumstance which led the primary Judge, acting under s 25(7) of the Act, to seek the contribution of 50 per cent, was that earlier on the relevant day MBA had falsely informed AAE that KA was not at the MBA residence. 

The significance of that false claim is better appreciated if one reads what his Honour said in relation to contact between the two women that day.

"In the chronology of events which His Honour had tendered to him on the sentencing proceeding, the respondent, AAE, set out the history of her daughter's antisocial behaviour and her relationship with the applicant's son and the concerns that she and her husband and family had for her daughter's welfare given the circumstances of her running away from home constantly and being absent in the company of a young person whom the respondent believed was a relationship which was contrary to her daughter's interests.

Insofar as the day in question was concerned, she gives an account of having had a number of telephone conversations with the applicant in the course of the day wherein the applicant was asking the respondent if she knew where some items of property belonging to her son were located.  The respondent had undertaken to look for these.  The respondent says that she asked the applicant if she knew where her daughter was or if her daughter was at her home and the applicant had replied in the negative.  The respondent refers to the applicant having come to her home to pick up the bag which the respondent had found and getting the same negative answer to the same inquiry. 

Subsequently when she contacted the police the respondent was told by them that they had reason to go to the applicant's house that day and had been questioning the applicant's son about unrelated matters and confirmed that the respondent's daughter was present at the applicant's house.  The respondent says that she asked the police for assistance in getting her daughter out of the house and home but the police declined and said that they were not able to give that assistance.  She also recounted that the Department of Child Safety had on a previous occasion made an investigation of her household with respect to her daughter's behaviour and association with the applicant's son although no action was taken by the department.  The respondent said she asked the police if she could go around to the applicant's house herself to get her daughter and she was told that she could do so. 

It then followed that the respondent went to the applicant's house for the specific purpose of locating her daughter there and bringing her home.  The offences were committed in the course of that visit.  In the circumstances I am satisfied that the respondent's account is accurate insofar as the dealings between her and the applicant are concerned."

In assessing the level of contribution the Judge had regard to Hohn v King [2004] QCA 254.  He referred also to Green v Dalton [2005] QDC 78 and Buckland v The Estate of Kennedy [2000] QSC 337.  In that context, he assessed contribution based on these conclusions. 

"In my view the conduct of the applicant was a significant contributing factor to the events that occurred, even though they preceded the incident and were not directly relevant.  In my view the previous events in which, effectively, the applicant had deliberately misled the respondent as to the whereabouts of her daughter, are a significant factor in the environment which existed within the household and to the reaction of the respondent to the applicant's continued behaviour of denial of knowledge of the whereabouts of the respondent's daughter."

AAE now submits in these terms: 

"It is submitted (the primary Judge) erred by failing to recognise that the actions of MBA constituted a very serious offence and that this was an ongoing state of affairs which directly led to the offending behaviour of MBA and the parent had a duty to protect and keep her daughter from danger.  In the circumstances those factors are more significant than the misleading and lies told by MBA." 

It is seen that AAE relies on what she alleges was MBA’s offence under the criminal law.  That has already been excluded.  It cannot be thought, however, that the primary Judge was not alive to the passionate concern which underlay AAE’s assault upon MBA that day which was a concern for the welfare of her daughter.  That is reflected in the considerable significance his Honour attributed to MBA’s misleading of AAE.

AAE submits that no award of compensation should have been made, but that largely depended on her claim that MBA was committing a criminal offence.  Alternatively, she contended that the reduction of the order of 80 per cent should have been made and she referred to Cleland v Major [2002] QDC 195. 

But the assessment made by his Honour is not apparently unreasonable or out of the question, and the revisiting of such a discretionary or evaluative judgment will not usually attract a grant of leave to appeal.

The proposed appeal concerns a very modest assessment of compensation.  For the reasons given, it would lack merit.  Further, it would not raise any question of general importance or exhibit other characteristics warranting a grant of leave.  The proceeding simply involves the application of s 25(7) of the Criminal Offence Victims Act 1995 (Qld) to the particular facts of this case.

For those reasons the application should in my view be refused.

MUIR JA:  I agree.  There is nothing about this matter which warrants the granting of leave to appeal.  If anything, the result at first instance unduly favoured the applicant.

FRASER JA:  I agree.

THE CHIEF JUSTICE:  Mr Hamlyn-Harris, you seek costs.

MR HAMLYN-HARRIS:  I do, your Honour.

THE CHIEF JUSTICE:  There's nothing you wish to add?

MR HAMLYN-HARRIS:  No.  No, there's not, your Honour.

MR WHITE:  Nothing I can add, your Honour.

THE CHIEF JUSTICE:  Yes.  The application is refused.

MBA has sought an order for costs.  While Section 31 of the Criminal Offence Victims Act 1995 (Qld) provides that:  "a Court is unable to make an order for the payment of costs of an application for a compensation order…", R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 304 is authority for the proposition that 'an order for the costs of an appeal' is not 'an order for the payment of costs of an application for a compensation order."

This Court has power to make a costs order upon the disposition of this application.  There is no reason why AAE should not be ordered to pay MBA’s costs. 

There should therefore in my view be an order that the applicant pay the respondent's costs of and incidental to the application to be assessed on a standard basis.

MUIR JA:  I agree.

FRASER JA:  I agree.

THE CHIEF JUSTICE:  There will therefore be that additional costs order. 

Thank you, gentlemen, and thank you, Mr White, for having dealt with this matter on a pro bono basis.  That's very commendable, with respect.

MR WHITE:  Thank you, your Honour.