Ellacott v Bilston

[1998] QCA 169

[1998] QCA 169

COURT OF APPEAL

McPHERSON JA DERRINGTON J WHITE J

CA No 158 of 1998

MALCOLM JOHN ELLACOTT Appellant

(Defendant)

v.

JUSTINE JULIA BILSTON Respondent

(Plaintiff)

BRISBANE
..DATE 05/05/98
McPHERSON JA: This is an application for leave to
appeal in respect of an assessment of damages for
criminal compensation.
The sequence of events relevant to the application
is that the applicant was first tried in about
1996 before Judge Robertson and a jury in the
District Court on an indictment charging him with
five counts of offences against the complainant

Miss Bilston.

The five counts were first, wilful damage to a
door, the property of the complainant; secondly,
damage to a refrigerator also her property;
thirdly, a count of indecent assault on her;
fourthly damage to a door panel of a motor
vehicle, also her property; and, fifthly, that he
had stalked her between December 1994 and 11

September 1995.

The count alleging the offence of stalking was
accompanied by a circumstance of aggravation, as I
understand it, that he threatened to use unlawful
violence against another person or another
person's property, who I take it to have been the

complainant and her family.

The applicant was convicted at that trial in
respect of all the counts in the indictment. There
was then an appeal to this Court, which succeeded,
and a re-trial was ordered. The re-trial took
place before Judge McGuire in about January or
February of 1997.
On that occasion the jury returned verdicts of
guilty to
count 1, which was the damage to the door, and to
count 5 which was the unlawful stalking. In
respect of the other counts numbered 2, 3 and 4,

the applicant was found not guilty and acquitted.

This application arises out of the assessment, as
I have said, of criminal compensation on an
application made by the complainant, which was
heard by Judge Robertson in the District Court at
Ipswich on 10 December 1997.

The result of the application was that his Honour on the same day assessed the compensation to be paid by the applicant before us at the figure of $20,500.

What is said in support of the application for
leave to appeal is that evidence was admitted at
that hearing which was strictly speaking not
admissible, and that his Honour acted upon it in
arriving at that assessment figure of $20,500.
What is sought is that the assessment or award be
set aside and that there be a re-hearing of it.
The evidence that it is said ought not to have
been admitted consisted of all the statements
which, together, were taken from the complainant
by the police in relation to all the offences that
were made the subject of the indictment to which I
have referred, which included counts 2, 3 and 4 of

which he was later acquitted.

It is right to point out both that no objection
was taken to those statements being admitted at
the hearing of the criminal compensation
application before Judge Robertson, but also that
the applicant on that occasion was not legally
represented. That, perhaps, explains why there was
no formal objection to the statements, but of
course, once they were before the Court, the Court
was not free to act on those parts of them that
were not relevant to the application for
compensation that was being heard. So far as that
aspect of the matter is concerned, the result is
that his Honour would not have been entitled to
act on so much of the statements of the
complainant as went to the three counts in the
indictment, numbers 2, 3 and 4, in respect of
which the applicant before us was acquitted by the
jury at the second trial.
There is, however, no evidence that his Honour did
act on those statements, or that he was ignorant
of the acquittals that had taken place in the
trial before Judge McGuire. On the contrary, it
is quite clear from what he said in the course of
the hearing that he regarded the outcome of the
second trial as having limited the issues with
which he was concerned on the hearing of the
application for compensation.
By way of example, in the course of submissions by
counsel for the Crown, who was also counsel for
the Crown before us in this Court, some reference
was made to his Honour's sentencing remarks in the
criminal trial before him. His Honour was quick
to point out that they were not relevant. "They
don't count", he said; to which Mr Clark for the
Crown said, "No, they don't, I must have misread

it".

The only other point which can possibly be made,
in my opinion, in favour of this application
before us is that his Honour did not have before
him the transcript of the proceedings in the
second criminal trial before Judge McGuire. It
was said, or perhaps implied, that in those
circumstances he could not have known what the
evidence was at that trial on the strength of
which the applicant before us was then convicted,
and on which, and only on which, an assessment of
compensation could properly be made; and that he
must therefore have acted on what he knew from the
first trial.
Some stress was placed on a passage in his
Honour's reasons for judgment which is to the
following effect. "The first trial having been
before myself resulted in a successful appeal and
a retrial before his Honour Judge McGuire in
Brisbane on 28 January 1997. As a consequence I

am familiar with the circumstances of the offence.

It was a particularly bad example of stalking
involving conduct that was designed to intimidate,
terrify and crush the respondent and to a large
extent having regard to the report of Dr Reddan
the respondent was 'successful' if I could use

that word in her intentions."

The force of that point, such as it is, is to my
mind considerably diminished by the fact that it
was conceded before us that the complainant's
evidence at both trials was the same. It may be,
of course, that the applicant's own evidence, if
he gave evidence at both trials, diverged; or in
some way was directed to impeaching the evidence
of the complainant in respect of the two counts as
to which he was convicted.
Even so, there could not have been much, if any,
difference in the evidence of the complainant
concerning the two counts of which the applicant
before us was convicted. That being so, it does
not seem to be a reasonable supposition that his
Honour acted on any evidence that went beyond that
which he was justified in taking account of in
determining this application. It was essentially
the complainant's evidence on which his Honour
acted in making the assessment, and it was the

same at both trials.

It seems to my mind perfectly clear from that that
what his Honour was saying was no more than that
he was familiar with the circumstances of the
offence of stalking and was therefore in a
position properly to assess the compensation for
the injuries suffered by the complainant that were

caused in the course of that offence.

It is plain that, if his Honour regarded the
stalking offence as the primary offence for which
the complainant was to be compensated, he was
perfectly correct, and no proper challenge can be
made to his decision on that basis.
The concession that the evidence for the
prosecution in both cases was the same, or even
only much the same, has the consequence to my mind
that his Honour was justified in making the remark
he did; and conversely it also demonstrates quite
clearly that he was not acting on evidence that
was not admissible on the compensation hearing for
the reason that it had not been presented at the

trial before Judge McGuire.

When all these matters are considered, I have come
to the conclusion that the applicant has failed to
demonstrate before us that his Honour misdirected
himself, or that his judgment in making the
assessment in any way miscarried.

The consequence is in my view that the application cannot succeed and should be dismissed.

DERRINGTON J: I agree.

WHITE J: I agree and would just add to
demonstrate further that his Honour had firmly in
mind that he was considering compensation in
respect only of two offences and, without doubt,
it was the stalking offence that would give rise
to the compensation, was his mention on page 3 of
his reasons of the two reports of Dr Jill Reddan,
psychiatrist. He mentions the updated report
dated 30 July 1997 and when recourse is had to
that report, it is clear, that the
complainant/applicant's instructing solicitors had
drawn to her attention the fact that there were
now only two convictions recorded against the
applicant. She concluded by saying that the
behaviour associated with the stalking had led to
the respondent developing the disorder that was
the subject of her major report. I agree with the
order of the learned presiding Judge.
McPHERSON JA: Yes, I would, with respect,
associate myself with the remarks that Justice

White has just made.

DERRINGTON J: I too.

McPHERSON JA: Now?

MR CLARK: I would ask for costs, Your Honour.

McPHERSON JA: Can you oppose that?

MR GOODWIN: No, Your Honour.
McPHERSON JA: I would order that the applicant
pay the costs of and incidental to this
application of the respondent.

WHITE J: I agree.

McPHERSON JA: That will be the order of the

Court.

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