Iacovou v PM, Em and State of South Australia No. Scgrg-99-660 Judgment No. S370

[1999] SASC 370

IACOVOU v STATE OF SOUTH AUSTRALIA, E M and P M

[1999] SASC 370

Civil

1 WICKS J                  This is a matter which involves two small children and therefore they will be known in the judgment as EM and PM.  Their mother will be known as AM. 
2 In this matter the Crown makes application to this Court to have an appeal by Mr Iacovou to the Full Court struck out as incompetent under r 95.08 of the Supreme Court Rules. Also Mr Iacovou makes application to this Court for an extension of time to appeal to the Full Court from a final judgment of a District Court Judge in which he ordered damages to be paid to the respondents, E M and P M under the Criminal Injuries Compensation Act 1978.
3 In or about 1995, Mr Iacovou attended an English language course and was seated next to A M, the mother of E M and P M.  A M was not known to Mr Iacovou at the time.
4 At about this time, Mr Iacovou began to send offensive material to A M through the post.  On one occasion, the material in question consisted of a pair of ladies panties with writing on them containing the words "Kiss Me Here", a toy snake and a tea towel inscribed with a calendar.  In the proceedings in the District Court, A M also gave evidence, which the Judge at first instance accepted, that cards were sent to A M through the post with a dracula type person depicted on them.  A M also gave evidence that she received something in the order of 50 cards from Mr Iacovou through the post depicting indecent photographs of topless women with comments like "This is you".  She also gave evidence, which the Judge at first instance accepted, that she had received a card from Mr Iacovou through the post depicting a coffin containing reference to her vagina. 
5 Material received through the post continued over a significant period of time. A M complained to the police and in May 1996 a complaint and summons was issued out of the Magistrates Court alleging that between about 7 February 1995 and 30 October 1995 at Adelaide, Mr Iacovou knowingly or recklessly used the postal service supplied by Australia Post in such a way as would be regarded by reasonable persons as being in all the circumstances offensive contrary to s 85S(1)(b) of the Crimes Act 1914 (Cwlth).
6 Particulars were alleged in the complaint and summons that on approximately 50 occasions Mr Iacovou posted envelopes and postpaks to A M which contained offensive material and that the envelopes and postpaks contained, inter-alia:
"(a)    ... withdrawn

(b)     ... withdrawn

(c)     on two occasions the defendant enclosed a plastic toy snake as well as a pair of women’s underpants and on one of those occasion the defendant wrote the words "Kiss Me Here" on a pair of women’s underpants."

7 Section 85S of the Crimes Act 1914, (Cwlth), so far as is material provides as follows:
"(1)  A person shall not knowingly or recklessly:

(a)     ... or

(b)     use a postal or carriage service supplied by Australia Post in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive."

8 Mr Iacovou pleaded guilty to the charge particularised in item (c) of the complaint and summons.  Indeed, it may well be that he pleaded guilty to the 50 occasions which are referred to in that part of the complaint and summons.  That may well be the position.  Either way I do not think it matters in the conclusion to which I am about to come.
9 Section 7(1) of the Criminal Injuries Compensation Act 1978 provides as follows:
"A victim of an offence may, within three years of the day on which the offence was committed, apply to the court for an order for compensation in respect of the injury arising from the offence."

10 Section 8 of the Criminal Injuries Compensation Act 1978, so far as is material, provides:
"8.(1)  Subject to this section any fact to be proved by a claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities.

(1a) No order for compensation may be made (except by consent) on an application under this Act unless -

(a)     the commission of the offence to which the application relates has been proved beyond reasonable doubt; and

(b)     A causal connection between the commission of the offence and the injury or death to which the application relates has been proved on the balance of probabilities.

1. ...

1. ..."

11 The term "offence" is not defined in any helpful way in s 4 of the Act. 
12 In his Notice of Appeal, Mr Iacovou contends that the only complaint against him in his prosecution was as set out in paragraph (c) of the complainant and summons to which I have already referred.
13 In my view, a conviction for an offence or offences, the subject matter of proceedings under the Criminal Injuries Compensation Act, is not necessary. Proceedings under that Act are civil in character. Section 7 of the Act speaks of the "commission" of an offence, not a conviction for an offence. The criminal proceedings leading to a conviction or acquittal are one thing. The civil proceedings are another.
14 The elements of the cause of action arising under s 7 of the Criminal Injuries Compensation Act are to be proved according to the civil standard with one exception and that is that the commission of the offence relied upon as a basis for a claim for compensation must be proved beyond reasonable doubt: s 8. The proof beyond reasonable doubt referred to in the Criminal Injuries Compensation Act is proof in the compensation proceedings, not proof in criminal proceedings.
15 In the present case, having read the transcript of the compensation proceedings before the District Trial Judge, I have come to the conclusion that it has been established in those proceedings that numerous offences under s 85S(1)(b) of the Crimes Act 1914 have been proved beyond reasonable doubt. The point made by Mr Iacovou has no merit.
16 The remainder of the Notice of Appeal seems to me to be completely without merit containing no point calling for serious consideration.
17 Mr Iacovou seeks an extension of time within which to lodge his Notice of Appeal.  He has already filed the notice and the extension of time will therefore have to be granted nunc pro tunc if granted at all. 
18 The Crown seeks an order that the appeal in this matter be dismissed under r 95.08 as incompetent.
19 In considering whether I should make an order extending the time within which the notice of appeal may be filed and served, I should have regard to the question of whether Mr Iacovou has an arguable case before the Full Court on the appeal.  In the circumstances, I do not think Mr Iacovou’s case is arguable in any respect.  I therefore refuse Mr Iacovou’s application for an extension of time within which to appeal.
20 On the Crown’s application I also dismiss Mr Iacovou’s appeal to the Full Court as incompetent on the same grounds as applied in relation to the refusal to grant an extension of time.
21 I recall that I granted a stay in this matter and I believe that stay expires tonight.  I do not propose therefore to make any order on the stay but merely to allow it to be vacated by effluxion of time.