In the matter of Whyte, Victoria Legla Aid and the Office of Public Prosecutions

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT BENDIGO CRIMINAL DIVISION

No. 1410 of 2001

IN THE MATTER of the Confiscation Act 1977

and

IN THE MATTER of a Variation of Restraining Order

BETWEEN

LORRAINE ALICE WHYTE	First Applicant
and
VICTORIA LEGAL AID	Second Applicant
and
OFFICE OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Bendigo
DATE OF HEARING:	17 April 2002
DATE OF JUDGMENT:	24 April 2002
CASE MAY BE CITED AS:	IMO Whyte, Victoria Legal Aid and OPP
MEDIUM NEUTRAL CITATION:	[2002] VSC 130

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CONFISCATION ACT 1997 – application to vary restraining order by Legal Aid – wants a charge executed by accused – necessity to serve victims of crime with application – competing right to representation and interests of victims – late application – trial concluded and accused convicted – rights of victims to take precedence at that stage.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms R. Ellyard	Victoria Legal Aid
For the Respondent:	Mr J. Leckie	Solicitor for Public Prosecutions
For the First Applicant's	Mr R. Robertson	O'Farrell Robertson McMahon
Children (by leave): HIS HONOUR:

This is an application for an order varying a restraining order that was made pursuant to the Confiscation Act 1997 ("the Act").
The first applicant, Lorraine Alice Whyte ("Mrs Whyte"), on the 17th day of January 2001, was charged with murdering her husband, Leonard John Moss, who died on 13 January 1984. She was committed for trial and the trial commenced at Bendigo, on 4 April 2002.
Some time during the year 2001, Mrs Whyte was granted legal aid. At her trial, Mr Brustman of Counsel appeared on her behalf instructed by Victoria Legal Aid.
On 2 February 2001, an application was made by the Director of Public Prosecutions (Vic) for an order that Mrs Whyte be restrained from dealing with her interest in a property situated at 234 Lodden Valley Highway, Myers Flat ("the property"), a suburb of Bendigo. The property was more particularly described in Certificate of Title Volume 9777 Folio 364. A copy Certificate of Title revealed that the property was jointly owned by Mrs Whyte and her husband, Leslie Robert Whyte, as joint tenants. According to the copy Certificate of Title, the property was subject to a mortgage to North West Country Credit Union Co-operative Limited, which was registered on 16 December 1987. In an affidavit sworn in support of an application for bail by her husband, Mr Whyte, on 5 February 2001, Mr Whyte valued the property at approximately $75,000 and asserted that it was unencumbered. I was informed by Mr Brustman of Counsel that although the mortgage is registered on the title, there is nothing due and owing under it.
In the application made on 2 February 2001, the applicant was the DPP and the respondent was Mrs Whyte. The matter came on for hearing before Beach J on 6 February 2001 and he made an order restraining Mrs Whyte from dealing with the property subject to the usual undertaking as to damages.
The order was in these terms –

"(1)

THE COURT ORDERS pursuant to s.18 of the Confiscation Act 1997 that the respondent Lorraine Alice Whyte be restrained whether by herself or by her servants, agents or otherwise from disposing of or in any other way dealing with her interest in the property at 234 Lodden Valley Highway Myers Flat in the State of Victoria and more particularly described in Certificate of Title Volume 9777 Folio 364.
(2) THE COURT DECLARES pursuant to s.15(3)(a) of the Confiscation Act 1997 that the aforementioned property is restrained to satisfy any compensation order that may be made under the Sentencing Act 1991."

On the first day of the trial, Mr Brustman made an oral application as a matter of urgency, as he put it, for an order varying the order made by Beach J to enable Victoria Legal Aid to lodge a charge over the property owned by the accused as security for the cost of her legal representation. Mr Brustman pointed out that it was a matter of urgency and there may be some doubt about the legal representation continuing. He handed to me a copy of the proposed order. There was no material placed before the Court in support of the application.
I declined to hear the application at that moment and indicated that I would consider the matter.
The following day I raised the adequacy of the material and also the question of giving notice to persons who may be affected by an order varying the original order. I informed Mr Brustman that I required a proper application supported by affidavit and later, I directed that the documents should be served upon the three adult children of Mrs Whyte, as any order that may be made, varying the original order, would affect their interests.
Jurisdiction is given to the Court, pursuant to s.15(1) of the Act, to make a restraining order to preserve property in order that the property would be available for the purpose, inter alia, "(e) to satisfy any order for … compensation that may be made under the Sentencing Act 1991."
Section 15(3) requires the Court to state in the order the purpose for which the property has been restrained. As is clear from the terms of the order made by Beach J, the purpose for the order restraining Mrs Whyte from dealing with the property was to satisfy any order for compensation that may be made under the Sentencing Act 1991.
Section 18 sets out the matters that are to be taken into account on such an application.
Division 2 of Part 4 of the Sentencing Act 1991 gives jurisdiction for orders for compensation for injury.
Before an order could be made, it is necessary to establish first, that the accused was convicted of an offence and secondly, proof that "as a direct result of the offence" a person suffers any injury.
"Injury" is defined by s.85A and means, inter alia, actual physical bodily harm or mental illness or disorder or grief, distress or trauma or other significant adverse effect. See s.85A(1). Section 85B(2) states the nature of the compensation orders that may be made, and includes pain and suffering experienced by the victim as a direct result of the offence, expenses incurred for reasonable counselling services as a direct result of the offence, medical expenses and any other expenses reasonably incurred, but not including damage to property.
In my opinion, the jurisdiction given to the Court to compensate for injury enables compensation to be given for injury that includes matters not recoverable at common law in a negligence claim for personal injuries. I refer to the fact that "injury" includes grief and distress and also includes "other significant adverse effect" and these particular matters would be included in pain and suffering which is compensable - see s.85B(2)(a).
In considering the amount of compensation, the Court may take into account the financial circumstances of the offender in determining the amount. See s.95H. It is also noted that nothing in the Sentencing Act takes away or affects the rights of any person to bring civil proceedings for damages which have not been satisfied by payment of compensation under the Act.
The application to vary was served upon the three children of Mrs Whyte. In support of the application was an affidavit sworn by Rachel Ellyard, the corporate solicitor employed by Victoria Legal Aid ("VLA"), on 12 April 2002.
The application came on for hearing before me at the end of the second last day of the trial. At that stage, I was part way through my charge.
The three children of Mrs Whyte were represented by a solicitor, Mr Russell Robertson, and Miss Ellyard appeared on behalf of Mrs Whyte and VLA as applicants. Mr J. Leckie, Crown Prosecutor, appeared on behalf of the respondent, the Office of Public Prosecutions.
To better understand the interests of the three children and Mrs Whyte, it is necessary to briefly outline the circumstances involved in the murder charge.
On 13 January 1984, Leonard John Moss died at the Austin Hospital at Heidelberg. This was after a long illness that goes back to at least the latter part of 1982. The cause of death was arsenic poisoning. Mrs Whyte was then married to the deceased. The three children are the children of the marriage.
At the date of the death, the eldest child, Tracey Moss, was aged 17½ years; her sister, Colleen, was aged 15, going on 16; and the third child, Timothy, was aged 14 years. Their father was extremely ill from May 1983 and died a horrible death, emaciated, in pain and severely disabled. They witnessed his deterioration, pain, frustration and distress during this period. Not surprisingly, the events had an adverse affect upon them.
Two of the children, Tracey and Timothy, left home within months of the death of the deceased and have had little to no contact with their mother ever since. Until recently, they had little contact with their sister.
Their mother, Mrs Whyte, soon after the death, commenced to see her present husband. He moved into the home in September 1984 and they lived together as man and wife.
In 1986, Mrs Whyte was charged with murder, and after a Coronial Inquest, she was discharged.
In April 2000, she made confessions to a number of people to the effect that she had killed her first husband.
She was ultimately charged in January 2001.
The daughters, Tracey and Colleen, gave evidence in the trial against their mother. The evidence revealed that Tracey had very little to do with her mother from about September 1984. The daughter, Colleen, had contact with her mother in the years that followed and maintained a friendly, loving relationship with Mrs Whyte and her husband, Mr Whyte. It is clear that she was shattered in April 2000 when her mother admitted that she had killed her father. It is also clear that she obtained counselling from a psychologist to cope with the admissions.
The evidence of both daughters in the proceeding lead me to the conclusion that any application that they may make for compensation may have some prospects of success.
In my opinion, after an order is made restraining an accused person from dealing with property in order to preserve the property in the event that a compensation order is made for any victims of the crime, no application should be made to vary that order without notice being given to the victims. In the present case, a solicitor on behalf of the Solicitor for Public Prosecutions consented to the proposed variation of the restraining order. It is uncertain whether he ever sought the views of the victims of the crime and in my view, the Office of Public Prosecutions should not agree to a variation of an order unless the Office consults the victims of the crime, who may have a claim for compensation. In some cases, it may even be necessary to advise the victims to obtain independent legal advice. This will depend upon the circumstances, one being where a variation may have the effect of depleting the property to such an extent that there will be insufficient moneys to pay compensation and provide for legal costs. That appears to be the present case.
In my opinion, the three children of Mrs Whyte should be joined as parties to the application and I am prepared to order that Tracey Moss, Colleen Moss and Timothy Moss be joined as parties to this application.
Miss Ellyard's affidavit revealed that on 16 March 2001, Mrs Whyte made application for legal assistance in relation to the charge. She was referred to VLA by a private solicitor because she did not have sufficient funds to pay for private legal representation. The application revealed the interest in the property. In accordance with VLA standard practice, she was requested to provide an equitable charge over her interest in that property. The charge was to be provided as security for the total cost of her legal representation. Because of the restraining order and the fact that she needed funding urgently, she was granted assistance on the condition that she would execute an equitable charge once an order was made enabling her to follow that course.
Miss Ellyard swore that if she had not agreed to execute an equitable charge in favour of VLA, she would not have been granted legal assistance. At the hearing, Miss Ellyard informed the Court that where an accused person does have property, this is the invariable rule. She went on to say that the equitable charge taken by VLA to secure the cost is for the total cost of legal assistance and VLA does not charge interest.
It is VLA's policy not to force an assisted person to sell their home to repay their debt, but at the conclusion of the grant, the assisted person is provided with details of the final cost, is informed that the costs are secured against the property and when the property is refinanced, sold or dealt with in any way, the sum secured by the charge is to be paid.
Miss Ellyard also swore that Mrs Whyte had actually made a contribution of $9,000. I was informed that VLA required a charge to secure a further payment of $30,000. Miss Ellyard was unable to say just what the final costs would be, but she anticipated that they would not exceed the amount of the charge and the $9,000 already paid.
This application to vary should have been made a lot earlier than the first day of the trial, should have been made on proper material, and should have been served on the victims of the crime, who have a contingent right to claim compensation which, if successful, would be paid out of the property secured by the restraining order.
Hence, in considering what to do on this application, I am faced with a situation where the application was made on the second last day of the trial and at a time when the legal assistance, which had already been provided during the course of the trial by VLA, was drawing to a close.
I am not confronted with an application made in anticipation of legal assistance being provided. I am considering an application where most of the legal assistance has been provided. I reserved my decision.
The jury returned a verdict on Friday 19 April 2002 and Mrs Whyte was convicted of murder. I have remanded her in custody pending sentence. Mr Brustman sought time to enable a psychiatrist to see Mrs Whyte and provide a report. I proceed on the assumption that VLA will continue to provide legal assistance to Mrs Whyte up to completion of the sentence.
Accordingly, the contingent right that each of the children had has now become a right to bring a proceeding against their mother for compensation and each would recover a sum of compensation if he or she can prove injury as a direct result of the murder.
If this application had been made earlier, I would have been confronted with two competing substantial rights. The first, the right of any person accused to use his or her funds to obtain legal assistance to contest the charge. See observations of Gleeson CJ and Kirby P in New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 at 124(E) and 136(D). As against this, there is the contingent right of the victims to make a claim under the Sentencing Act.
In the present application, if Mrs Whyte does not have any other assets other than the interest in the home, which for present purposes could be valued at $37,500, then the enforcement of the charge would mean that most of her interest would be used for legal assistance. This would mean that what was left over would most likely be insufficient to meet the claims of the three children. Further, as it was pointed out by their solicitor, if the mother was convicted, then an issue would arise as to whether or not she was bound to repay any benefits she received as a result of the death of her husband. This would be on the basis of the forfeiture rule that a person must not benefit from the commission of a crime. But as Mr Robertson emphasised, there is a substantial argument that a substantial proportion of Mrs Whyte's assets would have come from her late husband's estate. She should not benefit from her crime.
Mr Robertson submitted that because the application was made so late, there was no longer any contest between the rights. Mrs Whyte had received her legal assistance which continued to the end of the trial. Accordingly, the only right that was now of concern was the right of the victims to bring an application pursuant to the Sentencing Act.
Miss Ellyard submitted that on a proper reading of s.143 of the Act, there was no express statutory obligation to consider the rights of victims of the crime and although she did not dispute that notice should be given to the children in this case, she submitted that the omission to make any reference to such rights indicated a priority for the use of property for legal assistance over any claim brought by the victims of crime. There is no doubt that the section does contemplate that a condition of the provision of assistance be subject to the execution of a charge.
There are cases where allowance has been permitted for legal assistance, out of money that arguably were the proceeds of crime, but the courts invariably impose controls on the amounts allowed – see Commissioner of the Australian Federal Police v Malkoun, Ryan J, Federal Court, 1.2.1989, and Australian Federal Police v Love (1991) 29 FCR 396 at 412.
It is unnecessary in my view to consider this issue on this application. The right to representation would no doubt be a relevant matter to consider where an application was made prior to the commencement of the trial. But I am concerned with the situation where most of the legal assistance has now been provided by VLA and I should consider the application in the light of that fact.
I am no longer confronted with competing rights.
In my opinion, I should resolve this application by refusing it. The application has come at a very late hour. Legal assistance has been provided so Mrs Whyte is not in any way prejudiced by any threat by VLA to withdraw assistance and accordingly, in my view, it is inappropriate to require her to provide a charge or to vary the original order. I have noted that VLA is preparing for a plea, and anything I have said should not be interpreted as an invitation to withdraw assistance at this late stage. The Court does have the power to order the provision of legal assistance under s.143 of the Act. I agree with the submission of Mr Robertson that now that the trial has concluded save for the plea, Mrs Whyte's right to legal assistance has been satisfied and accordingly, the rights of the victims should now take precedence. In my opinion, the application should be dismissed.
Subject to any submissions from Counsel, I propose to make the following orders:
(i) that Tracey Moss, Colleen Moss and Timothy Moss be joined as parties to the application;
(ii) that the application be dismissed.
I will hear the parties on the question of costs.

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[2002] VSC 130

24 April 2002