Criminal law – Compensation – Whether injury was a direct result of offence – Offence need not be the sole cause of injury – Meaning of “direct” – Exercise of discretion to entertain application for compensation under s 85B of the Sentencing Act 1991 did not miscarry – Costs of application for compensation awarded to applicant.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr P.G. Priest, QC with Mr J P Dickinson
Trumble Szanto
For the Respondent
Mr P.J. Morrissey
Prior and Prior
BUCHANAN JA:
After a trial in the County Court the applicant was found guilty of 53 counts of theft from a commercial nursery conducted at the Waverly campus of the Holmesglen Institute of TAFE. Students of the Institute were employed growing plants and selling plants and other nursery products. The applicant was the manager of the campus.
Evidence was led at the applicant’s trial that he instructed the students working in the nursery to remove from the tills the sums referred to in the counts in the presentment. The applicant directed the students to enter the sums as refunds by pressing the refund button on the till register although, according to the Crown, no refunds occurred and the applicant retained for his own use the money taken from the till. The respondent was employed in the nursery as a sales assistant. He gave evidence that the tills in the nursery were equipped with a refund button and a no sale button. The former generated a refund slip and the latter operated the till drawer. The respondent said that the applicant attended the nursery each day and pressed the no sale button or asked one of the employees to do so. He would then order the staff to record a refund. The applicant took the refund slip and money from the till and put the money in his pocket.
The thefts were alleged to have occurred between 1 December 2000 and 3 March 2001. In December 2000 the respondent commenced to record the applicant’s transactions in a diary and continued to do so until 19 February 2001. Later he converted the entries to a spreadsheet. The entries recorded the occasions on which the respondent was asked by the applicant to press the refund button and other occasions on which he was told by other members of staff that they had done so at the applicant’s request. The respondent said:
“I returned from holidays on the first week of December and the refunds started to increase dramatically over the course of the period, so I believed that something was not right. There was no explanation, so I just started writing everything down, documenting everything that was going on.”
At the conclusion of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Kaplan v Lee-Archer [2007] VSCA 42
Case
[2007] VSCA 42
Decision Date
CaseChat Overview and Summary
In the case of Kaplan v Lee-Archer, the applicant, Mr Kaplan, sought compensation under section 85B of the Sentencing Act 1991 for injuries sustained as a result of criminal acts committed by the respondent, Ms Lee-Archer. The dispute centred on whether the injury Mr Kaplan suffered was a direct result of Ms Lee-Archer’s offence, and consequently, whether the court had the discretion to entertain the application for compensation and award costs to Mr Kaplan.
The legal issues before the court were whether the injury was sufficiently "direct" to warrant compensation under the statutory provisions, and if the court had exercised its discretion correctly in entertaining the application and awarding costs. The court was required to interpret the term "direct" in the context of the statutory scheme and determine if the statutory criteria for compensation were met.
The court found that the term "direct" should not be interpreted narrowly, as the offence need not be the sole cause of the injury. It was sufficient that the injury was a direct result of the offence, even if other factors contributed. The court concluded that the statutory criteria for compensation were met and that the exercise of discretion to entertain the application did not miscarry. The court further determined that the costs of the application for compensation should be awarded to Mr Kaplan, as he had successfully demonstrated that the application was not frivolous or vexatious.
The court's decision affirmed that the statutory provisions for compensation were correctly applied, and the discretion exercised was not misapplied. The final orders included the award of costs to Mr Kaplan and the allowance of his application for compensation under section 85B of the Sentencing Act 1991.