Kyriakopoulos v Victims Compensation Fund

[2007] NSWDC 304

Reported Decision: 6 DCLR (NSW) 314

District Court

CITATION:	Kyriakopoulos v Victims Compensation Fund [2007] NSWDC 304
HEARING DATE(S):	4 October 2007
JUDGMENT DATE:	4 October 2007
EX TEMPORE JUDGMENT DATE:	4 October 2007
JURISDICTION:	Civil Jurisdiction (Appeal from VCT)
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	The matter is remitted to the Victims Compensation Tribunal to determine the matter in accordance with the law.
CATCHWORDS:	VICTIMS COMPENSATION - whether the victim was detained for advantage within the meaning of s 86 of the Crimes Act - meaning of 'detained' - the victim was held under restraint and his free will to go wherever he wanted was impeded, and he was therefore detained - error of law established - matter remitted to the Tribunal to determine the matter in accordance with the law
LEGISLATION CITED:	Crimes Act: s 86
PARTIES:	Kyriakos Kyriakopoulos (Plaintiff) Victims Compensation Fund (defendant)
FILE NUMBER(S):	3569/07
COUNSEL:	Ms Fraser (Plaintiff) Mr McAteer (Defendant)

JUDGMENT

HIS HONOUR:

1. This is an appeal from a decision of the Victims Compensation Tribunal given on 26 June 2007.

2. The appeal is brought on the basis of an alleged error of law, namely that the act of violence to which Mr Kyriakopoulos was subjected on 22 January 2005, did not amount to “a kidnapping” within the meaning of s 86 of the Crimes Act.

3. S 86 provides

“A person who takes or detains a person, without the person’s consent:
(a) with the intention of holding the person to ransom, or
(b) with the intention of obtaining any other advantage,
is liable to imprisonment for fourteen years.”

The words “detaining” and “taking” are defined. Detaining is defined to include: “causing the person to remain where he or she is”. Taking is defined to include: “causing the person to accompany a person and causing a person to be taken”. It is to be noted that these definitions are inclusive and not exclusive. I refer therefore to the meaning of detain, the ordinary meaning of detain.

4. In the New Shorter Oxford English Dictionary the various meanings of “detain” include:

“Place or keep in confinement; keep as a prisoner; keep from proceeding; hold back, delay or stop.”

The definition in the Macquarie Dictionary (revised third edition) include:

“To keep from proceeding; keep waiting, delay; to keep under restraint or in custody”.

5. The plaintiff says that the facts proven support a conclusion that he was kidnapped. I was directed in particular to paras (12) and (13) of his statement made to the police on 25 January 2005.

6. The facts establish that Mr Kyriakopoulos was at home in his house at about 6pm on 25 January 2005 when several men came to his front door. There were in fact five males of Middle-Eastern appearance who were standing at the front door. Conversation ensued relating to Mr Kyriakopoulos’ son, concerning guns and drugs. One of the males said to Mr Kyriakopoulos,“You have to pay me $2000 now”. Mr Kyriakopoulos replied, “I’m sorry I can’t give you nothing, I don’t know nothing, get out of my door”.

7. Paragraph 12 of Mr Kyriakopoulos’ statement reads:

“The first male said ‘I’m not going if you don’t give me the money’. I tried to close the screen door. The first male held the screen door open whilst the second and third male and the first male entered my house and in doing so the first male pushed me into the house.”

8. Paragraph 13 then goes onto read:

“I said ‘Piss off, fuck off out of my house’. The first male held his left hand on my chest and with closed right fist punched me two times to the middle of my forehead and once to the top of the right eye. As soon as I received the punch above my right eye I felt dizzy and fell on the chair behind me.”

9. Paragraph 14 then goes onto read:

“I picked up the home telephone which was to the left of me and dialled triple O and asked for the police. The second male grabbed the first male and said ‘Come on, let’s go’. The first male as he pointed at me said ‘I’ll fix you up you rotten cunt’. The five males ran away, I got up from the chair and walked towards the front of my house. The males had disappeared.”

10. It is not in dispute that these men were present for the purpose of or for the intention of obtaining some advantage. It follows that the only issue in this case is whether or not the facts support a conclusion that Mr Kyriakopoulos was taken or detained. It seems to me pretty clear that he was not ‘taken’ anywhere or in any way. So the question remains was he ‘detained’.

11. The solicitor for the Fund submits that the facts do not support a conclusion that Mr Kyriakopoulos was detained. He says at most it can only be that he was caused to go back into his own abode, having tried to prevent the intruders from entering his house. The evidence does not support a conclusion that he was stopped or prevented from going anywhere else. This is confirmed by the fact that he was able to make a phone call, notwithstanding their presence.

12. Clearly Mr Kyriakopoulos was assaulted, and the facts might not support a conclusion of kidnapping if one were just to look at the ordinary sense of that word or what people might understand by it in common parlance. I might also observe that it is not to the point that the facts supported one crime or constituted another crime such as assault. The only issue is whether these facts support a conclusion that there was a kidnapping within the meaning of s 86. Very simply that means, or the issue is, whether he was detained, either within the extended meaning in the Act or within the ordinary meaning of the word in the dictionary.

13. In my view the facts support a finding that Mr Kyriakopoulos was held under restraint and prevented, or his free will was impeded, from doing or going where he wanted to go. It is not necessarily to the point that this was done by him being pushed back inside the house or held and punched, although those facts do support the conclusion. The reality is, he was a man who was by the presence of five men in his house held back, delayed, stopped, kept waiting, kept under restraint, kept from proceeding, or any other of the various meanings of the word in its ordinary meaning.

14. In my view, therefore, the facts established do constitute the crime of kidnapping within the meaning of the Act and I therefore conclude that the Victims Compensation Tribunal made an error of law in that regard.

15. There having been an error of law, I remit the matter to the Tribunal to determine the matter in accordance with the law as I find it.

16. I order the defendant to pay the plaintiff’s costs, on the ordinary basis.