R P v The Queen & C L
[2011] VSCA 297
•22 June 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2010 0358
| RP | Applicant |
| v | |
| THE QUEEN | First Respondent |
| and | |
| CL | Second Respondent |
---
| JUDGES | REDLICH and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 June 2011 |
| DATE OF JUDGMENT | 22 June 2011 |
| DATE OF REASONS: | 7 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 297 |
| JUDGMENT APPEALED FROM | [CL] v [RP] (Ruling) (Unreported, County Court of Victoria. Judge Lacava, 15 September 2010) |
---
CRIMINAL LAW – Appeal against compensation order – Judge intended matter to proceed as further mention – Matter proceeded as substantive hearing – Applicant not aware of hearing date – Applicant not present and not legally represented at hearing – Victim granted compensation – Breach of procedural fairness – Appeal allowed – Compensation order quashed – Sentencing Act 1991 s 85B.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms E McKinnon | Lewenberg & Lewenberg |
| For the First Respondent | Mr T Gyorffy | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Second Respondent | Ms S Roglic | Ryan Carlisle Thomas |
REDLICH JA
WEINBERG JA:
On 22 June 2011, this Court made orders granting leave to appeal against sentence, and allowing the appeal. We quashed the order of compensation made by the judge at first instance, and remitted the matter to his Honour to be heard and determined according to law. We indicated at that time that we would publish our reasons at a later date. These are those reasons.
The applicant, ‘RP’, was convicted in the County Court at Melbourne of one count of indecent act with a child under the age of 16 (count 1), and two counts of common law assault (counts 3 and 4). A nolle prosequi was entered in relation to count 2.
The victim of this offending, ‘CL’ (the second respondent), was the applicant’s step-daughter. She was aged about 13 or 14 at the time of the offending.
On 2 April 2010, a plea was heard. On the following day, RP was sentenced to a total effective term of six months’ imprisonment wholly suspended for a period of 12 months on counts 3 and 4, and was given a community-based order for a period of two years on count 1.
CL made application, dated 25 March 2010, for compensation pursuant to s 85B of the Sentencing Act 1991.
On 2 June 2010, that application was listed for mention. RP was present on that occasion, and was represented by counsel. The judge was informed that the claim for compensation had not settled. He was also told that RP challenged the amount sought by CL because that figure appeared to be calculated upon the basis of conduct that went well beyond the scope of the relevant convictions. In that regard, counsel for RP told the judge that his client had been served with a psychologist’s report which related to a number of what might be described as ‘uncharged acts’, and submitted that the figure should be significantly pared down.
Counsel then told the judge that, regrettably, RP could no longer afford legal representation. Counsel then formally sought leave to be excused but indicated that, in his opinion, CL would not be required for cross-examination. Nor would the clinical psychologist who had prepared the report upon which CL relied.
The judge then perused the psychologist’s report, and observed that CL’s claim appeared to be based upon an opinion as to her mental state that arose out of conduct that went beyond the offences for which RP had been convicted. His Honour added that those offences were ‘quite finite and confined’.[1] He then castigated CL’s legal representatives for having failed to come to grips with the limited nature of the claim that could properly be made.
[1]Transcript of proceedings, DPP v [RP] (County Court of Victoria, 08/01095, Judge Lacava, 2 June 2010) 4.
In response, counsel for CL submitted that he would convey his Honour’s concerns to his instructing solicitors, and ensure that they were acted upon. Counsel then suggested that it might be appropriate for the judge to nominate a date some three or four weeks further down the track by which a more narrowly based report could be obtained from the psychologist. His Honour replied that the problem was that he was going on leave for two weeks, and then going on circuit. He then said:
What I propose to do is to adjourn the matter for another mention on a date to be fixed, at which time I will fix a time to hear the matter… It will only take an hour, I would have thought. I will hear it at 9.30 one morning.[2]
[2]Ibid 7.
Counsel for RP was then asked if he had anything to say about the matter. He replied that he did not. He said that although RP was no longer able to afford legal representation, his instructing solicitors, Doogue & O’Brien, would accept correspondence from CL’s solicitors, and pass it on to RP. His Honour added that when the new material was obtained, his Associate was to be contacted so that the matter could be mentioned. Mr Cash then confirmed that the matter would be listed ‘for a mention’.[3]
[3]Ibid.
The matter did come on again before his Honour, on 11 August 2010. On that day, neither RP nor any of his former legal representatives were present. However, CL was represented by counsel.
For reasons that are not at all clear, the matter proceeded on that day not as a mention, as had been foreshadowed, but as a substantive hearing of CL’s claim.
CL’s counsel informed the judge that correspondence that had been sent to RP by CL’s solicitors had been returned without any indication as to why it had not been received.
On the appeal, counsel for the RP submitted that the correspondence had, in fact, been sent to RP at an address in Glenroy which, as it subsequently emerged, he no longer occupied. Instead, he lived in South Frankston. In fact, RP’s address in South Frankston had been provided to police during the course of a formal record of interview with RP. That South Frankston address had also been given as his then current place of residence during the course of the plea hearing on 2 April 2010. For whatever reason, it appeared that his Honour’s Associate had failed to ensure that RP was notified of the 11 August listing date.
His Honour was told that copies of the correspondence sent to RP at the Glenroy address had also been sent to Doogue & O’Brien, in accordance with counsel’s assurance on 2 June 2010 that the firm would forward any such material to their former client.
RP’s counsel submitted to this Court that the correspondence sent to RP (and his former solicitors) had been franked on 9 August 2010.
RP claimed that he had had no notice of the date of the hearing until he learned of that date on 11 August 2010, by which time the hearing was over.
As we have mentioned, despite RP’s non-attendance on that day, and despite the fact that the judge had previously indicated in the clearest of terms that the matter would next proceed only as a mention, the application was heard. His Honour heard evidence from CL. He then reserved his decision.
On 15 September 2010, the judge ordered RP to pay CL the sum of $40,000 as compensation for pain and suffering caused as a direct result of RP’s offending. On that occasion, RP was present but not legally represented. CL was again represented by counsel. RP complained to the judge that he had not received notice of the hearing of the application for compensation until the very day that the matter had been heard. However, his Honour concluded that the order should nonetheless be made. Nothing was said about the matter having proceeded as a substantive hearing, rather than as a mention.
The relevant legislative provisions
It is convenient at this stage to refer to the principal statutory provisions pursuant to which CL brought her application for compensation. Section 85B of the Sentencing Act 1991 relevantly provides as follows:
85B. Compensation order
(1) If a court-
…
(b) convicts a person of an offence-
it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).
(2) A compensation order may be made up of amounts-
(a)for pain and suffering experienced by the victim as a direct result of the offence;
(b)for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counselling services as a direct result of the offence;
(c)for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d)for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
…
Section 85G(2) of the Sentencing Act 1991 provides:
85G. Evidence
…
(2)A court must not make a compensation order without giving the offender a reasonable opportunity to be heard on the application for the order.
Grounds of appeal
In his notice of application for leave to appeal against sentence, RP initially relied upon two grounds. These were as follows:
Ground 1The compensation order made by the learned sentencing judge is manifestly excessive in all the circumstances.
Ground 2In making the compensation order the learned sentencing judge failed to have regard or sufficient regard to the applicant’s financial circumstances.
However, in his written submissions in support of the application for leave to appeal, the applicant added a third ground, which he described as ‘Ground 1’. It was in the following terms:
The sentencing judge erred in failing to ensure the applicant was given adequate, or any, notice of the hearing of the application for compensation, resulting in:
a) a denial of natural justice;
b) non-compliance with s 85G(2) of the Sentencing Act 1991.
The Court’s reasons for allowing the appeal
When this appeal came on for hearing, counsel for RP initially foreshadowed filing an affidavit sworn by RP (who could not at that stage be contacted) deposing to not having had notice of the proceeding on 11 August 2010. It was considered
that the matter may have had to be adjourned to provide for the filing of that evidence.
However, this Court indicated that this was not necessarily critical to the success of the new ground. By the time the appeal came to be heard, transcript of the proceedings below on 2 June 2010, 11 August 2010, and 15 September 2010 had become available.
That transcript made it abundantly clear that, on 2 June 2010, the matter had been adjourned for a further mention. There was nothing in the transcript of that date to indicate that the matter would proceed as a substantive hearing when next it came to court. The last thing said by the judge to counsel who appeared for RP on 2 June 2010 was that he would leave it up to counsel’s instructor to contact his Honour’s Associate when RP had received the amended psychological report. It was clear that this did not occur. In fact, it was tolerably clear that RP had no notice that 11 August was the date on which the matter would come back before his Honour, irrespective of whether that was to be as a mention, or as the substantive hearing.
In these circumstances, counsel for RP abandoned any anticipated application for an adjournment of the appeal, and rested her case upon the denial of procedural fairness associated with the events set out above.
Counsel then foreshadowed a further ground of appeal, namely that the judge, though critical of the width of the original psychological report, had acted upon it in assessing the amount of $40,000 as appropriate compensation. Counsel noted that although his Honour had instructed that the report be amended, the judge had relied upon an identical report, re-submitted, when he came to assess compensation.
This Court did not find it necessary to rule upon any ground other than that which alleged a denial of procedural fairness. All that counsel for CL could say in response to that ground was that her understanding was that her instructor had rung the judge’s Associate, and been given the 11 August date as a date for a fixed hearing. When asked by Redlich JA whether that should have occurred, she replied that RP’s former counsel had told the judge, on 2 June 2010, that neither CL nor the psychologist would be required for cross-examination. Accordingly, in her submission, there was no reason why the matter should not have proceeded to a full hearing on 11 August.
That submission did not find favour. When the judge told both RP and RP’s former legal representative that the matter would next come back to court as a mention, that should have been the course adopted unless both sides were notified in advance that his Honour had determined otherwise.
Likewise, it was no answer to this point that the correspondence had been sent to RP’s Glenroy address, which was noted as his address for service at an early stage of proceedings. RP had never notified the judge, or the County Court, that he no longer lived in Glenroy, and had shifted to South Frankston. CL could not have had knowledge of that fact, since she did not have access to the record of interview, and presumably had not been present when RP’s particulars were taken on his plea.
On the material before this Court, it seems that the judge unilaterally decided to proceed with the matter as a substantive hearing, rather than a mere mention. Perhaps his Honour forgot what he had said at the 2 June hearing. Perhaps the error lay with his Honour’s Associate. We concluded that, for whatever reason, RP was denied procedural fairness.
Even if RP had been given adequate notice that the matter would come back before his Honour on 11 August (and, in our opinion, he had not) that would not have been sufficient. It is one thing to be told that a hearing will proceed as a mention, and quite another to be informed that it will proceed as a final hearing. For example, RP might well have decided that there was no point in attending a mention given that it would deal only with procedural matters. However, he might at the same time have been determined to appear in opposition to the orders sought at a final hearing. He would have been perfectly entitled to adopt that approach.
It seemed to us that this matter had proceeded on the basis of a series of misunderstandings. The question at the end of the day was whether the judge’s decision should be set aside on the basis of a denial of procedural fairness. In our view, there was only one answer capable of being given to that question. It was for that reason that we allowed the appeal and ordered that the matter be remitted to his Honour to be heard and determined according to law.
- - - - -
0
0
0