R v Webb-Myer; ex parte Stimson

[1995] QCA 371

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 27 of 1995.

Brisbane

[Stimson v. Webb-Myer]

BETWEEN:

WILLIAM BRUCE STIMSON

(Applicant) Appellant

AND:

ANDREW JASON WEBB-MYER

(Respondent) Respondent

___________________________________________________________________

Pincus J.A. Moynihan J. Shepherdson J.

___________________________________________________________________

Judgment delivered 18/08/1995

Joint reasons for judgment of Pincus J.A. and Moynihan J.; separate concurring
reasons of Shepherdson J.
___________________________________________________________________

1.         APPLICATION FOR LEAVE TO APPEAL GRANTED.

2.         APPEAL ALLOWED.

3.         THE ORDER FOR COMPENSATION MADE IN THE DISTRICT COURT ON 30 NOVEMBER 1994 IS SET ASIDE AND THE APPLICATION FOR COMPENSATION ON BEHALF OF MR STIMSON IS REMITTED TO THAT COURT TO BE RE-HEARD.

___________________________________________________________________

CATCHWORDS: COMPENSATION - injuries by unlawful wounding with intent
to cause grievous bodily harm - relevance of fact that
applicant likely to spend amount awarded on alcoholic
beverages.
S. 663B Criminal Code
McClintock v. Jones (Court of Appeal, Appeal No. 41/1994,
7 April 1995, unreported)
LEAVE TO APPEAL - whether award of compensation is part
of the exercise of criminal jurisdiction - whether application
can be brought under s. 92(2) District Court Act 1967 -
whether important question of law or justice - circumstance
that question of law was resolved in other proceedings before
this matter heard.
S. 92 District Courts Act 1967
Brandy v. Human Rights Commission (1995) 69 A.L.J.R. 191
Butfield v. John Lysaght (Australia) Ltd (High Court, No.
S197/1993, 12 May 1995, unreported)

Counsel:	Mr P L Gaffney for the applicant. No appearance for or on behalf of the respondent.
Solicitors:	Legal Aid Office for the applicant.
Hearing date:	17 May 1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 27 of 1995.

Brisbane

BeforePincus J.A.

Moynihan J.

Shepherdson J.

[Stimson v. Webb-Myer]

BETWEEN:

WILLIAM BRUCE STIMSON

(Applicant) Appellant

AND:

ANDREW JASON WEBB-MYER

(Respondent) Respondent

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND MOYNIHAN J.

Judgment delivered 18/08/1995

This is an application by Mr W B R Stimson for leave to appeal from a judgment

of Judge Boyce QC given in the District Court on 30 November 1994. On that date his

Honour heard an application made on behalf of Mr Stimson under s. 663B of the

Criminal Code for an order that Mr Webb-Myer pay compensation under that section.

The ground of the application was that the applicant had been injured in the course of

the commission of an offence by Mr Webb-Myer, namely that of unlawful wounding with

intent to cause grievous bodily harm. The applicant's right to apply for compensation

arose because of that conviction. In summary, what s. 663B(1) says is that where a

person is convicted on indictment of an indictable offence relating to the person the

Court may "in addition to any other sentence or order it may make" order the person

convicted to pay to the applicant "a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence or offences of which

the offender is convicted". Judge Boyce QC assessed compensation in a sum of

$35,000. One reason for the choice of that quantum of award was that his Honour was

"concerned that if a large sum of money were placed in the hands of the applicant he

might immediately dissipate all those funds in a very short period of time because of

alcoholism". His Honour's reasons urged that the relevant authorities give careful

consideration to the question of a protection order in respect of the applicant and "liaise

with the Public Trustee before placing a large sum of money in the hands of a man who

may be tending to the status of an alcoholic vagrant".

Mr Gaffney, who has applied on behalf of the applicant for leave to appeal,

contends that the decision of the District Court is irreconcilable with that of this Court

in McClintock v. Jones (Appeal No. 41 of 1994, 7 April 1995, unreported). It was there

held that compensation under s. 663B of the Code is to be assessed on common law

principles of assessment of damages for personal injury in civil cases, with the proviso

that the amount assessed cannot exceed the prescribed amount. It is clear that the

primary judge in the present case took a broader view than that; his Honour appears

to have taken into account, as a factor going in reduction of the assessment, that the

applicant would be likely to spend the amount awarded on alcoholic beverages. That

would not, in a civil suit for damages for personal injuries, be a reason for awarding a

lesser sum than the injury sustained warrants, although it might affect the injured

person's access to the sum awarded. There are other grounds the details of which

need not be discussed, for concluding that the law as later laid down in McClintock v.

Jones was not that applied by the learned District Court judge.

But there is a preliminary problem, and that is whether or not the Court has jurisdiction to give leave to appeal.

The application is brought under s. 92(2) of the District Courts Act 1967 which,

on the face of it, permits applications for leave to appeal to be made to this Court

against orders of the District Court generally, without limiting that jurisdiction to orders

made in civil cases. It would seem clear enough, however, that s. 92(2) was not

intended to provide for grants of leave to appeal from the District Court in criminal

matters; they are dealt with by specific provisions of the Code: see ss. 668B, 668D,

669A and the various provisions in Chapter 67 which deal with the characteristics of

proceedings instituted under those three sections.

A number of reasons, however, support the view that s. 92(2) allows the Court

to give the applicant leave to appeal in the present case. Section 663B(1) as has been

mentioned, gives the Court power to order payment of sums by way of compensation

and s. 663B(1C) reads:

" An order made under subsection (1) shall not, for any purpose, be taken

to be part of a sentence."

That suggests that although made under power given by the Criminal Code, an order

for compensation should be in general assimilated to, not punishment, but simply a

judgment providing recompense for injury. The notion that such an order is not, strictly

speaking, part of the exercise of criminal jurisdiction gains strength when one considers

the terms of s. 663B(4) which allows the person aggrieved - i.e. the person who has

applied for compensation - to enforce an order under subs. 1 against the offender as

if the order were a judgment of the Court given in an action. The mode of enforcement

of a decision was treated as decisive of the characterisation of the decision - as judicial

rather than administrative - in Brandy v. Human Rights Commission (1995) 69 A.L.J.R. 191 at 204. Similarly, here, the mode of enforcement is of importance in determining

whether to treat the compensation order as an exercise of criminal jurisdiction.

Lastly, the Court, by a majority, allowed such an appeal as this in McClintock v.

Jones. In that case jurisdiction was not discussed in any of the three sets of reasons;

the Court proceeded on the assumption that the Court could entertain the matter.

Because of these considerations, we should hold that this Court has jurisdiction

to grant the applicant leave to appeal under s. 92(2) of the District Courts Act 1967.

The next question is whether leave should be granted. At the time when the

District Court gave its decision, there were authorities supporting the broad approach

which the District Court used here, and there were authorities to the contrary, both

discussed in the reasons of the President in McClintock v. Jones. But the notice of

motion which instituted the proceedings with which this Court is concerned was filed on

21 February 1995, at a time when McClintock v. Jones had not been decided. The

application for leave then, plainly enough, raised an important question of law; the

circumstance that the question of law was resolved in other proceedings before this

matter came to be heard should not affect the rights of the applicant. To put that

proposition more generally, if an important question of law is involved in a number of

applications for leave to appeal, all pending at the same time, the Court will not

generally take the course of refusing leave in all the pending matters once the legal

point has been decided in one of them: compare the practice of the High Court, as

exemplified in the application for special leave in Butfield v. John Lysaght (Australia)

Limited (No. S197 of 1993, 12 May 1995, unreported).

It follows that leave to appeal should be given and the appeal allowed. Counsel

for the applicant Mr Gaffney suggested that this Court should itself determine the

amount of compensation, but it seems to us that the orthodox course is to remit the

matter to the District Court.

The orders are as follows:

1.         Application for leave to appeal granted.

2.         Appeal allowed.

3.         The order for compensation made in the District Court on 30 November 1994 is

set aside and the application for compensation on behalf of Mr Stimson is

remitted to that Court to be re-heard.