The State of SA v Richard Walter Loechel No. Scgrg-97-603 Judgment No. 6202 Number of Pages 2 Money Payment What Amounts to

[1997] SASC 6202

IN THE SUPREME COURT OF SOUTH AUSTRALIA

MILLHOUSE, J

Money - payment - what amounts to and generally - victim of crime awarded sum for criminal injuries against Attorney-General - victim liable to pay to Attorney-General sum for other criminal injuries inflicted by her - Attorney-General set off debt. Attorney-General claimed from perpetrator of crime amount of compensation without taking into account set-off - Pursuant to s11A of Criminal Injuries Compensation Act - sum recoverable from perpetrator sum actually paid to victim. Appeal dismissed. Criminal Injuries Compensation Acts11A, referred to.

ADELAIDE, 10 June 1997 (hearing), 20 June 1997 (decision)

#DATE 20:6:1997

#ADD 4:7:1997

Appearances:

Appellant:

Counsel: Miss L Chapman

Solicitors: Crown Solicitor

Respondent:

Counsel: Mr R Soulio

Solicitors: David Heaney & Associates

Order: appeal dismissed.

MILLHOUSE J

This is an appeal by the State of South Australia against a decision of Miss Sue O'Connor SM regarding the payment of Criminal Injuries Compensation.

The accounting is complex but fortunately irrelevant. The facts are set out in the learned Magistrate's Reasons. In summary, Meg Kathleen Grundy had been awarded, in the District Court $26,000 by way of criminal injuries compensation and further sums for costs and disbursements, making a total of $27,241.00. The Attorney-General, in accordance with the Criminal InjuriesCompensation Act, was liable to pay her. She herself was liable to repay to the Attorney two sums (they had been paid to others for criminal injuries she had inflicted) totalling $7,476.50. Taking a shortcut, the Attorney, to recover from Meg Kathleen Grundy what he claimed she owed, paid her only the balance, $19,764.50. The Attorney set-off $7,476.50 against $27,241.00.

The Attorney then proceeded against the respondent (the offender against Meg Kathleen Grundy) for an order for attachment of $27,241.00. [The Attorney knew the respondent had enough money to pay up.] The respondent claimed that he need only pay the amount which the Attorney had actually paid out, $19,764.50. In asserting that the respondent relies on s11A of the Act:- "(1) Where the Attorney-General makes any payment under this Act to a claimant, the Attorney-General is subrogated, to the extent of the payment, to the rights of- (a) the claimant, as against the offender ......

"(4) The Attorney-General may recover, as a debt, from an offender who has been convicted of an offence the amount of any payment made by the Attorney-General under this Act in respect of injury ........." The Learned Magistrate says:-

".... I have been advised by both parties that as a result of an administrative adjustment, the Attorney General's Department determined to retain, without an order for a payment of a debt or money owing, an amount outstanding against Grundy for an award of criminal injuries compensation. Without an order of a court, the Attorney General's Department made a determination to informally, by an administrative direction, retain that amount and the department's action has not been contested by Grundy." This may have been commonsensible but I am afraid the Attorney falls foul of s11A(1) and (4) of the Act. I have quoted (1) and (4). They are quite explicit, "... subrogated, to the extent of the payment ...", "... may recover ... the amount of any payment made ...". The payment made is $19,764.50 and that is the amount which the Attorney may recover from the respondent.

Of course, as the magistrate points out, the Attorney could have gone the long way round, given Meg Kathleen Grundy a cheque for $27,241.00 and immediately demanded back $7,476.50. Had he done so he would have conformed with the Act and have been able to recover from the respondent the full amount of $27,241.00 because that is what he would have paid out.

Of course he would have run the risk of not getting the $7,476.50 back from Meg Kathleen Grundy. Yet he would then have been no worse off than he now is. He may have succeeded in getting the $7,476.50 back and then Meg Kathleen Grundy would have been out of pocket by that amount: or he may have failed to get it back in which event he would have been out of pocket. Whichever, the respondent should not have to pay more than the amount which the Attorney has actually paid to Meg Kathleen Grundy. I am afraid this is a situation which the Parliamentary Draftsman did not anticipate: therefore Parliament did not provide for it in the Act.

I should add that when I was looking through the papers I noticed that the certificate given pursuant to s11A(5), purportedly by the Attorney, has been initialled (quite indecipherably), "for" "K. Trevor Griffin....". The initials are nothing like the Attorney's signature as I know it and the use of "for" shews that the initials are someone else's. The certificate may not be the certificate required by the sub-section: the sub-section requires signature by the Attorney himself. This lapse may have invalidated the proceedings anyway but I express no firm opinion as I have not heard argument. I merely suggest that in future the Attorney sign these certificates personally, as required by the section.

The appeal fails.