Donovan v Wilkinson [2005] NTSC 8

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Donovan v Wilkinson [2005] NTSC 8






FILE NO: JA 2/04 (20312871)

DELIVERED: 2 March 2005

HEARING DATES: 28 February 2005




Appellant: N Christrup
Respondent: A Buckley

Appellant: Pro Bono
Respondent: Commonwealth Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: ols200501
Number of pages: 11


Donovan v Wilkinson [2005] NTSC 8
No. 2/04 (20312871)







(Delivered 2 March 2005)

[1] This is an appeal against a reparation order made against the appellant by a stipendiary magistrate in Darwin on 12 December 2003, consequent upon his conviction of an offence of offensive behaviour contrary to section 15(1)(b)(ii)of the Crimes (Aviation) Act 1991 (Cth).
[2] The facts related to the offence were not in dispute and the appellant was convicted on a plea of guilty entered on his behalf.
[3] On 3 July 2003 the appellant and his girlfriend were passengers on Singapore Airlines Flight 235 from Singapore to Brisbane. They were returning to Australia after a holiday in Egypt.
[4] Whilst the aircraft was en route, the appellant, who had been drinking, commenced to behave in a loud, aggressive and offensive manner, using foul language. This appears to have been directed both at his girlfriend and the cabin crew. The crew refused to serve him further alcoholic drinks and he exhibited aggressive behaviour towards them.
[5] The appellant’s behaviour, which continued over a substantial period of time, was such that other passengers on the aircraft became concerned for their safety. Eventually, the pilot of the aircraft approached the appellant and told him that, if he did not modify his behaviour, the aircraft would have to be diverted to Darwin and he would be put off there. At first, the appellant calmed down and apologise profusely, but then became extremely loud and aggressive and said to the pilot “I’ll take youse on”.
[6] After consultation with the flight supervisor, the pilot decided to divert the aircraft to Darwin. It landed there and the appellant was removed and arrested by the Australian Federal Police.
[7] The matter came before the magistrate on 13 November 2003. At that time a charge on information was withdrawn and the matter proceeded on a complaint alleging a breach of section 15(1)(b)(ii) of the Crimes (Aviation) Act. Counsel for the appellant entered a plea of guilty to the latter charge and the learned magistrate proceeded on the basis of a statement of facts tendered by the prosecution. That statement was not objected to and counsel for the appellant did not join issue with the narrative facts set out in it. Those facts revealed that the appellant had exhibited appalling behaviour during the flight that, on the face of it, had well warranted the decision made by the pilot.
[8] Not unsurprisingly, the learned magistrate regarded the offence as serious, particularly having regard to the appellant’s antecedent record. It appeared that he had six prior convictions for alcohol-related offences, albeit in relation to driving motor vehicles.
[9] The learned magistrate elected to impose a fine of $750. He was then asked by the prosecution to make reparation order in favour of Singapore Airlines in the sum of $14,635.66 to reimburse it in respect of additional costs said to have been incurred by reason of the diversion into Darwin.
[10] Counsel then appearing for the appellant objected to the reparation order on the basis that a variety of figures had previously been mooted by the prosecution and also because the appellant was said to have been a disability pensioner.
[11] The learned magistrate then stood over the issue of the making of a reparation order until 12 December 2003, to enable affidavit evidence to be placed before him to verify the costs said to have been incurred by Singapore Airlines.
[12] When the matter again came before the learned magistrate on that day, an affidavit sworn on 25 November 2003 by one Stephen Arthur Forshaw, an officer of Singapore Airlines, was put to the court. When asked by the learned magistrate whether she had any difficulty with the arithmetic basis of the claim for reparation, counsel then appearing for the appellant said that she had seen the affidavit and did not. The only reasonable construction that can be placed on the exchanges at the time, as recorded in the transcript, was that the items claimed were not in dispute. Indeed, the only issue then ventilated was the financial position of the appellant and its significance as to the exercise of discretion to make a reparation order or not.
[13] Counsel for the appellant submitted that this was not a case in which a reparation order was appropriate. Her client was in receipt of a permanent disability pension of $430 per fortnight, was not working and was a single man with no dependants. It was, she said, inappropriate to make an order against him for payment of a large sum of money, referring to decided authorities to the effect that orders should not be made for payments over a long period of time and that the courts were reluctant to make futile orders that were likely to be counterproductive to the rehabilitation of the offender (Cf, for example, R v Daly [1974] 1 All ER 290, Gould v Federal Commissioner of Taxation (1998) 143 FLR 207).
[14] Upon the learned magistrate inquiring whether the appellant had any assets, counsel said that she had no instructions on that score. The learned magistrate commented that no answering affidavit had been sworn by the appellant and that the authorities such as Gould had to be read in light of the recent Northern Territory Fines and Penalties Enforcement Act that had abolished the concept of serving time in custody in default of payment of fines and penalties.
[15] The learned magistrate commented that:
“In addition I am not confident at all that this man is totally unable to pay. Apparently he received some kind of lump sum because of a workplace injury, it appears that he spent some – or indeed may be a fair bit – on a holiday overseas and if he can do that one would think that there may well be assets or chattels that belonged to him that can be seized and sold if he doesn’t want to make good the costs.
But that will be a matter for a Sheriff one day……”
[16] It was at that point that counsel for the respondent pointed out that the order sought was one pursuant to section 21B(1)(d) of the Crimes Act and not pursuant to Territory legislation.
[17] The affidavit of Mr Forshaw deposed to the fact that, as a result of the diversion, additional costs totalling $14,635.66 had been incurred by the airline, but that this was reduced by recouped goods and services tax to a net sum of $13,791.98. A detailed break down of the costs was exhibited. The learned magistrate was also informed by the prosecutor that the precise details as to the “victim” were that its proper name was Singapore Airlines Limited and that its address was 17-19 Bridge Street, Sydney New South Wales 2000. No objection was taken by counsel for the appellant to the supply of that information from the bar table.
[18] On the appeal, counsel for the appellant sought to impugn the reparation order made on a variety of grounds. He argued that:
• The learned magistrate applied Northern Territory legislation when he should have applied Commonwealth legislation;
• The learned magistrate took into account irrelevant considerations;
• There was no evidence that Singapore Airlines was a person within the meaning of subsection 21B(1)(d) of the Crimes Act 1914 (Cth);
• There was no evidence that Singapore Airlines had suffered loss within the meaning of subsection 21B(1)(d) of the Crimes Act; and
• There was no evidence that the alleged loss was a direct result of the offence of offensive behaviour within the meaning of subsection 21B(1)(d) of the Crimes Act.
[19] There seems no doubt that, in exercising a discretion, the learned magistrate initially did seek to take into account Northern Territory legislation that was inapplicable to the matter before him. However, I do not think that he did so as the jurisdictional basis for the making of the reparation order.
[20] It seems quite clear to me that, in dealing the matter, the learned magistrate ultimately based the reparation order made on the provisions of section 21B of the Crimes Act, when he was specifically asked by counsel to do so (tp 17). Where, with respect, he had fallen into error was that he had earlier reasoned that certain prior authorities to which reference was made were inapplicable by reason of the more recent provisions of the Northern Territory Fines and Penalties (Recovery) Act.
[21] As Ms Buckley of counsel for the Crown pointed out, the matter was somewhat academic in any event, because section 21B(2) and (3) of the Crimes Act mandates that an offender is not to be imprisoned for a failure to pay a reparation order and that such an order is (on registration of a certificate of it in an appropriate court) to stand and be enforceable as a final civil judgment for the amount in question. It stands on exactly the same basis as would the judgment of a civil Court obtained as the end result of a civil plaint seeking payment of the same loss.
[22] In my opinion there is no point in the first basis of appeal relied on. At the end of the day the impugned order was in fact made pursuant to section 21B(1)(d) of the Crimes Act.
[23] However, the form of the order, as made, was plainly defective. The last mentioned section (relevantly for present purposes) mandates payment direct to the person by whom the loss is suffered and not to the clerk of the court.
[24] The complaint that the learned magistrate took into account irrelevant considerations is pitched at his expressed preoccupation with potential enforcement by the Fines Recovery Unit, thereby ensuring that the appellant would not be left destitute, needy or starving. It is a bold assertion that the learned magistrate would not have made the reparation order, had he been aware that the appellant was not protected from enforcement by the airline.
[25] The short response to that suggestion is that, whatever may have been the misapprehension under which the learned magistrate had initially been labouring, counsel for the respondent specifically drew his attention to section 21B of the Crimes Act and the learned magistrate actually made his order pursuant to it.
[26] In Vlahov v Federal Commissioner of Taxation (1993) 26 ATR 49, the Full Court plainly accepted the propositions that reparation orders were introduced into the law as a convenient and simple means of avoiding the expense of resort to separate civil litigation and also that it is not a requirement of the law that a reparation order is to be made only when there is a prior civil liability to make reparation.
[27] True it is that there is, on the authorities, a judicial discretion as to whether or not an order ought to be made in a particular case, particularly where there is clear evidence that an offender manifestly has no means of satisfying the order. However, in the instant case, the appellant gave no details of his financial resources and, as the learned magistrate pointed out, there was reason to believe that he may well have had some financial assets.
[28] Absent evidence before the court to enliven an exercise of discretion against making an order to which the respondent was prima facie entitled under the section (as to which see Davies v Taylor (1997) 142 FLR 23), there is simply no basis for contending that the order was not properly made in the circumstances.
[29] I consider that there is no merit in the point that the respondent had not, it was said, demonstrated that Singapore Airlines was a "person" within the meaning of the statute. Section 22(1)(a) of the Acts Interpretation Act 1901 (Cth) stipulates that "person" includes a body corporate. Whilst the affidavit of Mr Forshaw loosely refers to the airline as "Singapore Airlines", the fact remains that counsel for the respondent supplied the accurate name to the learned magistrate from the bar table, without objection from counsel for the appellant. It is now too late and quite unreal to argue that this should have been covered in the formal affidavit. It was not an issue before the learned magistrate.
[30] Equally, the assertions that there was no proof of loss to the airline, or that any loss was the direct result of the relevant offending behaviour are, with respect, equally unreal.
[31] It is beyond question that, as was stressed by Mr Christrup of counsel for the appellant, the respondent was bound to prove that the appellant had been convicted of a federal offence that had given rise to proven loss, as a direct result of that offence.
[32] The conceded facts were such that it was beyond question that the offending conduct of the appellant had given rise to a reasonable decision on the part of the pilot that he had no option but to make an unscheduled diversion to Darwin in the interests of safety and to have the appellant removed from the aircraft. That proposition was never put in issue before the learned magistrate.
[33] Further, when Mr Forshaw's affidavit was produced testifying to the detailed breakdown of costs said to have been incurred by the diversion, these were not challenged by counsel for the appellant, either as to quantum or appropriateness as being direct loss costs. On the contrary, the response of counsel for the appellant to the learned magistrate can only be construed as an unequivocal acceptance of those matters. The appellant is bound by the course of proceedings at first instance and it is far too late for him to now be heard to wish to put the respondent to more detailed, formal proof of the items in question.
[34] In truth, the appellant is grasping at straws in that regard. It verges on the ludicrous to suggest, as was put on the appeal, that, despite the sudden and unexpected diversion into Darwin, the airline ought, in effect, to have sought competitive quotes for the services supplied to it. There is no substance in this point. On the face of the documentation the various items claimed appear to have been causally relevant and reasonable and the affidavit establishes that the airline had become liable to pay them at the time of the offence. The concession made by counsel for the appellant before the learned magistrate was both proper and realistic and he cannot now be heard to renege from it.
[35] As to the exercise of discretion to make the reparation order, all that need be said is that, absent strong, persuasive reasons against so doing, a proper exercise of judicial discretion demanded that a reparation order be made. No doubt it was stressed that the appellant was in receipt of the disability pension. Nevertheless, the learned magistrate had been made aware that the appellant had recovered monies in relation to a work-related injury and an unfair dismissal claim -- no details of which were supplied beyond a statement to the effect that, in part, the monies had funded where he then lived and had also funded an overseas trip to Egypt. When asked whether the appellant had assets, his counsel responded to the effect that she had no instructions on the point. She did not seek an adjournment to seek such instructions.
[36] In my opinion, there is no merit in this appeal, save that the form of the order made was defective in the respect previously referred to. Pursuant to section 177(2) of the Justices Act I allow the appeal for the limited purpose of correcting the order made by substituting for the direction for payment to the clerk of court an order for payment to Singapore Airlines Limited of 17-19 Bridge Street Sydney New South Wales 2000. Save for that variation the order appealed against is confirmed.