Peter Langlois Geiszler v Northern Territory of Australia and Craig Geoffrey Bojczuk

• Jurisdiction: Northern Territory
• Judge: Thomas J
• Judgment Date: 31 March 1995
• Neutral Citation: [1995] NTSC 45
• Docket Number: No. SC 225 of 1994
• Date: 31 March 1995
• Court: Supreme Court

[1995] NTSC 45

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Thomas J

No. SC 225 of 1994

Peter Langlois Geiszler

and

Northern Territory of Australia and Craig Geoffrey Bojczuk

Criminal injuries compensation — Crimes (Victims Assistance) Act s 12(b).

ORDER

Appeal dismissed.

JUDGE1

1 Thomas J This is an appeal from a decision of a stipendiary magistrate delivered on 30 September 1994 pursuant to the Crimes (Victims Assistance)

Act.

2 On 30 September 1994, the learned stipendiary magistrate found that, pursuant to section 12(b) of the Crimes (Victims Assistance) Act, the matter was not reported to the police within a reasonable time and therefore:

‘(i). An Assistance Certificate shall not issue pursuant to Section 8(1) of the said Act; and

(ii). The Applicant shall pay the First Respondent's costs to be agreed or taxed, this order being stayed for 28 days.’

3 The grounds of appeal are that:

‘1. The learned magistrate erred in law in that he found the appellant's notification of police on 20 July 1993 of the incident of 16 May 1993 fell outside the provisions of Section 12(b) of the Crimes (Victims Assistance) Act.

2. The learned magistrate erred in law in that he had regard to irrelevant considerations in arriving at his decision.

3. The learned magistrate erred in law in that he failed to accept the uncontradicted evidence of the applicant's solicitor.

4. The learned magistrate erred in law in that he took into account extraneous considerations in arriving at his decision that were unsupported by the evidence before the Court.’

4 The background to this matter is that on 16 May 1993 the appellant was at the Karama Tavern, Kalymnos Drive, Karama. He played eight ball with a man called ‘Bongo’. At 8.00 pm the appellant left the hotel. As he was leaving, ‘Bongo’ grabbed him from behind in a bear hug around the shoulders and upper arms. The appellant lost his balance and fell to the ground with ‘Bongo’ on top of him. The appellant suffered a broken left ankle which required surgery. He remained in hospital until 29 May 1993 and subsequently returned to hospital for outpatient treatment and physiotherapy. It appears to have been accepted by the appellant that the injury he suffered was not maliciously inflicted but was as described by the learned stipendiary magistrate (transcript p 35) ‘a non malicious piece of physical horse play’. The appellant consulted a solicitor, Mr Cameron Stuart, of Mildrens Solicitors on 18 June 1993 and was advised by Mr Stuart that the actions of the assailant may amount to a dangerous act under s154 Criminal Code and that the appellant could apply for compensation pursuant to the Crimes (Victims Assistance) Act. This advice was confirmed by letter from Mr Stuart dated 21 June 1993 (affidavit of Cameron Kingston Stuart sworn 28 September 1994). Mr Stuart and Mr Geiszler made efforts to ascertain the true name of ‘Bongo’. When this was achieved the appellant reported the incident to police on 20 July 1993.

5 It appears the police file went missing and nothing was done by police for some weeks. Annexure ‘K’ to affidavit of Cameron Stuart sworn 28 September 1994.

6 On 9 September 1993, the Officer in Charge at Casuarina Local Police Office advised Mr Stuart that the matter was being handled by Senior Constable Wardrope (annexure ‘L’ to the affidavit of Cameron Stuart sworn 28 September 1994). By letter (undated) from Senior Constable Wardrope to the office of Mildrens Solicitors apparently received on 22 November 1993, Constable Wardrope advised he had interviewed Mr Bojczuk in relation to the complaint made against him by Peter Geiszler. He further advised the matter had been forwarded to the Prosecution Section for a decision (annexure ‘M’ to affidavit of Cameron Stuart sworn 28 September 1994). On 25 November 1993 the Police Prosecutions Unit advised Mr Stuart by letter that no charge would be laid as a result of the incident (annexure ‘N’ to the affidavit of Cameron Stuart sworn 28 September 1993).

7 The matter before the learned stipendiary magistrate on 30 September 1994 was an application by the first respondent for an order that the application for an assistance certificate by the applicant dated 10 February 1994 be struck out for failure to report the offence to a member of the Police Force within a reasonable time after the commission of the offence pursuant to section 12(b) of the Crimes (Victims Assistance) Act.

8 The evidence before the learned stipendiary magistrate was the affidavit of John James Howard sworn 13 July 1994, affidavit of Cameron Kingston Stuart sworn 28 September 1994 and oral evidence given to the Local Court by Acting Senior Sergeant Stephen John Wallace. Acting Senior Sergeant Wallace's evidence to the court on that date was that he is the officer in charge of the communications centre. He gave evidence to the effect that there are a number of ways members of the public can lodge a complaint with the NT Police Force. These include contact by telephone, arranging for another person to make contact with the police, or arranging for police to attend either their home or whilst they are in hospital to enable them to make the complaint.

9 The evidence referred to above which was before the learned stipendiary magistrate, is the evidence on which the appellant relies in the appeal.

10 Section 12(b) of the Crimes (Victims Assistance) Act states as follows:

‘The Court shall not issue an assistance certificate- (b) where the commission of the offence was not reported to a member of the Police Force within a reasonable time after the commission of the offence, unless it is satisfied that circumstances existed which prevented the reporting of the commission of the offence;’

11 Pursuant to s19(1) of the Local Court Act the appeal is limited to a question of law. Section 19(1) provides:

‘(1) A party to a proceeding (other than a small claim proceeding) may -

(a) within 28 days; or

(b) with the leave of the Supreme Court, after the expiration of 28 days, after the day on which the order complained of was made, appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.’

12 The learned stipendiary magistrate in his reasons for decision stated that he accepted there was good reason why the appellant did not report the matter prior to 18 June 1993 when he received certain advice from his solicitor as to his rights. The magistrate found that it was unreasonable to delay the report much beyond 18 June 1993 and ‘certainly unreasonable by say 1 July in the circumstances of this case, let alone 20 July’ (transcript p 37). Accordingly, the magistrate made an order that pursuant to s12b of the Crimes (Victims Assistance) Act that the matter was not reported to the police within a reasonable time and that therefore an assistance certificate shall not issue.

13 The essential argument by the appellant is that the learned stipendiary magistrate made an error in law in that he made a finding of fact which is not supported by any evidence. The appellant relied on the principle expressed by Kearney J in John Holland v Hall (1987) 45 NTR 11 at 26.05: ‘The question whether there is any evidence to support a finding of fact is always a question of law’ and Gallop J in the matter of Tiver Constructions v Clair NT, 22 October 1992 ( (1992) 110 FLR 239) at p 3-4:

‘The case on appeal to the Supreme Court was not that there was no evidence to support the decision made, or one in which the evidence was inconsistent with and contradictory of the decision, or one in which the true and only reasonable conclusion contradicted the decision. If any of those alternative sets of circumstances had existed, it would be correct to say that the decision was a question of law ( Edward (Inspector of Taxes) v. Bairstow (1956) AC 14 per Lord Ratcliffe at 36). …’

and Martin and Mildren JJ at p 29:

‘It was not argued that there was no evidence of a particular fact as found. If such an argument had been raised then a question of law would have arisen ( McPhee v S Bennett Limited (1934) 52 WN (NSW) 8 per Jordan CJ at 9).’

14 With...