Criminal Comp: delay and recording a “no conviction”

Sirriss v Bowman [2012] QCA 108

The victim’s claim for criminal compensation was brought pursuant to s 663B of the Criminal Code, which has since be repealed by the Victims of Crime Assistance Act 2009 (1 December 2009). The District Court dismissed the claim for delay. The appeal was allowed on the basis the claim should not be dismissed because any exercise of the court’s inherent jurisdiction to dismiss a claim for want of prosecution, should be exercised sparingly when the limitation period has not expired (6 years) and the applicant could file another application. Secondly, the recording of a “no conviction” order did not deprive the victim of their entitlement under s 663B when such provision referred to the offender being “convicted”.

Boddice J (with whom Chesterman JA and Dalton J agreed):

[8] In dismissing the applicant’s application due to delay, the primary judge relied on a number of decisions of the Supreme and District Courts.[6] Those decisions proceeded on the basis there was no statutory limitation period for the making of applications under s 663B of the Code.

[9] In R v Chong; ex parte Chong[7] this Court held there was a statutory limitation period for applications for compensation under s 663B of the Code. An applicant for criminal compensation had six years from the time when the cause of action arose to bring any application. Such a cause of action arose upon conviction.

[10] In dismissing the application, the primary judge did not refer to R v Chong; ex parte Chong. It appears it was not brought to his attention. However, the primary judge correctly recognised that any limitation period applicable to the application would be that prescribed by s 10 of the Limitation of Actions Act 1974 (Qld), namely, six years.

[11] As the applicant had commenced her application within the allowed statutory time period, there was no basis to dismiss her application for delay. Whilst a court has an inherent power to dismiss a claim for want of prosecution, there was no such application in the present case. In any event, the power to dismiss for want of prosecution is to be exercised sparingly where, as here, the limitation period has not expired and the applicant could simply file a further application.[8]

[12] The primary judge considered authorities relevant to an extension of the limitation period in respect of actions for personal injuries analogous. That is a very different proposition. There, a claimant seeks an indulgence from the Court, the claimant not having commenced the action within the requisite statutory limitation period. In exercising a discretion to grant that indulgence, it is relevant for a court to consider delay, and any prejudice to a respondent. Such considerations do not arise in respect of an action properly brought within the statutory limitation period.

[13] The applicant has established that the primary judge erred in dismissing her application for criminal compensation. She was entitled to succeed on that application, unless the sentencing judge’s order that no conviction be recorded deprived her of an entitlement to criminal compensation.

[14] The entitlement to criminal compensation under s 663B of the Code arose where a person has been “convicted on indictment”. Whilst the word “conviction” is defined in s 4 of the Penalties and Sentences Act 1992 (“the 1992 Act”), the word “convicted” is not defined in the Code, or in the Acts Interpretation Act. Generally, a person is “convicted” when the Court accepts the verdict or plea of guilty by administering the allocutus.[9]

[15] By s 12(3) of the 1992 Act, a conviction without recording the conviction “is taken not to be a conviction for any purpose”. Taken literally, s 12(3) of the 1992 Act would mean the order that no conviction be recorded in respect of the respondent meant that the respondent was not a person who had been “convicted on indictment”.

[16] Section 12(3) applies “except as otherwise expressly provided by the Act or another Act”. Section 12(4) of the 1992 Act provides:

“(4) A conviction without the recording of a conviction—

(a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and

(b) has the same result as if a conviction had been recorded for the purposes of—

(i) appeals against sentence; and

(ii) proceedings for variation or contravention of sentence; and

(iii) proceedings against the offender for a subsequent offence; and

(iv) subsequent proceedings against the offender for the same offence.”

[17] The applicant had an entitlement, pursuant to s 663B of the Code, to make application for criminal compensation upon the respondent being convicted on 24 November 2006. The fact that the sentencing judge, in the exercise of his discretion, ordered no conviction be recorded did not deprive the respondent of that entitlement. The provisions of s 12(3) of the 1992 Act were subject to s 12(4) of that Act, which expressly preserved the Court’s ability to make orders under any other Act. Those orders included an order for criminal compensation under s 663B of the Code.

[18] This interpretation of s 12(3) of the 1992 Act is consistent with observations made in Fredericks v Wheeler [1997] QCA 245. In Fredericks, the Court had to consider whether a right of appeal remained when no conviction had been recorded for an indictable offence. In finding such a right of appeal continued to exist, the Court observed:

“Under s. 673 of the Code a person summarily convicted of an indictable offence (as the applicant was) is entitled to appeal as if convicted on indictment … Under s. 12(3) of the Penalties and Sentences Act 1992 (‘the 1992 Act’) except as otherwise expressly provided, a conviction without recording a conviction is taken not to be a conviction for any purpose. But under s. 12(4) of the 1992 Act a Court may make ‘any other order that it may make under this or another Act because of the conviction’. On the face of it, the sub-section appears to preserve this Court’s statutory jurisdiction to allow appeals against conviction where, no conviction having been recorded, what is complained of is a conviction on indictment or a conviction which must for the purposes of appeal be treated as if it were on indictment, under s. 673.”

Brisbane Barrister – David Cormack

Related Posts

Recent Comments

    Categories