Citation: English v R [2015] NSWDC 374
Court: District Court of New South Wales
Date: 25 August 2015
Judge(s): Neilson DCJ
Background
The appellant had been convicted in the Local Court at Burwood of obtaining money by deception from a complainant who suffered an intellectual disability. The complainant, referred to in the judgment by initials, was the victim of a scheme premised on a false claim that he had damaged a car seat. Police estimated the total amount obtained was $72,800; the complainant himself put the figure at approximately $50,000.
On 13 March 2015, Magistrate George ordered the appellant to pay compensation of $30,000. The appellant challenged only the quantum of that order, not the conviction itself.
The appeal came before Neilson DCJ in the District Court, which had jurisdiction to review the compensation figure.
Legal Issues
- Whether the amount of $30,000 ordered as compensation had been proved to the required standard of proof
- What figure, if any, could properly be established on the evidence before the court
Decision
The District Court examined the evidentiary basis for the compensation figure set by the Magistrate. The police estimate of $72,800 was not accepted as provable to the criminal standard. The complainant's estimate of $50,000 was treated as no more than a round-number approximation, unsupported by any firm basis, given his intellectual disability and inability to particularise the amounts paid.
Critically, the prosecution had made no attempt to establish the actual amounts received through deception. The complainant's banking records were never tendered, and the period over which the payments occurred remained uncertain, ranging from nine months to four years or more.
The core of the scheme involved a false claim by the appellant that the complainant had broken a car seat in a four-wheel drive vehicle. Evidence from Roads and Maritime Services showed that none of the vehicles registered to the appellant or his wife during the relevant period matched the description the complainant gave of the vehicle in question, adding further uncertainty to the factual basis for any higher compensation figure.
The only amount that could be established with confidence was $12,000, which the appellant's solicitor had conceded before the Magistrate, based on admissions the appellant himself had made in an electronically recorded interview with police. His Honour concluded that anything above that figure was, as the Magistrate had herself noted in January 2015, a matter of conjecture. The $30,000 order was accordingly set aside.
Orders Made
- The compensation order made by Magistrate George on 13 March 2015 was set aside
- In lieu of that order, the appellant was ordered to pay compensation to the complainant in the sum of $12,000
Key Takeaways
- The District Court held that a compensation order must be supported by evidence proving the amount to the applicable standard; conjecture as to the quantum is insufficient.
- Where the prosecution leads no banking records and the period of offending remains uncertain, a higher compensation figure cannot be sustained even on the balance of probabilities.
- A concession made by a defendant through their solicitor, based on the defendant's own admissions in a recorded police interview, can form a reliable evidential basis for a compensation figure.
- In allowing the appeal, the Court reduced the compensation amount to the conceded figure of $12,000, reflecting the ceiling of what the evidence actually supported.
- The intellectual disability of a victim does not relax the prosecution's obligation to adduce concrete evidence of loss when seeking a substantial compensation order.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.