Kyriakopoulos v Victims Compensation Fund [2007] NSWDC 304

Reported Decision : 6 DCLR (NSW) 314

New South Wales District Court

CITATION: Kyriakopoulos v Victims Compensation Fund [2007] NSWDC 304

HEARING DATE(S): 4 October 2007

JUDGMENT DATE: 4 October 2007

EX TEMPORE JUDGMENT DATE : 4 October 2007

JURISDICTION: Civil Jurisdiction (Appeal from VCT)

JUDGMENT OF: Johnstone DCJ at 1

DECISION: The matter is remitted to the Victims Compensation Tribunal to determine the matter in accordance with the law.

CATCHWORDS: VICTIMS COMPENSATION - whether the victim was detained for advantage within the meaning of s 86 of the Crimes Act - meaning of 'detained' - the victim was held under restraint and his free will to go wherever he wanted was impeded, and he was therefore detained - error of law established - matter remitted to the Tribunal to determine the matter in accordance with the law

LEGISLATION CITED: Crimes Act: s 86

PARTIES: Kyriakos Kyriakopoulos (Plaintiff) Victims Compensation Fund (defendant)

FILE NUMBER(S): 3569/07

COUNSEL: Ms Fraser (Plaintiff) Mr McAteer (Defendant)

JUDGMENT HIS HONOUR: 1. This is an appeal from a decision of the Victims Compensation Tribunal given on 26 June 2007.

2. The appeal is brought on the basis of an alleged error of law, namely that the act of violence to which Mr Kyriakopoulos was subjected on 22 January 2005, did not amount to "a kidnapping" within the meaning of s 86 of the Crimes Act.

3. S 86 provides

"A person who takes or detains a person, without the person's consent: (a) with the intention of holding the person to ransom, or (b) with the intention of obtaining any other advantage, is liable to imprisonment for fourteen years." The words "detaining" and "taking" are defined. Detaining is defined to include: "causing the person to remain where he or she is". Taking is defined to include: "causing the person to accompany a person and causing a person to be taken". It is to be noted that these definitions are inclusive and not exclusive. I refer therefore to the meaning of detain, the ordinary meaning of detain.