ALLC v JVR - [2010] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

ALLC v JVR [2010] QDC 94

PARTIES:

NDO as litigation guardian for ALLC
(applicant)

V

JVR
(respondent)

FILE NO/S:

D 462 of 2009

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

22 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

19 October 2009

JUDGE:

Tutt DCJ

ORDER:

The respondent JVR pay to the applicant ALLC the sum of $30,000.00 for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Southport on 24 March 2004.

CATCHWORDS:

CRIMINAL COMPENSATION –sexual offences against complainant child– lineal descendent - where applicant sustained “no physical injuries”- where applicant suffered “mental or nervous shock” – where applicant suffered “adverse impacts of a sexual offence” under s 1(A)(2) of the Criminal Offence Victims Regulation 1995 - where applicant’s behaviour did not contribute to impact.

Criminal Offence Victims Act 1995 s 20, 24, 25(7), 31

Criminal Offence Victims Regulation 1995 s 1A

Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320

R v van Gilman ex parte Owens [2001] QSC 391

RMC v NAC [2009] QSC 149

Zaicov and McKenna v Jones [2001] QCA 442

COUNSEL:

Ms S Scott-Mackenzie for the applicant

SOLICITORS:

Slater and Gordon Solicitors for the applicant

Respondent appeared in person

Introduction:

ALLC (“the applicant”) by her litigation guardian claims compensation under Pt 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury she sustained arising out of the criminal conduct of JVR (“the respondent”) who was convicted by the District Court at Southport on 24 March 2004 of four offences of unlawfully and indecently dealing with a child under 16 years, then under 12 years, who was his lineal descendent.

The application is made on the basis of a “mental or nervous shock” disorder together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 (“the regulation”) that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the Regulation arising out of the sexual offences committed against her.

The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

(a) the affidavit with exhibits of the litigation guardian NDO sworn 27 August 2009 and filed in court on 4 September 2009;

(b) the affidavit with exhibit of Jana Lee Pennington Solicitor sworn 1 September 2009 and filed in this court on 4 September 2009;

(c) the affidavit with exhibit of Dr Barbara McGuire Psychiatrist sworn 14 July 2009 and filed in this court on 4 September 2009;

(d) the affidavit of service of Robert Augustine Grogan Licensed Commercial Sub-Agent sworn 24 September 2009 and filed in this court on 30 September 2009.

Facts:

The respondent’s criminal conduct relates to offences committed between 1999 and 2001 when the applicant was between five and seven years of age. The circumstances of the respondent’s criminal conduct are summarised in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ALLC v JVR

Details

AGLC: Allc v JVR [2010] QDC 94
Case: [2010] QDC 94
Decision Date: 22 March 2010

CaseChat Overview and Summary

The parties involved in this case were ALLC, the applicant, and JVR, the respondent. The applicant sought compensation for sexual offences committed against her when she was a child, claiming the respondent's actions had caused her mental or nervous shock and adverse impacts. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue that the tribunal needed to decide was whether the applicant had suffered adverse impacts of a sexual offence under section 1(A)(2) of the Criminal Offence Victims Regulation 1995, despite not sustaining physical injuries. The tribunal also had to consider whether the applicant's behaviour contributed to the impact, as this could potentially affect her eligibility for compensation.

The tribunal found that the applicant had suffered adverse impacts from the sexual offences, as defined by the regulation. It was established that the applicant had not sustained any physical injuries but had experienced mental or nervous shock. Importantly, the tribunal determined that the applicant’s behaviour did not contribute to the impact she suffered. Consequently, the tribunal ruled in favour of the applicant and ordered the respondent to pay $30,000 in compensation for the injuries suffered.

Orders

Orders of the court

The respondent JVR pay to the applicant ALLC the sum of $30,000.00 for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Southport on 24 March 2004.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	ALLC v JVR [2010] QDC 94
PARTIES:	NDO as litigation guardian for ALLC (applicant) V JVR (respondent)
FILE NO/S:	D 462 of 2009
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	22 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	19 October 2009
JUDGE:	Tutt DCJ
ORDER:	The respondent JVR pay to the applicant ALLC the sum of $30,000.00 for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Southport on 24 March 2004.
CATCHWORDS:	CRIMINAL COMPENSATION –sexual offences against complainant child– lineal descendent - where applicant sustained “no physical injuries”- where applicant suffered “mental or nervous shock” – where applicant suffered “adverse impacts of a sexual offence” under s 1(A)(2) of the Criminal Offence Victims Regulation 1995 - where applicant’s behaviour did not contribute to impact. Criminal Offence Victims Act 1995 s 20, 24, 25(7), 31 Criminal Offence Victims Regulation 1995 s 1A Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 R v van Gilman ex parte Owens [2001] QSC 391 RMC v NAC [2009] QSC 149 Zaicov and McKenna v Jones [2001] QCA 442
COUNSEL:	Ms S Scott-Mackenzie for the applicant
SOLICITORS:	Slater and Gordon Solicitors for the applicant Respondent appeared in person