APUL v FTUL - [2010] QDC 261

DISTRICT COURT OF QUEENSLAND

CITATION:

APUL v FTUL [2010] QDC 261

PARTIES:

APUL

(Applicant)

v

FTUL

(Respondent)

FILE NO/S:

D67/09

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Rockhampton District Court

DELIVERED ON:

28 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2009

JUDGE:

Tutt DCJ

ORDER:

The respondent FTUL pays to the applicant APUL the sum of $30,000.00 for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Bundaberg on 11 November 2008.

CATCHWORDS:

CRIMINAL COMPENSATION - incest - indecent treatment of a child under 16 – 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 injury or adverse impacts.

Criminal Offence Victims Act 1995 ss 24, 31

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

LMW v Nicholls (2004) QDC 118

Re JI v AV [2001] QCA 510

RMC v NAC [2009] QSC 149

SAY v AZ: ex parte AG (Qld) [2006] QCA 462

COUNSEL:

Mr Lo Monaco for the Applicant

No appearance by or on behalf of Respondent.

SOLICITORS:

Madden Solicitors for the Applicant.

Introduction:

APUL (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act’) for alleged injury she sustained arising out of the criminal conduct of FTUL (“the respondent”) who was convicted by the District Court at Bundaberg on 11 November 2008 of four offences with respect to the applicant namely two counts of incest and two counts of indecent treatment of a child under 16 years of age. The relationship between the applicant and defendant was that of brother and sister with the age difference being less than three years.

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 applicant’s affidavit with exhibits sworn 13 July 2009 and filed in this court on 22 July 2009;

b) The affidavit of Zoe Alexandra Craven, solicitor, sworn and filed in this court on 20 July 2009;

c) The affidavit of service of Dianne Margaret McGregor sworn 1 August 2009 and filed in this court on 5 August 2009;

d) The further affidavit with exhibits of Zoe Alexandra Craven sworn 11 September 2009 and filed in this court on 14 September 2009.

The respondent was served personally with the application and supporting documents and indicated in correspondence through his solicitors[1] that he would “not be participating 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 APUL v FTUL

Details

AGLC: Apul v Ftul [2010] QDC 261
Case: [2010] QDC 261
Decision Date: 28 June 2010

CaseChat Overview and Summary

The case of APUL v FTUL involved an application for criminal compensation by the applicant, APUL, against the respondent, FTUL, who was convicted of incest and indecent treatment of a child under 16. The applicant did not sustain any physical injuries but claimed to have suffered mental or nervous shock and the adverse impacts of a sexual offence as defined by section 1(A)(2) of the Criminal Offence Victims Regulation 1995. The applicant also asserted that her behaviour did not contribute to her injuries or the adverse impacts. The case was heard in the Supreme Court of Queensland.

The central legal issues that the court had to address were whether the applicant’s claims of mental or nervous shock and the adverse impacts of a sexual offence qualified as injuries under the Criminal Offence Victims Regulation 1995, and whether the applicant’s behaviour contributed to her injuries or the adverse impacts. The court needed to determine if these non-physical injuries were compensable under the legislation and if the applicant’s actions could negate her right to compensation.

The court found that the applicant’s claims of mental or nervous shock and adverse impacts of a sexual offence were indeed injuries for the purposes of the regulation. The court held that the regulation does not require physical injury and that non-physical injuries, such as those claimed by the applicant, are compensable. Additionally, the court concluded that the applicant’s behaviour did not contribute to her injuries or the adverse impacts, which was a prerequisite for compensation under the regulation. Therefore, the court ruled in favour of the applicant and ordered the respondent to pay the sum of $30,000.00 for the injuries suffered by the applicant, including the adverse impacts caused by the respondent.

Orders

Orders of the court

The respondent FTUL pays to the applicant APUL the sum of $30,000.00 for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Bundaberg on 11 November 2008.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	APUL v FTUL [2010] QDC 261
PARTIES:	APUL (Applicant) v FTUL (Respondent)
FILE NO/S:	D67/09
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Rockhampton District Court
DELIVERED ON:	28 June 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 October 2009
JUDGE:	Tutt DCJ
ORDER:	The respondent FTUL pays to the applicant APUL the sum of $30,000.00 for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Bundaberg on 11 November 2008.
CATCHWORDS:	CRIMINAL COMPENSATION - incest - indecent treatment of a child under 16 – 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 injury or adverse impacts. Criminal Offence Victims Act 1995 ss 24, 31 Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 Re JI v AV [2001] QCA 510 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462
COUNSEL:	Mr Lo Monaco for the Applicant No appearance by or on behalf of Respondent.
SOLICITORS:	Madden Solicitors for the Applicant.