BH v Ry - [2006] QDC 193

DISTRICT COURT OF QUEENSLAND

CITATION:

BH v RY [2006] QDC 193

PARTIES:

BH (Applicant)

V

RY (Respondent)

FILE NO/S:

D57/06

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

7 July 2006

DELIVERED AT:

Brisbane

HEARING DATE:

16 June 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent, RY, pay the sum of $18,750 to the applicant, BH, for injury suffered by him including adverse impacts, caused by the respondent to the applicant, for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.

CATCHWORDS:

Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulations to the Act – relevant test for consideration of assessment.

Criminal Offence Victims Act 1995 rr 20, 24, 25 and 31.

Criminal Offence Victims Regulations 1995 Reg. 1A.

Ferguson v Kazakoff (2000) QSC 156.

LMW v Nicholls [2004] QDC 118.

MR v Webb [2001] QCA 113.

R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported).

ReJI v AV [2001] QCA 510.

Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004).

SAM v SAM [2001] QCA 12.

SOLICITORS:

Mrs J Fadden of Legal Aid Queensland for the applicant.

No appearance for the respondent.

Introduction

The applicant, BH, claims compensation under part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the applicant sustained arising out of the criminal conduct of the respondent, RY, who was convicted by this court on 2 September 2005 of the offence of maintaining a relationship of a sexual nature with a child under 16 and in the course of the relationship did unlawfully and indecently deal with a child who was under his care between 1 September 1997 and 1 June 2000 (a period of two years and nine months). The respondent is currently serving a period of imprisonment and although he was served with the relevant material elected not to take part in the proceeding.[1]
[1]See Exhibit “A” to the affidavit of Timothy Feely filed by leave.

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 applicant sworn 21 April 2006 and filed in this court on 31 May 2006;

(b) the affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 10 May 2006 and filed in this court on 31 May 2006;

(c) the affidavit with exhibit of Dr Barbara Anne McGuire, psychiatrist, sworn 15 May 2006 and filed in this court on 31 May 2006;

(d) the affidavit of service of Wayne Colin Weydt sworn 8 June 2006 and filed in this court by leave on 16 June 2006; and

(e) the affidavit with exhibit of Timothy Feely sworn 9 June 2006 and filed in this court by leave on 16 June 2006.

Facts

The circumstances of the respondent’s criminal conduct are summarised in the sentencing remarks…

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 BH v Ry

Details

AGLC: BH v RY [2006] QDC 193
Case: [2006] QDC 193
Decision Date: 7 July 2006

CaseChat Overview and Summary

In the case of BH v Ry, the applicant sought compensation under the Criminal Injuries Compensation Act 2003, specifically claiming for injury suffered, including adverse impacts, caused by the respondent. The respondent, Ry, was convicted by the District Court at Beenleigh on 2 September 2005 of offences involving sexual acts against the complainant child, BH. The applicant, BH, sought compensation under the Regulations to the Act, arguing that the respondent's actions resulted in mental or nervous shock and other adverse impacts.

The primary legal issue before the court was to determine the extent of the adverse impacts suffered by the applicant as a result of the respondent's criminal acts, and whether these adverse impacts qualified for compensation under the Regulations to the Act. The court was required to consider the nature and extent of the injuries suffered by the applicant and the relevant test for assessing the adverse impacts under the statutory framework. The court also had to ensure that the compensation awarded was appropriate and reflected the harm caused by the respondent.

The court found that the applicant suffered mental or nervous shock and other adverse impacts as a result of the respondent's criminal acts. The court assessed the extent of these adverse impacts and determined that the applicant was entitled to compensation under the Regulations to the Act. The court considered the statutory provisions and the relevant test for assessing adverse impacts, concluding that the applicant's claims were supported by the evidence presented. After careful consideration, the court ordered the respondent to pay the sum of $18,750 to the applicant for the injuries suffered, including the adverse impacts caused by the respondent.

In light of the findings and the statutory framework, the court ordered the respondent, Ry, to pay the sum of $18,750 to the applicant, BH, for the injury suffered, including the adverse impacts caused by the respondent, for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005. This order reflects the court's determination that the applicant's claims for compensation were substantiated and that the amount awarded was appropriate to compensate for the harm caused by the respondent.

Orders

Orders of the court

The respondent, RY, pay the sum of $18,750 to the applicant, BH, for injury suffered by him including adverse impacts, caused by the respondent to the applicant, for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.

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:	BH v RY [2006] QDC 193
PARTIES:	BH (Applicant) V RY (Respondent)
FILE NO/S:	D57/06
DIVISION:	Civil
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	7 July 2006
DELIVERED AT:	Brisbane
HEARING DATE:	16 June 2006
JUDGE:	Tutt DCJ
ORDER:	The respondent, RY, pay the sum of $18,750 to the applicant, BH, for injury suffered by him including adverse impacts, caused by the respondent to the applicant, for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.
CATCHWORDS:	Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulations to the Act – relevant test for consideration of assessment. Criminal Offence Victims Act 1995 rr 20, 24, 25 and 31. Criminal Offence Victims Regulations 1995 Reg. 1A. Ferguson v Kazakoff (2000) QSC 156. LMW v Nicholls [2004] QDC 118. MR v Webb [2001] QCA 113. R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported). ReJI v AV [2001] QCA 510. Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004). SAM v SAM [2001] QCA 12.
SOLICITORS:	Mrs J Fadden of Legal Aid Queensland for the applicant. No appearance for the respondent.