CD v AJP - [2011] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

CD v AJP [2011] QDC 24

PARTIES:

CD (Applicant)

V

AJP (Respondent)

FILE NO/S:

BD 2818/09

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Brisbane.

DELIVERED ON:

10 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2010

JUDGE:

Tutt DCJ

ORDER:

The respondent AJP pays the applicant CD the sum of $70,000.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 July 2006;1.

The respondent pays the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale.2.

CATCHWORDS:

CRIMINAL COMPENSATION – sexual offences against complainant child under 14 and under 16 including rape (4) – where applicant sustained no physical injuries –s 663B of the Criminal Code – mental or nervous shock – prescribed amounts – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied.

Criminal Code Amendment Act 1984 (Qld)

Criminal Code (Qld) ss 663A, 663AA and 663B.

Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2).

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

LMW v Nicholls [2004] QDC 118.

MAJ v KM [2001] QCA 410.

McClintock v Jones [1995] 79 A Crim R 238.

HW v LO [2001] 2 Qd R 415.

SOLICITORS:

Ms J Fadden of Legal Aid Queensland for the applicant.

No appearance by or on behalf of the respondent.

Introduction:

The applicant CD claims compensation for injury sustained by her as a result of 7 criminal offences of a sexual nature committed against her by the respondent to the application AJP.

The respondent was convicted by this court at Beenleigh on 14 July 2006 of two counts of indecent treatment of a child under 14 years, one count of indecent treatment of a child under 16 years and four counts of rape.

The offences were committed against the applicant over a six year period between 1 January 1985 and 31 December 1990, when the applicant was aged between 11 and 16 years; her date of birth being 11 August 1973.

The application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Rob Shieff, psychiatrist, in his report of 7 May 2004, exhibited to his affidavit filed 14 May 2010 together with a further report by Dr Mark Davis, psychiatrist, of 8 July 2008 exhibited to his affidavit filed 14 May 2010.

There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

Relevant legislation:

As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.[1]
[1]Section 46(2) Criminal Offences Victims Act 1995.

Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where…

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 CD v AJP

Details

AGLC: CD v AJP [2011] QDC 24
Case: [2011] QDC 24
Decision Date: 10 March 2011

CaseChat Overview and Summary

CD instituted proceedings against AJP under section 663B of the Criminal Code, seeking compensation for the mental and nervous shock suffered as a result of sexual offences committed against her. The applicant sustained no physical injuries but contended that the offences constituted one course of conduct or closely related courses of conduct. The court was required to determine the nature of the test to be applied to determine whether the offences were a single course of conduct or closely related courses of conduct, as well as the appropriate compensation amount.

The court considered the relevant provisions of the Criminal Code and the relevant case law. It held that the test to be applied was whether the offences were part of a single course of conduct or closely related courses of conduct, having regard to the circumstances of the case. The court found that the offences were part of one course of conduct and that the applicant was entitled to compensation. The court awarded the applicant $70,000.00 by way of compensation and ordered the respondent to pay the applicant's costs of and incidental to the application.

The court made orders for the respondent to pay the applicant $70,000.00 by way of compensation for the injuries suffered as a result of the offences. The court also ordered the respondent to pay the applicant's costs of and incidental to the application.

Orders

Orders of the court

The respondent AJP pays the applicant CD the sum of $70,000.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 July 2006;1.

The respondent pays the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale.2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	CD v AJP [2011] QDC 24
PARTIES:	CD (Applicant) V AJP (Respondent)
FILE NO/S:	BD 2818/09
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Brisbane.
DELIVERED ON:	10 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2010
JUDGE:	Tutt DCJ
ORDER:	The respondent AJP pays the applicant CD the sum of $70,000.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 July 2006;1. The respondent pays the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale.2.
CATCHWORDS:	CRIMINAL COMPENSATION – sexual offences against complainant child under 14 and under 16 including rape (4) – where applicant sustained no physical injuries –s 663B of the Criminal Code – mental or nervous shock – prescribed amounts – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied. Criminal Code Amendment Act 1984 (Qld) Criminal Code (Qld) ss 663A, 663AA and 663B. Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2). Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. LMW v Nicholls [2004] QDC 118. MAJ v KM [2001] QCA 410. McClintock v Jones [1995] 79 A Crim R 238. HW v LO [2001] 2 Qd R 415.
SOLICITORS:	Ms J Fadden of Legal Aid Queensland for the applicant. No appearance by or on behalf of the respondent.