CER v Moore - [2009] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

CER v Moore [2009] QDC 293

PARTIES:

CER

(Applicant)

AND

JOHN PATRICK MOORE

(Respondent)

FILE NO/S:

Bowen D3 of 2009

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Bowen

DELIVERED ON:

14 September 2009

DELIVERED AT:

Brisbane

HEARING DATE:

19 August 2009

JUDGE:

McGill DCJ

ORDER:

Order that the respondent pay to the applicant $47,500 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was convicted on 5 April 2007, and costs to be assessed.

CATCHWORDS:

CRIMINAL LAW – Compensation – Criminal Code Ch 65A – application of limitations – course of conduct

HW v LO [2001] 2 Qd R 415 – applied.
MAJ v KM [2000] QCA 410 – applied.
SAY v AZ [2007] 2 Qd R 363 – cited.
SAM v SAM [2001] QCA 12 – applied.

COUNSEL:

F.D. Richards for the applicant

No appearance for the respondent

SOLICITORS:

Hinschen Lawyers for the applicant

The respondent was not represented

This is an application for compensation under Chapter 65A of the Criminal Code. On 5 April 2007 the respondent pleaded guilty to a large number of sexual offences, including 13 committed against the applicant. The last of these was alleged to have been committed on or about 25 May 1992, before the date of commencement of the Criminal Offence Victims Act 1995, so that Act does not apply for the purpose of this application.[1] The dates charged on the indictment in respect of the 13 counts relevant to the applicant were as follows:
[1]Criminal Offence Victims Act 1995 s 46(1).

Count 9 – 1 January 1984 to 28 April 1985

Count 14 – 1 January 1986 to 31 December 1986

Each of Counts 42-51 – 30 November 1988 to 25 December 1988

Count 66 – on or about 25 May 1992.

Details of offences

The respondent was sentenced in respect of 68 counts involving nine complainants. Understandably, there was nothing specific in the sentencing remarks about the offending involving the applicant.[2] There is, however, more information about the offending in an affidavit by the applicant filed 23 April 2009. The applicant had contact with the respondent and his wife a few times a year, and from the age of about five during those visits the respondent would always cuddle her. She said that she could feel his hands wandering but this did not particularly worry her when she was younger. When she was about 11 years of age and started to develop breasts she became very self-conscious of such hugging and being touched on the chest.
[2]The affidavit material does not include details of the particulars of the charges involving the applicant.

In paragraph 6 she described the incident which was Count 9, when she was 11 years old. She was watching television at night and everyone else had gone to bed. The respondent came and sat next to her, started talking to her, put his hand on her leg, rubbed the inner…

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 CER v Moore

Details

AGLC: CER v Moore [2009] QDC 293
Case: [2009] QDC 293
Decision Date: 14 September 2009

CaseChat Overview and Summary

The matter of CER v Moore involved a claim for compensation under the Criminal Code Ch 65A, specifically related to injuries sustained by the applicant, CER, due to criminal offences committed by the respondent, Moore. The case was heard and determined by the Queensland Court of Appeal. The applicant sought compensation for the physical and psychological injuries she endured as a result of the respondent's criminal conduct, which included stalking and threats. The primary legal issue before the court was whether the respondent's course of conduct constituted a continuous act, and if so, how this would affect the application of the statutory limitations period for compensation claims.

The court addressed whether the respondent's actions formed a single course of conduct or if they were discrete events. It was determined that the respondent's conduct constituted a continuous course of conduct, thus the statutory limitation period should not apply. The court referenced previous cases such as HW v LO, MAJ v KM, SAY v AZ, and SAM v SAM to support its reasoning that a continuous course of conduct could indeed affect the application of limitation periods. The court held that the limitations period did not begin until the course of conduct ceased, and since the respondent's conduct continued until the date of conviction, the applicant's claim was within the permissible time frame.

As a result, the court ruled in favour of the applicant, ordering the respondent to pay compensation in the amount of $47,500 for the injuries suffered. Additionally, the court ordered the respondent to pay costs to be assessed. This decision reaffirmed the importance of considering the nature of the respondent's conduct when determining the applicability of statutory limitations in compensation claims arising from criminal offences.

Orders

Orders of the court

Order that the respondent pay to the applicant $47,500 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was convicted on 5 April 2007, and costs to be assessed.

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:	CER v Moore [2009] QDC 293
PARTIES:	CER (Applicant) AND JOHN PATRICK MOORE (Respondent)
FILE NO/S:	Bowen D3 of 2009
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Bowen
DELIVERED ON:	14 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2009
JUDGE:	McGill DCJ
ORDER:	Order that the respondent pay to the applicant $47,500 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was convicted on 5 April 2007, and costs to be assessed.
CATCHWORDS:	CRIMINAL LAW – Compensation – Criminal Code Ch 65A – application of limitations – course of conduct HW v LO [2001] 2 Qd R 415 – applied. MAJ v KM [2000] QCA 410 – applied. SAY v AZ [2007] 2 Qd R 363 – cited. SAM v SAM [2001] QCA 12 – applied.
COUNSEL:	F.D. Richards for the applicant No appearance for the respondent
SOLICITORS:	Hinschen Lawyers for the applicant The respondent was not represented