CMT v Bellamy - [2008] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:	CMT v Bellamy [2008] QDC 298
PARTIES:	CMT

Applicant

AND
JOSHUA LUKE BELLAMY

Respondent

FILE NO/S:	BD2596/07
DIVISION:
PROCEEDING:	Originating application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	11 December 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2008
JUDGE:	McGill DCJ
ORDER:	The respondent pay to the applicant $2,250 in respect of the injury suffered by her as a result of the offence of which the respondent was convicted on 31 March 2006.
CATCHWORDS:	CRIMINAL LAW – Compensation – identification of relevant injury – relevance of offence of which respondent convicted – causation – scope of deemed injury under regulation.
Criminal Offence Victims Act 1995
Chong v Chong [2001] 2 Qd R 301 – applied. Facer v Bennett [2002] 2 Qd R 295 – applied. Jullie v Atwell [2002] 2 Qd R 367 – applied.
Moran v Broadbent [2004] QCA 401 – cited. Vlug v Carrasco [2006] QCA 561 – applied.
COUNSEL:	TJ Masterman for the applicant M Thomas (solicitor) for the respondent
SOLICITORS:	Campbell and White Lawyers for the applicant Delaney and Delaney Solicitors for the respondent

This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 31 March 2006 the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16, which offence was committed on the applicant on a date unknown between 1 September and 3 October 2003. At the time of the offence the applicant was 15 years of age; the respondent was 18 years of age. It was not disputed and I proceed on the basis that the offence of which the respondent was convicted was a personal offence for the purposes of the Act. The applicant sought compensation only in respect of the deemed injury constituted by the totality of the adverse effects of the sexual offence, under s 1A of the Regulation under the Act. The application is unusual, because of a number of features, including the fact that the respondent was represented before me on the hearing of the application.
The applicant was sentenced on the basis of agreed facts which were put before me at the time of sentence.[1] It set out that they had been friends for several weeks prior to the day in question. The applicant had an ear infection for which she was taking antibiotics and Panedeine Forte; but there was no medical evidence as to any effect this medication might have had on her. The respondent knew she may have been taking painkillers but maintained in his interview, and it was accepted, that she seemed fine. He went to her house in the afternoon at a time when her parents were absent, although there was a friend of the applicant’s present at the house.[2] The applicant and the respondent were in the lounge hugging and kissing for a time, and then he asked and she agreed that they go to a bedroom. After 15 minutes of foreplay he requested sex and…

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 CMT v Bellamy

Details

AGLC: CMT v Bellamy [2008] QDC 298
Case: [2008] QDC 298
Decision Date: 11/12/2008

CaseChat Overview and Summary

CMT sought compensation for injuries sustained during an incident involving Bellamy. The dispute centred on whether the injury was relevant for compensation purposes and whether it was caused by the offence for which Bellamy was convicted. The case was heard in the County Court of Victoria.

The court was required to determine if the injury suffered by CMT was relevant for the purposes of compensation and if it was caused by the offence for which Bellamy was convicted. The key issue was whether the offence was the sole cause of the injury, or if there were other contributing factors.

The court found that the injury suffered by CMT was indeed relevant for compensation purposes. The court held that the injury was a direct result of the offence committed by Bellamy. The court examined the scope of the deemed injury under the applicable legislation and concluded that it encompassed the injury sustained by CMT. Consequently, the court ordered Bellamy to pay CMT $2,250 for the injury suffered as a result of the offence.

Orders

Orders of the court

The respondent pay to the applicant $2,250 in respect of

the injury suffered by her as a result of the offence of

which the respondent was convicted on 31 March 2006.

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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