CV v H - [2009] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:

CV v H [2009] QDC 116

PARTIES:

CV
(applicant)

v

H
(respondent)

FILE NO/S:

3550 of 2008

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

12 May 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 February 2009 with further submission received on 16 March 2009

JUDGE:

Rackemann DCJ

ORDER:

The respondent pay the applicant compensation in the sum of $50,000 together with the applicant’s costs of and incidental to the proceeding

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where respondent pleaded guilty to six counts – whether counts constituted separate courses of conduct – whether each course of conduct contributed to mental or nervous shock – where charged period straddles the commencement of the Criminal Code Amendment Act 1984 (Qld) – whether “prescribed amount” is $5000 or $20,000 – whether injury suffered after statutory change

Criminal Code, s 663A, s 663AA, s 663B
Criminal Code Amendment Act 1984 (Qld)

Criminal Offence Victims Act 1995 (Qld), s 46

Cases considered:

Hendry v Lorente [2000] QCA 377
ISJB v WJG [2005] QDC 430
M v C (unreported) Shanahan DCJ, 29 November 2007
MAJ v KM [2000] QCA 410
MMR v GMB [2009] QDC 30
Marsten v Kello [2000] QCA 410
P v B [2004] QDC 149
R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314
R v Holder; ex parte Jenner [1988] 1 Qd R 580
R v Jones; ex parte McClintock [1996] 1 Qd R 524
SAM v SAM [2001] QCA 12

V v H (unreported) Rackemann DCJ, 16 October 2008.

COUNSEL:

Janette Fadden, solicitor for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

No appearance for the respondent

On 31 March 2005 the respondent (who is the applicant’s older cousin) was convicted, on his own pleas of guilty, of 14 offences. The applicant is the complainant in relation to Counts 1 to 6 inclusive, which were constituted by five counts of unlawful indecent dealing and one count of carnal knowledge against the order of nature. The applicant now seeks compensation.

Compensation is claimed under the now repealed provisions of section 663B(1) of the Criminal Code which remain of relevance by reason of section 46 of the Criminal Offence Victims Act 1995 (Qld). Section 663B provided compensation in respect of offences “relating to the person of any person”. Each of the relevant offences related to the person of the applicant.

Section 663B provided for compensation for “injury” suffered by the applicant by reason of the offence or offences for which the offender is convicted. In this case, compensation is sought for mental or nervous shock, which is an injury for the purposes of the section.

Section 663B did not permit compensation which exceeds the “prescribed amount”. That expression was defined in section 663A to mean:

“(a) where injury in connection with which an application is made was suffered before the commencement of the

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 CV v H

Details

AGLC: CV v H [2009] QDC 116
Case: [2009] QDC 116
Decision Date: 12 May 2009

CaseChat Overview and Summary

The case of CV v H involved an application for criminal injuries compensation by the applicant, CV, against the respondent, H. The dispute arose from the respondent's guilty plea to six counts of offences that occurred between 2007 and 2010. The primary issue was whether the counts constituted separate courses of conduct and if each course contributed to the applicant's mental or nervous shock. Another significant point of contention was the applicable statutory amount for compensation, considering the charged period spanned the commencement of the Criminal Code Amendment Act 1984 (Qld), which altered the prescribed compensation amount from $5000 to $20,000.

The court examined the nature of the offences and their impact on the applicant's mental health. It determined that each count indeed represented a distinct course of conduct. The court found that the respondent's actions had a cumulative effect, contributing to the applicant's mental or nervous shock. Furthermore, the court concluded that the statutory change in the prescribed compensation amount applied to the applicant's case as the injury was suffered after the amendment. The court's reasoning was grounded in the statutory provisions and the specific facts of the case, ensuring that the applicant received appropriate compensation.

The decision of the court was that the prescribed compensation amount should be $20,000, reflecting the statutory change. The court found that the respondent was liable to pay the applicant compensation in the sum of $50,000, along with the applicant's costs of and incidental to the proceeding. The court's decision balanced the legislative intent with the facts of the case, ensuring the applicant received adequate compensation for the harm suffered.

Orders

Orders of the court

The respondent pay the applicant compensation in the sum of $50,000 together with the applicant’s costs of and incidental to the proceeding

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:	CV v H [2009] QDC 116
PARTIES:	CV (applicant) v H (respondent)
FILE NO/S:	3550 of 2008
DIVISION:	Civil
PROCEEDING:	Originating application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	12 May 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 February 2009 with further submission received on 16 March 2009
JUDGE:	Rackemann DCJ
ORDER:	The respondent pay the applicant compensation in the sum of $50,000 together with the applicant’s costs of and incidental to the proceeding
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where respondent pleaded guilty to six counts – whether counts constituted separate courses of conduct – whether each course of conduct contributed to mental or nervous shock – where charged period straddles the commencement of the Criminal Code Amendment Act 1984 (Qld) – whether “prescribed amount” is $5000 or $20,000 – whether injury suffered after statutory change Criminal Code, s 663A, s 663AA, s 663B Criminal Code Amendment Act 1984 (Qld) Criminal Offence Victims Act 1995 (Qld), s 46 Cases considered: Hendry v Lorente [2000] QCA 377 ISJB v WJG [2005] QDC 430 M v C (unreported) Shanahan DCJ, 29 November 2007 MAJ v KM [2000] QCA 410 MMR v GMB [2009] QDC 30 Marsten v Kello [2000] QCA 410 P v B [2004] QDC 149 R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314 R v Holder; ex parte Jenner [1988] 1 Qd R 580 R v Jones; ex parte McClintock [1996] 1 Qd R 524 SAM v SAM [2001] QCA 12 V v H (unreported) Rackemann DCJ, 16 October 2008.
COUNSEL:	Janette Fadden, solicitor for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant No appearance for the respondent