CWD v TMT - [2010] QDC 25

DISTRICT COURT OF QUEENSLAND

CITATION:

CWD v TMT [2010] QDC 25

PARTIES:

CWD (by her litigation guardian MAD)

(Applicant)

v

TMT

(Respondent)

FILE NO/S:

3340/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

15 February 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2010

JUDGE:

Rafter SC DCJ

ORDERS:

1.   The respondent pay to the applicant the sum of $56,250.00 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care, which led to the conviction of the respondent in the District Court at Brisbane on 28 March 2008.

2.   The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until she attains 18 years.

3.   The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

4.   The Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge), the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex-gratia payment made by the State of Queensland pursuant to this assessment order.

5.   The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of the trust fund as may be advised.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – sexual offences – mental or nervous shock – adverse impacts of sexual offences

Criminal Offence Victims Act 1995 (Qld), s 20, s 22(3), s 22(4), s 24, s 25(2), s 25(4), s 25(8)

Criminal Offence Victims Regulation 1995 (Qld), s 1A, s 2, s 2A

Public Trustee Act 1978 (Qld), s 67

Victims of Crime Assistance Act 2009 (Qld), s 155

M.R. v Webb [2001] QCA 113

R v Atwell, ex parte Jullie [2002] 2 Qd R 367; [2001] QCA 510

R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493

RMC v NAC [2009] QSC 149

COUNSEL:

P G Sloane for the applicant

No appearance by or for the respondent

SOLICITORS:

Sharma Lawyers for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (“COVA”) for emotional injuries caused by sexual offences committed by the respondent between 30 September 2005 and 1 April 2006. COVA was repealed by the Victims of Crime Assistance Act 2009 (“VOCAA”) which came into force on 1 December 2009. The originating application was filed on 23 November 2009. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA.

On 28 March 2008, the respondent pleaded guilty to four…

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 CWD v TMT

Details

AGLC: CWD v TMT [2010] QDC 25
Case: [2010] QDC 25
Decision Date: 15 February 2010

CaseChat Overview and Summary

In the matter of CWD v TMT, the applicant sought compensation under the Criminal Offence Victims Act 1995 for injuries sustained from sexual offences committed against her by the respondent, who was convicted in the District Court at Brisbane on 28 March 2008 of indecent treatment of a child under 12, under care. The matter was before the Supreme Court of Queensland, where the applicant argued for compensation due to the adverse mental and nervous impacts of the offences.

The primary legal issue before the court was whether the applicant was entitled to compensation for the psychological harm suffered as a result of the sexual offences. The court had to consider the statutory provisions of the Criminal Offence Victims Act 1995 and assess the extent of the applicant's injuries, including mental or nervous shock. The court also needed to determine the appropriate amount of compensation and how it should be administered.

The court found that the applicant had suffered significant mental and nervous shock as a direct result of the offences. It noted the profound impact these crimes had on the applicant's well-being and development. The court awarded the applicant $56,250.00 in compensation. It authorised the Public Trustee of Queensland to manage the funds, ensuring they were used for the applicant's maintenance, education, and treatment, including counselling. Additionally, the court ordered that the respondent pay the costs of the application to the solicitors for the Litigation Guardian. The applicant and the Public Trustee were granted liberty to apply to the court regarding the administration of the trust fund.

Orders

Orders of the court

1. The respondent pay to the applicant the sum of $56,250.00 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care, which led to the conviction of the respondent in the District Court at Brisbane on 28 March 2008.

2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until she attains 18 years.

3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

4. The Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge), the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex-gratia payment made by the State of Queensland pursuant to this assessment order.

5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of the trust fund as may be advised.

Background

Background to the litigation

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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

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CITATION:	CWD v TMT [2010] QDC 25
PARTIES:	CWD (by her litigation guardian MAD) (Applicant) v TMT (Respondent)
FILE NO/S:	3340/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	15 February 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 February 2010
JUDGE:	Rafter SC DCJ
ORDERS:	1. The respondent pay to the applicant the sum of $56,250.00 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care, which led to the conviction of the respondent in the District Court at Brisbane on 28 March 2008. 2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until she attains 18 years. 3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate. 4. The Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge), the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex-gratia payment made by the State of Queensland pursuant to this assessment order. 5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of the trust fund as may be advised.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – sexual offences – mental or nervous shock – adverse impacts of sexual offences Criminal Offence Victims Act 1995 (Qld), s 20, s 22(3), s 22(4), s 24, s 25(2), s 25(4), s 25(8) Criminal Offence Victims Regulation 1995 (Qld), s 1A, s 2, s 2A Public Trustee Act 1978 (Qld), s 67 Victims of Crime Assistance Act 2009 (Qld), s 155 M.R. v Webb [2001] QCA 113 R v Atwell, ex parte Jullie [2002] 2 Qd R 367; [2001] QCA 510 R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493 RMC v NAC [2009] QSC 149
COUNSEL:	P G Sloane for the applicant No appearance by or for the respondent
SOLICITORS:	Sharma Lawyers for the applicant No appearance by or for the respondent