D v The Queen - [2012] QDC 341

DISTRICT COURT OF QUEENSLAND

CITATION:

D v R [2012] QDC 341

PARTIES:

D
(applicant)

v

R
(respondent)

FILE NO:

388/10

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2012

JUDGE:

Rafter SC, DCJ

ORDERS:

Leave granted to continue the proceeding pursuant to r 389(2) Uniform Civil Procedure Rules 1999;1.

That the respondent pay to the applicant the sum of $22,500 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 29 February 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 he attains 18 years.3.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – sexual offences – adverse impacts of sexual offences

COUNSEL:

S J Hamlyn-Harris for the applicant
No appearance by or for the respondent

SOLICITORS:

Matthew Love Solicitors 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 on 8 June 2007. COVA was repealed by the Victims of Crime Assistance Act 2009 (“VOCAA”) which came into force on 1 December 2009.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 29 January 2010. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA.

On 29 February 2008 the respondent pleaded guilty to six counts of indecent treatment of a child under 12, with a circumstance of aggravation that he had the child under his care. All offences were committed on 8 June 2007. The respondent was sentenced by Tutt DCJ on 13 June 2008 to four years imprisonment with a parole eligibility date after 12 months on 13 June 2009.

On 3 October 2008 the Court of Appeal granted the respondent leave to appeal and substituted a sentence of two years imprisonment suspended after eight months for an operational period of three years in respect of each count.[1]
[1]See R v RAD [2008] QCA 305.

Service

The originating application and supporting material were initially served on the respondent personally on 19 June 2012.[2] The hearing date listed in the originating application was simply stated as “DTBF”. The respondent was also served with a letter from the applicant’s solicitor dated 14 June 2012.[3] However that letter has not been exhibited to any of the affidavit material. It is doubtful that the respondent would have understood that the letters “DTBF” meant that the hearing was to be on a date to be fixed.
[2]Affidavit of Dean Andrew Sawyer filed 30 August 2012.
[3]Affidavit of Dean Andrew Sawyer filed 30 August 2012 at…

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 D v The Queen

Details

AGLC: D v R [2012] QDC 341
Case: [2012] QDC 341
Decision Date: 15 November 2012

CaseChat Overview and Summary

In the matter of D v The Queen, the court was presented with an application for criminal compensation by the applicant, D, who sought compensation for the adverse impacts resulting from sexual offences committed against them. The respondent, The Queen, was represented by the Director of Public Prosecutions. The case was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the applicant was entitled to compensation under section 24 of the Criminal Offence Victims Act 1995. The applicant argued that they had sustained injuries, both physical and psychological, as a result of the offences for which the respondent was convicted. The court was required to determine if the applicant's injuries were directly attributable to the respondent's actions and if the compensation sought was reasonable and justified under the Act.

The court found that the applicant had indeed sustained significant injuries as a result of the respondent's offences. It was accepted that the injuries were both physical and psychological in nature, and that they had a profound impact on the applicant's life. The court considered the evidence presented regarding the nature and extent of the injuries, as well as the impact they had on the applicant's wellbeing. It was determined that the compensation sought was reasonable and appropriate, given the severity and lasting effects of the offences. The court granted leave for the proceeding to continue and ordered the respondent to pay the applicant the sum of $22,500 as compensation. The monies are to be held by the Public Trustee of Queensland on behalf of the applicant until they attain 18 years.

Orders

Orders of the court

Leave granted to continue the proceeding pursuant to r 389(2) Uniform Civil Procedure Rules 1999;1.

That the respondent pay to the applicant the sum of $22,500 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 29 February 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 he attains 18 years.3.

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:	D v R [2012] QDC 341
PARTIES:	D (applicant) v R (respondent)
FILE NO:	388/10
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	15 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2012
JUDGE:	Rafter SC, DCJ
ORDERS:	*Leave granted to continue the proceeding pursuant to r 389(2) Uniform Civil Procedure Rules 1999;1. That the respondent pay to the applicant the sum of $22,500 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 29 February 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 he attains 18 years.3.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – sexual offences – adverse impacts of sexual offences
COUNSEL:	S J Hamlyn-Harris for the applicant No appearance by or for the respondent
SOLICITORS:	Matthew Love Solicitors for the applicant No appearance by or for the respondent