Dam v RWY - [2006] QDC 408

DISTRICT COURT OF QUEENSLAND

CITATION:

DAM v RWY [2006] QDC 408

PARTIES:

DAM (Applicant)

v

RWY (Respondent)

FILE NO/S:

D116 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

8 December 2006

DELIVERED AT:

Beenleigh

HEARING DATE:

8 November 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent, RWY, pay to the applicant, DAM, the sum of $18,750.00 by way of compensation for injury suffered by him including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.

CATCHWORDS:

Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulations to the Act – relevant test for consideration of assessment.

Criminal Offence Victims Act 1995 ss. 20, 24, 25 (7).

Criminal Offence Victims Regulations 1995 Reg. 1A

Ferguson v Kazakoff (2000) QSC 156.

LMW v Nicholls [2004] QDC 118.

MR v Webb [2001] QCA 113.

R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995,
unreported).

Re JI v AV [2001] QCA 510.

SAY v AZ; ex parte A-G Qld (2006) QCA 462

Speechley v Baynes [2004] QDC 408 (unreported judgment
of 17 September 2004).

SAM v SAM [2001] QCA 12.

SOLICITORS:

Ms C Ybarlucea of Legal Aid Queensland

No appearance for the respondent.

Introduction

In this application DAM (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injuries sustained by him arising out of the criminal conduct of the respondent RWY who was convicted by this court on 2 September 2005 of the offence of maintaining a relationship of a sexual nature with a child under 16 and in the course of the relationship did unlawfully and indecently deal with a child who was under his care between 1 May 1997 and 1 January 2000 (a period of two years and eight months) at Woodridge in the state of Queensland. The respondent is currently serving a period of imprisonment and although he was served with the relevant material he elected to not take part in the proceeding.[1]
[1] Affidavit of Wayne Colin Heydt filed 1 November 2006

The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a) the affidavit of AM on behalf of the applicant, sworn 7 September 2006 and filed in this court on 11 October 2006;

(b) the affidavit with exhibits of Fiona Muirhead, solicitor, sworn 20 September 2006 and filed in this court on 11 October 2006;

(c) the affidavit with exhibit of Barbara Anne McGuire, psychiatrist, sworn 20 September 2006 and filed in this court on 11 October 2006;

(d) the affidavit with exhibits of Loraine Penshorn, litigation support officer, sworn 27 October 2006 and filed in this court on 1 November 2006; and

(e) the affidavit of Wayne Colin Heydt, commercial agent, sworn 13 October 2006 and filed in…

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 Dam v RWY

Details

AGLC: DAM v RWY [2006] QDC 408
Case: [2006] QDC 408
Decision Date: 8 December 2006

CaseChat Overview and Summary

The matter of Dam v RWY involved a criminal compensation application brought by Dam against RWY. Dam sought compensation for mental and nervous shock resulting from sexual offences committed against him as a child, for which RWY was convicted. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the tribunal was the assessment of the compensation amount, specifically focusing on the "adverse impacts" under the Regulations to the Criminal Injury Compensation Act. The tribunal had to determine whether the adverse impacts claimed by Dam were directly attributable to the offences committed by RWY and warranted compensation.

In addressing the issue, the tribunal considered the relevant legislative provisions and case law concerning the assessment of compensation for mental injury. It examined the criteria for establishing a causal link between the offences and the claimed adverse impacts, as well as the extent to which these impacts had affected Dam's life. The tribunal also assessed the evidence provided by Dam regarding the severity and duration of the impacts. It concluded that Dam had demonstrated a sufficient causal link between the offences and the adverse impacts, and that the claimed impacts warranted compensation. The tribunal found that the adverse impacts included significant psychological trauma and ongoing mental health issues, which had severely affected Dam's quality of life.

Following its assessment, the tribunal ordered RWY to pay Dam $18,750.00 by way of compensation. The tribunal determined that this amount adequately reflected the adverse impacts suffered by Dam as a result of the offences committed by RWY. The tribunal emphasised the importance of compensating victims of sexual offences for the long-term psychological harm they endure. The final orders of the tribunal were clear and specific, providing Dam with the compensation he sought for the injury and adverse impacts caused by RWY.

Orders

Orders of the court

The respondent, RWY, pay to the applicant, DAM, the sum of $18,750.00 by way of compensation for injury suffered by him including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.

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:	DAM v RWY [2006] QDC 408
PARTIES:	DAM (Applicant) v RWY (Respondent)
FILE NO/S:	D116 of 2006
DIVISION:	Civil Jurisdiction
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	8 December 2006
DELIVERED AT:	Beenleigh
HEARING DATE:	8 November 2006
JUDGE:	Tutt DCJ
ORDER:	The respondent, RWY, pay to the applicant, DAM, the sum of $18,750.00 by way of compensation for injury suffered by him including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 2 September 2005.
CATCHWORDS:	Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulations to the Act – relevant test for consideration of assessment. Criminal Offence Victims Act 1995 ss. 20, 24, 25 (7). Criminal Offence Victims Regulations 1995 Reg. 1A Ferguson v Kazakoff (2000) QSC 156. LMW v Nicholls [2004] QDC 118. MR v Webb [2001] QCA 113. R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported). Re JI v AV [2001] QCA 510. SAY v AZ; ex parte A-G Qld (2006) QCA 462 Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004). SAM v SAM [2001] QCA 12.
SOLICITORS:	Ms C Ybarlucea of Legal Aid Queensland No appearance for the respondent.