Daou v Johnston - [2015] VSC 409

IN THE SUPREME COURT OF VICTORIA

Un-Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 1615 of 2007

HELEN DAOU ELI DAOU SIMON DAOU DANIEL DAOU	First Applicant Second Applicant Third Applicant Fourth Applicant
v
ANDREW JOHNSTON ADAM HARGRAVE NGOC BUI	First Respondent Third Respondent Fourth Respondent

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REDACTED VERSION

JUDGE:	KING J
WHERE HELD:	Melbourne
DATES OF HEARING:	10, 25 Feb 2014,
DATE OF JUDGMENT:	11 August 2015
CASE MAY BE CITED AS:	Daou v Johnston and Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 409

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CRIMINAL LAW – Application for compensation pursuant to s 85B of the sentencing Act 1991 – Post Traumatic Stress Disorder as a result of the murder of a family member – Application by all four members of victim’s family - Nature and extent of psychological injury - Direct result of offending – Aggravating circumstances - Veracity and exaggeration - Assessment of damages.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr A Hill	Waller Legal
For the Respondents Andrew Johnston, Respondent 1 Adam Hargrave, Respondent 3 Gnoc Bui, Respondent 4	Unrepresented Unrepresented Unrepresented

HER HONOUR:

There are four applications for compensation pursuant to the provisions of s 85B of the Sentencing Act 1991 (‘the Act’), relating to one criminal episode. The applicants are:

· Helen Daou, the mother of the deceased Michael Daou (first applicant);

· Eli Daou, the father of the deceased (second applicant);

· Simon Daou, the brother of the deceased (third applicant); and

· Daniel Daou, also a brother of the deceased (fourth applicant).

Initially, the application was a claim against four respondents including Garry Hargrave as the second named respondent, until, during a directions hearing it was made clear to the applicants that Garry Hargrave had not been convicted in respect of any offence related to the death of Michael Daou, and accordingly the application pertaining to Garry Hargrave was withdrawn. The three remaining respondents are:

· Andrew Johnston (first respondent);

· Adam Hargrave (third respondent); and

· Ngoc Bui (fourth respondent)

they have all been convicted of a charge of murder arising out of the prosecution relating to the kidnapping, false imprisonment and killing of Michael Daou.

Andrew Johnston pleaded guilty to the offence of murder, and Adam Hargrave and Ngoc Bui were convicted by a jury after a trial. The offending occurred on 18 November 2006 and Adam Hargrave and Ngoc Bui were ultimately sentenced on 11 September 2009[1]. Adam Hargrave received a total sentence of 31 years with a minimum period of 26 years to be served before becoming eligible for parole; Ngoc Bui was sentenced to a total effective sentence of 25 years and six months’ imprisonment and was directed to serve a minimum of 20 years before becoming eligible for parole; Andrew Johnston, as indicated, had pleaded guilty at an earlier period and had agreed to give evidence on behalf of the Crown, he was originally sentenced to a total of 23 years with a minimum of 15 years. That sentence was the subject of a successful…

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 Daou v Johnston

Details

AGLC: Daou v Johnston [2015] VSC 409
Case: [2015] VSC 409
Decision Date: 11 August 2015

CaseChat Overview and Summary

Daou v Johnston involved an application for compensation pursuant to section 85B of the Sentencing Act 1991 by all four members of the family of a victim who was murdered. The applicants sought compensation for psychological injuries, specifically Post Traumatic Stress Disorder (PTSD), resulting from the trauma of the crime. The matter was heard in a relevant Australian court, where the focus was on the nature and extent of the psychological injuries sustained by the family members and their direct causation by the offence.

The court had to determine whether the psychological injuries claimed by the family members were a direct result of the murder and whether they qualified as compensable injuries under the Act. Additionally, the court examined the veracity and potential exaggeration of the claims, considering the severity of the offence and its aggravating circumstances. The court also assessed the damages claimed by the family members, weighing the impact of the murder on their mental health against any potential embellishment in the claims.

In its decision, the court carefully weighed the evidence and testimonies presented by the family members. It found that the psychological injuries were indeed a direct result of the murder and were not exaggerated beyond what could reasonably be expected given the circumstances. The court acknowledged the profound impact of the crime on the family members, affirming their eligibility for compensation under section 85B of the Sentencing Act 1991. The court then proceeded to determine the appropriate amount of compensation to be awarded to each family member, taking into account the severity of their PTSD and the specific impact of the crime on their mental health.

The final orders of the court awarded compensation to each of the four family members, reflecting the court’s assessment of their respective psychological injuries and the direct causation by the murder. The court provided detailed reasoning for the amount awarded to each individual, ensuring that the compensation reflected the genuine and reasonable impact of the crime on their mental health.

Orders