FJN v BMA - [2010] QDC 479

DISTRICT COURT OF QUEENSLAND

CITATION:

FJN v BMA [2010] QDC 479

PARTIES:

FJN

Applicant

V

BMA

Respondent

FILE NO/S:

4/2010

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

1 October, 2010

DELIVERED AT:

District Court, Beenleigh

HEARING DATE:

31 August 2010

JUDGE:

Dearden DCJ

ORDER:

The respondent, BMA, pay the applicant, FJN, the sum of $22,500

CATCHWORDS:

Application – criminal compensation - sexual assault – mental or nervous shock – adverse impacts.

LEGISLATION:

Penalties and Sentences Act (Qld) s. 43B, s. 43C.
Criminal Offence Victims Act (Qld) (1995).
Criminal Offence Victims Regulation (Qld) 1995 s.1A, s. 25(7).
Victims of Crime Assistance Act (Qld) (2009) s.154, s. 155.

CASES:

Kennedy v Faafeu [2010] QDC 21
JMR obo SRR v Hornsby [2009] QDC 147
SAY v AZ;Ex-parte Attorney General [2006] QCA 462
R v Attwell; Ex-parte Jullie [2002] 2 Qd R 367

COUNSEL:

Ms Y Cherikova of Counsel for the applicant

No appearance on behalf of the respondent

SOLICITORS:

Campbell & White Lawyers for the applicant

No appearance for the respondent

ntroductionI

The respondent, BMA, pleaded guilty before me in the Beenleigh District Court on 5 May 2009 to two counts of sexual assault in respect of the applicant, FJN. The respondent was sentenced to 18 months imprisonment, wholly suspended, with a 3 year operational period in respect of each of the counts. In addition, a no contact order was made pursuant to Penalties and Sentences Act ss.43B and 43C for a period of 2 years.

Facts

The offences occurred on 21 September 2005 at Gympie. The applicant was then 16 years old and the respondent was 47. The respondent had been the best friend of the applicant’s father who died in 2002. The respondent had known the applicant her whole life.

The applicant came to stay with the respondent and his family for a week in Gympie. On the afternoon of 21 September 2005 the respondent came home early. The applicant had been watching TV, and when she went to her room, she was followed by the respondent. The respondent put his hands on the applicant’s hips, then placed his hands on her breasts, which he squeezed and rubbed for a minute.

The applicant grabbed the respondent’s hands and moved them away, and he then put a hand down the applicant’s underpants and touched her on the outside of her vagina. The respondent then made an excuse about it being “a fantasy,” and asked the applicant not to tell anyone. The applicant spent the rest of the day closely shadowing the respondent’s partner before the applicant contacted her family and arranged for someone to pick her up.[1]
[1] Exhibit B (sentencing remarks) p1-2

Injuries

The applicant suffered mental or nervous shock and adverse impacts as a result of these offences.

The law

I refer to and adopt my exposition of the relevant law (Criminal Offence Victims Act (1995) (COVA) repealed by the Victims of Crime Assistance Act (2009) (VOCAA)), as set out…

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 FJN v BMA

Details

AGLC: FJN v BMA [2010] QDC 479
Case: [2010] QDC 479
Decision Date: 1 October, 2010

CaseChat Overview and Summary

The case of FJN v BMA involved an application for criminal injury compensation. The applicant, FJN, sought compensation for the mental and nervous shock experienced as a result of being the victim of a sexual assault. The dispute was heard in the Supreme Court of New South Wales. The legal issues before the court centred on whether the applicant could establish that the mental and nervous shock was a direct result of the sexual assault, and whether the shock had adverse impacts on the applicant’s life, warranting compensation. The court was required to consider the criteria for compensation, including the necessity of proving a causal link between the shock and the assault, as well as the severity and impact of the shock on the applicant’s life.

The court examined the evidence provided by the applicant, including medical reports and testimonies, to determine the existence and severity of the mental and nervous shock. The court found that the applicant had demonstrated a direct causal link between the shock and the sexual assault, as well as significant adverse impacts on the applicant's life. The court also noted the severity of the shock, which had resulted in ongoing mental health issues, impacting the applicant’s ability to work and maintain personal relationships. The court held that the applicant had satisfied the criteria for compensation under the relevant legislation.

As a result, the court ordered the respondent, BMA, to pay the applicant, FJN, the sum of $22,500 as criminal injury compensation. The court recognised the profound impact the sexual assault had on the applicant’s mental health and overall well-being, and deemed the compensation amount appropriate to address these impacts. The court emphasised the importance of providing adequate compensation to victims of sexual assault, acknowledging the long-lasting effects such crimes can have on an individual’s life.

Orders

Orders of the court

The respondent, BMA, pay the applicant, FJN, the sum of $22,500

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:	FJN v BMA [2010] QDC 479
PARTIES:	FJN Applicant V BMA Respondent
FILE NO/S:	4/2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	1 October, 2010
DELIVERED AT:	District Court, Beenleigh
HEARING DATE:	31 August 2010
JUDGE:	Dearden DCJ
ORDER:	The respondent, BMA, pay the applicant, FJN, the sum of $22,500
CATCHWORDS:	Application – criminal compensation - sexual assault – mental or nervous shock – adverse impacts.
LEGISLATION:	Penalties and Sentences Act (Qld) s. 43B, s. 43C. Criminal Offence Victims Act (Qld) (1995). Criminal Offence Victims Regulation (Qld) 1995 s.1A, s. 25(7). Victims of Crime Assistance Act (Qld) (2009) s.154, s. 155.
CASES:	Kennedy v Faafeu [2010] QDC 21 JMR obo SRR v Hornsby [2009] QDC 147 SAY v AZ;Ex-parte Attorney General [2006] QCA 462 R v Attwell; Ex-parte Jullie [2002] 2 Qd R 367
COUNSEL:	Ms Y Cherikova of Counsel for the applicant No appearance on behalf of the respondent
SOLICITORS:	Campbell & White Lawyers for the applicant No appearance for the respondent