Gkb v Bell

[2009] QDC 304

DISTRICT COURT OF QUEENSLAND

CITATION:	GKB v Bell [2009] QDC 304
PARTIES:	GKB

Applicant

AND

ROBERT JOHN BELL

Respondent

FILE NO/S:	OA1977/09
DIVISION:
PROCEEDING:	Originating application
ORIGINATING  COURT:	District Court, Brisbane
DELIVERED ON:	24 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	14 September 2009
JUDGE:	McGill DCJ
ORDER:	Application dismissed.
CATCHWORDS:	CRIMINAL LAW – Compensation – whether applicant person against whom a personal offence was committed – whether being a “victim” as defined relevant
Criminal Offence Victims Act 1995 ss 5, 19, 21 and 24
Brennan v Smith [2005] QSC 276 – considered. Byles v Palmer [2003] QSC 295 – considered. French v Green [1997] QCA 464 – applied. Pettingell v Minister for Justice and Attorney-General [2003] QSC 385 – followed. R v Callaghan & Anor, ex parte Power [1986] 1 Qd R 457 – considered. R v Moors, ex parte Alex [1994] 2 Qd R 315 – applied. RZ v PAE [2008] 1 Qd R 393 – cited. Schmith v Nolan [2003] QCA 93 – considered. Summers v Dougherty [2000] QSC 365 considered.
COUNSEL:	P.E. Nolan for the applicant The respondent did not appear
SOLICITORS:	Shine Lawyers Pty Ltd for the applicant The respondent was not represented

1. This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 5 December 2005 the respondent pleaded guilty to 10 counts of offences of a sexual nature committed against the applicant’s half sister. One of those offences was committed in the presence of the applicant, who was then a three-year old child. The applicant was present in a car seat in a motor vehicle while the offence was also committed in the motor vehicle. I dealt with an application by the half-sister in 2007.[1]

   [1]            GKA v Bell [2007] QDC 91.

2. It is apparent from the certificate of conviction, a copy of which is exhibited to an affidavit before me,[2] that all of the charges of which the respondent was convicted related to the half-sister. Although the factual information about the circumstance of the occasion when the applicant was present for the offence against the half-sister suggests that it might have been possible for the respondent to have been charged with an offence of exposing the applicant to an indecent act, no such charge was brought and it was accepted by counsel for the applicant that the respondent had not been convicted of any offence committed against the applicant. Nevertheless, it was submitted that compensation was available for the applicant on the basis that she fell within the definition of “victim” in s 5 of the Act. That section provides:

   [2]            Affidavit of Holmes filed 16 July 2009 Exhibit CMH1.

   “A victim is a person who has suffered harm from a violation of the

   State’s criminal laws—

(a)	because a crime is committed that involves violence committed against the person in a direct way; or
(b)	because the person is a member of the immediate family of, or is a dependent of, a victim mentioned in…