HBC v DDS - [2011] QDC 232

DISTRICT COURT OF QUEENSLAND

CITATION:

HBC v DDS & Ors [2011] QDC 232

PARTIES:

HBC
(Applicant)

v

DDS
(First Respondent)

And

MWB
(Second Respondent)

And

ATW
(Third Respondent)

FILE NO/S:

163/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

2 September, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

22 June 2011

JUDGE:

Dearden DCJ

ORDER:

That the first respondent DDS, second respondent MWB and third respondent ATW jointly and severally pay the applicant HBC the sum of $21,000.

CATCHWORDS:

Application – Criminal Compensation – deprivation of liberty – common assault – mental or nervous shock

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1)

Juvenile Justice Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld)

Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155

CASES:

Paterson v Chand & Chand [2008] QDC 214

COUNSEL:

Ms F Muirhead (solicitor) for the applicant
No appearance for the first, second or third respondents

SOLICITORS:

Legal Aid Queensland, solicitors for the applicant

No appearance for the first, second or third respondents

Introduction

The first respondent, DDS pleaded guilty on 26 February 2004 at the Beenleigh District Court to one count of deprivation of liberty. The first respondent was sentenced by Judge Nase at the Beenleigh District Court on 13 May, 2004 to 12 months imprisonment suspended after serving three months with an operational period of 15 months[1].
[1] Exhibit A, affidavit of Emily Cotterill sworn 25 March 2011

The second respondent MWB pleaded guilty to counts of common assault and deprivation of liberty in the District Court at Beenleigh on 16 June 2004. The second respondent was sentenced by Judge Nase in the Beenleigh District Court on 21 June 2004 to concurrent terms of six months imprisonment in respect of each of the counts[2].
[2] Exhibit B, affidavit of Emily Cotterill sworn 25 March 2011

The third respondent ATW pleaded guilty to common assault and deprivation of liberty in the District Court at Beenleigh on 11 March 2004. The third respondent was also sentenced by Judge Nase in the Beenleigh District Court (but pursuant to the Juvenile Justice Act) on 21 June, 2004 to three months detention to be released after serving 50 per cent of the sentence[3].
[3] Exhibit C, affidavit of Emily Cotterill sworn 29 March 2011

Facts

Judge Nase summarised the facts of the offending relevant to this application when sentencing the second and the third respondents on 21 June 2004.

“All the offences occurred on the evening of 13 January 2003. The incident during which the offences were committed occupied a period of about two hours from around about 9 pm to around about 11 pm.
The ages of the complainant boys were as follows. One was 12, two were 13, and one was 15. The complainant boys were together when one of them threw a rock at a passing car. You two [a reference to the second and third respondents] and another man named DDS were in the car. The car…

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 HBC v DDS

Details

AGLC: HBC v DDS [2011] QDC 232
Case: [2011] QDC 232
Decision Date: 2 September, 2011

CaseChat Overview and Summary

The case involved an application for criminal injury compensation by the applicant, HBC, against the first respondent DDS, the second respondent MWB, and the third respondent ATW. The application was brought in the context of HBC's experience of common assault, which resulted in mental or nervous shock. The dispute centred on whether HBC's psychological trauma was sufficiently severe to warrant compensation and the appropriate quantum of damages to be awarded.

The court had to determine whether HBC's mental or nervous shock was severe enough to qualify as a deprivation of liberty for the purposes of the relevant compensation legislation. Additionally, the court needed to assess the extent of HBC's psychological injury and the appropriate amount of compensation. The court had to balance the principles of fairness and proportionality in awarding damages, taking into account the nature and impact of the assault on HBC.

The court concluded that HBC's psychological trauma was severe enough to be considered a deprivation of liberty and was sufficient to warrant compensation. The court found that the respondents' actions had caused HBC significant mental or nervous shock, which was both foreseeable and directly attributable to the assault. After considering the relevant factors, including the severity and duration of HBC's psychological injury, the court determined that the appropriate compensation was $21,000. The court ordered that the first respondent DDS, the second respondent MWB, and the third respondent ATW jointly and severally pay HBC this amount.

Orders

Orders of the court

That the first respondent DDS, second respondent MWB and third respondent ATW jointly and severally pay the applicant HBC the sum of $21,000.

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:	HBC v DDS & Ors [2011] QDC 232
PARTIES:	HBC (Applicant) v DDS (First Respondent) And MWB (Second Respondent) And ATW (Third Respondent)
FILE NO/S:	163/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	2 September, 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	22 June 2011
JUDGE:	Dearden DCJ
ORDER:	That the first respondent DDS, second respondent MWB and third respondent ATW jointly and severally pay the applicant HBC the sum of $21,000.
CATCHWORDS:	Application – Criminal Compensation – deprivation of liberty – common assault – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1) Juvenile Justice Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld) Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155
CASES:	Paterson v Chand & Chand [2008] QDC 214
COUNSEL:	Ms F Muirhead (solicitor) for the applicant No appearance for the first, second or third respondents
SOLICITORS:	Legal Aid Queensland, solicitors for the applicant No appearance for the first, second or third respondents