J v Hegarty

[2004] QSC 475

SUPREME COURT OF QUEENSLAND

CITATION:	J v Hegarty [2004] QSC 475
PARTIES:	J (Applicant) v PAUL HEGARTY (Respondent)
FILE NO/S:	264 of 2004
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	23 December 2004
DELIVERED AT:	Cairns
HEARING DATE:	18 October 2004
JUDGE:	Jones J
ORDER:	The respondent pay to the applicant compensation in the sum of $2,000 together with costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:
COUNSEL:
SOLICITORS:	Legal Aid Queensland for the Applicant No appearance for the respondent

1. The applicant seeks criminal compensation pursuant to s.663B(1) of the Criminal Code for injuries sustained by her as a result of the offence committed by the respondent on or about 16 January 1971.

1. On 31 May 1971 the respondent Paul Hegarty was convicted of the offence of having unlawful carnal knowledge of a girl under 12 years of age in the Supreme Court at Townsville before His Honour Justice Kneipp.  The complainant was the applicant who was then 9 years of age.

1. No appearance was made either by or on behalf of the respondent at the hearing of the application, although I accept the material provided which assures that the respondent has been personally served with the application.   

1. This application is an action by virtue of s 5 of the Limitation of Actions Act 1974. By virtue of s10(1)(d) the limitation period, is six years. In the present case, the applicant’s cause of action was realised when the respondent was convicted in 1971 and thus her application filed approximately 32 years later is prima facie statute-barred. The usual practice is for a respondent to lead the Limitation of Action Act but it is only invoked as a defence if the respondent takes the point (Chong v Chong CA No. 11658 of 1998).  The respondent has chosen not to appear or respond.  I am prepared to proceed on the basis that the application is uncontested.

1. The applicant was born on 28 June 1961 and is now 43 years of age.

1. On 16 January 1971 the applicant and the respondent were attending the same social function.  Later that night the applicant came to the home where the respondent was staying.  The applicant entered the house on the respondent’s invitation whereupon he had sexual intercourse with the applicant.  Although not an element of the offence, the sentencing remarks of Justice Kneipp indicate that he accepted the respondent’s version that the act was consensual.  However it is to be noted that in an affidavit provided by the applicant and sworn 13 May 2004 that “at no time did [I] consent to the actions of the respondent”.

1. Dr. David Phillips examined the applicant a day after the offence occurred.  In his statement dated 4 April 2004 he details that during his examination of the applicant on the 17 January 1971 he noted that the applicant had a recently ruptured hymen, having probably occurred during the previous 48 hours and probably as a result…