J v N - [2010] QDC 169

DISTRICT COURT OF QUEENSLAND

CITATION: J v N [2010] QDC 169

PARTIES: J by her litigation guardian M
(Applicant)
v
N
(Respondent)

FILE NO/S: 314 of 2009

PROCEEDING: Application for Criminal Compensation

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 23 April 2010

DELIVERED AT: Cairns

HEARING DATE: 19 April 2010

JUDGE: Everson DCJ

ORDER:
1. That the respondent pay the applicant as litigation guardian for the victim the sum of $22,500.00 by way of compensation.
2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.
3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

CATCHWORDS:
Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS: Legal Aid Queensland for the applicant

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 22 October 2007, namely unlawful carnal knowledge of a child under 16 years.

Facts

On the evening of 24 June 2005, the respondent, who was then aged 24 convinced the victim who was then aged 12 to go for a drive with him and a friend. She was then taken to the respondent’s house and given alcohol. After she was intoxicated he took the respondent upstairs and had sexual intercourse with her. This is how she lost her virginity (“the incident”).

Injuries

· Psychological sequelae.

The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury,…

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 J v N

Details

AGLC: J v N [2010] QDC 169
Case: [2010] QDC 169
Decision Date: 23 April 2010

CaseChat Overview and Summary

The matter of J v N involved a dispute regarding criminal compensation for a victim of a sexual offence. The victim, a minor, was represented by their litigation guardian, who sought compensation for both physical and psychological injuries sustained as a result of the offence. The respondent, who had been convicted of the offence, was the subject of the application for compensation. The case was heard in the District Court of Queensland.

The central legal issues in the case were whether the victim was entitled to compensation for both physical and psychological injuries and, if so, what the appropriate amount of compensation should be. The court had to consider the extent and severity of the injuries, as well as the impact on the victim's life, in determining the compensation. The court also needed to decide on the appropriate mechanism for the payment of the compensation, given the victim's minority status.

The court found that the victim was indeed entitled to compensation for both the physical and psychological injuries caused by the offence. In assessing the quantum of compensation, the court took into account the severity and impact of the injuries, as well as relevant precedents and guidelines. The court determined that the appropriate amount of compensation was $22,500.00. Given the victim's age, the court appointed The Public Trustee of Queensland to manage and disburse the compensation on behalf of the victim until they reached majority. This appointment ensured that the compensation would be used for the victim's benefit and protected from any potential misuse.

The court's orders included the requirement for the respondent to pay the litigation guardian the sum of $22,500.00 as compensation for the victim. Any payment made to the victim was to be directed to The Public Trustee of Queensland, with the trustee's receipt serving as sufficient discharge. The Public Trustee was also appointed as the manager of the compensation, tasked with managing and disbursing the funds on behalf of the victim during their minority, in accordance with The Public Trustee Act 1978.

Orders

Orders of the court

1. That the respondent pay the applicant as litigation guardian for the victim the sum of $22,500.00 by way of compensation.

2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	J v N [2010] QDC 169
PARTIES:	J by her litigation guardian M (Applicant) v N (Respondent)
FILE NO/S:	314 of 2009
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 April 2010
DELIVERED AT:	Cairns
HEARING DATE:	19 April 2010
JUDGE:	Everson DCJ
ORDER:	1. That the respondent pay the applicant as litigation guardian for the victim the sum of $22,500.00 by way of compensation. 2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. 3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.
CATCHWORDS:	Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11]
COUNSEL:
SOLICITORS:	Legal Aid Queensland for the applicant