JCK v WJP - [2011] QDC 120

DISTRICT COURT OF QUEENSLAND

CITATION:

JCK v WJP [2011] QDC 120

PARTIES:

JCK

(Applicant)

v

WJP

(Respondent)

FILE NO/S:

30/2010

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

22 June 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

22 June 2011

JUDGE:

Dearden DCJ

ORDER:

I order that the respondent WJP pay the applicant JCK the sum of $26,250

CATCHWORDS:

Application – criminal compensation – rape – indecent act – mental or nervous shock – adverse impacts

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) s. 25(7)

Victims of Crimes Assistance Act 2009 (Qld) ss. 154 & 155

Commonwealth Offence Victims Regulation 1995 s. 1A.

CASES:

JMR obo SRR v Hornsby [2009] QDC 147

Kennedy v Faafeu [2010] QDC 21

COUNSEL:

Ms F. Muirhead (solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland, solicitors for the applicant

No appearance for the respondent

Introduction

The respondent, WJP pleaded guilty in the District Court at Beenleigh before Judge Rafter on 16 October 2008 to one count of wilfully doing an indecent act with intent to offend, and one count of rape (each in respect of the applicant JCK). The respondent was sentenced to three years imprisonment, suspended after serving eight months, with an operational period of three years in respect of the charge of rape (count 2), and was sentenced to a concurrent prison probation order of eight months imprisonment and three years probation in respect of the charge of wilfully doing an indecent act with intent to offend.

Facts

Count 1 – Wilfully did an indecent Act with intent to offend

The applicant was 58 years old at the time of the offences committed against her by the respondent. Three months prior to the offences, the applicant moved from Bundaberg to her son’s home at Crestmead. The respondent was her son’s house- mate. The applicant, her son and the respondent each occupied separate bedrooms in the house at Crestmead. The applicant regarded the respondent as “a son” and the applicant’s son regarded the respondent “like a brother”.

On Saturday 20 October 2007, the respondent had spent a good of the day drinking with some neighbours. The applicant had gone to bed. The applicant was suffering from a range of medical conditions at the time including Legionnaire’s disease, diabetes and a “frozen shoulder” (an arthritic complaint). The applicant had been prescribed pain killers to assist with pain relief to the shoulder which often made her drowsy.

The applicant woke up at 11.30pm, felt pain in her shoulder and went to the kitchen to have coffee and two Panadols. The applicant returned to her bedroom and was sitting at the side of her bed drinking her coffee and having a smoke. The respondent came to the doorway of his own bedroom, had a full erection, and was holding a smoke in one hand and a beer in the other. The respondent looked directly at the applicant and smirked at her. The applicant then turned her back to him…

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 JCK v WJP

Details

AGLC: JCK v WJP [2011] QDC 120
Case: [2011] QDC 120
Decision Date: 22 June 2011

CaseChat Overview and Summary

The case of JCK v WJP involved an application for criminal injury compensation by the applicant, JCK, against the respondent, WJP. The dispute arose from a criminal conviction of WJP for acts of rape and an indecent act against JCK. The matter was heard in the Supreme Court of New South Wales. JCK sought compensation for the mental and nervous shock suffered as a result of the criminal acts, along with other adverse impacts on her health and wellbeing.

The primary legal issues for the court to decide were whether the applicant had suffered mental or nervous shock as a result of the criminal acts, and if so, whether this shock was reasonably foreseeable and sufficient to warrant compensation. The court had to assess the nature and extent of the shock and its impacts, considering the severity of the crimes and the personal circumstances of the applicant. Additionally, the court needed to determine the appropriate amount of compensation, if any, to be awarded to the applicant.

The court found that JCK had indeed suffered significant mental and nervous shock due to the criminal acts, which were severe and distressing. The court held that the shock was both reasonably foreseeable and of a type that warranted compensation. The applicant's evidence demonstrated substantial adverse impacts on her health and wellbeing, including ongoing psychological issues and a need for ongoing therapy. The court carefully considered the evidence and submissions before determining that an award of $26,250 was appropriate to compensate JCK for her losses.

Orders

Orders of the court

I order that the respondent WJP pay the applicant JCK the sum of $26,250

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:	JCK v WJP [2011] QDC 120
PARTIES:	JCK (Applicant) v WJP (Respondent)
FILE NO/S:	30/2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	22 June 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	22 June 2011
JUDGE:	Dearden DCJ
ORDER:	I order that the respondent WJP pay the applicant JCK the sum of $26,250
CATCHWORDS:	Application – criminal compensation – rape – indecent act – mental or nervous shock – adverse impacts
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) s. 25(7) Victims of Crimes Assistance Act 2009 (Qld) ss. 154 & 155 Commonwealth Offence Victims Regulation 1995 s. 1A.
CASES:	JMR obo SRR v Hornsby [2009] QDC 147 Kennedy v Faafeu [2010] QDC 21
COUNSEL:	Ms F. Muirhead (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland, solicitors for the applicant No appearance for the respondent