JFD v ARJ - [2010] QDC 386

DISTRICT COURT OF QUEENSLAND

CITATION:

JFD v ARJ [2010] QDC 386

PARTIES:

JFD

(Applicant)

v

ARJ

(Respondent)

FILE NO/S:

131/2009

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

1 October 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

21 September 2010

JUDGE:

Dearden DCJ

ORDER:

THE RESPONDENT ARJ PAY THE APPLICANT JFD THE SUM OF $10,000 AND COSTS TO BE ASSESSED ON A STANDARD BASIS.

CATCHWORDS:

Application – criminal compensation – indecent treatment of a child – mental or nervous shock

LEGISLATION:

Criminal Code(Qld) 1899 ch. 65A, s. 663B.
Criminal Offence Victims Act (Qld) 1995 s. 46.
Victims of Crime Assistance Act(Qld) 2009 s. 167(2).
Criminal Code Amendment Act (Qld)1984.

CASES:

TLK v JD [2007] QDC 132.
KSV v RWB [2007] QDC 233.
R v Tiltman; ex-parte Dawe (Unreported, Supreme Court of Queensland, 22 June 1995, Lee J).
SAM v SAM (Unreported, District Court, 27 October 2000, Robertson DCJ).
SAM v SAM [2001] QCA 12.

COUNSEL:

J Fadden (solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

No appearance for the respondent

Introduction

The respondent, ARJ, pleaded guilty before me in the Beenleigh District Court on 6 April 2009 to two counts of indecent treatment of a child under 16 under 12, in respect of the applicant JFD. The respondent was sentenced to 12 months imprisonment and three years probation (concurrent in respect of each count) and ordered to undertake a sexual offenders’ treatment programme in the community upon release.[1]
[1]Exhibit A (Certificate of Indictment) Affidavit of Mandy Albert sworn 23 July 2010.

Facts

The applicant, then aged 10, was living … with the applicant’s sister and the respondent (then the partner of the applicant’s sister). Four of the applicant’s brothers also resided at the house as well as the applicant’s niece. While the other children slept in the bedrooms, the applicant slept in the lounge. The applicant recalls at about 6.00 am one morning (between 10 November 1975 and 12 November 1976) when others in the house were still asleep and she was lying face down on the couch, the respondent came out to the lounge. The applicant was wearing a nightie and underpants. The respondent sat down beside her on the couch. The respondent did not say anything as she was still half asleep. The respondent felt the applicant touch her on her underpants, then pull them to one side. The applicant rolled over and pretended she was waking up, but the respondent kept touching her. The applicant felt the respondent insert his fingers in her vagina. The respondent stopped and removed his fingers. The respondent then used his mouth to touch her also on the vagina. The respondent stopped his actions when he and the applicant heard noises coming from one of the bedrooms. The applicant opened her eyes. Her one year old niece came up to her and the respondent was still seated on the couch. The applicant reported these…

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 JFD v ARJ

Details

AGLC: JFD v ARJ [2010] QDC 386
Case: [2010] QDC 386
Decision Date: 1 October 2010

CaseChat Overview and Summary

In this case, JFD applied for criminal injury compensation against ARJ, following incidents of indecent treatment of a child. The matter was heard in the relevant court, which was tasked with determining whether ARJ's conduct warranted compensation and, if so, the appropriate amount. The primary legal issue was whether the applicant's claim for compensation for mental or nervous shock was valid, given the nature of the offence and the statutory provisions governing criminal injury compensation.

The court considered the definition of "indecent treatment of a child" under the applicable legislation and the precedents concerning compensation for mental or nervous shock. It was necessary to assess whether the applicant's shock was a direct result of the indecent treatment and whether it met the criteria for compensable shock under the statutory scheme. The court examined the evidence provided by the applicant regarding the impact of the incident on their mental health and the extent to which it affected their daily life.

After careful consideration of the evidence and applicable law, the court found that the applicant's claim for compensation was valid. The court determined that the applicant had suffered compensable mental or nervous shock as a direct result of the indecent treatment, and the statutory criteria were satisfied. Consequently, the court ordered ARJ to pay the applicant $10,000 in compensation. Additionally, the court ordered that ARJ pay the costs of the application to be assessed on a standard basis.

Orders

Orders of the court

THE RESPONDENT ARJ PAY THE APPLICANT JFD THE SUM OF $10,000 AND COSTS TO BE ASSESSED ON A STANDARD BASIS.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	JFD v ARJ [2010] QDC 386
PARTIES:	JFD (Applicant) v ARJ (Respondent)
FILE NO/S:	131/2009
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	1 October 2010
DELIVERED AT:	Beenleigh
HEARING DATE:	21 September 2010
JUDGE:	Dearden DCJ
ORDER:	THE RESPONDENT ARJ PAY THE APPLICANT JFD THE SUM OF $10,000 AND COSTS TO BE ASSESSED ON A STANDARD BASIS.
CATCHWORDS:	Application – criminal compensation – indecent treatment of a child – mental or nervous shock
LEGISLATION:	Criminal Code(Qld) 1899 ch. 65A, s. 663B. Criminal Offence Victims Act (Qld) 1995 s. 46. Victims of Crime Assistance Act(Qld) 2009 s. 167(2). Criminal Code Amendment Act (Qld)1984.
CASES:	TLK v JD [2007] QDC 132. KSV v RWB [2007] QDC 233. R v Tiltman; ex-parte Dawe (Unreported, Supreme Court of Queensland, 22 June 1995, Lee J). SAM v SAM (Unreported, District Court, 27 October 2000, Robertson DCJ). SAM v SAM [2001] QCA 12.
COUNSEL:	J Fadden (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant No appearance for the respondent