KL v PB - [2007] QDC 69

DISTRICT COURT OF QUEENSLAND

CITATION:

KL v PB [2007] QDC 069

PARTIES:

KL (Applicant)

V

PB (Respondent)

FILE NO/S:

BD 412/07

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

19 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2007

JUDGE:

Tutt DCJ

ORDER:

The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 26 April 2005.1.

The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.2.

CATCHWORDS:

Criminal compensation claim pursuant to s 663B of the Criminal Code – mental or nervous shock – prescribed amounts – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied.

Criminal Code (Qld) ss 663A, 663AA and 663B.

Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2).

MAJ v KM [2000] QCA 410

McClintock v Jones [1995] 79 A Crim R 238.

R v Llorente ex parte Hendry [2001] 2 Qd R 415.

LMW v Nicholls [2004] QDC 118.

MR v Webb [2001] QCA 113.

R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995,
unreported).

SAM v SAM [2001] QCA 12.

SAY v AZ; ex parte A-G Qld (2006) QCA 462

SOLICITORS:

Ms F Muirhead of LAQ for the applicant.

No appearance for the respondent.

Introduction:

The applicant KL claims compensation for injury sustained by her as a result of 2 criminal offences of a sexual nature committed against her by the respondent to the application PB.

The respondent was convicted by this court at Beenleigh on 26 April 2005 of two counts of unlawful and indecent treatment against this applicant between 1 January 1984 and 1 March 1985, when the applicant was aged between 6 and 7 years.

This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Barbara Ann McGuire, psychiatrist, in her report of 23 November 2006, which is Exhibit A to her affidavit filed 14 February 2007. There are no physical injuries to the applicant which form the basis for any claim for compensation before the court.

Relevant legislation:

As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.[1]
[1] Section 46(2) Criminal Offences Victims Act 1995.

Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or…

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 KL v PB

Details

AGLC: KL v PB [2007] QDC 69
Case: [2007] QDC 69
Decision Date: 19 April 2007

CaseChat Overview and Summary

The matter between KL and PB came before the court in relation to a claim for criminal compensation under section 663B of the Criminal Code. KL sought compensation for the mental and nervous shock she suffered as a result of the offences for which PB was convicted and sentenced by the court on 26 April 2005. The primary legal issues before the court were whether the prescribed amounts for compensation applied, and if the conduct for which PB was convicted constituted "one course of conduct or closely related courses of conduct." The court was also required to determine the appropriate test to apply in these circumstances.

In delivering its judgment, the court considered the statutory framework and relevant case law to determine the appropriate test to apply in assessing KL's claim. The court held that the prescribed amounts for compensation applied, and that the conduct for which PB was convicted constituted "one course of conduct or closely related courses of conduct." The court determined that the appropriate test to apply was that set out in section 663B(4) of the Criminal Code, which requires the court to consider the degree of harm suffered by the victim, the degree of fault on the part of the offender, and any other relevant factors. Applying this test, the court found that KL was entitled to compensation in the amount of $20,000.00. The court also ordered PB to pay KL's costs of and incidental to the application.

The court's orders were that PB pay KL the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which PB was convicted and sentenced. PB was also ordered to pay KL's costs of and incidental to the application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.

Orders

Orders of the court

The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 26 April 2005.1.

The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.2.

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:	KL v PB [2007] QDC 069
PARTIES:	KL (Applicant) V PB (Respondent)
FILE NO/S:	BD 412/07
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	19 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	30 March 2007
JUDGE:	Tutt DCJ
ORDER:	The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 26 April 2005.1. The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.2.
CATCHWORDS:	Criminal compensation claim pursuant to s 663B of the Criminal Code – mental or nervous shock – prescribed amounts – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied. Criminal Code (Qld) ss 663A, 663AA and 663B. Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2). MAJ v KM [2000] QCA 410 McClintock v Jones [1995] 79 A Crim R 238. R v Llorente ex parte Hendry [2001] 2 Qd R 415. LMW v Nicholls [2004] QDC 118. MR v Webb [2001] QCA 113. R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported). SAM v SAM [2001] QCA 12. SAY v AZ; ex parte A-G Qld (2006) QCA 462
SOLICITORS:	Ms F Muirhead of LAQ for the applicant. No appearance for the respondent.