LDM v FDW - [2008] QSC 259

SUPREME COURT OF QUEENSLAND

CITATION:

LDM v FDW [2008] QSC 259

PARTIES:

LDM
(applicant)
v
FDW
(respondent)

FILE NO:

No 13 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Supreme Court, Maryborough

DELIVERED ON:

24 October 2008

DELIVERED AT:

Maryborough

HEARING DATE:

17 October 2008

JUDGE:

Lyons J

ORDER:

The application is dismissed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – the applicant seeks criminal compensation from the respondent, her former husband, after he attempted to unlawfully kill their two sons – there was domestic violence during the marriage – the applicant suffered mental or nervous shock – there was more than one cause of injury – whether the respondent’s behaviour directly or indirectly contributed to the injury – whether the applicant is an ‘applicant’ pursuant to s 19 of the Criminal Offence Victims Act 1995 (Qld)

Criminal Offence Victims Act 1995 (Qld), s 5, s 9, s 10, s 19, s 20, s 21, s 24, s 25

Pettingill v Minister for Justice & Attorney-General [2003] QSC 385, cited
R v Callaghan and Fleming, ex parte Power [1986] 1 Qd R 457, cited
R v Kazakoff; ex parte Ferguson [2000] QSC 156; [2001] 2 Qd R 320, cited
SAY v AZ ex parte A-G (Qld) [2000] QCA 462, applied

COUNSEL:

PJ Pagliorino (sol.) for the applicant
No appearance for the respondent

SOLICITORS:

Carswell & Co Solicitors for the applicant
No appearance for the respondent

LYONS J:

In April 2005 the respondent took his two sons then aged five and four and put them in his car. He took them to buy a garden hose, then drove them to a secluded area and attached the hose to the exhaust of the vehicle. He subsequently started the ignition of the vehicle and set about killing himself and the boys by carbon monoxide poisoning. After a period of time however, he turned off the engine and then took the children to hospital for medical help.[1] Whilst the children were exposed to carbon monoxide for an extended period, they have survived. The long term effects of the poisoning, however, are not known. It is clear that whilst LDM was not present at the time the respondent locked himself and his sons in the car, she was clearly affected by the respondent’s actions.
[1]Sentencing remarks, Byrne J, 12 September 2005, p 1.

On 12 September 2005, the respondent pleaded guilty to two counts of attempting to unlawfully kill his sons. In respect of each count he was sentenced to imprisonment for five years, with a recommendation for post-prison community based release after serving 18 months. One hundred and fifty-seven days of pre-sentence custody were declared as time served under the sentence.

In his sentencing remarks Justice Byrne, the learned sentencing judge, said:[2]

“You had expected that you and the children would go to…

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 LDM v FDW

Details

AGLC: LDM v FDW [2008] QSC 259
Case: [2008] QSC 259
Decision Date: 24 October 2008

CaseChat Overview and Summary

The case of LDM v FDW involves the applicant, LDM, seeking compensation from her former husband, FDW, under the Criminal Offence Victims Act 1995 (Qld). LDM claims compensation following FDW’s attempt to unlawfully kill their two sons. The marriage between the parties was marked by domestic violence, and LDM argues that she suffered mental or nervous shock as a result of FDW’s actions. The court must determine whether FDW’s conduct directly or indirectly contributed to LDM’s injury and whether LDM qualifies as an ‘applicant’ under section 19 of the Act.

The primary legal issue before the court was whether LDM’s claim for compensation could be substantiated under the Act. This required a thorough examination of the definition of ‘applicant’ and whether the respondent’s actions constituted a criminal offence that directly or indirectly caused LDM’s injury. The court also had to consider whether there was more than one cause of LDM’s injury, and if so, whether FDW’s contribution was sufficiently direct or indirect to warrant compensation.

The court found that LDM did not qualify as an ‘applicant’ under the Act, primarily because the respondent’s actions did not directly or indirectly cause her injury. The court held that while FDW’s actions were indeed criminal, they did not constitute the direct or indirect cause of LDM’s mental or nervous shock. The court also found that there were multiple causes of LDM’s injury, and FDW’s contribution, while significant, did not meet the threshold required for compensation under the Act. Consequently, the court dismissed the application for compensation.

In conclusion, the court dismissed LDM’s application for compensation from FDW, finding that FDW’s criminal conduct did not directly or indirectly cause LDM’s injury, and therefore did not meet the criteria for compensation under the Criminal Offence Victims Act 1995 (Qld). The dismissal of the application means that LDM will not receive the sought-after compensation from FDW.

Orders

Orders of the court

The application is dismissed.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	LDM v FDW [2008] QSC 259
PARTIES:	LDM (applicant) v FDW (respondent)
FILE NO:	No 13 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Supreme Court, Maryborough
DELIVERED ON:	24 October 2008
DELIVERED AT:	Maryborough
HEARING DATE:	17 October 2008
JUDGE:	Lyons J
ORDER:	The application is dismissed.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – the applicant seeks criminal compensation from the respondent, her former husband, after he attempted to unlawfully kill their two sons – there was domestic violence during the marriage – the applicant suffered mental or nervous shock – there was more than one cause of injury – whether the respondent’s behaviour directly or indirectly contributed to the injury – whether the applicant is an ‘applicant’ pursuant to s 19 of the Criminal Offence Victims Act 1995 (Qld) Criminal Offence Victims Act 1995 (Qld), s 5, s 9, s 10, s 19, s 20, s 21, s 24, s 25 Pettingill v Minister for Justice & Attorney-General [2003] QSC 385, cited R v Callaghan and Fleming, ex parte Power [1986] 1 Qd R 457, cited R v Kazakoff; ex parte Ferguson [2000] QSC 156; [2001] 2 Qd R 320, cited SAY v AZ ex parte A-G (Qld) [2000] QCA 462, applied
COUNSEL:	PJ Pagliorino (sol.) for the applicant No appearance for the respondent
SOLICITORS:	Carswell & Co Solicitors for the applicant No appearance for the respondent