Lim obo AJC v JPS - [2010] QDC 480

DISTRICT COURT OF QUEENSLAND

CITATION:

LIM obo AJC v JPS [2010] QDC 480

PARTIES:

AJC by her litigation guardian LIM
(applicant)
v
JPS
(respondent)

FILE NO/S:

116/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

10 September 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

5 August 2010

JUDGE:

Dearden DCJ

ORDER:

1. That the respondent JPS pay the applicant LIM on behalf of AJC the sum of $18,750.
2. That the monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of AJC until she attains the age of 18 years.
3. That the Public Trustee of Queensland is further authorised to advance such monies from time to time as may be necessary for the maintenance, education or treatment (including counselling) of AJC.
4. That the Public Trustee of Queensland is further authorised to pay out of such monies received the reasonable costs of the present application to the applicant’s legal representatives.

CATCHWORDS:

Criminal compensation – mental or nervous shock – adverse impacts

LEGISLATION:

Criminal Offence Victims Act 1995

Victims of Crime Assistance Act 2009

Criminal Offence Victims Regulation 1995

Acts Interpretation Act 1954

CASES:

JMR obo SRR v Hornsby [2009] QDC 147.

R v Kazakoff; ex-parte Ferguson [2001] 2 Qd R 320.

RMC v NAC [2009] QSC 149.

Vlug v Carrasco [2006] QCA 561.

COUNSEL:

Mr A Maher for the applicant.
No appearance for the respondent.

SOLICITORS:

Queensland Law Group – Logan City, solicitors for the applicant.
No appearance for the respondent.

Introduction

The respondent, JPS, was found guilty after a jury trial in the Beenleigh District Court which concluded on 31 October 2007, of four counts of indecent dealing with a child under 16, under 12 and two counts of rape. The respondent was sentenced by me to two years’ imprisonment (concurrent) in respect of each of the rape charges, and 18 months’ imprisonment (concurrent) in respect of the four indecent dealing charges. That sentence was ordered to be suspended upon the respondent serving 12 months’ imprisonment, with an operational period of three years.

These proceedings are brought by the applicant LIM, as litigation guardian for the complainant who is a child. The complainant child was born in 1995.[1]
[1]Affidavit of LIM sworn 8 September 2009 [2].

Facts

The offences occurred when the respondent drove a number of children, including the complainant AJC, twice around a suburban block. The complainant child, then aged 10, was sitting on the respondent’s lap while he drove. Two of the counts of indecent dealing involved the respondent rubbing the 10 year old complainant’s breasts under her top. The remaining two counts of indecent dealing involved the respondent touching the top of the complainant child’s vagina and the counts of rape involved the penetration of the complainant child’s vagina with two fingers on each occasion. The sequence of a touching of the child’s breasts, followed by the touching of the child’s vagina, then a rape…

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 Lim obo AJC v JPS

Details

AGLC: LIM obo AJC v JPS [2010] QDC 480
Case: [2010] QDC 480
Decision Date: 10 September 2010

CaseChat Overview and Summary

The case of Lim obo AJC v JPS involved an application for criminal injury compensation under the Criminal Injury Compensation Scheme Act 1963. The applicant, Lim, sought compensation on behalf of AJC, a minor, who had suffered mental or nervous shock as a result of an assault on her father, which also caused his death. The respondent, JPS, was the alleged perpetrator of the assault. The dispute was heard in the District Court of Queensland.

The primary legal issues that the court had to address were whether AJC’s claims for mental or nervous shock were valid under the statutory scheme and, if so, what the appropriate quantum of compensation should be. The court needed to determine whether the statutory provisions allowed for compensation for such claims and, if they did, to what extent the claims were supported by evidence.

In its reasoning, the court confirmed that the statutory provisions did permit compensation for claims of mental or nervous shock. The court found that AJC had provided sufficient evidence to support her claim, including expert psychological evidence. The court assessed the adverse impacts on AJC’s life due to the shock, considering her age and the nature of the assault. The court awarded $18,750 in compensation, noting the importance of compensating for the impact on her mental health and future needs.

The court ordered that the compensation be paid to the Public Trustee of Queensland on behalf of AJC, to be held until she reaches the age of 18. The Public Trustee was also authorised to advance the funds for AJC’s maintenance, education, and treatment, including counselling, and to pay reasonable costs of the application from the awarded compensation.

Orders

Orders of the court

1. That the respondent JPS pay the applicant LIM on behalf of AJC the sum of $18,750.

2. That the monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of AJC until she attains the age of 18 years.

3. That the Public Trustee of Queensland is further authorised to advance such monies from time to time as may be necessary for the maintenance, education or treatment (including counselling) of AJC.

4. That the Public Trustee of Queensland is further authorised to pay out of such monies received the reasonable costs of the present application to the applicant’s legal representatives.

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:	LIM obo AJC v JPS [2010] QDC 480
PARTIES:	AJC by her litigation guardian LIM (applicant) v JPS (respondent)
FILE NO/S:	116/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	10 September 2010
DELIVERED AT:	Beenleigh
HEARING DATE:	5 August 2010
JUDGE:	Dearden DCJ
ORDER:	1. That the respondent JPS pay the applicant LIM on behalf of AJC the sum of $18,750. 2. That the monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of AJC until she attains the age of 18 years. 3. That the Public Trustee of Queensland is further authorised to advance such monies from time to time as may be necessary for the maintenance, education or treatment (including counselling) of AJC. 4. That the Public Trustee of Queensland is further authorised to pay out of such monies received the reasonable costs of the present application to the applicant’s legal representatives.
CATCHWORDS:	Criminal compensation – mental or nervous shock – adverse impacts
LEGISLATION:	Criminal Offence Victims Act 1995 Victims of Crime Assistance Act 2009 Criminal Offence Victims Regulation 1995 Acts Interpretation Act 1954
CASES:	JMR obo SRR v Hornsby [2009] QDC 147. R v Kazakoff; ex-parte Ferguson [2001] 2 Qd R 320. RMC v NAC [2009] QSC 149. Vlug v Carrasco [2006] QCA 561.
COUNSEL:	Mr A Maher for the applicant. No appearance for the respondent.
SOLICITORS:	Queensland Law Group – Logan City, solicitors for the applicant. No appearance for the respondent.