Lim obo AJMC v JPS - [2010] QDC 387

DISTRICT COURT OF QUEENSLAND

CITATION:

LIM obo AJMC v JPS [2010] QDC 387

PARTIES:

AJMC 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 AJMC 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 AJMC 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 AJMC.
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 on 15 May 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 AJMC, 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…

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 AJMC v JPS

Details

AGLC: LIM obo AJMC v JPS [2010] QDC 387
Case: [2010] QDC 387
Decision Date: 10 September 2010

CaseChat Overview and Summary

The case of Lim obo AJMC v JPS involved an application for compensation under the Queensland Criminal Injuries Compensation Act 2003. The applicant, Lim, on behalf of AJMC, sought compensation for injuries sustained by AJMC, who was a minor at the time, as a result of criminal acts committed by the respondent, JPS. The dispute centred on whether AJMC had suffered mental or nervous shock due to the respondent's criminal conduct and if the compensation was warranted. The matter was heard in the District Court of Queensland.

The primary legal issue before the court was whether AJMC had suffered mental or nervous shock due to JPS's criminal conduct and if the shock was severe enough to warrant compensation under the Act. The court had to determine the admissibility and weight of expert evidence regarding the nature and severity of the shock, and whether the statutory criteria for compensation were satisfied. Furthermore, the court needed to consider the quantum of compensation to be awarded, if any, considering the impact of the shock on AJMC's life.

The court, in assessing the evidence, found that AJMC had indeed suffered mental or nervous shock due to the criminal acts of JPS. The court accepted the expert evidence provided and found that the shock was severe and adversely impacted AJMC's life. In determining the appropriate compensation, the court considered various factors, including the severity and duration of the shock, the impact on AJMC's daily life, and the need for future treatment and support. After careful consideration, the court awarded $18,750 to AJMC, to be held by the Public Trustee of Queensland until she attains the age of 18. The court further authorised the Public Trustee to advance these funds for AJMC's maintenance, education, and treatment, as well as to cover the reasonable costs of the application.

The final orders of the court mandated that JPS pay the awarded sum to the Public Trustee of Queensland for AJMC's benefit, with specific provisions for the management and use of the funds. This decision underscores the court's commitment to ensuring that victims of crime receive appropriate compensation for the mental or nervous shock they endure as a result of criminal activities.

Orders

Orders of the court

1. That the respondent JPS pay the applicant LIM on behalf of AJMC 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 AJMC 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 AJMC.

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

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:	LIM obo AJMC v JPS [2010] QDC 387
PARTIES:	AJMC 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 AJMC 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 AJMC 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 AJMC. 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.