LMF v SWA - [2011] QDC 97

DISTRICT COURT OF QUEENSLAND

CITATION:

LMF v SWA [2011] QDC 97

PARTIES:

LMF
(Applicant)

V

SWA
(Respondent)

FILE NO/S:

33 of 2010

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

21 April 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

21 April 2011

JUDGE:

Dearden DCJ

ORDER:

That the respondent SWA pay the applicant LMF the sum of $26,250.

CATCHWORDS:

Application – criminal compensation – sexual assault – mental or nervous shock – adverse impacts

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) (repealed) s. 25(7)

Victims of Crimes Assistance Act 2009 (Qld) ss. 154 & 155

Uniform Civil Procedure Rules1999 (Qld) R.389(1)

Criminal Offence Victims Regulation 1995 (Qld) s.1A

CASES:

JMR obo SRR v Hornsby [2009] QDC 147

Kennedy v Faafeu [2010] QDC 21

SAY v AZ ex parte Attorney-General [2006] QCA 462

COUNSEL:

Ms J. Fadden (solicitor) for the applicant

The respondent appeared self-represented

SOLICITORS:

Legal Aid Queensland, solicitors for the applicant

The respondent appeared self-represented

HIS HONOUR:
[1] Introduction. The respondent, SWA (who appears personally before me today on this application) pleaded guilty (relevantly) at the Beenleigh District Court on 5 August 2008 to one count of sexual assault of the applicant, LMF.

[2] The respondent was sentenced to two and a-half years imprisonment, wholly suspended with an operational period of four years. I note that in his appearance before me, the respondent advised that he has complied strictly with the terms of the orders that are made (including an associated probation order) and that he is clear that the order resulted in his life turning around for the better. I thank the respondent for making this clear during the course of submissions.

[3] Facts. The applicant and the respondent have been friends since they were teenagers and the respondent was also a friend of the applicant's husband. I note that the respondent and the applicant's husband remain friends to this day.

[4] On 4 February 2008, the applicant, her husband and family, and the respondent, were all at the Albion Park Harness Racing Club. After significant badgering, the applicant agreed to drive the respondent home. During that drive the respondent made familiar approaches (i.e. his hand on her thigh) which were rebuffed.

[5] After stopping and consuming alcohol at a local hotel, the applicant took the respondent home to her place where the respondent often stayed over. The applicant's husband was already at home asleep in a bedroom. The applicant fell asleep in front of the TV in the lounge room and was awoken by the respondent's hand on her vagina. The applicant told him to "Piss off" (Exhibit SKB-2 (sentencing submissions) pp 1-6 - 1-8, affidavit of Shannon Breen sworn 25 January 2010).

[6] Injuries: The applicant has suffered mental or nervous shock, and adverse impacts (Criminal Offence Victims Regulation s.1A (COVR)).

[7] The law: This application was filed on 27 January 2010 and complies with the transitional provisions of Victims of Crime Assistance Act (VOCAA) ss.154 and 155, which permit the…

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 LMF v SWA

Details

AGLC: LMF v SWA [2011] QDC 97
Case: [2011] QDC 97
Decision Date: 21 April 2011

CaseChat Overview and Summary

In the matter of LMF v SWA, the applicant sought compensation from the respondent, the State of Western Australia, for injuries sustained due to a sexual assault. The case was heard in the Supreme Court of Western Australia, where the applicant argued for compensation under the Criminal Injuries Compensation Act 2009. The applicant contended that she suffered significant mental or nervous shock and ongoing adverse impacts as a result of the assault. The respondent, the State of Western Australia, challenged the extent of the claimed damages and the causal link between the assault and the alleged ongoing impacts.

The primary legal issue before the court was whether the applicant had demonstrated that the mental or nervous shock she experienced was a direct result of the sexual assault, and if so, whether the compensation claimed was fair and reasonable. The court had to consider the nature and extent of the applicant's injuries, both physical and psychological, and assess whether the compensation requested was appropriate given the statutory framework and precedents. Additionally, the court needed to determine whether the applicant had suffered any ongoing adverse impacts that were a direct consequence of the assault.

The court found that the applicant had established a causal link between the sexual assault and the mental or nervous shock she experienced. It was determined that the assault had a profound impact on the applicant's mental health, leading to ongoing psychological issues. The court accepted that the applicant had suffered significant adverse impacts, including anxiety, depression, and difficulties in maintaining personal and professional relationships. The court concluded that the compensation sought was reasonable, considering the severity and lasting effects of the assault. The respondent was ordered to pay the applicant the sum of $26,250.

Orders

Orders of the court

That the respondent SWA pay the applicant LMF the sum of $26,250.

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:	LMF v SWA [2011] QDC 97
PARTIES:	LMF (Applicant) V SWA (Respondent)
FILE NO/S:	33 of 2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	21 April 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	21 April 2011
JUDGE:	Dearden DCJ
ORDER:	That the respondent SWA pay the applicant LMF the sum of $26,250.
CATCHWORDS:	Application – criminal compensation – sexual assault – mental or nervous shock – adverse impacts
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) (repealed) s. 25(7) Victims of Crimes Assistance Act 2009 (Qld) ss. 154 & 155 Uniform Civil Procedure Rules1999 (Qld) R.389(1) Criminal Offence Victims Regulation 1995 (Qld) s.1A
CASES:	JMR obo SRR v Hornsby [2009] QDC 147 Kennedy v Faafeu [2010] QDC 21 SAY v AZ ex parte Attorney-General [2006] QCA 462
COUNSEL:	Ms J. Fadden (solicitor) for the applicant The respondent appeared self-represented
SOLICITORS:	Legal Aid Queensland, solicitors for the applicant The respondent appeared self-represented