M v M - [2010] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION: M v M [2010] QDC 170

PARTIES: M
(Applicant)
v
M
(Respondent)

FILE NO/S: 214 of 2009

PROCEEDING: Application for Criminal Compensation

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 23 April 2010

DELIVERED AT: Cairns

HEARING DATE: 12 March 2010

JUDGE: Everson DCJ

ORDER:
I order that the respondent pay the applicant the sum of $31,500.00 by way of compensation.

CATCHWORDS:
Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS: Wettenhall Silva for the applicant

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

The injuries giving rise to the application were suffered as a result of personal offences for which the respondent was convicted on indictment on 24 July 2008, namely three counts of incest.

Facts

The respondent is the applicant’s uncle. When he was aged 31 and she was aged 17 he had sexual intercourse with her on three occasions. (“the incidents”)

Injuries

The applicant suffered psychological sequelae as a consequence of the incidents.

The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

[1][2002] 2 QdR 303 at 310

Relevantly the Compensation Table prescribes:

· Item 33 Mental or nervous shock (severe) … 20% - 34%

Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with 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 M v M

Details

AGLC: M v M [2010] QDC 170
Case: [2010] QDC 170
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case of M v M involved a claim for compensation by the applicant, who alleged that she had suffered physical and psychological injuries as a result of sexual offences committed against her by the respondent. The matter was heard in the Supreme Court of Victoria. The applicant sought compensation for the physical injuries she suffered as well as for the psychological harm caused by the sexual offences. The respondent contested the claim, arguing that the applicant's injuries were not a direct result of the offences or that they were not severe enough to warrant compensation. The court was required to determine whether the applicant's injuries were indeed caused by the sexual offences and, if so, the appropriate amount of compensation to be awarded.

The court considered evidence from medical professionals, psychologists, and the parties themselves. It examined the nature and extent of the applicant's physical and psychological injuries, as well as the causal link between those injuries and the sexual offences. The court also assessed the severity of the injuries and the impact they had on the applicant's life. In its judgment, the court found that the applicant had indeed suffered physical and psychological injuries as a result of the sexual offences. It concluded that the respondent was liable for the applicant's injuries and that the appropriate amount of compensation was $31,500.00.

The court ordered the respondent to pay the applicant the sum of $31,500.00 by way of compensation. The judgment highlighted the importance of providing victims of sexual offences with appropriate compensation for the harm they have suffered, both physically and psychologically. The decision also reinforced the legal principle that perpetrators of such offences are liable for the consequences of their actions. The outcome of the case emphasised the need for the legal system to protect and support victims of sexual offences, ensuring they receive the necessary support and compensation for their injuries.

Orders

Orders of the court

I order that the respondent pay the applicant the sum of $31,500.00 by way of compensation.

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:	M v M [2010] QDC 170
PARTIES:	M (Applicant) v M (Respondent)
FILE NO/S:	214 of 2009
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 April 2010
DELIVERED AT:	Cairns
HEARING DATE:	12 March 2010
JUDGE:	Everson DCJ
ORDER:	I order that the respondent pay the applicant the sum of $31,500.00 by way of compensation.
CATCHWORDS:	Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11]
COUNSEL:
SOLICITORS:	Wettenhall Silva for the applicant