M v M - [2006] QDC 259

[2006] QDC 259

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 856 of 2006

M	Applicant
and
M	Respondent

BRISBANE

..DATE 24/04/2006

ORDER

CATCHWORDS: Criminal Offence Victims Act 1995 s 25(7) - offender charged with and convicted of unlawful carnal knowledge - complainant and psychiatrist assessing her treated offence as rape - impact of this and of applicant/ complainant's other problems in life considered - applicant held not to have contributed to her "injury" and other adverse impact

HIS HONOUR: This is an unusual application for compensation under the Criminal Offence Victims Act 1995.

The respondent is still in custody, surprisingly, expecting to serve fully a sentence of two and a-half years imposed by Judge Hoath on the 11th of December 2003. He was declared entitled to credit for pre-sentence custody between the 4th of December 2003 and that date. He was convicted by a jury after having given evidence himself of unlawful carnal knowledge of the then fifteen and a-half year old complainant on the 23rd of December 2002 while the girl was in his care.

The circumstances, as outlined by the Sentencing Judge, were that Mr M had invited his daughter to come over to his unit for a Christmas drink. She came unexpectedly with the complainant, a school friend whom Mr M had met only once before. Mr M's daughter seemed intent on being supplied with alcohol. Of course, as things happened, unsurprisingly, the complainant was offered a beer too and the two of them continued to drink.

As the Judge said,

"The complainant had five or six beers and became quite adversely affected. She commenced to flirt with you and you responded to that flirting. Later that night when the complainant and your daughter were too adversely affected by the alcohol to go home, you suggested that they stay at your residence. Your daughter went to bed in the spare room. You went to sleep in the lounge room and the complainant in the double bed in your bedroom.

Shortly after the complainant got into bed, you came into the bedroom, got into bed with her and had sexual intercourse.
Whilst that sexual intercourse was not without the complainant's consent, that consent came as a result of her intoxicated condition."

Mr M has taken the line today that the conviction is wrong. He says he has attempted to appeal against it but without getting anywhere, which I take to mean that no appeal has come before the Court of Appeal. He has repeatedly suggested to the Court today that there was no alcohol on the 23rd of December 2002, no sexual activity between himself and the complainant/applicant; indeed, that no visit by the girls to his premises occurred on the 23rd of December 2002 at all.

He says, and may be right, that there was no medical evidence of sexual activity happening, that there was no physical evidence of alcohol at the premises. If there was to be such evidence, it would presumably have to have…

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 [2006] QDC 259
Case: [2006] QDC 259
Decision Date: 24/04/2006

CaseChat Overview and Summary

In the case of M v M, the applicant sought compensation under the Criminal Offence Victims Act 1995 for an offence committed by the respondent. The respondent, who had been convicted of unlawful carnal knowledge of the fifteen-and-a-half-year-old applicant, was still in custody serving a sentence of two and a half years. The applicant argued that the offence had a significant psychological impact on her, which was exacerbated by other problems in her life, including a dependency on alcohol and drugs. The applicant considered the incident to be rape, a view accepted by her psychiatrist, who diagnosed her with a moderate to severe psychiatric condition attributable to the incident.

The court had to decide whether the applicant's compensation claim should be assessed based on the offence of unlawful carnal knowledge or the applicant's perception of it as rape. The court noted that the conviction had to be accepted as valid for the purposes of the compensation application, despite the lack of physical evidence of alcohol at the premises or of sexual activity. The court also had to consider the impact of the applicant's other life problems on her claim and whether the respondent's behaviour contributed to the applicant's "injury."

The court decided that the applicant's psychiatric condition was attributable to the incident and that the appropriate compensation award would be 20 per cent of the scheme maximum. The court also considered the range of other difficulties asserted by the applicant and decided to award something in addition to the 20 per cent indicated by reference to the Regulation and other adverse impacts. The court emphasised the need to avoid double compensation and noted that the respondent's age and the applicant's disadvantage made it inappropriate to discount the compensation award. The court ordered the respondent to pay compensation of $16,500 to the applicant.

Orders