M v W - [2003] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION: M v W [2003] QDC 153
PARTIES: M
Applicant
v
W
Respondent
FILE NO/S: 1087 of 2003
DIVISION: Applications
PROCEEDING: Originating Application
ORIGINATING
COURT: District Court, Brisbane
DELIVERED ON: 13 June 2003
DELIVERED AT: Brisbane
HEARING DATE: 6 June 2003
JUDGE: Robin QC DCJ

ORDER:

Order that the respondent pay compensation of $10,000 to the applicant, together with the costs of the application to be assessed on the standard basis. Those should not include any costs for the appearance on 11 April 2003, at which time the respondent, who could have been easily served, had not been served. Nor should they include any costs for the filing of a second copy of Mr Ryan’s report, contrary to UCPR r 435(12).

CATCHWORDS:

Criminal compensation application under s663B of the Criminal Code – no appearance by respondent – psychologist identifies persisting “nervous shock” – diagnoses the 5 specific disorders as pre-existing any abuse by the respondent – on offender’s pleading guilty in 2002 to 6 of 10 sexual offences against a child charged, the Crown did not proceed with the other 4 – issue whether offences occurred before commencement of section on 1.1.69, one being clearly too early, the other located generally between 1967 and 1970 in the indictment – issue of extent to which applicant’s situation was attributable to uncharged acts and/or offending by others – whether amendments to s663B effected by Criminal Code Amendment Act 1984 were retrospective as to increasing maximum compensation amount and as to limiting applicants to a single award for “the one course of conduct or closely related courses of conduct of the person so convicted” – costs order limited because of infringement of Uniform Civil
Procedure Rules r435(2), inter alia.
R v Miosge (2 October 1998)
Parker 4940/00, 15 February 2001
Parker 4943/00, 15 December 2001
R v Llorente, ex parte Hendry (2001) 2 Qd R 415
COUNSEL: W.J. Markwell for the applicant
SOLICITORS: Tony Bailey Solicitor for the applicant

REASONS FOR JUDGMENT

This is an application for compensation under s 663B of the Criminal Code (now repealed) for compensation for injuries suffered by the applicant in sexual offences perpetrated against her by the respondent when she was a child and a member of his household. The applicant was born on 18 December 1955. Counts 1 to 4 were located on dates unknown between the applicant’s 10th and 12th birthdays. Counts 1 and 4 four were rape, counts 2 and 3 indecent dealing. The respondent pleaded guilty to one count of indecent dealing; the other 3 counts were not proceeded with. No compensation can be awarded in respect of count 2, which occurred before the “criminal compensation” provisions first came into effect on 1 January 1969. The remaining 6 counts in the indictment were placed in the four-year period between the applicant’s 11th and 15th birthdays. Counts 5 and 8 were rape, the others indecent treatment of a girl under 16. The Crown elected not to proceed with count 10…

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 W

Details

AGLC: M v W [2003] QDC 153
Case: [2003] QDC 153
Decision Date: 13/06/2003

CaseChat Overview and Summary

In the case of M v W, the applicant, M, sought compensation under section 663B of the Criminal Code from the respondent, W, who had previously pleaded guilty to several sexual offences against a child in 2002. The respondent did not appear in court, and the application proceeded in their absence. The psychologist's report indicated that M had experienced ongoing "nervous shock" and was diagnosed with five specific disorders, which the psychologist determined were pre-existing any abuse by the respondent. The key issues before the court involved determining the date of the offences, the extent to which M's situation was attributable to the respondent's actions or other factors, and the retrospective application of legislative amendments to section 663B.

The court examined whether the offences had occurred before the commencement of the relevant section on 1 January 1969, with one offence clearly taking place before that date and another occurring sometime between 1967 and 1970. Furthermore, the court had to assess whether the amendments to section 663B, which increased the maximum compensation amount and limited applicants to a single award for "the one course of conduct or closely related courses of conduct of the person so convicted," applied retrospectively. The court held that the legislative amendments were not retrospective, and therefore, the increased compensation amount and the single award limitation did not apply to this case. The court also found that the costs order should be limited due to an infringement of the Uniform Civil Procedure Rules, specifically regarding the appearance of the respondent and the filing of a second copy of the psychologist's report.

The court ordered that the respondent pay compensation of $10,000 to the applicant, with the costs of the application to be assessed on the standard basis. The court specified that the costs should not include any costs for the appearance on 11 April 2003, where the respondent, who could have been easily served, had not been served. Additionally, the costs should not include any costs for the filing of a second copy of the psychologist's report, which was contrary to UCPR rule 435(12).

Orders

Orders of the court

Order that the respondent pay compensation of $10,000 to the applicant, together with the costs of the application to be assessed on the standard basis. Those should not include any costs for the appearance on 11 April 2003, at which time the respondent, who could have been easily served, had not been served. Nor should they include any costs for the filing of a second copy of Mr Ryan’s report, contrary to UCPR r 435(12).

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 W [2003] QDC 153
PARTIES:	M Applicant v W Respondent
FILE NO/S:	1087 of 2003
DIVISION:	Applications
PROCEEDING:	Originating Application
ORIGINATING
COURT:	District Court, Brisbane
DELIVERED ON:	13 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	6 June 2003
JUDGE:	Robin QC DCJ
ORDER:	Order that the respondent pay compensation of $10,000 to the applicant, together with the costs of the application to be assessed on the standard basis. Those should not include any costs for the appearance on 11 April 2003, at which time the respondent, who could have been easily served, had not been served. Nor should they include any costs for the filing of a second copy of Mr Ryan’s report, contrary to UCPR r 435(12).
CATCHWORDS:	Criminal compensation application under s663B of the Criminal Code – no appearance by respondent – psychologist identifies persisting “nervous shock” – diagnoses the 5 specific disorders as pre-existing any abuse by the respondent – on offender’s pleading guilty in 2002 to 6 of 10 sexual offences against a child charged, the Crown did not proceed with the other 4 – issue whether offences occurred before commencement of section on 1.1.69, one being clearly too early, the other located generally between 1967 and 1970 in the indictment – issue of extent to which applicant’s situation was attributable to uncharged acts and/or offending by others – whether amendments to s663B effected by Criminal Code Amendment Act 1984 were retrospective as to increasing maximum compensation amount and as to limiting applicants to a single award for “the one course of conduct or closely related courses of conduct of the person so convicted” – costs order limited because of infringement of Uniform Civil
Procedure Rules r435(2), inter alia.
R v Miosge (2 October 1998) Parker 4940/00, 15 February 2001 Parker 4943/00, 15 December 2001 R v Llorente, ex parte Hendry (2001) 2 Qd R 415
COUNSEL:	W.J. Markwell for the applicant
SOLICITORS:	Tony Bailey Solicitor for the applicant