MMR v GMB - [2009] QDC 30

DISTRICT COURT OF QUEENSLAND

CITATION:	MMR v GMB [2009] QDC 30
PARTIES:	MMR (Appellant) AND GMB (Respondent)
FILE NOS:	248/08
DIVISION:	District Court of Queensland, Maroochydore
PROCEEDING:	Criminal Compensation
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	27 February 2009
DELIVERED AT:	Maroochydore
HEARING DATE:	18 February 2009
JUDGE:	Judge J.M. Robertson
ORDER:	GMB to pay MMR $5000 by way of compensation under the now repealed Criminal Code Scheme
CATCHWORDS:	Compensation - where injury suffered as a result of offences committed in 1982 of which the respondent was not convicted until 2006; whether 1984 amendments to Criminal code scheme were retrospective. Legislation: Criminal Code Amendment Act 1984 (Qld) Acts Interpretation Act 1954 (Qld) Cases Considered: S v S [2001] QCA 12 B v P [2004] QDC 149 R v Boughton ex parte Holt (unreported, D.C. No. 124 of 1993; 13.08.93) MAJ v KM [2000] QCA 410 ISVB v WJG [2005] QDC 30 M v C (unreported, District Court No. 640 of 2007, per Shanahan DCJ, 29.11.07) HM v LO [2001] 2 Qd. R 415 Chong v Chong [2001] 2 Qd. R. 301
COUNSEL:	G. Rebetski for Applicant J. Crosby for Respondent
SOLICITORS:	Legal Aid Queensland for Applicant Justin Crosby Solicitors for Respondent

On 24.07.06 GMB was convicted on his own plea of guilty of 3 counts of indecently dealing with MMR, his natural daughter then a child, between the 01.10.81 and 30.10.83, and was sentenced to a term of imprisonment.
The 3 offences described by the prosecutor at the sentence hearing occurred as part of a single course of conduct on one occasion around the time of MMR’s 14^th birthday. Her date of birth is 08.10.68, so her 14^th birthday was 1982.
The prosecutor described the first offence occurring when GMB handed MMR a towel when she was naked after having a shower and he then had her masturbate him while he masturbated her. The second offence occurred when he procured her to bite his penis and then the third offence occurred when he procured her to perform oral sex on him.
As a result of the offending, and other matters, it is common ground that MMR has suffered a mental or nervous shock injury namely a severe PTSD and major depression. She has been assessed by Dr. Thomson, a clinical psychiatrist, who has provided a report dated 15.05.08. Dr. Thomson assessed MMR on 18.04.08.
Her opinion is based on the history given to her by MMR of much more extensive sexual abuse of her at the hands of her father, commencing when she was 8 and including sexual intercourse. Mr. Crosby, who appeared for GMB at the hearing, did not suggest that she did not suffer from the illness described by Dr. Thomas but he argued that the many non-compensable causes of the injury (including the extensive sexual misconduct not covered by the convictions) would result in a significant reduction of her compensation. Compensation is to be assessed by application of the applicable common law principles of…

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 MMR v GMB

Details

AGLC: MMR v GMB [2009] QDC 30
Case: [2009] QDC 30
Decision Date: 27 February 2009

CaseChat Overview and Summary

The case of MMR v GMB involved a dispute concerning compensation for injuries sustained by MMR as a result of offences committed by GMB in 1982. GMB was not convicted of these offences until 2006. The central issue before the court was whether the 1984 amendments to the Criminal Code scheme applied retrospectively. The matter was heard in the Queensland District Court.

The court had to determine if the 1984 amendments to the Criminal Code were retrospective in nature and whether they applied to offences committed in 1982 but only prosecuted and convicted in 2006. The court examined the statutory language of the Criminal Code Amendment Act 1984 and the Acts Interpretation Act 1954, alongside several precedent cases. These included S v S, B v P, and MAJ v KM, which provided guidance on the interpretation of retrospective laws and their application to compensation claims.

The court found that the 1984 amendments did not apply retrospectively, and thus GMB was not liable for compensation under the amended scheme. Instead, the court determined that the compensation claim should be assessed under the provisions of the original scheme, as it stood in 1982. Consequently, the court ordered GMB to pay MMR $5000 by way of compensation under the now repealed Criminal Code scheme.

Orders

Orders of the court

GMB to pay MMR $5000 by way of compensation under the now repealed Criminal Code Scheme

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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