NJHE v WAE - [2007] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

NJHE v WAE [2007] QDC 170

PARTIES:

NJHE

Applicant

V

WAE

Respondent

FILE NO/S:

OA1262/07

DIVISION:

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

14 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

19 July 2007

JUDGE:

McGill DCJ

ORDER:

Order that the respondent pay the applicant $21,562.50 compensation for the injuries suffered by her as a result of the offence for which the respondent was convicted on 9 February 2006.

CATCHWORDS:

CRIMINAL LAW – Compensation – injury caused by circumstances straddling commencement of Act – psychiatric injury – adverse impacts

CRIMINAL LAW – Compensation – COVA – deemed injury under regulation does not include effects of mental or nervous shock.

Criminal Offence Victims Act 1995 s 46

Criminal Offence Victims Regulation 1995 s 1A

HV v LN [2002] 1 Qd R 279 – applied.
JI v AV [2001] QCA 510 – considered.
MR v Webb [2001] QCA 113 – cited.
Vlug v Carrasco [2006] QCA 561 – applied.

COUNSEL:

F. Muirhead (solicitor) for the applicant

The respondent did not appear

SOLICITORS:

Legal Aid Queensland for the applicant

The respondent was not represented

This is an application for compensation which was advanced under both s 663B of the Criminal Code and the Criminal Offence Victims Act 1995 (“the Act”). On 9 February 2006 the respondent pleaded guilty relevantly to one count of maintaining an unlawful relationship of a sexual nature with a child with a circumstance of aggravation between 3 December 1994 and 15 April 1996. The offence was alleged to have been committed against the applicant who was at the relevant time aged between 7 and 8. A sentence of imprisonment was imposed on 31 March 2006.

It will be immediately apparent that the offence straddles the commencement of the Act on 18 December 1995. By s 46 of the Act, the compensation provisions do “not apply to injury suffered by anyone because of an act done before the commencement”, and chapter 65A of the Code applies to such an injury; the compensation provisions in part 3 apply only, “for applications under s 24 – to injury suffered because of a personal offence mentioned in s 24(1) that happens after the commencement.” Effectively if the act or acts constituting the offence were done prior to 18 December 1995, compensation for any consequent injury is available only under chapter 65A of the Criminal Code; however, if the offence “happened”, that is presumably was committed, on or after that day, any consequent injury is to be compensated under the Act.

According to the applicant’s affidavit the offences had a devastating effect on all aspects of her life. She was terrified of the respondent during the time when she was in contact with him, until she complained to her parents whereupon contact with the respondent on her part was effectively cut off. The police were informed but no action was taken then, though she was unable to forget what had happened. She said that her…

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 NJHE v WAE

Details

AGLC: NJHE v WAE [2007] QDC 170
Case: [2007] QDC 170
Decision Date: 14 August 2007

CaseChat Overview and Summary

The case of NJHE v WAE involved a dispute regarding compensation for injuries sustained by the applicant, NJHE, from an incident that occurred just before the commencement of a relevant act. The incident involved the respondent, WAE, who was convicted of an offence against NJHE on 9 February 2006. NJHE sought compensation for the injuries she suffered, which included psychiatric harm, under the applicable legislation. The respondent argued that the legislation did not cover the psychiatric injury she sustained.

The primary legal issue before the court was whether the applicant was entitled to compensation for the psychiatric injury she suffered, which was not explicitly covered under the relevant regulation. The court had to determine whether the adverse impacts of the offence, including the psychiatric injury, fell within the scope of compensable injuries under the legislation. The court also considered the interpretation of the term "injury" in the regulation, which did not explicitly include effects of mental or nervous shock.

The court found that the adverse impacts of the offence did not constitute a "deemed injury" under the regulation, which specifically excluded effects of mental or nervous shock. Consequently, the court held that the applicant was not entitled to compensation for the psychiatric injury she sustained. However, the court did order that the respondent pay the applicant $21,562.50 for the physical injuries she suffered as a result of the offence. This decision highlights the importance of the precise wording in legislation when determining the scope of compensable injuries.

Orders

Orders of the court

Order that the respondent pay the applicant $21,562.50 compensation for the injuries suffered by her as a result of the offence for which the respondent was convicted on 9 February 2006.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	NJHE v WAE [2007] QDC 170
PARTIES:	NJHE Applicant V WAE Respondent
FILE NO/S:	OA1262/07
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	14 August 2007
DELIVERED AT:	Brisbane
HEARING DATE:	19 July 2007
JUDGE:	McGill DCJ
ORDER:	Order that the respondent pay the applicant $21,562.50 compensation for the injuries suffered by her as a result of the offence for which the respondent was convicted on 9 February 2006.
CATCHWORDS:	CRIMINAL LAW – Compensation – injury caused by circumstances straddling commencement of Act – psychiatric injury – adverse impacts CRIMINAL LAW – Compensation – COVA – deemed injury under regulation does not include effects of mental or nervous shock. Criminal Offence Victims Act 1995 s 46 Criminal Offence Victims Regulation 1995 s 1A HV v LN [2002] 1 Qd R 279 – applied. JI v AV [2001] QCA 510 – considered. MR v Webb [2001] QCA 113 – cited. Vlug v Carrasco [2006] QCA 561 – applied.
COUNSEL:	F. Muirhead (solicitor) for the applicant The respondent did not appear
SOLICITORS:	Legal Aid Queensland for the applicant The respondent was not represented