NM v EHVD - [2011] QDC 307

DISTRICT COURT OF QUEENSLAND

CITATION:

NM v EHVD [2011] QDC 307

PARTIES:

NM (Litigation Guardian) on behalf of AJS
(Applicant)

v

EHVD
(Respondent)

FILE NO:

No 3001 of 2009

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court

DELIVERED ON:

15 December 2011

DELIVERED AT:

Brisbane

HEARING DATE:

7 October 2011

JUDGE:

Farr SC, DJC

ORDER:

The respondent EHVD pay the applicant AJS the sum of $7,500.

CATCHWORDS:

CRIMINAL LAW – GENERAL MATTERS – COMPENSATION – where the applicant seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for mental and nervous shock and adverse impacts suffered as a result of an offence of indecent treatment of a child under 12 years and under care committed on the applicant

Criminal Offence Victims Act 1995 (Qld), s 24, s 40(1)
Criminal Offence Victims Amendment Regulation (No. 1) 1997 (Qld)
Victims of Crime Assistance Act 2009 (Qld), s 167

Uniform Civil Procedure Rules 1999 (Qld), r 389

Ferguson v Kazakoff [2001] 2 Qd R 320; [2000] QSC 156, considered
JI v AV [2002] 2 Qd R 367; [2001] QCA 510, considered
R v Horne; ex parte Hill (unreported), Supreme Court of Queensland No. 8829 of 1999, considered

SAY v AZ; Ex parte Attorney General (Qld) [2007] 2 Qd R 363; [2006] QCA 462, considered

COUNSEL:
F Muirhead solicitor for the applicant.

No appearance by or for the respondent.

SOLICITORS:

Legal Aid Queensland for the applicant.

No appearance by or for the respondent.

Introduction

The applicant, by his litigation guardian NM, seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for emotional injuries and adverse impacts suffered as a result of an offence committed on him between 1 August 2002 and 1 August 2003.

On 13 July 2004 the respondent pleaded guilty to one count of indecent treatment of a child under 12 years and under his care and was sentenced by his Honour Judge White in the District Court at Cairns. He was sentenced to imprisonment for a period of two and a half years.

The application for compensation and supporting documentation was served upon the respondent on 3 September 2011.

Legislation

The Criminal Offence Victims Act 1995 (Qld) was repealed by the Victims of Crime Assistance Act 2009 (Qld) which commenced on 1 December 2009. Division 6 of the Victims of Crime Assistance Act 2009 (Qld) deals with repealed and transitional provisions.

In circumstances where the application has been filed in the court before the commencement of that Act, s 167 of that Act applies.

This application was filed on 20 October 2009.

Section 167 of the Victims of Crime Assistance Act 2009 (Qld) provides that if a person has applied to a court for an order requiring the payment of compensation under s 24 of the repealed Act and the application has not been finally decided before the commencement of the new Act, the court must hear or continue to hear and decide the application…

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 NM v EHVD

Details

AGLC: NM v Ehvd [2011] QDC 307
Case: [2011] QDC 307
Decision Date: 15 December 2011

CaseChat Overview and Summary

In the case of NM v EHVD, the applicant, NM, sought compensation under section 24 of the Criminal Offence Victims Act 1995 (Qld) for the mental and nervous shock and adverse impacts suffered as a result of an offence of indecent treatment of a child under 12 years and under care committed on the applicant by the respondent, EHVD. The application was heard in the Magistrates Court of Queensland.

The primary legal issue before the court was whether the applicant was entitled to compensation for the harm suffered as a result of the offence committed by the respondent. In determining this, the court had to consider the provisions of section 24 of the Act and whether the applicant's injuries met the criteria for compensation.

The court found that the applicant had suffered significant mental and nervous shock and adverse impacts as a direct result of the offence committed by the respondent. The court held that the applicant was entitled to compensation under section 24 of the Act. In assessing the quantum of compensation, the court took into account the severity and duration of the applicant's injuries, as well as the impact on their life. The court ordered the respondent to pay the applicant a sum of $7,500.

Orders

Orders of the court

The respondent EHVD pay the applicant AJS the sum of $7,500.

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:	NM v EHVD [2011] QDC 307
PARTIES:	NM (Litigation Guardian) on behalf of AJS (Applicant) v EHVD (Respondent)
FILE NO:	No 3001 of 2009
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court
DELIVERED ON:	15 December 2011
DELIVERED AT:	Brisbane
HEARING DATE:	7 October 2011
JUDGE:	Farr SC, DJC
ORDER:	The respondent EHVD pay the applicant AJS the sum of $7,500.
CATCHWORDS:	CRIMINAL LAW – GENERAL MATTERS – COMPENSATION – where the applicant seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for mental and nervous shock and adverse impacts suffered as a result of an offence of indecent treatment of a child under 12 years and under care committed on the applicant Criminal Offence Victims Act 1995 (Qld), s 24, s 40(1) Criminal Offence Victims Amendment Regulation (No. 1) 1997 (Qld) Victims of Crime Assistance Act 2009 (Qld), s 167 Uniform Civil Procedure Rules 1999 (Qld), r 389 Ferguson v Kazakoff [2001] 2 Qd R 320; [2000] QSC 156, considered JI v AV [2002] 2 Qd R 367; [2001] QCA 510, considered R v Horne; ex parte Hill (unreported), Supreme Court of Queensland No. 8829 of 1999, considered SAY v AZ; Ex parte Attorney General (Qld) [2007] 2 Qd R 363; [2006] QCA 462, considered
COUNSEL:	F Muirhead solicitor for the applicant. No appearance by or for the respondent.
SOLICITORS:	Legal Aid Queensland for the applicant. No appearance by or for the respondent.