P v B - [2004] QDC 149

DISTRICT COURT OF QUEENSLAND

CITATION:

P v B [2004] QDC 149

PARTIES:

P (Applicant)

AND

B (Respondent)

FILE NO/S:

D5/2002

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT: Gympie

DELIVERED ON:

13 May 2004

DELIVERED AT:

Maroochydore

HEARING DATE:

4 May 2004

JUDGE:

Judge J.M. Robertson

ORDER:

I order the respondent to pay to the applicant the sum of $39,000.00 by way of compensation. I order the respondent to pay the applicant’s costs of the application to be agreed, or assessed on the standard basis.

CATCHWORDS:

CRIMINAL COMPENSATION – injuries occurring prior to the 1984 amendments but conviction occurring afterwards; what is the applicable prescribed amount; when does the “right” to compensation arise; effect of s20 (2) (c) and (e) of the Acts Interpretation Act 1954; where there has been a divergence of judicial opinion as to the retrospective application of the 1984 amendments

Legislation
S20 (1) (c) and (e) Acts Interpretation Act 1954
Chapter 65A Criminal Code (repealed)
Criminal Code and Justices Act Amendment Act 1975

Cases
Baxter v Bowman (D.6024/2001, unreported judgment of District Court dated 6 June 2002
Becker v Euler (unreported judgment of District Court dated 6 February 2004, No D3293 of 2003)
Enoka v Thompson (unreported judgment of Supreme Court, 20 December 1999)
Garcia v National Australia Bank Limited (1998) HCA 48
HW v LO (2000) QCA 377
HV v LN (2000) QCA 472
Johns v Brown (D5533/2001, unreported judgment of District Court dated 22.2.2002
Jones v Jones (unreported judgment of District Court dated 10 October 2003)
M v W (2003) QDC 153
MAJ v KM (2000) QCA 410
Osborne v Bennett (unreported judgment of District Court No 4606 of 1999)
R v Anell; ex parte Anderson (1998) 2 Qd R 174
R v Bartorelli and Hutton (1994) 15 Qld Lawyer Reps 57
R v Boughton; ex parte Holt (District Court of Queensland, unreported judgment delivered 13.8.93)
R v Bridge and Madams; ex parte Larkin (1989) 1 Qd R 554
R v Chong; ex parte Chong (2001) 2 Qd R 301
R v Hird; ex parte Reilly (No. 3454 of 2002, unreported judgment of District Court dated 8 October 2002)
R v Jones; ex parte McClintock (1996) 1 Qd R 524
R v Wraight and Dakin; ex parte Fullerton (1980) Qd R 582
Sander v Flint (unreported judgment of District Court, D80 of 2003, 16 September 2003)

Shields v Maxwell (No 4968 of 2002, unreported judgment of District Court dated 25 February 2003)

COUNSEL:

Mr Ross Felmingham for the applicant

Mr Simon Burgess for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

Neilson Stanton & Parkinson Solicitors for the respondent

P was born on 26 July 1963. When she was a young child and over a period of years commencing in 1971, she was sexually abused by the respondent B who was her stepfather. All of the offences were committed at Montville. On 31 March 200 before His Honour Judge Noud the respondent pleaded guilty to fifteen counts of indecent treatment of a…

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 P v B

Details

AGLC: P v B [2004] QDC 149
Case: [2004] QDC 149
Decision Date: 13 May 2004

CaseChat Overview and Summary

The case of P v B, heard in the District Court of Queensland, involved a dispute concerning the compensation available to the applicant for injuries suffered prior to the 1984 amendments to the relevant legislation, with the conviction for the offence occurring after the amendments. The applicant sought compensation under the provisions of the Criminal Injuries Compensation Act 1983 (Qld), arguing that the prescribed amount for compensation should reflect the value prior to the 1984 amendments, which introduced limits on multiple claims. The court was tasked with determining the applicable prescribed amount for compensation and the point at which the right to compensation arose, in light of the legislative changes and the divergence of judicial opinion regarding the retrospective application of the 1984 amendments.

The legal issues before the court included the interpretation of sections 20(2)(c) and 20(2)(e) of the Acts Interpretation Act 1954 (Qld) in relation to the retrospective application of the 1984 amendments to the Criminal Injuries Compensation Act 1983. The court had to consider whether the amendments, which introduced limits on multiple claims, could apply to claims for injuries occurring before their enactment. The case also required the court to examine the reasoning of various judges in earlier cases, such as Boughton v Holt, Chong v Chong, and others, to determine the correct approach to the retrospective application of legislative changes in the context of criminal compensation.

The court, after reviewing the applicable legal principles and the relevant case law, concluded that the 1984 amendments did not apply retrospectively. The reasoning was based on the principle that a cause of action for compensation did not exist until the conviction, and therefore, the applicant's right to compensation accrued at the time of injury. The court found that the amendments did not affect the applicant's right to compensation for the injuries suffered prior to the legislative changes. The court also noted the consistency in the approach taken by various judges in similar cases, who had held that the 1984 amendments did not operate retrospectively. Consequently, the court ordered the respondent to pay the applicant $39,000.00 by way of compensation, along with an order for the respondent to pay the applicant's costs of the application.

The final orders of the court were that the respondent pay the applicant the sum of $39,000.00 as compensation for the injuries suffered and that the respondent pay the applicant’s costs of the application, to be agreed upon or assessed on the standard basis.

Orders

Orders of the court

I order the respondent to pay to the applicant the sum of $39,000.00 by way of compensation. I order the respondent to pay the applicant’s costs of the application to be agreed, or assessed on the standard basis.

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

The Single Judge Decisions The cases to which I have been referred which favour retrospective application of the 1984 amendments are Baxter v Bowman D.6024/2001 unreported judgment of McLauchlan QC DCJ dated 6 June 2002, Johns v Brown D.5533/2001, and M v W (2003) QDC 153, both decisions of Judge Robin QC delivered respectively on 22.2.2002 and 13 June 2003. In the latter case, Robin QC DCJ followed decisions of Brabazon QC DCJ in G (3509 of 1996) and P (3510 of 1996). I have not seen copies of these decisions, but the reasoning of Helman J in Boughton v Holt was not raised before Robin QC DCJ in M v W. The decision was raised before Robin QC DCJ in Johns v Brown and His Honour took the view that the reasoning of Helman J was not available since no right to compensation existed in the absence of a conviction in respect of the offending conduct. McLauchlan QC DCJ followed that reasoning in Baxter v Bowman. With respect to both of these very eminent Judges, it is clear that Helman J proceeded on the basis that he clearly appreciated that there was no cause of action until conviction, but held that the applicant had accrued rights at the time the injury occurred. Hoath DCJ has consistently taken a view consistent with that expressed by Judges Robin and McLauchlan. An example of this view is Osborne v Bennett (unreported judgment of the District Court No 4606 of 1999) in which his Honour took that view based on Chong v Chong. The issue was considered by Boulton DCJ in R v Hird; ex parte Reilly (No 3454 of 2002 unreported judgment of the District Court, 8 October 2002). The respondent in that case was convicted on 13 June 2000 of sexual offences which occurred between 1979 and 1981. Judge Boulton was specifically referred to Boughton v Holt, and expressly followed the reasoning of Helman J in concluding that the 1984 amendments to limit multiple claims did not apply retrospectively. His Honour also considered the decisions of the Court of Appeal in HWv LO and MAJ v KM and reached the same conclusions as myself. In Shields v Maxwell (No 4968 of 2002, unreported judgment of the District Court, 25 February 2003) in a case on all fours with the case before me, her Honour Judge O’Sullivan carefully analysed all the cases to which I have referred, and followed the reasoning of Helman J in Boughton to hold that the course of conduct amendments in 1984 did not apply retrospectively. Judge Healy QC also followed the reasoning of Helman CJDC in Boughton in Becker v Euler (unreported judgment of the District Court, No D3293 of 2003, 6 February 2004). The decision of Muir J in Enoka v Thompson (unreported judgment of the Supreme Court, 20 December 1999) should be read in the light of the overruling of Lee J in R v Anell (1998) 2 Qd R 174 in Chong v Chong. Muir J, in reaching his conclusions, relied upon R v Anell. Judge Newton also followed Helman J in Sander v Flint (unreported judgment of the District Court, D80 of 2003, 16 September 2003) emphasising the unfairness to a person who suffers serious nervous shock prior to 1 July 1983 being denied the right to appropriate compensation as a result of amendments to Chapter 65A which failed to include a provision as to the date on which they were to commence. Finally, in Jones v Jones (unreported judgment of the District Court, 10 October 2003) Judge Richards also followed Boughton in holding that the 1984 amendments to limit multiple claims did not operate retrospectively.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	P v B [2004] QDC 149
PARTIES:	P (Applicant) AND B (Respondent)
FILE NO/S:	D5/2002
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Gympie
DELIVERED ON:	13 May 2004
DELIVERED AT:	Maroochydore
HEARING DATE:	4 May 2004
JUDGE:	Judge J.M. Robertson
ORDER:	I order the respondent to pay to the applicant the sum of $39,000.00 by way of compensation. I order the respondent to pay the applicant’s costs of the application to be agreed, or assessed on the standard basis.
CATCHWORDS:	CRIMINAL COMPENSATION – injuries occurring prior to the 1984 amendments but conviction occurring afterwards; what is the applicable prescribed amount; when does the “right” to compensation arise; effect of s20 (2) (c) and (e) of the Acts Interpretation Act 1954; where there has been a divergence of judicial opinion as to the retrospective application of the 1984 amendments *Legislation* S20 (1) (c) and (e) Acts Interpretation Act 1954 Chapter 65A Criminal Code (repealed) Criminal Code and Justices Act Amendment Act 1975 *Cases* Baxter v Bowman (D.6024/2001, unreported judgment of District Court dated 6 June 2002 Becker v Euler (unreported judgment of District Court dated 6 February 2004, No D3293 of 2003) Enoka v Thompson (unreported judgment of Supreme Court, 20 December 1999) Garcia v National Australia Bank Limited (1998) HCA 48 HW v LO (2000) QCA 377 HV v LN (2000) QCA 472 Johns v Brown (D5533/2001, unreported judgment of District Court dated 22.2.2002 Jones v Jones (unreported judgment of District Court dated 10 October 2003) M v W (2003) QDC 153 MAJ v KM (2000) QCA 410 Osborne v Bennett (unreported judgment of District Court No 4606 of 1999) R v Anell; ex parte Anderson (1998) 2 Qd R 174 R v Bartorelli and Hutton (1994) 15 Qld Lawyer Reps 57 R v Boughton; ex parte Holt (District Court of Queensland, unreported judgment delivered 13.8.93) R v Bridge and Madams; ex parte Larkin (1989) 1 Qd R 554 R v Chong; ex parte Chong (2001) 2 Qd R 301 R v Hird; ex parte Reilly (No. 3454 of 2002, unreported judgment of District Court dated 8 October 2002) R v Jones; ex parte McClintock (1996) 1 Qd R 524 R v Wraight and Dakin; ex parte Fullerton (1980) Qd R 582 Sander v Flint (unreported judgment of District Court, D80 of 2003, 16 September 2003) Shields v Maxwell (No 4968 of 2002, unreported judgment of District Court dated 25 February 2003)
COUNSEL:	Mr Ross Felmingham for the applicant Mr Simon Burgess for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant Neilson Stanton & Parkinson Solicitors for the respondent