PAJ v AAK

[2010] QCA 78

SUPREME COURT OF QUEENSLAND

CITATION:

PAJ v AAK [2010] QCA 78

PARTIES:

PAJ
(plaintiff/applicant)
v
AAK
(defendant/respondent)
ATTORNEY-GENERAL OF QUEENSLAND
(intervenor)

FILE NO/S:

Appeal No 10373 of 2009
DC No 160 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s118 DCA (Civil)

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

1 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

12 March 2010

JUDGES:

McMurdo P, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

ORDERS:

1.Application to adduce further evidence refused.  

2. Application for leave to appeal refused.  

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – ADMISSION OF FRESH EVIDENCE – IN GENERAL – applicant sought leave to adduce further evidence from psychologist expanding on evidence at primary hearing – nothing to show respondent received material – further evidence was available at primary hearing – whether the interests of justice require the refusal of the application to adduce further evidence

EVIDENCE – AFFIDAVITS AND STATUTORY DECLARATIONS – AFFIDAVITS – USE OF AFFIDAVITS – WHEN MAY BE USED IN GENERAL – applicant in the originating application read an affidavit containing psychologist's report – applicant did not read or rely on this affidavit at the primary hearing – whether primary judge erred in having regard to psychologist's report

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – AMOUNT AND CONDUCT OFFENDING - applicant suffered mental or nervous shock injuries compensable under Criminal Offence Victims Act 1995 (Qld), s 20 as a result of the respondent's sexual offending – whether the primary judge failed to act on or give proper effect to the evidence – whether applicant also suffered discrete adverse impacts under reg 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) – whether primary judge erred in finding that the applicant could not establish that the adverse impacts were not a part of the applicant's s 20 injuries

Criminal Offence Victims Act 1995 (Qld) (repealed), s 20
Criminal Offence Victims Regulation 1995 (Qld) (repealed), reg 1A

AT v FG[2004] QCA 295, considered
Elford v FAI General Insurance Company Ltd [1994] 1 Qd R 258; [1992] QCA 41, cited

Muirfield Properties Pty Ltd  v Erik Kolle & Associates [1988] VR 167, considered
R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320; [2000] QSC 156, cited

COUNSEL:

T Kimmins, with Y Chekirova, for the applicant
No appearance by the respondent, the respondent's submissions were heard on the papers
M D Hinson SC for the intervenor

SOLICITORS:

Bennett & Philip Lawyers for the applicant
No appearance for the respondent
Crown Solicitor for the intervenor

1. McMURDO P: The respondent, the applicant's former stepfather, was convicted after a trial of one count of maintaining an unlawful relationship of a sexual nature with the applicant, with the circumstances of aggravation that the applicant was under 12 years and that in the course of that relationship the respondent raped her; six counts of indecently dealing with…