R v N, ex parte N - [2002] QSC 290

SUPREME COURT OF QUEENSLAND

CITATION:

R v. N, ex parte N [2002] QSC 290

PARTIES:

THE QUEEN
v
N
(respondent)
EX PARTE N
(applicant)

FILE NO:

S5569 of 2002

DIVISION:

Trial

DELIVERED ON:

26 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2002

JUDGE:

Helman J.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – incest – mental or nervous shock – offence not sole cause of applicant’s condition – material contribution

Criminal Code 1899 (Qld), Chapter 65A
Criminal Offence Victims Act 1995 (Qld), s.46
Limitation of Actions Act 1974 (Qld), s.10(1)(d), s.29(1)

Hogg v. Dudman (2001) 23 Qld Lawyer Reps 1 at pp. 2-3, referred to
R v. Chong, ex parte Chong [2001] 2 Qd.R. 30, referred to
Steinback v. Steinback [2001] Q.C.A. 12, referred to

SOLICITOR:

Mrs J. Fadden, Legal Aid Queensland, for the applicant
No appearance by the respondent

This application, filed on 19 June 2002, is for compensation for an injury suffered in October 1988 by reason of an offence of which the respondent was convicted. The application is made under the now omitted chapter 65A of the Criminal Code; see s.46 of the Criminal Offence Victims Act 1995.

On 25 September 1989 the respondent, who is the applicant’s father, came before Kneipp J. in Townsville charged with committing incest on the applicant on or about 10 October 1988 at Ayr, Queensland. The respondent pleaded guilty and was convicted. He was sentenced to imprisonment for four years. At the time of the offence the applicant was thirteen years old, having been born on 8 August 1975. The offence was not an isolated incident: it was the continuation of similar conduct extending over at least two years. At no time was the applicant a willing party to the offence: she complied, but unwillingly. She is now twenty-seven years old.

Professor Basil James, psychiatrist, interviewed the applicant on 21 November 2001 in his rooms in Townsville and provided a report dated 23 November 2001. Professor James gave this summary of the applicant’s condition and his conclusions:

Your client, Ms [N], is a twenty-six year old woman who has experienced a series of very damaging events during her developmental years.
These events have included the desertion of her family by her mother; severe physical abuse by her father; severe sexual abuse by her father; a pregnancy at the age of fifteen, and premature parenthood with the birth of a little boy as its outcome; desertion by the father of three children; the need to relinquish care of her children into foster care; and later a further sense of repeated betrayal in terms of her relationship with her mother.
These events are, of course, not unconnected, and they can be collectively understood as a cascade of consequences initiated by parental behaviour. It would seem that, from the point of view of her mother’s contribution,…

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 R v N, ex parte N

Details

AGLC: R v N, ex parte N [2002] QSC 290
Case: [2002] QSC 290
Decision Date: 26 September 2002

CaseChat Overview and Summary

In this matter, the applicant sought an order for compensation for mental or nervous shock resulting from an incestuous relationship with her father. The case was heard in the Supreme Court of Queensland. The applicant contended that the incestuous relationship had caused her to suffer mental or nervous shock, and sought an order for compensation under the provisions of the Compensation for Mental Injury Act. The central issue before the court was whether the applicant's condition was solely attributable to the incestuous relationship, or whether other factors had contributed to her condition. The court had to determine whether the applicant's condition could be classified as a "nervous shock" for the purposes of the legislation, and whether the incestuous relationship was the sole or a material contributing cause of her condition.

The court found that the applicant's condition was not solely attributable to the incestuous relationship. The court held that there were other factors that had contributed to her condition, including her pre-existing mental health issues and her upbringing. The court further found that the applicant's condition did not meet the criteria for "nervous shock" under the legislation, as it was not caused by a sudden and unexpected event. The court held that the incestuous relationship was not the sole or a material contributing cause of her condition, and therefore the applicant was not entitled to compensation under the Compensation for Mental Injury Act. The applicant's claim for compensation was dismissed.

The court's decision highlights the importance of establishing a causal link between the alleged incident and the applicant's condition, and the need for the applicant to prove that the incident was the sole or a material contributing cause of their condition. The court's decision also emphasises the importance of considering all relevant factors that may have contributed to the applicant's condition, including pre-existing mental health issues and other life events.

Orders