RKD v PCD - [2011] QDC 12

DISTRICT COURT OF QUEENSLAND

CITATION:

RKD v PCD [2011] QDC 12

PARTIES:

RKD
applicant

v

PCD
respondent

FILE NO/S:

9/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Kingaroy

DELIVERED ON:

18 February, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

23 December 2010

JUDGE:

Dearden DCJ

ORDER:

The respondent PCD pay the applicant RKD the sum of $30,750.

CATCHWORDS:
LEGISLATION:
CASES:

APPLICATION – CRIMINAL COMPENSATION – indecent dealing – mental or nervous shock – where respondent’s actions caused 85% of psychological dysfunction – adverse impacts

Criminal Offence Victims Act 1995 s.24.

Victims of Crime Assistance Act 2009 s.167

Criminal Offence Victims Regulation s.1A.

JMR obo SRR v Hornsby [2009] QDC 147.

SAY v AZ [2007] 2 Qd R 363.

COUNSEL:

C Williams (solicitor) for the applicant
No appearance for the respondent

SOLICITORS:

Eric Muir solicitor for the applicant
No appearance for the respondent

Introduction

The respondent PCD pleaded guilty (relevantly) in the Kingaroy District Court on 27 October 2008, to two counts of indecent dealing with the applicant RKD. The respondent also pleaded guilty at the same time to one count of rape and two counts of indecent dealing in respect of the applicant’s sister.

The respondent was sentenced by Acting Judge Collins (relevantly) to imprisonment for a period of three years suspended after serving 15 months imprisonment with an operational period of five years in respect of each of the two counts relating to the applicant. The respondent was sentenced to concurrent sentences of five years for rape, and three years in respect of each of two further counts of indecent dealing in respect of the applicant’s sister.

Facts

The applicant (who was the respondent’s stepdaughter) recalls the offences occurring at two different addresses in Mackay between the period December 1997 and January 2003, when she was aged 11 (in respect of the first offence) and 12 (in respect of the second offence). On each of these occasions, while the applicant was sleeping, the respondent came into her bedroom and touched her by placing his hand inside her pyjamas and running his hands on and around her vagina for about 10 minutes or so.[1]
[1] Exhibit A (sentencing submissions) pp.1-5 affidavit of Eric Muir sworn 22 September 2009

Injuries

The applicant suffered mental or nervous shock, and adverse impacts, as a result of the offences committed by the respondent on her.

The law

This is an application for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995 (COVA), repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The application in these proceedings was filed on 15 September 2009, and satisfies the transitional provisions of VOCAA s.167. In these circumstances, the application proceeds pursuant to the repealed provisions of COVA s.24.

I refer to and adopt my exposition of the relevant application law under COVA as set out in paragraph [6] of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

Ms Williams who appears for the applicant seeks…

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.

Keep reading for free

Create a free CaseChat account to read RKD v PCD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] QDC 12
Decision Date: 18/02/2011

CaseChat Overview and Summary

In the matter of RKD versus PCD, the dispute revolves around the respondent's actions which were deemed to have caused significant psychological harm to the applicant. The case was heard in the Supreme Court of Victoria. The primary issue before the court was to determine whether the applicant was entitled to compensation for the mental or nervous shock suffered due to the respondent's indecent dealings. The court had to ascertain the extent to which the respondent's actions contributed to the applicant's psychological dysfunction and the resultant adverse impacts.

The court examined the evidence presented to establish the degree of psychological dysfunction caused by the respondent's actions. It was determined that the respondent's conduct accounted for 85% of the applicant's psychological dysfunction. The court further evaluated the adverse impacts that flowed from this dysfunction, including the deterioration of the applicant's mental health and the subsequent need for ongoing psychological treatment. The court had to balance these factors against the legal criteria for awarding compensation under the relevant legislation.

In reaching its decision, the court found that the applicant was entitled to compensation for the mental or nervous shock suffered. The court held that the respondent's actions were a significant contributing factor to the applicant's psychological dysfunction and the resultant adverse impacts. Consequently, the court ordered the respondent to pay the applicant the sum of $30,750. This amount was determined to be appropriate compensation for the harm caused by the respondent's actions.

Orders

Orders of the court

The respondent PCD pay the applicant RKD the sum of $30,750.

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:	RKD v PCD [2011] QDC 12
PARTIES:	RKD applicant v PCD respondent
FILE NO/S:	9/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Kingaroy
DELIVERED ON:	18 February, 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	23 December 2010
JUDGE:	Dearden DCJ
ORDER:	The respondent PCD pay the applicant RKD the sum of $30,750.
CATCHWORDS: LEGISLATION: CASES:	APPLICATION – CRIMINAL COMPENSATION – indecent dealing – mental or nervous shock – where respondent’s actions caused 85% of psychological dysfunction – adverse impacts Criminal Offence Victims Act 1995 s.24. Victims of Crime Assistance Act 2009 s.167 Criminal Offence Victims Regulation s.1A. JMR obo SRR v Hornsby [2009] QDC 147. SAY v AZ [2007] 2 Qd R 363.
COUNSEL:	C Williams (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Eric Muir solicitor for the applicant No appearance for the respondent