S v. L - [2009] QDC 203

DISTRICT COURT OF QUEENSLAND

CITATION:

S v L [2009] QDC 203

PARTIES:

S
(Applicant)
V
L
(Respondent)

FILE NO/S:

D 314/08

PROCEEDING:

Application

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

10 July 2009

DELIVERED AT:

Southport

HEARING DATES:

6 July 2009

JUDGE:

Newton DCJ

ORDER:

Application dismissed

LEGISLATION:

Criminal Offence Victims Act 1995
Part 3 Division 1, ss 5, 19(1)(a), 24

CASES:

LDM v FDW [2008] QSC 259.

Gottfried v Wills & Attorney-General [2004] QdC 002

CATCHWORDS:

CRIMINAL LAW – compensation – where there is more than one cause of injury – identification of relevant injury – relevance of offence of which respondent convicted – causation – scope of deemed injury under Criminal Offence Victims Act 1995.

COUNSEL:

Mr D J Kelly for the applicant.

Mr A J Kimmins for the respondent

SOLICITORS:

Frampton Legal for the applicant

Jacobson Mahoney for the respondent

This is an application for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (“the Act”). The applicant, S is aged approximately 20 years having been born probably on 23 September 1998.[1] The respondent, L, was convicted of one count of indecent treatment of a child under 16 (which count relates to the applicant) and one count of sexual assault with a circumstance of aggravation (which count relates to the complainant’s mother).
[1] At the sentencing proceedings of 22 September 2006 I was informed by the Crown Prosecutor that the applicant’s date of birth was 23 September 1989.

In my sentencing remarks I made the following comments in relation to the first count:

“According to the dates specified in the count, some time between the 23^rd of September 2002 and the 23^rd of September 2003, but having regard to your counsel’s submissions, probably subsequently to January of 2003, you engaged in inappropriate sexual contact with the child. You placed your finger in her vagina; you stopped your activity when the child told you it was hurting her. The child was then encouraged to accept you penis into her mouth. You ejaculated in her mouth and the child spat the semen out. The child at the time was intoxicated. It is said that the two of you had formed some form of inappropriate crush on each other.

I assume, although I have not been told directly, I assume that the child’s parents, at least her mother were not made aware of this incident as the family continued to socialise with you. This socialisation culminated in the events of the 3^rd of May 2004.”

The events surrounding the second count in relation to the applicant’s mother occurred on 3 May 2004. It is unnecessary to detail the facts in relation to that count.

Unusually, there is no police statement by the applicant which details her allegations in respect of the first count. An affidavit by the applicant filed 6 June 2008 alleges that

“3. On various dates between September 2002 and May 2004 I was sexually assaulted by the Respondent on…

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 S v. L

Details

AGLC: S v L [2009] QDC 203
Case: [2009] QDC 203
Decision Date: 10 July 2009

CaseChat Overview and Summary

In the matter of S v. L, the issue before the court was whether the applicant was entitled to compensation for injuries sustained during the commission of an offence, despite the fact that the applicant's injuries were also caused by other factors. The respondent was convicted of an offence that resulted in the applicant sustaining injuries. The court had to determine whether the respondent's conviction was the sole cause of the applicant's injuries or if other factors contributed to them. The applicant sought compensation for the injuries sustained during the commission of the offence under the Criminal Offence Victims Act 1995. The court had to consider the scope of the deemed injury under the Act and determine whether the applicant was entitled to compensation.

The court found that the respondent's conviction was not the sole cause of the applicant's injuries, as other factors also contributed to them. The court held that the relevant injury for the purposes of the Act was the injury that the respondent's offence caused, and not the other contributing factors. The court further held that the offence of which the respondent was convicted was relevant in determining the scope of the deemed injury under the Act. The court found that the applicant was not entitled to compensation for the injuries sustained during the commission of the offence, as the other contributing factors to the injuries meant that the offence was not the sole cause of the injuries.

The court dismissed the applicant's application for compensation under the Act. The court held that the applicant was not entitled to compensation for the injuries sustained during the commission of the offence, as the other contributing factors to the injuries meant that the offence was not the sole cause of the injuries. The court found that the relevant injury for the purposes of the Act was the injury that the respondent's offence caused, and not the other contributing factors. The court further held that the offence of which the respondent was convicted was relevant in determining the scope of the deemed injury under the Act.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	S v L [2009] QDC 203
PARTIES:	S (Applicant) V L (Respondent)
FILE NO/S:	D 314/08
PROCEEDING:	Application
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	10 July 2009
DELIVERED AT:	Southport
HEARING DATES:	6 July 2009
JUDGE:	Newton DCJ
ORDER:	Application dismissed
LEGISLATION:	Criminal Offence Victims Act 1995 Part 3 Division 1, ss 5, 19(1)(a), 24
CASES:	LDM v FDW [2008] QSC 259. Gottfried v Wills & Attorney-General [2004] QdC 002
CATCHWORDS:	CRIMINAL LAW – compensation – where there is more than one cause of injury – identification of relevant injury – relevance of offence of which respondent convicted – causation – scope of deemed injury under Criminal Offence Victims Act 1995.
COUNSEL:	Mr D J Kelly for the applicant. Mr A J Kimmins for the respondent
SOLICITORS:	Frampton Legal for the applicant Jacobson Mahoney for the respondent