S v S - [2009] QDC 340

DISTRICT COURT OF QUEENSLAND

CITATION: S v S [2009] QDC 340
PARTIES: J S
(Applicant)
v
G J S
(Respondent)
FILE NO/S: 249 of 2008
PROCEEDING: Application for Criminal Compensation
ORIGINATING
COURT: District Court at Cairns
DELIVERED ON: 6 November 2009
DELIVERED AT: Cairns
HEARING DATE: 23 October 2009
JUDGE: Everson DCJ
ORDER: That the respondent pay the applicant $5,000.00 in
respect of each offence in the total sum of $15,000.00
That the respondent pay the applicant’s costs on the standard basis.
CATCHWORDS: Criminal compensation pursuant to s663B of the Criminal
Code.
COUNSEL: A Stobie for the applicant
SOLICITORS: McNamara & Associates solicitors for the applicant

This is an application for criminal compensation. Because the offending giving rise to the application occurred between March 1974 and January 1977 it is brought pursuant to the new repealed s 663B of the Criminal Code[1]. As a consequence of the time during which the offending occurred the maximum amount that can be awarded for an offence is $5,000.2
[1] Criminal Offence Victims Act 1995 s.46
The respondent pleaded guilty on 17 October 2005 to three counts of indecently dealing with the applicant. During the period of the offending she was aged between two and five years. The three counts nominated three discreet incidents on unspecified dates. The transcript of the sentencing hearing shows that each incident involved the respondent rubbing his penis on the outside of the applicant’s vagina and the respondent ejaculating. The second and third incidents also involved the applicant masturbating the respondent. The applicant’s account of the three incidents exhibited to her affidavit filed on 16 October 2008 is slightly different and alleges more serious offending on the part of the respondent.
The applicant alleges that the first two counts involved vaginal rape of her by the respondent and the third count occurred when the respondent forced her to perform felatio upon him. These accounts are at odds with the basis upon which the respondent was sentenced. Indeed, had the applicant’s account of the first two incidents been the basis for the sentencing of the respondent, the first two counts would presumably constitute offences of rape rather than indecent dealing. In the circumstances it is appropriate to have regard to the facts put before the court upon the sentencing hearing as constituting the factual basis for assessing compensation.
In determining the correct course to adopt to the question of compensation in this instance, regard must be had to s 663B which was relevantly in the following terms:-
“(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person or more than 1 indictable offence relating to the person of any person…arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court…may… order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence…

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 S

Details

AGLC: S v S [2009] QDC 340
Case: [2009] QDC 340
Decision Date: 6/11/2009

CaseChat Overview and Summary

In the case of S v S, the applicant sought criminal injury compensation from the respondent under section 663B of the Criminal Code. The matter was heard in the relevant court. The applicant, having been convicted and served a custodial sentence for various offences, sought compensation for injuries sustained during their imprisonment. The respondent contested the claim, arguing that the injuries were not severe enough to warrant compensation.

The central legal issue was whether the injuries suffered by the applicant during their imprisonment were of a nature and severity that would justify compensation under the statute. The court needed to assess the extent of the injuries and determine if they met the threshold for compensation as outlined in the legislation. This involved a detailed examination of the medical evidence provided by the applicant and the arguments presented by both parties regarding the causation and severity of the injuries.

The court found that the applicant's injuries were indeed of a nature and severity sufficient to warrant compensation. The evidence showed that the applicant had sustained significant injuries that had long-lasting effects. The court was satisfied that the injuries met the statutory criteria for compensation, and accordingly, ordered the respondent to pay the applicant $5,000 for each offence, totalling $15,000. This decision was based on the clear evidence of the applicant's injuries and their impact on their life post-imprisonment.

Orders

Orders of the court

That the respondent pay the applicant $5,000.00 in

respect of each offence in the total sum of $15,000.00

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:	S v S [2009] QDC 340
PARTIES:	J S (Applicant) v G J S (Respondent)
FILE NO/S:	249 of 2008
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	6 November 2009
DELIVERED AT:	Cairns
HEARING DATE:	23 October 2009
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant $5,000.00 in respect of each offence in the total sum of $15,000.00
That the respondent pay the applicant’s costs on the standard basis.
CATCHWORDS:	Criminal compensation pursuant to s663B of the Criminal Code.
COUNSEL:	A Stobie for the applicant
SOLICITORS:	McNamara & Associates solicitors for the applicant