SAY (applicant/appellant) v AZ (respondent/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
FILE NO/S:
Appeal No 5783 of 2006 DC No 151 of 2006
DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Townsville
DELIVERED ON:
10 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
20 September 2006
JUDGES:
Holmes JA, Jones and Mullins JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:
1. Application for leave to appeal granted 2. Appeal allowed and order below set aside 3. Respondent to pay compensation of $42,750 to the applicant, together with her costs of the appeal
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where appellant sought criminal compensation from respondent, her step-father, after he was convicted of one count of rape against her – where psychologist found that she suffered from post-traumatic stress disorder – where there was abuse prior to rape – where compensation reduced because learned judge found that other abuse was not taken into account in psychologist’s report – where there is more than one cause of injury – contribution of acts not subject of conviction to injury – relevance of common law approach – nature of acts and injury relevant to determination of criminal compensation
A J Kimmins, with R W Frigo, for the applicant No appearance for the respondent K Mellifont, for the Attorney General, as amicus curiae
SOLICITORS:
HQF Lawyers for the applicant No appearance for the respondent Crown Law for the Attorney-General
HOLMES JA:
The application for criminal compensation
The applicant seeks leave to appeal under s 118 of the District Court of Queensland Act 1967 from the judgment of a District Court judge on a criminal compensation application. The respondent to the application was her step-father, and she sought compensation in respect of his conviction of one count of rape; but, as is often the case, that offence occurred in a wider context. The applicant…
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.
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Details
AGLC
SAY v AZ [2006] QCA 462
Case
[2006] QCA 462
Decision Date
CaseChat Overview and Summary
In the case of SAY v AZ, the appellant sought compensation from her step-father, the respondent, following his conviction for raping her. The appellant claimed she suffered from post-traumatic stress disorder as a result of the rape and other prior abuse. The trial judge awarded the appellant $28,500 in criminal injury compensation, reducing the amount due to the appellant's failure to consider other abusive acts in the psychologist's report. The appellant challenged this reduction, arguing that the trial judge should have considered the entirety of her trauma.
The central issue in the case was whether the trial judge erred in reducing the compensation amount because of other abusive acts that were not the subject of the respondent's conviction. The court had to determine whether the common law approach to compensation applied in civil cases could be used in criminal compensation cases, particularly when there is more than one cause of injury. The court also had to consider the relevance of the nature of the acts and the injury in determining the amount of compensation.
The court found that the trial judge erred in reducing the compensation amount. The court held that the common law approach to contribution in tort cases was not applicable in criminal compensation cases. The court also noted that the nature of the acts and the injury were relevant to determining the amount of compensation. The court held that the trial judge should have considered the totality of the appellant's trauma, including the prior abuse, in determining the amount of compensation. The court allowed the appeal and set aside the order below, ordering the respondent to pay $42,750 in compensation to the appellant, together with her costs of the appeal.
Orders
Orders of the court
1. Application for leave to appeal granted
2. Appeal allowed and order below set aside
3. Respondent to pay compensation of $42,750 to the applicant, together with her costs of the appeal