SBT v Cay - [2010] QCA 289

SUPREME COURT OF QUEENSLAND

CITATION:

SBT v CAY & Anor [2010] QCA 289

PARTIES:

SBT
(by his litigation guardian BBW)
(applicant)
v
CAY
aka CAY
(respondent)
ATTORNEY-GENERAL OF QUEENSLAND
(intervenor)

FILE NO/S:

Appeal No 3904 of 2010
DC No 183 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Civil

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 October 2010

JUDGES:

Chief Justice and Fraser JA and Philippides J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where primary judge ordered the respondent pay the Public Trustee of Queensland, on trust for the applicant who was then ten years of age, the sum of $2,250 as compensation in relation to two counts of indecent dealing involving the applicant when the applicant was five and six years old – where the respondent had pleaded guilty to those offences and to sexual offences committed upon the applicant’s older brother including maintaining an unlawful sexual relationship over a period of eight months, nine instances of indecent dealing and one instance of oral rape – where primary judge awarded the applicant’s older brother $28,500 in compensation – where applicant seeks leave to appeal the primary judge’s orders – where applicant submitted that the primary judge erred in not accepting the full purport of the evidence given by the psychologist in assessing the applicant’s compensation – whether leave to appeal should be granted

Criminal Offence Victims Act 1995 (Qld) (repealed), s 24
Criminal Offence Victims Regulation 1995 (Qld) (repealed), r 1A
District Court of Queensland Act 1967 (Qld), s 118(3)
Victims of Crime Assistance Act 2009 (Qld)

Osgood v Queensland Police Service[2010] QCA 242, cited
SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462, cited

COUNSEL:

M J Campbell for the applicant
No appearance for the respondent
K A Mellifont, with N A Paul for the intervenor

SOLICITORS:

Potts Lawyers for the applicant
No appearance for the respondent
Crown Solicitor for the intervenor

CHIEF JUSTICE:

[1] A learned District Court judge ordered the respondent to pay the Public Trustee of Queensland, on trust for the applicant who was then 10 years of age, the modest sum of $2,250 as compensation under s 24 of the Criminal Offence Victims Act 1995, operative because of a transitional provision of the Victims of Crime Assistance Act 2009. It related to two counts of indecent dealing with the applicant when the applicant was five or six years old. The respondent touched the applicant’s penis and had the applicant touch the respondent’s penis, in the one incident.

[2] The respondent had pleaded guilty to those offences, and also to sexual offences committed upon the applicant’s brother B, who at the time of the offending was two years older than the applicant. The…

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 SBT v Cay

Details

AGLC: SBT v CAY [2010] QCA 289
Case: [2010] QCA 289
Decision Date: 22 October 2010

CaseChat Overview and Summary

The case of SBT v Cay involves a legal dispute over the compensation awarded to a child victim of criminal offences. The matter was heard and determined in the Queensland Court of Appeal. The primary issue before the court was whether the primary judge erred in the amount of compensation awarded to the child, who was the victim of two counts of indecent dealing when she was five and six years old. The respondent had pleaded guilty to these offences, along with other serious sexual offences against the applicant’s older brother. The primary judge had ordered the respondent to pay $2,250 to the Public Trustee of Queensland on trust for the child, and $28,500 to her older brother. The child sought leave to appeal, arguing that the primary judge had not fully considered the psychologist's evidence in determining the appropriate compensation.

The court considered whether the primary judge had made an error in assessing the compensation for the child. The applicant contended that the primary judge did not accept the full purport of the psychologist's evidence. The court examined whether the primary judge's approach to determining the compensation was correct and whether the amount awarded was appropriate in light of the severity and impact of the offences on the child. The court also considered the arguments regarding the comparability of the compensation awarded to the older brother and the child. The court needed to determine if there was a basis upon which to grant the leave to appeal and if the appeal had a reasonable chance of success.

The court found that the primary judge did not err in the assessment of the compensation for the child. The court held that the amount awarded was appropriate given the evidence before the primary judge. The court noted that the severity of the offences and their impact on the child were considered, and that the primary judge had given proper weight to the psychologist's evidence. The court also held that the compensation awarded was not disproportionately lower than that awarded to the older brother, considering the differences in the nature and extent of the harm suffered by each sibling. Consequently, the court refused the application for leave to appeal.

Orders

Orders of the court

Application for leave to appeal refused.

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:	SBT v CAY & Anor [2010] QCA 289
PARTIES:	SBT (by his litigation guardian BBW) (applicant) v CAY aka CAY (respondent) ATTORNEY-GENERAL OF QUEENSLAND (intervenor)
FILE NO/S:	Appeal No 3904 of 2010 DC No 183 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application - Civil
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	22 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 October 2010
JUDGES:	Chief Justice and Fraser JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Application for leave to appeal refused.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where primary judge ordered the respondent pay the Public Trustee of Queensland, on trust for the applicant who was then ten years of age, the sum of $2,250 as compensation in relation to two counts of indecent dealing involving the applicant when the applicant was five and six years old – where the respondent had pleaded guilty to those offences and to sexual offences committed upon the applicant’s older brother including maintaining an unlawful sexual relationship over a period of eight months, nine instances of indecent dealing and one instance of oral rape – where primary judge awarded the applicant’s older brother $28,500 in compensation – where applicant seeks leave to appeal the primary judge’s orders – where applicant submitted that the primary judge erred in not accepting the full purport of the evidence given by the psychologist in assessing the applicant’s compensation – whether leave to appeal should be granted Criminal Offence Victims Act 1995 (Qld) (repealed), s 24 Criminal Offence Victims Regulation 1995 (Qld) (repealed), r 1A District Court of Queensland Act 1967 (Qld), s 118(3) Victims of Crime Assistance Act 2009 (Qld) Osgood v Queensland Police Service[2010] QCA 242, cited SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462, cited
COUNSEL:	M J Campbell for the applicant No appearance for the respondent K A Mellifont, with N A Paul for the intervenor
SOLICITORS:	Potts Lawyers for the applicant No appearance for the respondent Crown Solicitor for the intervenor