SLC v KD - [2010] QDC 445

DISTRICT COURT OF QUEENSLAND

CITATION:

SLC v KD [2010] QDC 445

PARTIES:

SLC (Applicant)

V

KD (Respondent)

FILE NO/S:

BD 2818/09

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Brisbane.

DELIVERED ON:

19 November 2010

DELIVERED AT:

Brisbane

HEARING DATE:

15 July 2010 and 27 September 2010

JUDGE:

Tutt DCJ

ORDER:

The respondent KD pays the applicant SLC the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 1 March 2005.1.

The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the relevant District Court scale applicable to the amount recovered. 2.

CATCHWORDS:

CRIMINAL COMPENSATION - s 663B of the Criminal Code - indecent treatment of a child under 12 – where applicant sustained no physical injuries – “mental or nervous shock” – prescribed amount – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied.

Criminal Code (Qld) ss 663A, 663AA and 663B.

Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2).

MAJ v KM [2001] QCA 410

McClintock v Jones [1995] 79 A Crim R 238.

HW v LO [2001] 2 Qd R 415.

LMW v Nicholls [2004] QDC 118.

SAM v SAM [2001] QCA 12.

SOLICITORS:

Ms J McAuliffe of Murphy Schmidt Solicitors for the applicant.

No appearance by or on behalf of the respondent.

Introduction:

The applicant SLC claims compensation for injury sustained by her as a result of 6 criminal offences of a sexual nature committed against her by the respondent to the application KD.

The respondent was convicted by this court at Brisbane on 1 March 2005 of six counts of unlawful and indecent treatment of the applicant between 1 May 1978 and 30 November 1979, when the applicant was aged between 7 and 8 years.

This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Thomas Oldtree Clark, psychiatrist, in his report of 19 June 2009, exhibited to his affidavit filed 1 July 2010. A supplementary report of 15 August 2010 was also provided by Dr Clark exhibited to the affidavit of Jillian Christina McAuliffe, solicitor, filed 17 August 2010.

There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

Relevant legislation:

As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.[1]
[1] Section 46(2) Criminal Offences Victims Act 1995.

Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment…

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 SLC v KD

Details

AGLC: SLC v KD [2010] QDC 445
Case: [2010] QDC 445
Decision Date: 19 November 2010

CaseChat Overview and Summary

SLC commenced proceedings against KD seeking compensation under section 663B of the Criminal Code for the mental and emotional trauma she sustained as a result of KD's offences against her, namely indecent treatment of a child under 12 years of age. SLC sustained no physical injuries from the offending. The primary issue for the court was whether SLC was entitled to compensation under section 663B(1)(b) of the Criminal Code for the "mental or nervous shock" she experienced as a result of KD's offences. The court was also required to determine whether the prescribed amount of $20,000 was payable under section 663B(1)(a) of the Criminal Code.

The court found that section 663B of the Criminal Code was intended to compensate victims for injuries resulting from criminal conduct. It was accepted that the applicant had suffered mental or nervous shock, but the court found that the applicant had not suffered an injury as required by section 663B(1)(b) of the Criminal Code. The court held that the word "injury" in section 663B(1)(b) must be read in the context of the rest of the provision, and that it was intended to compensate for physical injuries. The court held that the applicant's claim for mental or nervous shock was not compensable under section 663B(1)(b) of the Criminal Code. However, the court found that the applicant was entitled to the prescribed amount of $20,000 under section 663B(1)(a) of the Criminal Code as she had suffered "one course of conduct or closely related courses of conduct" as defined in the relevant section.

The court ordered that the respondent pay the applicant the sum of $20,000.00 by way of compensation. The court further ordered that the respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the relevant District Court scale applicable to the amount recovered.

Orders

Orders of the court

The respondent KD pays the applicant SLC the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 1 March 2005.1.

The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the relevant District Court scale applicable to the amount recovered. 2.

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:	SLC v KD [2010] QDC 445
PARTIES:	SLC (Applicant) V KD (Respondent)
FILE NO/S:	BD 2818/09
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Brisbane.
DELIVERED ON:	19 November 2010
DELIVERED AT:	Brisbane
HEARING DATE:	15 July 2010 and 27 September 2010
JUDGE:	Tutt DCJ
ORDER:	The respondent KD pays the applicant SLC the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 1 March 2005.1. The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the relevant District Court scale applicable to the amount recovered. 2.
CATCHWORDS:	CRIMINAL COMPENSATION - s 663B of the Criminal Code - indecent treatment of a child under 12 – where applicant sustained no physical injuries – “mental or nervous shock” – prescribed amount – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied. Criminal Code (Qld) ss 663A, 663AA and 663B. Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2). MAJ v KM [2001] QCA 410 McClintock v Jones [1995] 79 A Crim R 238. HW v LO [2001] 2 Qd R 415. LMW v Nicholls [2004] QDC 118. SAM v SAM [2001] QCA 12.
SOLICITORS:	Ms J McAuliffe of Murphy Schmidt Solicitors for the applicant. No appearance by or on behalf of the respondent.