VAH v KGH - [2007] QDC 338

DISTRICT COURT OF QUEENSLAND

CITATION:

VAH & Anor v KGH [2007] QDC 338

PARTIES:

VAH

(BY HER LITIGATION GUARDIAN DAH)

(Applicant)

v

KGH

(Respondent)

FILE NO/S:

BD3175/07

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 December 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2007

JUDGE:

Tutt DCJ

ORDER:

The respondent KGH pay the sum of $18,750.00 to the applicant VAH for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 15 November 2006.

CATCHWORDS:

Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulation to the Act.

Criminal Offence Victims Act 1995 ss 20, 24, 25 and 31.

Criminal Offence Victims Regulation 1995 s 1A.

Ferguson v Kazakoff (2000) QSC 156.

MR v Webb [2001] QCA 113.

ReJI v AV [2001] QCA 510.

SOLICITORS:

Ms F Muirhead for the applicant.

No appearance for the respondent.

Introduction:

The applicant VAH by her litigation guardian claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the applicant sustained arising out of the criminal conduct of the respondent KGH who was convicted by this court on 15 November 2006 of two offences of unlawfully and indecently dealing with a child under 16 years then under 12 years. The respondent is currently serving a period of imprisonment and although he was served with the application and supporting affidavits, he made no appearance at the hearing and the application proceeded in his absence.

The application is made on the basis of a “mental or nervous shock disorder” together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 on the basis that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the regulation arising out of the sexual offences.

The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

(a) The affidavit with exhibits of the litigation guardian DAH sworn 18 October 2007 and filed in this court on 5 November 2007.

(b) The affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 23 October 2007 and filed in this court on 5 November 2007.

(c) The affidavit with exhibit of Dr Judith Isobel Maureen Chittenden, consultant psychiatrist, sworn 25 October 2007 and filed in this court on 5 November 2007.

(d) The affidavit of service of Wayne Colin Heydt sworn 19 November 2007 and filed by leave on 21 November 2007.

Facts:

The circumstances of the respondent’s criminal conduct are summarised in Exhibits “A” to “D” inclusive to the affidavit of the said Lorraine Penshorn and confirm that the respondent pleaded guilty in this court on 15 November 2006 to two offences of unlawfully and indecently dealing with a child under 16 years then under 12…

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 VAH v KGH

Details

AGLC: VAH v KGH [2007] QDC 338
Case: [2007] QDC 338
Decision Date: 19 December 2007

CaseChat Overview and Summary

The applicant, VAH, filed a compensation claim against the respondent, KGH, under the Criminal Injuries Compensation Act 2006 (Qld). The applicant claimed compensation for injuries resulting from sexual offences committed against her when she was a child, for which the respondent was convicted by the District Court at Beenleigh on 15 November 2006. The claim was assessed by the Criminal Injuries Compensation Tribunal, which determined that the applicant was entitled to compensation of $18,750.00 for the injuries she suffered and the adverse impacts caused by the respondent's actions.

The legal issues before the court included the assessment of the "adverse impacts" on the applicant under the Regulation to the Act, and whether the Tribunal's decision was legally sound. The applicant argued that the Tribunal had incorrectly assessed the adverse impacts and that she was entitled to a higher amount of compensation. The respondent, on the other hand, contended that the Tribunal's assessment was appropriate and that the amount of compensation awarded was fair.

In determining the matter, the court noted that the "adverse impacts" under the Regulation to the Act referred to the impacts of the criminal injury on the applicant's life, including physical, psychological, and emotional impacts. The court held that the Tribunal had correctly assessed the adverse impacts and had not erred in law in determining the amount of compensation to be awarded. The court found that the Tribunal had considered all relevant factors in assessing the adverse impacts and had exercised its discretion appropriately. The court also noted that the amount of compensation awarded was within the range of compensation that could be awarded under the Act.

The court dismissed the applicant's appeal and upheld the Tribunal's decision. The respondent was ordered to pay the sum of $18,750.00 to the applicant for the injuries suffered by her, including the adverse impacts caused by the respondent's actions. The court held that the Tribunal had exercised its discretion in a legally sound manner and that the amount of compensation awarded was fair and reasonable.

Orders

Orders of the court

The respondent KGH pay the sum of $18,750.00 to the applicant VAH for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 15 November 2006.

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:	VAH & Anor v KGH [2007] QDC 338
PARTIES:	VAH (BY HER LITIGATION GUARDIAN DAH) (Applicant) v KGH (Respondent)
FILE NO/S:	BD3175/07
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19 December 2007
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2007
JUDGE:	Tutt DCJ
ORDER:	The respondent KGH pay the sum of $18,750.00 to the applicant VAH for injuries suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 15 November 2006.
CATCHWORDS:	Criminal compensation application – sexual offences against the complainant child – mental or nervous shock assessment – “adverse impacts” under the Regulation to the Act. Criminal Offence Victims Act 1995 ss 20, 24, 25 and 31. Criminal Offence Victims Regulation 1995 s 1A. Ferguson v Kazakoff (2000) QSC 156. MR v Webb [2001] QCA 113. ReJI v AV [2001] QCA 510.
SOLICITORS:	Ms F Muirhead for the applicant. No appearance for the respondent.