W v W - [2003] QDC 435

DISTRICT COURT OF QUEENSLAND

CITATION:

W v W [2003] QDC 435

PARTIES:

W Applicant

v

W Respondent

FILE NO/S:

414 of 2002

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

27^th November 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

3^rd November 2003

JUDGE:

K.S Dodds DCJ

ORDER:

With respect to each offence the respondent is ordered to pay to the applicant the sum of $5 000 by way of compensation for injuries done to her by reason of the offences of aggravated unlawful indecent dealing of which he was convicted on the 4^th May 2000.

I order the respondent pay the applicant’s costs of the application

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – where respondent convicted of 3 counts of indecent dealing with a circumstance of aggravation – where compensation assessed under s663B(1) Criminal Code for counts 1 & 2 – where count 3 parameter dates charged encompassed both before and after 1984 s663A amendments - wh convicted offences sole cause of applicant’s injuries

COUNSEL:

Ross Felminghan for the Applicant
Peter Murphy for the Respondent

SOLICITORS:

Legal Aid officer for the Applicant
North Coast Law Solicitors for the Respondent

This is an application for criminal compensation. The respondent is the applicant’s grandfather. On the 4^th of May 2000 the respondent was convicted of three offences of unlawfully and indecently dealing with the applicant, each offence with a circumstance of aggravation. Count one charged the offence between 1^st March 1983 and 31^st May 1984, count two charged the offence between the same dates. Count three charged the offence between 1 January 1984 and 31^st December 1985.

The respondent was born on the 29^th December 1930.

The applicant was born on the 26^th November 1977. She is 25 years of ago now. She made a complaint of these offences in December 2002.

The activity which made up the offences comprised rubbing the applicant on the external genitalia both outside and inside her pants.

According to the applicant’s evidence at the trial, the offences were committed when visiting her grandparents. The first occasion anything occurred was represented by count one, which she said occurred when she was five or six. She turned five on the 26^th November 1982 and six on the 26^th November 1983. It was about the Easter holidays, she and her siblings were staying with the respondent and his then wife (her grandmother). It was the children’s practice to go into their grandparent’s bedroom and wake them up by getting into bed with them. On the occasion of count 1, the respondent asked the applicant to help him make cocoa for everybody and they went into the kitchen. There he reached his hand around her and began to rub her external genitalia both outside and inside the panties she was wearing. It continued for sometime until someone called out enquiring about the cocoa. They then returned to the bedroom where they got into bed with the others. The respondent…

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 W v W

Details

AGLC: W v W [2003] QDC 435
Case: [2003] QDC 435
Decision Date: 27th November 2003

CaseChat Overview and Summary

In the matter of W v W, the court was tasked with determining the amount of compensation to be paid by the respondent, who was convicted of three counts of indecent dealing with a circumstance of aggravation, to the applicant. The dispute centred around the calculation of the compensation to be awarded under section 663B(1) of the Criminal Code for counts one and two, and whether the respondent should be liable for the same amount for count three. Count three presented a unique issue as its parameter dates spanned both before and after the amendments to section 663A of the Criminal Code in 1984.

The court was required to consider whether the injuries sustained by the applicant were solely caused by the respondent's offences and whether the compensation for count three should be calculated under the old or new provisions. The applicant argued that the respondent's offences were the sole cause of her injuries, and therefore, the compensation should reflect this. The respondent, on the other hand, contended that the compensation for count three should be assessed under the amended provisions as it encompassed dates both before and after the legislative changes.

The court determined that the respondent's offences were indeed the sole cause of the applicant's injuries. It was further established that the respondent was liable for the same amount of compensation for count three, regardless of the legislative changes. Consequently, the court ordered the respondent to pay the applicant the sum of $5,000 by way of compensation for injuries done to her by reason of the offences of aggravated unlawful indecent dealing. The respondent was also ordered to pay the applicant's costs of the application.

Orders

Orders of the court

With respect to each offence the respondent is ordered to pay to the applicant the sum of $5 000 by way of compensation for injuries done to her by reason of the offences of aggravated unlawful indecent dealing of which he was convicted on the 4th May 2000.

I order the respondent pay the applicant’s costs of the application

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:	W v W [2003] QDC 435
PARTIES:	W Applicant v W Respondent
FILE NO/S:	414 of 2002
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVERED ON:	27^th November 2003
DELIVERED AT:	Maroochydore
HEARING DATE:	3^rd November 2003
JUDGE:	K.S Dodds DCJ
ORDER:	With respect to each offence the respondent is ordered to pay to the applicant the sum of $5 000 by way of compensation for injuries done to her by reason of the offences of aggravated unlawful indecent dealing of which he was convicted on the 4^th May 2000. I order the respondent pay the applicant’s costs of the application
CATCHWORDS:	CRIMINAL LAW – COMPENSATION – where respondent convicted of 3 counts of indecent dealing with a circumstance of aggravation – where compensation assessed under s663B(1) Criminal Code for counts 1 & 2 – where count 3 parameter dates charged encompassed both before and after 1984 s663A amendments - wh convicted offences sole cause of applicant’s injuries
COUNSEL:	Ross Felminghan for the Applicant Peter Murphy for the Respondent
SOLICITORS:	Legal Aid officer for the Applicant North Coast Law Solicitors for the Respondent