Whyte v Robinson - [2000] QCA 99

[WHYTE v ROBINSON]
[2000] QCA 99

COURT OF APPEAL

McPHERSON JA
THOMAS JA
ATKINSON J

Appeal No 7292 of 1999

CORINA LEE WHYTE Appellant (Applicant)

and

NIGEL PATRICK ROBINSON Respondent (Respondent)

BRISBANE

..DATE 28/03/2000

JUDGMENT

ATKINSON J: The appellant made application to the District Court for criminal compensation pursuant to part 3 of the Criminal Offence Victims Act 1995. The appellant had been a victim of a rape for which the respondent was convicted on 26 November 1997.

The appellant was raped at knife point while she was walking home from some shops during the daytime. The respondent pleaded guilty to the offences of rape and deprivation of liberty on 24 November 1997 and the allocutus was administered on 26 November 1997. Sentence was adjourned for a pre-sentence report and the respondent was sentenced in the District Court in Gympie on 17 February 1998.

His appeal on sentence is reported in R v. Robinson ex parte Attorney-General [1999] 1 QdR 670. Between the conviction on 26 November 1997 and the sentence, the Criminal Offence Victims Amendment Regulation (No 1) 1997 ("the Amendment Regulation") was passed on 19 December 1997.

That amendment cured what must be seen to have been an anomaly in the earlier legislation which did not allow a Judge deciding the matter of criminal compensation to take into account what is called, in the Amendment Regulation, the adverse impact on the victim of a sexual offence.

The adverse impact includes matters which might be regarded as pain and suffering such as a sense of violation or increased fear or increased feelings of insecurity,
physical injuries such as disease or loss of reduced physical amenity, and psychiatric sequelae such as post traumatic stress disorder. It is obvious, of course, that such effects are likely to follow sexual assault.

The learned Judge who decided the matter of criminal compensation made his award under the Criminal Offence Victims Act 1995 as in force before the Amendment Regulation and made an award of $12,000. It is not argued that that would not be the appropriate award if that were the appropriate legislation to apply.

The appellant argues that the Amendment Regulation does apply to this particular application. The learned trial Judge made an alternative assessment of $40,000, as his Honour said, "for the purpose of avoiding a rehearing in the event that a different view of the legislation should be taken elsewhere". That is of great assistance to this Court.

Subsequent to his Honour's decision this Court had occasion to consider the appropriate legislation in the matter of Chong v. Chong Appeal No 11658 of 1998, 13 August 1999. That case dealt with what was the appropriate date for the assessment of damages of criminal compensation. That matter has been considered by both the Supreme Court and the District Court in a number of cases which have led to a number of different results.

Some Judges have taken the view that the date for the assessment of compensation is the date of…

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 Whyte v Robinson

Details

AGLC: Whyte v Robinson [2000] QCA 99
Case: [2000] QCA 99
Decision Date: 28/03/2000

CaseChat Overview and Summary

The case of Whyte v Robinson was an appeal regarding the amount of compensation awarded to the appellant, who was a victim of a rape committed by the respondent. The appeal was heard in the Queensland Court of Appeal, with the judgment delivered by Atkinson J, and concurred in by McPherson JA and Thomas JA. The central issue before the Court was whether the compensation awarded by the District Court should be calculated based on the version of the Criminal Offence Victims Act 1995 that was in force at the time of the offence, the conviction, or the application for compensation. The appellant argued that the amended legislation, which was in force at the time of the application for compensation, should apply and result in a higher compensation amount.

The Court considered the legislative history and the rationale behind the amendments to the Act. The amendments, which came into effect after the offence but before the application for compensation, allowed for consideration of the adverse impact on the victim of a sexual offence. The Court held that the appropriate date for the assessment of compensation was the date of the application for compensation, in line with the decision in Chong v Chong. Given this, the Court found that the amended legislation should apply and the compensation amount should be recalculated accordingly.

In allowing the appeal, the Court varied the compensation award from $12,000 to $40,000, in line with the amended legislation. Additionally, the Court ordered the respondent to pay the appellant's costs of the appeal. The decision highlights the importance of applying the correct version of the legislation at the relevant time and the need for clarity in statutory interpretation to ensure just outcomes for victims of crime.

Orders