Z v M - [2008] QDC 186

DISTRICT COURT OF QUEENSLAND

CITATION: Z v M [2008] QDC 186

PARTIES: Z as litigation guardian for Z
(Applicant)
v
M
(Respondent)

FILE NO/S: No 138 of 2008

PROCEEDING: Application for Criminal Compensation

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 1 August 2008

DELIVERED AT: Cairns

HEARING DATE: 17 July 2008

JUDGE: Everson DCJ

ORDER:
The respondent pay to the applicant as litigation guardian for the victim the sum of $36,000 by way of compensation.

That any amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

That the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the said sum on behalf of the victim in accordance with powers and duties defined in the Public Trustee Act 1978 during the minority of the victim.

CATCHWORDS:
Criminal compensation – Mental or nervous shock – adverse impact.

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995
Public Trustee Act 1978

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310

R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS: Legal Aid Queensland solicitor for the applicant
No appearance for the respondent

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). This applicant is the litigation guardian for the victim.

The injuries giving rise to the application were suffered as a result of personal offences for which the respondent was convicted on indictment on 22 May 2006, namely five counts of indecently dealing with the victim and one count of rape.

Facts

The victim was born on 2 March 1994. At the time of the indecent dealing offences she was aged between five and six years. At the time of the rape she was aged ten years. The indecent dealing offences involved the respondent ejaculating whilst holding his penis outside of the victims vagina. The offence of rape involved vaginal sexual intercourse.

Injuries

The applicant suffered a Post Traumatic Stress Disorder (PTSD) and Depression as a consequence of the incident.

The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a…

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 Z v M

Details

AGLC: Z v M [2008] QDC 186
Case: [2008] QDC 186
Decision Date: 17 July 2008

CaseChat Overview and Summary

Z is the litigation guardian for the victim, a minor, in an action against M, who was convicted of sexually abusing the victim. The matter was heard in the District Court of Queensland. The court was asked to determine the amount of compensation to be paid to the victim for the injuries she suffered as a consequence of the abuse.

The legal issues before the court were the extent of the injuries and the amount of compensation to be awarded for the victim's suffering. The court had to consider the victim's age, the impact of the abuse on her mental health, and the likelihood of ongoing harm. It was also necessary to consider the precedent set by previous cases involving similar injuries.

The court found that the victim had suffered significant psychological harm as a result of the abuse, including depression, anxiety, and post-traumatic stress disorder. The court held that the appropriate amount of compensation to be awarded was $36,000, which would be paid to the Public Trustee of Queensland on behalf of the victim. The court further ordered that any amount paid to the victim be managed by the Public Trustee in accordance with the Public Trustee Act 1978 until the victim reaches the age of majority.

Orders

Orders of the court

The respondent pay to the applicant as litigation guardian for the victim the sum of $36,000 by way of compensation.

That any amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

That the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the said sum on behalf of the victim in accordance with powers and duties defined in the Public Trustee Act 1978 during the minority of the victim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Z v M [2008] QDC 186
PARTIES:	Z as litigation guardian for Z (Applicant) v M (Respondent)
FILE NO/S:	No 138 of 2008
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	1 August 2008
DELIVERED AT:	Cairns
HEARING DATE:	17 July 2008
JUDGE:	Everson DCJ
ORDER:	The respondent pay to the applicant as litigation guardian for the victim the sum of $36,000 by way of compensation. That any amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. That the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the said sum on behalf of the victim in accordance with powers and duties defined in the Public Trustee Act 1978 during the minority of the victim.
CATCHWORDS:	Criminal compensation – Mental or nervous shock – adverse impact. Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 Public Trustee Act 1978 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11]
COUNSEL:
SOLICITORS:	Legal Aid Queensland solicitor for the applicant No appearance for the respondent