Alsop v Graham
[2002] QDC 175
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- Alsop v Graham[2002] QDC 175
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Alsop v Graham[2002] QDC 175
Alsop v Graham[2002] QDC 175
DISTRICT COURT | No D701 of 2002 |
CIVIL JURISDICTION
JUDGE SAMIOS
BETTY MAY ALSOP
Applicant
and
RUSSELL JOSEPH GRAHAM
Respondent
BRISBANE
DATE 21/03/2002
JUDGMENT
HIS HONOUR: This is a proposed originating application without oral hearing, Number D701 of 2002.
The applicant seeks an order that the respondent pay the applicant such sum by way of compensation as may be determined by this Court under section 663B of the Criminal Code for injuries sustained by the applicant as a result of offences which led to the conviction of the respondent under the Criminal Code of Queensland on 5 September 1988.
I have reservations that this type of application can be dealt with by way of an originating application without oral hearing. Having read the material those reservations have been vindicated. That is because the application is based upon the convictions of this respondent for offences of a sexual nature committed against the applicant.
The relevant dates of the offences are between 1 January 1988 and 15 April 1988. Medical evidence in support of the application is to the effect that the applicant shows evidence that she is suffering from a chronic post-traumatic stress disorder.
As a child and young adolescent she has experienced sexual abuse which was associated with feelings of fear, helplessness and pain. The medical evidence is that the applicant will probably continue to experience symptoms in the long term.
However, there is also evidence before me that would tend to suggest that the applicant has suffered from several issues in relation to past sexual abuse for which she required support and counselling. However, the evidence tends to suggest this related to previous sexual abuse perpetrated not only by the respondent to this application but by another person.
The evidence before me states “Both offenders were convicted of the crimes and served gaol sentences.” Consequently, on the evidence before me, there is no dissection nor consideration given to what impact, if any, the offending of the other person had upon the applicant in the context of this application.
It is impossible to proceed to assess the compensation without that issue being addressed. Before the applicant considers that it is unfortunate that there has been a revelation in the evidence placed before me of the possible impact by the conduct of another person, I quote from the decision in Marsten v. Kello [2000] QCA 410 in which Mr Justice Chesterman at paragraph 43 said:
“It should be understood that solicitors or counsel who represent claimants for criminal compensation where the application is unopposed have a duty to the Court to bring to its attention all matters of fact or law relevant to the outcome, including those adverse to an applicant. An absence of opposition to the claim and the fact that compensation will ordinarily be paid from public money does not provide any justification for a departure from proper standards of professional conduct.”
My purpose for referring to the remarks of Mr Justice Chesterman in Marsten v. Kello is to note the importance of all matters of fact relevant to the outcome including those adverse to the applicant being put before the Court.
Of course, if it had not been for that very small amount of evidence I have mentioned above I would have been none the wiser. Saying that is not to encourage anyone to mislead the Court as to all the facts. It is to show how easily the Court may be misled and how important it is that all facts be put before the Court.
While it is unfortunate for the applicant, who may be deserving of having her compensation assessed, I am bound not to proceed further unless and until the aspects of the application I have mentioned above are addressed. Consequently, I consider this is not an appropriate application to be dealt with without an oral hearing. During an oral hearing these are matters that could have been addressed and perhaps rectified in a shorter space of time than might now be the case.
The consequence is that I adjourn the application to myself to a date to be fixed. I direct the Registrar to forward to the solicitors for the applicant these reasons.