LM (By His Litigation Guardian) v Hurinui
[2008] QDC 86
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- LM (By His Litigation Guardian) v Hurinui[2008] QDC 86
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LM (By His Litigation Guardian) v Hurinui[2008] QDC 86
LM (By His Litigation Guardian) v Hurinui[2008] QDC 86
DISTRICT COURT OF QUEENSLAND
CITATION: | LM (by his litigation guardian) & Anor v Hurinui [2008] QDC 86 |
PARTIES: | JMM (First applicant) LM (By his litigation guardian JMM) (Second applicant) v JAMES PIRIPONO HURINUI (Respondent) |
FILE NO/S: | BD 133 of 2008 |
DIVISION: | Civil |
PROCEEDING: | Application for Criminal Compensation |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 12 March 2008 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | Application heard on the papers |
JUDGE: | Rafter SC DCJ |
ORDER: | Application dismissed |
CATCHWORDS: | APPLICATION – CRIMINAL COMPENSATION – whether mere bystander at armed robbery is a person against whom a personal offence was committed – whether personal violence of armed robbery committed against second applicant Criminal Offence Victims Act 1995 Austin v Hoa Duy Pham (Unreported, Qld SC No 42 of 2002. 21 June 2002) - cited Brennan v Smith; Grech v Smith [2005] QSC 276 - considered Nan-Kivell v Hoa Duy Pham (Unreported, Qld SC No 43 of 2002, 21 June 2002) - cited R v Callaghan and Fleming ex parte Power [1986] 1 QdR 457 – cited Summers v. Dougherty & Anor [2000] QSC 365 - considered Pettingill v Minister for Justice & Attorney General [2003] QSC 385 - considered RZ(by his litigation guardian) v PAE [2007] QCA 166 - cited |
COUNSEL: | No appearance by or for the applicants No appearance by or for the respondent |
SOLICITORS: | Chris Wlodarczyk & Co for the applicants |
- [1]HIS HONOUR: The second applicant is a child born on 4 November 1995. On 19 August 2005 he witnessed his mother being robbed by the respondent in the car park at the Redbank Plaza Shopping Centre. The respondent was armed with a screwdriver.
- [2]On 26 April 2007, in the District Court at Hervey Bay, the respondent pleaded guilty to armed robbery and other offences. He was sentenced to three years' imprisonment with a parole release date after he had served 15 months, namely, on 25 July 2008.
- [3]The circumstances of the offence and the impact of it upon the second applicant are set out in my reasons delivered on 12 February 2008. The first applicant, who is the mother of the second applicant, was awarded $18,750 by way of compensation in respect of the offence.
- [4]As mentioned in my reasons delivered on 12 February 2008 (see JMM & Anor v Hurinui [2008] QDC 85), both applicants requested that the matters be determined without an oral hearing. In written submissions filed 22 January 2008, the solicitors for the second applicant said:
"18. A person not personally involved in an act of violence can be compensated for any psychological injuries suffered as a result of watching the commission of the act of violence. (Austin v Hoa Duy Pham [2000] QSC 365)."
- [5]The decision referred to in support of the submission was not correctly cited and I was not able to locate it.
- [6]The application by the second applicant was adjourned to enable further written submissions to be filed on the issue of whether he is a person against whom the personal offence of armed robbery was committed.
- [7]As it appeared that the second applicant may seek an ex gratia payment, I suggested that the material should be served on the Minister. For reasons that are not entirely clear, the solicitors for the second applicant claim that they encountered difficulties in doing so. However, on the view I have formed of the matter, that step was ultimately not necessary.
- [8]The solicitors for the second applicant have filed further written submissions and provided copies of the decisions of Jones J in the Supreme Court at Cairns on 21 June 2002 in Austin v Hoa Duy Pham number 42 of 2002 and Nan-Kivell v Hoa Duy Pham number 43 of 2002.
- [9]At paragraph 8 of the supplementary written submissions, with reference to Austin v Hoa Duy Pham, the solicitors state:
"Although not physically involved in the assault, Austin was afraid that he would be harmed and had 'suffered psychological trauma as a result of watching the attack in which there was a potential for him to be directly involved in'."
- [10]That submission does not accurately reflect the facts of the case. In Austin v Nan-Kivell, the respondent was convicted of assault occasioning bodily harm whilst in company.
- [11]In both cases, Jones J said at paragraph 2:
"The applicant, though no physically injured was involved in resisting that assault and now seeks compensation for a psychological injury pursuant to section 24 of the Criminal Offence Victims Act 1995."
- [12]The precise nature of that resistance is not entirely clear.
- [13]However, in Austin, Jones J said, at paragraph 5:
"The applicant was at the time of the incident employed by the business of Inala Central Pawnbrokers operated by Mr Curr. Whilst the applicant was engaged in attending to a customer of the business, a group of young Asian men entered the store and commenced to assault Mr Curr. As the scuffle moved outside the shop into a passageway the applicant followed in order to assist Mr Curr. The applicant himself did not sustain any physical injury but at the time of the incident was fearful that he would be harmed and seriously harmed. He suffered psychological trauma from witnessing the attack in which there was potential for him to be personally involved."
And in Nan-Kivell, Jones J said:
"4. The applicant assisted in the conduct of this business and was present in the shop when the attack on her husband occurred.
5. Once the attack started she rang for police assistance. While she was doing this, she witnessed the attack on her husband through the plate glass window. She was fearful that she, too, would be a victim of the assault."
- [14]The decisions referred to in my reasons delivered on 12 February 2008, Summers v Dougherty and Anor [2000] QSC 365 and Brennan v Smith; Grech v Smith [2005] QSC 276, illustrate that compensation may be awarded to a person who is not named in the indictment as the victim.
- [15]However, those decisions do not authorise an award of compensation to a person who is a mere bystander. In Summers v Dougherty, violence was specifically offered to each of the applicants in the course of the robbery. They were ordered into a shed at gunpoint. One of the assailants threatened to blow their heads off if anyone moved.
- [16]In Brennan v Smith; Grech v Smith, the applicants were customers at a TAB when a robbery was committed. They were not mere bystanders. They were commanded to get down on the floor. One applicant was threatened generally and the other applicant was threatened with a firearm.
- [17]White J referred to the decision of Connolly J in R v Callaghan and Fleming ex parte Power [1986] 1 QdR 457 in which section 663B(1) Criminal Code, was considered.
- [18]That case involved a bank teller who was threatened with a pistol but he was not named as the victim in the indictment. White J said, in relation to that decision at paragraph 30:
"Connolly J concluded that the legislation, being remedial, should be given a benign construction, but nonetheless concluded that an applicant for compensation must be the person or one of the persons to whose person violence was offered. It would not be sufficient, he added, for a bystander to whose person no violence was even offered, to say that he suffered a nervous disorder as a result of having witnessed the offence."
- [19]The same approach is reflected in the reasons of Mullins J in Pettingill v Minister for Justice & Attorney General [2003] QSC 385, a case in which the applicant saw a person crouching under a boat trailer at her residence at Mackay.
- [20]She told her de facto partner, who shone a torch at the intruder and told him to come out. The de facto partner told the applicant to get inside the house quickly. The applicant and her de facto partner ran towards the house. As the applicant got to the landing at the top of the stairs she heard a loud bang. She turned and saw her de facto partner about three or four steps from the top.
- [21]He had been shot. He collapsed on the stairs. He died before an ambulance arrived. The applicant applied for a review of the decision of the Governor in Council refusing an application for an ex gratia payment of criminal injury compensation pursuant to section 33 Criminal Offence Victims Act 1995.
- [22]The application was made outside the three year limitation period and was, accordingly, refused. The application for review was dismissed on that basis. However, Mullins J held that a personal offence was not committed against the applicant.
- [23]The remedial nature of the Criminal Offence Victims Act 1995 means that it should not be construed narrowly: RZ(by his litigation guardian) v PAE [2007] QCA 166 at paragraph 47. However, that approach does not justify adopting an interpretation that is inconsistent with the authorities that I have referred to.
- [24]I have sympathy for the second applicant. He has been traumatised by seeing his mother robbed in a shopping centre car park. However, I have formed the view that on the evidence, the second applicant was a mere bystander (see paragraphs 6 to 10 of his affidavit filed 22 January 2008, referred to at pages 10 to 11 of my reasons delivered 12 February 2008).
- [25]A personal offence has not been committed against him. Accordingly, the application for compensation by the second applicant must be dismissed.