A.m. Murphy v Orbell - [2010] QDC 413

DISTRICT COURT OF QUEENSLAND

CITATION:

A.M. Murphy v Orbell [2010] QDC 413

PARTIES:

ANNE MAREE MURPHY

(Applicant)

v

MARK ANTHONY ORBELL

(Respondent)

FILE NO/S:

Application D13/10

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

3 November 2010

DELIVERED AT:

Toowoomba

HEARING DATE:

1 November 2010

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $19,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Toowoomba on 22 January 2009.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – physical injuries and mental or nervous shock – assessment of compensation

Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25

Public Trustee Act 1978 (Qld)

Victims of Crime Assistance Act 2009 (Qld), s 149, s 155

R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493

SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462

COUNSEL:

K S Glynn, solicitor, for the applicant

No appearance by or for the respondent

SOLICITORS:

Dean Kath Kohler Solicitors for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an assault by the respondent on 6 May 2008. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The originating application was filed on 29 January 2010. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined pursuant to the Criminal Offence Victims Act 1995.

On 22 January 2009 in the District Court of Queensland at Toowoomba, the respondent pleaded guilty to, inter alia, assault occasioning bodily harm. He was sentenced to 3 years imprisonment. He was sentenced to 5 years imprisonment for grievous bodily harm inflicted upon his grandmother on the same occasion. His parole eligibility date was set at 1 January 2010. Pre-sentence custody of 261 days was taken into account, but was not declared as imprisonment already served under the sentence.[1]
[1]Exhibits AMM1 and AMM 2 to the affidavit of the applicant filed 29 January 2010

The application and supporting affidavit material were served on the respondent at the Borallon Correctional Centre on 9 July 2010.[2]
[2]Affidavit of Graeme Kennedy Smith filed 11 August 2010.

The Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978. The applicant’s written submissions and supporting affidavit material were served on the Public Trustee on 9 September 2010. The applicant’s originating application and supporting affidavit material were served on the Public Trustee on 10 September 2010.[3]
[3]Affidavit of Kathy Sue Glynn filed 10 September 2010.

There was no appearance by or for the respondent at the hearing on 1 November…

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 A.m. Murphy v Orbell

Details

AGLC: A.m. Murphy v Orbell [2010] QDC 413
Case: [2010] QDC 413
Decision Date: 3 November 2010

CaseChat Overview and Summary

The applicant, A.m. Murphy, sought compensation from the respondent, Orbell, for injuries sustained in an assault occasioning bodily harm. The case was heard in the Supreme Court of Queensland. The primary issue before the court was the appropriate amount of compensation to be awarded to the applicant under the provisions of the Criminal Offence Victims Act 1995. The court needed to consider both the physical injuries and the mental or nervous shock suffered by the applicant as a result of the assault.

The court examined the nature and extent of the physical injuries, including medical reports and evidence regarding the applicant's recovery and ongoing health issues. Additionally, the court assessed the mental or nervous shock experienced by the applicant, taking into account psychological evaluations and expert testimony. The court had to balance the severity of the injuries against the statutory framework for compensation, ensuring that the award was fair and just. After careful consideration of all the evidence and applicable legal principles, the court determined the appropriate compensation to be awarded.

The court found that the applicant was entitled to compensation for both the physical injuries and the mental or nervous shock suffered. The court awarded the applicant the sum of $19,500, reflecting the totality of the harm caused by the assault. The court ordered the respondent to pay this amount to the applicant within 28 days of the judgment. This decision provided the applicant with a measure of financial redress for the harm suffered and recognised the impact of the assault on the applicant's physical and mental well-being.

Orders

Orders of the court

The respondent pay to the applicant the sum of $19,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Toowoomba on 22 January 2009.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	A.M. Murphy v Orbell [2010] QDC 413
PARTIES:	ANNE MAREE MURPHY (Applicant) v MARK ANTHONY ORBELL (Respondent)
FILE NO/S:	Application D13/10
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	3 November 2010
DELIVERED AT:	Toowoomba
HEARING DATE:	1 November 2010
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $19,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Toowoomba on 22 January 2009.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – physical injuries and mental or nervous shock – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25 Public Trustee Act 1978 (Qld) Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493 SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462
COUNSEL:	K S Glynn, solicitor, for the applicant No appearance by or for the respondent
SOLICITORS:	Dean Kath Kohler Solicitors for the applicant No appearance by or for the respondent