Balekian v Mitchell - [2008] QDC 122

DISTRICT COURT OF QUEENSLAND

CITATION:

Balekian v Mitchell [2008] QDC 122

PARTIES:

JOSEPH BALEKIAN

Applicant

V

MELISSA MARIE MITCHELL

Respondent

FILE NO/S:

BD646/08

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

6 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 May 2008

JUDGE:

Tutt DCJ

ORDER:

1. The respondent Melissa Marie Mitchell pays to the applicant the sum of $5,250.00 for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 4 October 2006.

CATCHWORDS:

CRIMINAL COMPENSATION – assault occasioning bodily harm – where applicant was twice punched in the face – where applicant sustained physical injuries namely lacerations and bruising to the face – where applicant suffered “mental or nervous shock” – whether the index assault “materially contributed” to the applicant’s “post-traumatic stress disorder” – where other significant contributing factors to applicant’s “post-traumatic stress disorder”.

Criminal Code Act 1899 (Qld)

Criminal Offence Victims Act 1995 ss 24, 31

Ferguson v Kazakoff [2000] QSC 156

LMW v Nicholls (2004) QDC 118

SAY v AZ: ex parte AG (Qld) [2006] QCA 462

Stannard v Lane [2000] QSC 86; SC No 2263 of 2000, 18

April 2000

SOLICITORS:

Mr S Seth of Seth Solicitors for the applicant

No appearance by or on behalf of the respondent

Introduction:

The applicant, Joseph Balekian, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injuries he sustained arising out of the criminal conduct of the respondent, Melissa Marie Mitchell, who was convicted by this court at Beenleigh on 4 October 2006 for the offence of unlawful assault causing bodily harm to the applicant on 23 January 2005 at Kingston in the State of Queensland.

In accordance with the order for substituted service made by this court on 18 April 2008 the applicant’s solicitors served the respondent by way of causing an advertisement in the Public Notices section of The Courier Mail newspaper on 5, 6 and 7 May 2008. Despite that publication, there was no appearance by or on behalf of the respondent at the hearing of the application on 26 May 2008 and the hearing proceeded in the respondent’s absence.

The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

(a) the affidavit with exhibits of the applicant, sworn 14 March 2008 and filed in this court on 19 March 2008;

(b) the affidavit with exhibits of Samet Seth, solicitor, sworn 13 March 2008 and filed in this court on 19 March 2008;

(c) the affidavit with exhibits of Barbara McGuire, psychiatrist, sworn 17 March 2008 and filed in this court on 19 March 2008.

The Facts:

The applicant alleges that on 23 January 2005 he was confronted by the applicant and two other persons a male and female, the male person being known to him. After allowing the three persons to enter his premises…

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 Balekian v Mitchell

Details

AGLC: Balekian v Mitchell [2008] QDC 122
Case: [2008] QDC 122
Decision Date: 6 June 2008

CaseChat Overview and Summary

The case of Balekian v Mitchell involved an application for criminal injury compensation. The applicant, seeking compensation for injuries sustained during an assault, argued that the incident materially contributed to the development of post-traumatic stress disorder (PTSD). The respondent, Melissa Marie Mitchell, had been convicted of the assault occasioning bodily harm. The court was tasked with determining whether the assault materially contributed to the applicant's PTSD, considering other significant contributing factors. The court examined the nature of the assault, the injuries sustained, and the psychological impact on the applicant.

The primary legal issue before the court was whether the assault materially contributed to the applicant's PTSD, despite other significant contributing factors. The court needed to assess the causal link between the assault and the development of PTSD, weighing the relative contributions of the assault and other factors. The court also had to consider the statutory criteria for criminal injury compensation and the extent to which the assault contributed to the applicant's condition.

In reaching its decision, the court found that the assault did materially contribute to the applicant's PTSD, despite the presence of other significant contributing factors. The court considered the severity and nature of the assault, the physical injuries sustained, and the psychological impact on the applicant. The court concluded that the assault was a significant contributing factor to the development of the applicant's PTSD, and therefore, the applicant was entitled to compensation. The court awarded the applicant the sum of $5,250.00 for the injuries caused by the respondent.

Orders

Orders of the court

1. The respondent Melissa Marie Mitchell pays to the applicant the sum of $5,250.00 for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 4 October 2006.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Balekian v Mitchell [2008] QDC 122
PARTIES:	JOSEPH BALEKIAN Applicant V MELISSA MARIE MITCHELL Respondent
FILE NO/S:	BD646/08
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Beenleigh
DELIVERED ON:	6 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	26 May 2008
JUDGE:	Tutt DCJ
ORDER:	1. The respondent Melissa Marie Mitchell pays to the applicant the sum of $5,250.00 for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 4 October 2006.
CATCHWORDS:	CRIMINAL COMPENSATION – assault occasioning bodily harm – where applicant was twice punched in the face – where applicant sustained physical injuries namely lacerations and bruising to the face – where applicant suffered “mental or nervous shock” – whether the index assault “materially contributed” to the applicant’s “post-traumatic stress disorder” – where other significant contributing factors to applicant’s “post-traumatic stress disorder”. Criminal Code Act 1899 (Qld) Criminal Offence Victims Act 1995 ss 24, 31 Ferguson v Kazakoff [2000] QSC 156 LMW v Nicholls (2004) QDC 118 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 Stannard v Lane [2000] QSC 86; SC No 2263 of 2000, 18 April 2000
SOLICITORS:	Mr S Seth of Seth Solicitors for the applicant No appearance by or on behalf of the respondent