Bell v Denham - [2005] QDC 259

[2005] QDC 259

DISTRICT COURT
CIVIL JURISDICTION
JUDGE BRABAZON QC

No D71 of 2004
MATTHEW STEVEN CHARLES BELL   Applicant
and
BEAU DANIEL DENHAM  First Respondent
and
SHEA MARTIN DENHAM  Second Respondent

MARYBOROUGH
… DATE 25/08/2005

ORDER

CATCHWORDS: CRIMINAL LAW – COMPENSATION – Application for compensation under Criminal Offence Victims Act 1995 – Where section 19 only applies where the applicant has suffered injuries caused by a “personal offence” – Where Respondents were found guilty on indictment for “affray’ – Whether an “affray” amounts to a personal offence.

Criminal Offence Victims Act 1995 s.19

Facer v Bennett (2001) QCA 395

HIS HONOUR: This is an application for criminal compensation. The main issue is this: is Mr Bell entitled to compensation at all?.

The starting point is the proceedings before Judge Noud of this Court on 16 August 2002. The prosecutor asked for the return of an indictment before the Court which charged the Denham brothers and a man called Howie with assault occasioning bodily harm in company. The indictment alleges that they unlawfully assaulted Mr Bell and did him bodily harm.

The accused were discharged on that indictment and a new indictment was presented. It alleged that on the same day Howie and the Denham brothers took part in a fight of such a nature as to alarm the public in Truro Street, Hervey Bay, to which the public had access. That is the offence of affray (see section 72 of the Criminal Code).

It is then necessary to see the factual basis on which the sentence proceeded. The prosecutor outlined a series of events before the actual event referred to in the indictment in which Mr Bell, a friend called Cuffe, and those accused in these indictments were involved in a series of altercations. They began at a nightclub, later took place at the respondent’s house, and the final event was outside Mr Bell’s house.

The prosecutor described the event outside Mr Bell’s house as a fight between the parties. Later he described it as an altercation. He referred to there being two camps of people, the Denham camp and the camp of Bell and Cuffe. He did say that Mr Bell was punched and kicked and received some bruising and swelling to his forehead.

When the judge asked him about the nature of the offence, there was a discussion about an activity which might disturb people and make them fearful. There was reference to the infliction of violence in a public place. The prosecutor said to the judge that it was probably just enough to know that there was violence inflicted. There was no greater description of what happened to Mr Bell. In fact, the whole point of this application, and the previous indictment, was the fact that he was beaten up outside his mother’s house.

Later, when defence counsel addressed the judge, he referred to the events in the nightclub and at the respondent’s house, and eventually went on to refer to the event outside Mr Bell’s house…

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 Bell v Denham

Details

AGLC: Bell v Denham [2005] QDC 259
Case: [2005] QDC 259
Decision Date: 25 August 2005

CaseChat Overview and Summary

In Bell v Denham, the applicant, Matthew Steven Charles Bell, sought compensation for injuries sustained during an altercation with the respondents, Beau Daniel Denham and Shea Martin Denham. The case was heard in the District Court of Queensland, with the presiding judge being Judge Brabazon QC. The central issue was whether Mr Bell was entitled to compensation under the Criminal Offence Victims Act 1995, specifically if the respondents’ conviction for affray constituted a "personal offence" as required by section 19 of the Act.

The court needed to determine if the respondents' conviction for affray qualified as a "personal offence" under the Act, as compensation is contingent on such a conviction. The court considered the definition of a "personal offence" as an indictable offence committed against an individual. The respondents were found guilty of affray, which is an offence against public order rather than a personal one. The court concluded that since there was no personal offence committed, Mr Bell was not eligible for compensation under the Act. Additionally, the court referenced the principles outlined in Facer v Bennett, which underscored the importance of consistency between the criminal trial and compensation proceedings.

Judge Brabazon QC assessed the injuries and trauma Mr Bell had suffered, which included physical injuries, post-traumatic stress disorder, and emotional distress. Despite the severity of these injuries, the court found that the application for compensation must be dismissed as there was no personal offence conviction against the respondents. The court awarded compensation for the injuries sustained, calculating it as 25 percent of the maximum allowable under the scheme, amounting to $18,750.

Orders