Boyd-Bush v Braden - [2010] QDC 348

DISTRICT COURT OF QUEENSLAND

CITATION:	Boyd-Bush v Braden [2010] QDC 348
PARTIES:	BILLY BOYD-BUSH (BY HIS LITIGATION GUARDIAN KAREEN BUSH) (Applicant)
AND
ALLAN WILLIAM BRADEN (Respondent)
FILE NO/S:	35/10
DIVISION:
PROCEEDING:
ORIGINATING
COURT:	District Court, Ipswich
DELIVERED ON:	14 September 2010
DELIVERED AT:	Brisbane
HEARING DATE:	8 June 2010, 28 June 2010, 6 July 2010, 14 September 2010
JUDGE:	Bradley DCJ
ORDER:

Order that the respondent pay to the applicant the sum of $75,000 by way of criminal compensation. Direct that the compensation be paid to the Public Trustee of Queensland, whose receipt therefore shall be sufficient discharge to the respondent. Direct that from such funds the Public Trustee pay to the solicitors for the applicant the costs and outlays incurred in the making of this application to be assessed on an indemnity basis and further direct that the Public Trustee of Queensland hold the balance sum in trust for the maintenance, education, rehabilitation, medical treatment and counselling and otherwise for the benefit of the applicant.

CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – jurisdiction – application can be brought in either Children’s Court or District Court.

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the applicant is entitled to the maximum amount of payment under the compensation table in Schedule 1 Criminal Offence Victims Act 1995 notwithstanding that the applicant suffered severe injuries to warrant payment of compensation over and above the maximum of $75,000.

COUNSEL:	S. Lynch for the Applicant
SOLICITORS:	Creevey Russell Lawyers for the Applicant

On 16 February 2009 in the Childrens Court of Queensland at Innisfail the respondent pleaded guilty to a charge that on or about 22 April 2007 at Innisfail he unlawfully did grievous bodily harm to the applicant.
The respondent was sentenced on 8 April 2009 and although he committed the offence whilst a juvenile, because of the passage of time, was sentenced as an adult.
The applicant now seeks an order for compensation for the extensive and devastating injuries he has suffered as a result of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”).
As the whereabouts of the respondent are unknown, an order for substituted service was made on 8 June 2010 permitting service upon the respondent by way of newspaper advertisements in the Public Notices section of The Courier-Mail and the Townsville Bulletin. Such advertisements were placed in the newspapers on 17 June 2010 and accordingly service is deemed to have been effected upon the respondent in accordance with the order. Contact was made with the applicant’s solicitor by the respondent’s mother, however, when this matter came on for hearing in the District Court at Brisbane on 28 June 2010 there was no appearance by or on behalf of the respondent.

Jurisdiction

There is a preliminary issue regarding jurisdiction to be determined in this matter. The respondent was convicted in the Childrens Court of Queensland, however, this application has been filed in the…

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 Boyd-Bush v Braden

Details

AGLC: Boyd-Bush v Braden [2010] QDC 348
Case: [2010] QDC 348
Decision Date: 14/09/2010

CaseChat Overview and Summary

The District Court of Queensland was tasked with determining the application for criminal compensation brought by Billy Boyd-Bush, through his litigation guardian Kareen Bush, against Allan William Braden. The respondent had previously pleaded guilty in the Children's Court of Queensland to unlawfully causing grievous bodily harm to the applicant on or about 22 April 2007. The court was required to decide whether it had jurisdiction to hear the application for compensation under the Criminal Offence Victims Act 1995, and if so, to determine the appropriate amount of compensation. The court had to assess the extent of the injuries suffered by the applicant and determine whether the compensation payable should be limited to the maximum amount specified in the compensation table of the Act.

The court first addressed the issue of jurisdiction, considering whether the application should have been filed in the Children's Court of Queensland or the District Court. It concluded that the Act confers jurisdiction on both courts to hear applications for compensation arising from convictions in the Children's Court for indictable personal offences. This conclusion was based on the legislative intent behind the Act and the absence of any reference to the Children's Court in the definition section of the Act. The court then assessed the applicant's injuries, noting that while they were severe, the compensation payable was limited to the maximum amount specified in the compensation table under the Act, which was $75,000. The court ordered that this amount be paid by the respondent to the Public Trustee of Queensland, who would then distribute the funds to the applicant's solicitors for costs and hold the balance in trust for the applicant's benefit.

Orders