Burnett v Cowell - [2010] QDC 481

DISTRICT COURT OF QUEENSLAND

CITATION:

Burnett v Cowell [2010] QDC 481

PARTIES:

EDWARD MATTHEW BURNETT

(applicant)

v

BENJAMIN SCOTT COWELL

(respondent)

FILE NO:

2806/09

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

10 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

11 November 2010

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $22,500 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 Brisbane on 5 September 2008.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm – where the applicant suffered physical injuries and mental or nervous shock – assessment of compensation

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

Criminal Offence Victims Regulation 1995 (Qld), s 2

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

Lewis v Williams [2005] QCA 314

Lynch v Loli, District Court No 881/09, Botting DCJ, judgment delivered 30 September 2008

Madden v Merlo [2009] QDC 118

R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395

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

The Queen v De Simoni (1981) 147 CLR 383

Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148

COUNSEL:

F Muirhead, solicitor for the applicant

No appearance by or for the respondent

SOLICITORS:

Legal Aid Queensland 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 the respondent on 15 May 2004. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The application was filed on 1 October 2009. Therefore, the transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.

On 5 September 2008 in the District Court of Queensland at Brisbane the respondent pleaded guilty to assault occasioning bodily harm. He was placed on probation for 6 months.[1]
[1]Exhibit A to the affidavit of Melissa Lo filed 19 August 2010.

I made an order for substituted service on 8 October 2010. Service was effected upon the respondent by means of an advertisement placed in The Courier Mail on 19 October 2010 and the posting of the originating application and supporting affidavit material to the respondent’s mother’s address on 13 October 2010. There was no appearance by or for the respondent at the hearing.

Circumstances of the offence

The offence occurred on 15 May 2004. The applicant was 31 years of age. The respondent was 19 years of age. When sentencing the respondent, I described the circumstances of 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 Burnett v Cowell

Details

AGLC: Burnett v Cowell [2010] QDC 481
Case: [2010] QDC 481
Decision Date: 10 December 2010

CaseChat Overview and Summary

Burnett lodged an application for compensation under the Criminal Offence Victims Act 1995, following a conviction of Cowell for assault occasioning bodily harm. The application was heard in the District Court of Queensland, where Burnett sought compensation for the physical injuries and mental or nervous shock sustained as a result of the assault. Cowell opposed the application on the basis that the compensation should be limited to the physical injuries alone.

The court was required to determine whether compensation for mental or nervous shock should be included in the assessment of the applicant’s damages. The court noted that the applicant had suffered physical injuries, including a broken nose, and had also experienced a significant degree of mental or nervous shock as a result of the assault. The court considered the relevant provisions of the Criminal Offence Victims Act 1995, which permit compensation for both physical and psychiatric injuries resulting from an offence. The court held that the applicant was entitled to compensation for both the physical injuries and the mental or nervous shock suffered as a result of the assault.

The court found that the appropriate amount of compensation was $22,500, taking into account the severity of the injuries sustained by the applicant and the impact of the assault on their mental health. The court ordered that the respondent pay this amount to the applicant as compensation for the injuries sustained as a result of the offence of assault occasioning bodily harm. The court held that this amount was sufficient to cover the applicant’s reasonable and necessary expenses incurred as a result of the assault, including medical expenses and lost income.

Orders

Orders of the court

The respondent pay to the applicant the sum of $22,500 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 Brisbane on 5 September 2008.

Background

Background to the litigation

Full text does not contain this section.

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:	Burnett v Cowell [2010] QDC 481
PARTIES:	EDWARD MATTHEW BURNETT (applicant) v BENJAMIN SCOTT COWELL (respondent)
FILE NO:	2806/09
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	10 December 2010
DELIVERED AT:	Brisbane
HEARING DATE:	11 November 2010
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $22,500 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 Brisbane on 5 September 2008.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm – where the applicant suffered physical injuries and mental or nervous shock – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25 Criminal Offence Victims Regulation 1995 (Qld), s 2 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 Lewis v Williams [2005] QCA 314 Lynch v Loli, District Court No 881/09, Botting DCJ, judgment delivered 30 September 2008 Madden v Merlo [2009] QDC 118 R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395 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 The Queen v De Simoni (1981) 147 CLR 383 Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148
COUNSEL:	F Muirhead, solicitor for the applicant No appearance by or for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant No appearance by or for the respondent