Burns v Gordon - [2009] QDC 336

DISTRICT COURT OF QUEENSLAND

CITATION: Burns v Gordon [2009] QDC 336
PARTIES: MELISSA AUDREY BURNS
(Applicant)
v
MATTHEW JOHN GORDON
(Respondent)
FILE NO/S: 88 of 2009
PROCEEDING: Application for Criminal Compensation
ORIGINATING
COURT: District Court at Cairns
DELIVERED ON: 6 November 2009
DELIVERED AT: Cairns
HEARING DATE: 23 October 2009
JUDGE: Everson DCJ
ORDER: That the respondent pay the applicant $11,250.00 by way
of compensation.
CATCHWORDS: Criminal compensation – Psychological injuries – physical
injuries.
Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995
R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
COUNSEL:
SOLICITORS: ILS QLD Limited for the applicant
No appearance for the respondent

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).
The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 25 October 2007, namely one count of torture.
Facts
At the relevant time the applicant and the respondent were living in a de facto relationship at Ayton near Cooktown. Upon learning of the applicant’s infidelity, the respondent became extremely aggressive and violent towards the applicant. Between 30 December 2006 and 3 January 2007 he imprisoned the applicant in the home they shared, tieing her up for lengthy periods of time. He verbally abused her, bashed her, choked her, attacked her with a stick and threatened her with a knife. The applicant’s ordeal ended when she was able to untie herself while the respondent was sleeping and escape (“the incident”).
Injuries
The applicant suffered the following injuries as a consequence of the incident:

• a crush fracture to her left elbow;
• bruising over her right shoulder;
• faint bruising to her right arm, right leg and neck;
• bruising below both eyes;
• sub-conjunctival bleeding of both eyes;
• mental or nervous shock.
The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”
Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Holmes J described the process in the following terms:
“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”
[1] [2002] 2 QdR 303 at 310
Relevantly…

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.

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Details

Case: [2009] QDC 336
Decision Date: 6/11/2009

CaseChat Overview and Summary

Burns v Gordon involved a claim for compensation under the Criminal Offence Victims Act 2006 (Qld) (COVA) for psychological injuries suffered as a result of a crime of violence committed by the respondent against the applicant. The incident occurred between 30 December 2006 and 3 January 2007, during which the respondent held the applicant captive, subjected her to physical and psychological abuse, and caused her bodily injuries. The respondent was convicted of torture on 25 October 2007. The applicant sought compensation for the injuries she sustained, which included both physical and psychological harm.

The court was required to determine the appropriate amount of compensation under the COVA, taking into account the nature and severity of the injuries suffered by the applicant. The compensation scheme under COVA involves a multi-step process: first, determining the compensation for each individual injury, second, adding these amounts together, and third, arriving at the final compensation order within the statutory maximum of $75,000. The court also had to consider any relevant factors, including the applicant's conduct that may have contributed to her injuries. The court's task was to assess the applicant's injuries and compare them to the prescribed injuries in the Compensation Table, applying the principles outlined in relevant case law.

In assessing the applicant's injuries, the court reviewed medical reports detailing the physical injuries, such as the fracture of the applicant's left elbow, and considered the psychological impact of the ordeal. The court determined that the applicant's injuries warranted a compensation order, taking into account the severity and the prescribed compensation amounts for similar injuries. After reviewing the evidence and applying the statutory guidelines, the court concluded that the appropriate compensation for the applicant was $11,250.

The court ordered the respondent to pay the applicant $11,250 by way of compensation, reflecting the injuries suffered and the statutory framework for compensation under COVA. The compensation amount was determined by considering the injuries' severity and comparing them to the prescribed injuries in the Compensation Table, in line with the statutory guidelines.

Orders

Orders of the court

That the respondent pay the applicant $11,250.00 by way

of compensation.

Background

Background to the litigation

The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 25 October 2007, namely one count of torture. Facts At the relevant time the applicant and the respondent were living in a de facto relationship at Ayton near Cooktown. Upon learning of the applicant’s infidelity, the respondent became extremely aggressive and violent towards the applicant. Between 30 December 2006 and 3 January 2007 he imprisoned the applicant in the home they shared, tieing her up for lengthy periods of time. He verbally abused her, bashed her, choked her, attacked her with a stick and threatened her with a knife. The applicant’s ordeal ended when she was able to untie herself while the respondent was sleeping and escape (“the incident”). Injuries The applicant suffered the following injuries as a consequence of the incident: COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.” Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Holmes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” [1] [2002] 2 QdR 303 at 310 Relevantly the Compensation Table prescribes: Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.[2] If an injury is not specifically listed in the Compensation Table the court must decide the amount of compensation by comparing the injury or injuries under injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.[3] [2] s 25 (8) referring to s 22 (4) [3] s 25 (6) The Assessment A report of Dr Lovstakken of the Cooktown Hospital dated 15 February 2007 documents the injuries suffered by the applicant as a consequence of the incident. A report of Dr Ottley, Orthopaedic Registrar at the Cairns Base Hospital, dated 30 January 2007, records that the fracture of the applicant’s left elbow was treated with a range of motion brace and that no “surgery or intervention” was required.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burns v Gordon [2009] QDC 336
PARTIES:	MELISSA AUDREY BURNS (Applicant) v MATTHEW JOHN GORDON (Respondent)
FILE NO/S:	88 of 2009
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	6 November 2009
DELIVERED AT:	Cairns
HEARING DATE:	23 October 2009
JUDGE:	Everson DCJ
ORDER:	That the respondent pay the applicant $11,250.00 by way of compensation.
CATCHWORDS:	Criminal compensation – Psychological injuries – physical injuries.
Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995
R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
COUNSEL:
SOLICITORS:	ILS QLD Limited for the applicant No appearance for the respondent

•	a crush fracture to her left elbow;
•	bruising over her right shoulder;
•	faint bruising to her right arm, right leg and neck;
•	bruising below both eyes;
•	sub-conjunctival bleeding of both eyes;
•	mental or nervous shock.