Burton v Ferguson

[2010] QDC 78

DISTRICT COURT OF QUEENSLAND

CITATION:

Burton v Ferguson [2010] QDC 78

PARTIES:

KENNETH CAMPBELL BURTON
(applicant)

V

KAKAHU FERGUSON
(respondent)

FILE NO/S:

D 79 of 2009

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Rockhampton

DELIVERED ON:

12 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 October 2009

JUDGE:

Tutt DCJ

ORDER:

The respondent Kakahu Ferguson pays to the applicant Kenneth Campbell Burton the sum of $47,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Rockhampton on 27 August 2009.

CATCHWORDS:

CRIMINAL COMPENSATION – assault causing grievous bodily harm – where applicant sustained physical injuries including “a head injury” and “fractures to eye socket, broken nose, broken jaw, broken cheekbone, scarring to side of face, damage to teeth”- where applicant suffered “mental or nervous shock” – where applicant’s behaviour did not contribute to index assault.

Criminal Offence Victims Act 1995 s 24, 25(7), 31

Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320

R v van Gilman ex parte Owens [2001] QSC 391

RMC v NAC [2009] QSC 149

Zaicov and McKenna v Jones [2002] QCA 442

COUNSEL:

Mr A.M. Arnold for the applicant

No appearance for the respondent

SOLICITORS:

Swanwick Murray Roche for the applicant

Introduction:

1. Kenneth Campbell Burton (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injuries he sustained arising out of the criminal conduct of Kakahu Ferguson (“the respondent”) who was convicted by this court at Rockhampton on 27 August 2009 for the offence of unlawfully causing grievous bodily harm to the applicant on 21 October 2006 at Rockhampton, Queensland.

1. The respondent was served with the originating application and supporting documents on 7 October 2009 but made no appearance at the hearing which proceeded in his absence.

1. 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 26 August 2009; the affidavit with exhibits of Louis Salzman, Neuro Psychologist sworn 18 December 2008; the affidavit of Dr Caroline Acton, Maxilla-facial Surgeon with exhibit sworn 16 December 2008, all of which were filed in this court on 4 September 2009;

(b)        the affidavit with exhibits of David Daniel Lipke, Solicitor sworn and filed in this court on 21 September 2009;

(c)        the affidavit of Adrienne Joan Jackson, licensed commercial agent with exhibit sworn 7 October 2009 and filed in this court on 8 October 2009.

Facts:

1. The applicant was born on 30 December 1970 and was the victim of an assault causing him grievous bodily harm at the hands of the respondent on 21 October 2006 at Rockhampton. It appears some words were exchanged between 2 groups of men when the applicant was on his way home from having some drinks with a friend at which time they were both set upon by the respondent and his brother as a…