Bushell v Ryder - [2001] QDC 328

DISTRICT COURT OF QUEENSLAND

CITATION:

Bushell v. Ryder and Anor [2001] QDC 328

PARTIES:

DALE RAYMOND BUSHELL  Applicant
and
WILLIAM JOHN ROBERT RYDER      First Respondent
and
CAROL ELIZABETH JACK               Second Respondent

FILE NO:

D 3401 of 2001

PROCEEDING:

Application for criminal compensation

DELIVERED ON:

14 December 2001

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2001

JUDGE:

Judge Brabazon Q.C.

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – offenders convicted of burglary and attempted robbery whilst armed – whether applicant can recover when not named in the indictment – whether the injury was caused by a “personal offence” committed against the applicant – Criminal Offence Victims Act definition “personal offence” - Criminal Offence Victims Act definition “victim” – whether applicant can recover for “mental or nervous shock”

Facer v. Bennett (2001) QCA 395, Judgment 24 July 2001;
R v Callaghan and Fleming ex parte Power 1986 1 qd.r 457; R v Moors ex parte Alex 1994 2 Qd.R 315;
Summers v. Dougherty and Doyle (2000) QSC 365; Judgment 19 October 2000.

COUNSEL:

Mr B Charrington for the applicant
Mr A Rafter for the respondent

SOLICITORS:

Trilby Misso & Company for the applicant
Peter Wallace & Company for the respondent

This is an application for criminal compensation according to the provisions of the Criminal Offence Victims Act 1995.

On 29 August 2000, in the District Court at Brisbane, Mr W.J.R. Ryder was found guilty of one charge of burglary, and one charge of attempted robbery while armed in company. The offences took place on 1 November 1999. They took place at the residence of Mr Maddox, the victim named in the Certificate of Indictment Details. The reference to “armed in company” refers to Mr Ryder’s co-accused, Ms C.E. Jack. She was convicted of the same offences.

Miss Jack has not been served with any application for criminal compensation. Mr Ryder has been served and the Public Trustee consents to his defending this proceeding. Mr Rafter of counsel appears on his behalf. The applicant is Mr D.R. Bushell. He was not named in the indictment. To understand his connection with the offence, it is helpful to turn to the sentencing remarks.

Ryder and Ms Jack were in a domestic relationship. She was a user of illegal drugs at the time. It is likely that her supplier was Maddox. Strong feelings arose between the pair of them on one hand and Maddox, on the other. There had been arguments with Maddox, though not inside his house. On 1 November last year they decided to go to his residence, as part of the on-going dispute. Ms Jack entered the house first. There were a number of people there, in addition to Maddox. There were three other men, including Mr Bushell. There were at least two young women present and children. Ms Jack entered the house and began arguing loudly with Maddox. After some time Ryder also entered the house, armed with a sawn-off shot-gun. Most of it was covered by a towel, but 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 Bushell v Ryder

Details

AGLC: Bushell v Ryder [2001] QDC 328
Case: [2001] QDC 328
Decision Date: 14 December 2001

CaseChat Overview and Summary

In the case of Bushell v Ryder, the applicant sought compensation under the Criminal Offence Victims Act for injuries sustained during an incident involving the respondents, who were convicted of burglary and attempted robbery whilst armed. The applicant was not named in the indictment but was present and injured during the offence. The central issue was whether the applicant could recover compensation despite not being named in the indictment, and whether the injury was caused by a “personal offence” committed against the applicant, thus making him a “victim” under the Act.

The court examined the definitions of “personal offence” and “victim” within the Criminal Offence Victims Act. The court concluded that the injury was not caused by a “personal offence” as it was not committed against the applicant directly. The court found that for an offence to be considered “personal”, it must be directed at the individual claimant. The applicant’s injuries resulted from the general circumstances of the crime rather than an act specifically targeting him. Furthermore, the court held that the applicant did not meet the definition of a “victim” under the Act, as the injury was not caused by a personal offence committed against him.

Consequently, the court dismissed the application for compensation. The court held that the applicant could not recover compensation because the injury did not arise from a personal offence committed against him. The court's decision hinged on the precise interpretation of the statutory definitions and the nature of the injuries sustained. The court found that the applicant did not fit within the scope of the Act’s provisions for compensation.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bushell v. Ryder and Anor [2001] QDC 328
PARTIES:	DALE RAYMOND BUSHELL Applicant and WILLIAM JOHN ROBERT RYDER First Respondent and CAROL ELIZABETH JACK Second Respondent
FILE NO:	D 3401 of 2001
PROCEEDING:	Application for criminal compensation
DELIVERED ON:	14 December 2001
DELIVERED AT:	Brisbane
HEARING DATE:	9 October 2001
JUDGE:	Judge Brabazon Q.C.
ORDER:	Application dismissed
CATCHWORDS:	CRIMINAL LAW – COMPENSATION – offenders convicted of burglary and attempted robbery whilst armed – whether applicant can recover when not named in the indictment – whether the injury was caused by a “personal offence” committed against the applicant – Criminal Offence Victims Act definition “personal offence” - Criminal Offence Victims Act definition “victim” – whether applicant can recover for “mental or nervous shock” *Facer v. Bennett* (2001) QCA 395, Judgment 24 July 2001; *R v Callaghan and Fleming* *ex parte Power* 1986 1 qd.r 457; *R v Moors ex parte Alex* 1994 2 Qd.R 315; *Summers v. Dougherty and Doyle* (2000) QSC 365; Judgment 19 October 2000.
COUNSEL:	Mr B Charrington for the applicant Mr A Rafter for the respondent
SOLICITORS:	Trilby Misso & Company for the applicant Peter Wallace & Company for the respondent