Chalk v Kuss - [2009] QSC 440

SUPREME COURT OF QUEENSLAND

CITATION:

Chalk v Kuss [2009] QSC 440

PARTIES:

Sandra Kay Chalk

Applicant

and

Barry Ernest Mervyn Kuss

Respondent

FILE NO/S:

S 594/2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

18 December 2009

DELIVERED AT:

Rockhampton

HEARING DATE:

14 December 2009

JUDGE:

McMeekin J

ORDER:

Pursuant to section 24 of the Criminal Offence Victims Act 1995 the respondent pay to the applicant the amount of $30,000 by way of compensation for the injury suffered as a result of the offences for which the respondent was convicted on 6 August 2008 and sentenced on 7 August 2008.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND - where applicant victim of attempted murder and of a sexual assault – assessment of compensation.

Criminal Offence Victims Act 1995, s 20, 22, 24, 25

Victims of Crime Assistance Act 2009, Chapter 6

RMC v NAC [2009] QSC 149

Vlug v Carrasco [2006] QCA 561

Kidner v Barber [2001] QSC 467

Jullie v Atwell [2002] 2 Qd R 367

SOLICITORS:

Legal Aid Queensland for the applicant

No appearance for the respondent

[1] Sandra Kaye Chalk applies for compensation under section 24 of the Criminal Offence Victims Act 1995 (“the 1995 Act”) which provides that where a person is convicted on indictment of a personal offence then “the person against whom the personal offence was committed may apply to the Court for an order that the convicted person pay compensation for injuries suffered because of the offence”.

[2] The respondent is Barry Ernest Mervyn Kuss. Mr Kuss pleaded guilty on 6 August 2008 to two counts of administering a stupefying drug with intent to commit an indictable offence, one count of unlawfully attempting to kill Miss Chalk and one count of rape of Miss Chalk. The respondent was served with the proceedings but indicated that he did not wish to be heard.

[3] The Victims of Crime Assistance Act 2009 (“the 2009 Act”) repealed the 1995 Act. However Ms Chalk’s rights are preserved by the transitional provisions in Chapter 6 of the 2009 Act which require that Ms Chalk’s application be heard and determined under the provisions of the 1995 Act, given that the application was filed on 2 November and before the commencement of the 2009 Act.[1]
[1]s 167 Victims of Crime Assistance Act 2009.

The Relevant Provisions of the 1995 Act

[4] It is necessary that the injury for which compensation is sought comes within the definition of “injury” in s 20 of the 1995 Act. “Injury” is defined to include “bodily injury, mental or nervous shock…or any injury specified in the compensation table…” As well in this case the applicant seeks compensation for “the totality of the adverse impacts of [the] sexual offence” as permitted by s 1A of the Criminal Offence Victims Regulation 1995 (“the Regulation”).

[5] Schedule 1 to the Act consists of a Compensation Table setting out various descriptions…

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 Chalk v Kuss

Details

AGLC: Chalk v Kuss [2009] QSC 440
Case: [2009] QSC 440
Decision Date: 18 December 2009

CaseChat Overview and Summary

The case of Chalk v Kuss involved the applicant, Ms Chalk, who was the victim of an attempted murder and a sexual assault committed by the respondent, Mr Kuss. Ms Chalk sought compensation under the Criminal Offence Victims Act 1995 for the injuries she suffered as a result of the crimes. The matter was heard in the Queensland Court of Appeal.

The primary legal issues before the court were the assessment of the appropriate compensation to be awarded to Ms Chalk, considering the severity of the injuries she sustained and the impact on her life. The court had to determine the extent to which the injuries affected Ms Chalk's physical, psychological, and economic well-being, as well as any ongoing needs for medical treatment and rehabilitation.

The court found that the injuries sustained by Ms Chalk were severe and had a significant impact on her life. It was determined that the appropriate compensation amount should reflect the gravity of the injuries and the extent of their impact on her daily life and future prospects. The court awarded Ms Chalk $30,000 in compensation, taking into account the nature of the injuries and the evidence presented regarding their impact on her life. The court found that this amount was reasonable and just in the circumstances of the case.

Orders

Orders of the court

Pursuant to section 24 of the Criminal Offence Victims Act 1995 the respondent pay to the applicant the amount of $30,000 by way of compensation for the injury suffered as a result of the offences for which the respondent was convicted on 6 August 2008 and sentenced on 7 August 2008.

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:	Chalk v Kuss [2009] QSC 440
PARTIES:	Sandra Kay Chalk Applicant and Barry Ernest Mervyn Kuss Respondent
FILE NO/S:	S 594/2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	18 December 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	14 December 2009
JUDGE:	McMeekin J
ORDER:	Pursuant to section 24 of the Criminal Offence Victims Act 1995 the respondent pay to the applicant the amount of $30,000 by way of compensation for the injury suffered as a result of the offences for which the respondent was convicted on 6 August 2008 and sentenced on 7 August 2008.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND - where applicant victim of attempted murder and of a sexual assault – assessment of compensation. Criminal Offence Victims Act 1995, s 20, 22, 24, 25 Victims of Crime Assistance Act 2009, Chapter 6 RMC v NAC [2009] QSC 149 Vlug v Carrasco [2006] QCA 561 Kidner v Barber [2001] QSC 467 Jullie v Atwell [2002] 2 Qd R 367
SOLICITORS:	Legal Aid Queensland for the applicant No appearance for the respondent