Cormack v Peever - [2011] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

Cormack v Peever [2011] QDC 224

PARTIES:

DONNA LYNN CORMACK
(Applicant)

v

MATTHEW SHAUN PEEVER
(Respondent)

FILE NO/S:

D148/2009

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

2 September, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

22 June 2011

JUDGE:

Dearden DCJ

ORDER:

The respondent Matthew Shaun Peever pay the applicant Donna Lynn Cormack the sum of $15,000

CATCHWORDS:

Application – criminal compensation – serious assault – mental or nervous shock – post traumatic stress disorder

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1)

Victims of Crime Assistance Act 2009 (Qld) s.167(2)

CASES:

Paterson v Chand & Chand [2008] QDC 214

COUNSEL:

Ms F Muirhead (solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland, solicitors for the applicant

No appearance for the respondent

Introduction

The respondent, Matthew Shaun Peever pleaded guilty in the Townsville District Court before Judge Robin QC on 17 May 2007 to a single count of serious assault in respect of the applicant Donna Lynn Cormack. The respondent was sentenced by Judge Robin QC to four months imprisonment, wholly suspended, with an operational period of 12 months.[1]
[1] Exhibit B, pp 1, 5, affidavit of Emily Cotterill sworn 28 March 2011.

Facts

The serious assault occurred on 22 March 2005 at Townsville Hospital. The applicant was then a female police officer who was involved in transporting the respondent, under compulsion, to the hospital. The police had been contacted by the respondent’s brother after he had perpetrated self harm, leading to his arm being cut. The respondent had been taken to hospital and his arm been sutured. Once back home, the respondent had started to undo the sutures and caused “other mayhem” leading to the police being summonsed in the respondent’s interests. Once back at the hospital, it became necessary to remove the respondent’s handcuffs which had been used to subdue him so that he could be examined by medical personnel. At this point the respondent flicked his hands, spraying blood into the eyes and mouth of the applicant.[2]
[2] Exhibit B (sentencing remarks) p 2, affidavit of Emily Cotterill sworn 28 March 2011.

Injuries

The applicant suffered mental or nervous shock as a result of the respondent’s actions.

The Law

This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The proceedings were commenced in this court on 30 November 2009, and accordingly proceed pursuant to VOCAA s. 167(2) to be dealt with under the repealed provisions of COVA. This application was filed within the relevant time limit pursuant to COVA s. 40(1).

I refer to and adopt my exposition of the relevant applicable law under COVA as set in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

Ms Muirhead, who appears for the applicant, seeks compensation as follows:-

(1) Item 32 –…

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 Cormack v Peever

Details

AGLC: Cormack v Peever [2011] QDC 224
Case: [2011] QDC 224
Decision Date: 2 September, 2011

CaseChat Overview and Summary

The case of Cormack v Peever involved Donna Lynn Cormack, the applicant, seeking criminal injury compensation against Matthew Shaun Peever, the respondent. The application was brought before the court following a serious assault committed by the respondent against the applicant, resulting in the applicant suffering from post-traumatic stress disorder. The applicant sought compensation for the mental and nervous shock experienced as a result of the assault.

The primary legal issue before the court was whether the applicant was entitled to compensation under the Criminal Injury Compensation Act. Specifically, the court had to determine if the applicant’s condition of post-traumatic stress disorder constituted a recognisable psychiatric illness that arose from the serious assault, thus making her eligible for compensation. Furthermore, the court examined the extent of the applicant's mental injury and the impact of the assault on her life.

The court considered the statutory requirements for compensation under the Act, assessing the evidence presented regarding the nature and severity of the applicant's condition. The court found that the applicant's post-traumatic stress disorder was a direct consequence of the assault and that it met the criteria for a recognisable psychiatric illness. The court also took into account the substantial impact of the assault on the applicant's mental health and daily functioning. Based on these findings, the court determined that the applicant was entitled to compensation for the mental and nervous shock she suffered.

In light of the findings, the court ordered the respondent, Matthew Shaun Peever, to pay the applicant, Donna Lynn Cormack, the sum of $15,000 as compensation for the injury sustained as a result of the serious assault.

Orders

Orders of the court

The respondent Matthew Shaun Peever pay the applicant Donna Lynn Cormack the sum of $15,000

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:	Cormack v Peever [2011] QDC 224
PARTIES:	DONNA LYNN CORMACK (Applicant) v MATTHEW SHAUN PEEVER (Respondent)
FILE NO/S:	D148/2009
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	2 September, 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	22 June 2011
JUDGE:	Dearden DCJ
ORDER:	The respondent Matthew Shaun Peever pay the applicant Donna Lynn Cormack the sum of $15,000
CATCHWORDS:	Application – criminal compensation – serious assault – mental or nervous shock – post traumatic stress disorder
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1) Victims of Crime Assistance Act 2009 (Qld) s.167(2)
CASES:	Paterson v Chand & Chand [2008] QDC 214
COUNSEL:	Ms F Muirhead (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland, solicitors for the applicant No appearance for the respondent