De Almeida v Junyapisuit - [2009] QDC 399

DISTRICT COURT OF QUEENSLAND

CITATION:

De Almeida v Junyapisuit & Anor [2009] QDC 399

PARTIES:

LUCIANO CAMARGO DE ALMEIDA
(applicant)

V

NAT JUNYAPISUIT
(first respondent)

And

TANOMPONG POTA
(second respondent)

FILE NO/S:

3195/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2009

JUDGE:

Rafter SC, DCJ

ORDERS:

1. The first respondent pay to the applicant the sum of $7,350 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the first respondent in the District Court at Brisbane on 16 November 2007.

2. The second respondent pay to the applicant the sum of $29,400 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding with intent to cause grievous bodily harm which led to the conviction of the second respondent in the District Court at Brisbane on 16 November 2007

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – unlawful wounding – wounding with intent to do grievous bodily harm – physical injuries and mental or nervous shock – separate liability of respondents

COUNSEL:

S A Lynch for the applicant
No appearance by or for the respondents

SOLICITORS:

Creevey Russell Lawyers for the applicant
No appearance by or for the respondents

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondents on 12 August 2006. The application was filed before the commencement of the Victims of Crime Assistance Act 2009 on 1 December 2009, which repealed the Criminal Offence Victims Act 1995. (See s.149)

On 16 November 2007 in the District Court at Brisbane the first respondent pleaded guilty to unlawful wounding (Count 2). He was sentenced to two years imprisonment suspended after six months for an operational period of two years. The second respondent pleaded guilty to unlawful wounding with intent to do grievous bodily harm (Count 1). He was sentenced to five years imprisonment suspended after two years for an operational period of five years.

The first respondent was served with the application and supporting affidavits on 11 November 2009. On 16 November 2009 the first respondent wrote to the solicitors for the applicant stating that he had no assets and did not wish to attend the hearing of the application.[1]
[1]Exhibit TWR – 01 to the affidavit of Thomas William Rynders filed by leave 27 November 2009

The second respondent has not been served personally. On 27 November 2009 an order for substituted service was made. Pursuant to that order an advertisement has appeared in the Public Notices Section of the Courier Mail notifying the second respondent of the date of hearing.

There has been no appearance by or for the respondents.

Circumstances of the offence

The applicant was attacked by 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 De Almeida v Junyapisuit

Details

AGLC: De Almeida v Junyapisuit [2009] QDC 399
Case: [2009] QDC 399
Decision Date: 16 December 2009

CaseChat Overview and Summary

The case of De Almeida v Junyapisuit involved an application for criminal compensation made by the applicant against two respondents. The applicants alleged they had sustained physical injuries and mental or nervous shock as a result of two separate offences committed by the respondents. The first respondent was convicted of unlawful wounding, while the second respondent was convicted of unlawful wounding with intent to cause grievous bodily harm. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issue before the tribunal was to determine the extent of compensation that each respondent should pay to the applicant under section 24 of the Criminal Offence Victims Act 1995. The tribunal had to consider the nature and severity of the injuries sustained by the applicant, as well as the degree of fault attributable to each respondent. Furthermore, the tribunal had to decide whether the injuries sustained by the applicant were caused by the unlawful acts of the respondents and if the injuries resulted in physical harm, mental or nervous shock.

The tribunal found that the first respondent was liable for the injuries sustained by the applicant as a result of the unlawful wounding offence. The tribunal assessed the nature and severity of the injuries and determined that the first respondent should pay $7,350 in compensation. In relation to the second respondent, the tribunal found that the applicant sustained injuries as a result of the unlawful wounding with intent to cause grievous bodily harm offence. The tribunal assessed the degree of fault attributable to the second respondent and determined that the applicant should be awarded $29,400 in compensation. The tribunal considered the evidence presented by the applicant and concluded that the injuries sustained were a direct result of the respondents' unlawful acts. The tribunal also found that the applicant had suffered physical injuries and mental or nervous shock as a result of the offences committed by the respondents.

In summary, the tribunal ordered that the first respondent pay $7,350 in compensation for the injuries sustained as a result of the unlawful wounding offence, while the second respondent was ordered to pay $29,400 for the injuries sustained as a result of the unlawful wounding with intent to cause grievous bodily harm offence. The tribunal's decision was based on the evidence presented and the degree of fault attributable to each respondent. The orders reflect the tribunal's assessment of the severity of the injuries sustained by the applicant and the respondents' liability for those injuries.

Orders

Orders of the court

1. The first respondent pay to the applicant the sum of $7,350 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the first respondent in the District Court at Brisbane on 16 November 2007.

2. The second respondent pay to the applicant the sum of $29,400 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding with intent to cause grievous bodily harm which led to the conviction of the second respondent in the District Court at Brisbane on 16 November 2007

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:	De Almeida v Junyapisuit & Anor [2009] QDC 399
PARTIES:	LUCIANO CAMARGO DE ALMEIDA (applicant) V NAT JUNYAPISUIT (first respondent) And TANOMPONG POTA (second respondent)
FILE NO/S:	3195/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	16 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2009
JUDGE:	Rafter SC, DCJ
ORDERS:	1. The first respondent pay to the applicant the sum of $7,350 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the first respondent in the District Court at Brisbane on 16 November 2007. 2. The second respondent pay to the applicant the sum of $29,400 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding with intent to cause grievous bodily harm which led to the conviction of the second respondent in the District Court at Brisbane on 16 November 2007
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – unlawful wounding – wounding with intent to do grievous bodily harm – physical injuries and mental or nervous shock – separate liability of respondents
COUNSEL:	S A Lynch for the applicant No appearance by or for the respondents
SOLICITORS:	Creevey Russell Lawyers for the applicant No appearance by or for the respondents