Fourmile v O'Burns - [2004] QSC 207

SUPREME COURT OF QUEENSLAND

CITATION:

Fourmile v O’Burns [2004] QSC 207

PARTIES:

GAIL LYNETTE FOURMILE
(Applicant)
v
CALVIN CHARLES O’BURNS

(Respondent)

FILE NO/S:

25 of 2004

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court, Cairns

DELIVERED ON:

7 July 2004

DELIVERED AT:

Cairns

HEARING DATE:

21 June 2004

JUDGE:

Jones J

ORDER:

That the respondent, Calvin Charles O’Burns pay the applicant, Gail Lynette Fourmile $12500 by way of criminal compensation. (1)

(2)The respondents pay the applicant's costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDER FOR CRIMINAL COMPENSATION – Where respondent convicted of assault causing bodily harm – Where applicant suffered both physical injury and nervous shock

Criminal Code (QLD), Chapter 65A, s663A, s663A(b), s663AA, s663AA(1), s663AA(2) and s663AA(3), s663B(2)

Workers Compensation Act 1916, s14(1)(c), s14(1)(C)(a)
WorkCover Queensland Act 1996, s167, s167(1)

WorkCover Queensland Regulation 1997, Schedule 2

R v Hurle; ex Parte Anderson (1991) 2 QLd Rep 682

Whyte v Robinson [2000] QCA 99, 28/03/00

COUNSEL:

Mr P Edson for the Applicant
No Appearance by or on behalf of Respondents

SOLICITORS:

Legal Aid Queensland for the Applicant
No Appearance by or on behalf of Respondents.

Gail Lynette Fourmile makes this application under the now repealed Chapter 65A of the Criminal Code for criminal compensation for injuries she sustained on the 11 November 1987.

On 3 March 1988, the respondent Calvin Charles O’Burns pleaded guilty in the Supreme Court of Cairns of one count of assault causing bodily harm whilst armed with an offensive instrument.

The respondent has been duly served with this application and the supporting material but has not appeared to make any submissions on the question of compensation.

The applicant was 29 years old at the time of the offence. The respondent was the de facto husband of the applicant at the time of the offence. The attack on the applicant included being dragged to two isolated locations where she was repeatedly punched and kicked. The respondent then struck her around the head and face with a sharp object he had picked up. During the attack, the respondent made repeated verbal threats to the applicant that he would kill her.

Following the attack the applicant sought help at a nearby house and was then transported by ambulance to the Cairns Base hospital where she was attended to by medical staff.

There is no suggestion that the applicant in any way contributed to her injuries s663B(2).

A report from Doctor Peter Michael states that the applicant had the following injuries when presented at hospital on the 11 November 1997:

· A contusion around the right eye

· A small subconjunctival haemorrhage in the right eye

· Lacerations over the right and left brow

· Small lacerations under both eyes

· Small laceration on the right side of nose

· Small lacerations to the corner of the right side of the mouth and to the lower lip

· Deep…

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 Fourmile v O'Burns

Details

AGLC: Fourmile v O'Burns [2004] QSC 207
Case: [2004] QSC 207
Decision Date: 7 July 2004

CaseChat Overview and Summary

The case of Fourmile v O'Burns involved Gail Lynette Fourmile, the applicant, seeking criminal compensation from Calvin Charles O’Burns, the respondent, who had been convicted of assault causing bodily harm to the applicant. The dispute centred on the extent of the injuries sustained by the applicant, including both physical injury and nervous shock, and the adequacy of the compensation to be awarded. The matter was heard in the relevant court, which was tasked with determining the appropriate amount of compensation under the applicable statutes.

The primary legal issue before the court was the determination of the appropriate level of compensation for the applicant, considering the physical injuries and the nervous shock suffered as a result of the assault. The court had to assess the extent of the physical injuries, including medical expenses and the impact on the applicant's daily life, as well as the degree of nervous shock experienced. The court was required to balance these factors against the statutory guidelines for criminal compensation, ensuring that the award was fair and commensurate with the harm caused.

In arriving at its decision, the court meticulously reviewed the evidence presented regarding the physical injuries and the psychological impact on the applicant. The court acknowledged the severity of the injuries and the long-term effects on the applicant's well-being. After careful consideration, the court determined that the appropriate compensation was $12,500. The court also ordered that the respondent pay the applicant’s costs associated with the application, to be assessed on the standard basis.

In summary, the court awarded the applicant $12,500 in criminal compensation and ordered the respondent to pay the applicant's costs of the application. This decision reflected a thorough evaluation of the harm suffered and a determination of a fair and just compensation amount under the applicable legal framework.

Orders

Orders of the court

That the respondent, Calvin Charles O’Burns pay the applicant, Gail Lynette Fourmile $12500 by way of criminal compensation. (1)

(2)The respondents pay the applicant's costs of and incidental to the application to be assessed on the standard basis.

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:	Fourmile v O’Burns [2004] QSC 207
PARTIES:	GAIL LYNETTE FOURMILE (Applicant) v CALVIN CHARLES O’BURNS (Respondent)
FILE NO/S:	25 of 2004
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	7 July 2004
DELIVERED AT:	Cairns
HEARING DATE:	21 June 2004
JUDGE:	Jones J
ORDER:	That the respondent, Calvin Charles O’Burns pay the applicant, Gail Lynette Fourmile $12500 by way of criminal compensation. (1) (2)The respondents pay the applicant's costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDER FOR CRIMINAL COMPENSATION – Where respondent convicted of assault causing bodily harm – Where applicant suffered both physical injury and nervous shock Criminal Code (QLD), Chapter 65A, s663A, s663A(b), s663AA, s663AA(1), s663AA(2) and s663AA(3), s663B(2) Workers Compensation Act 1916, s14(1)(c), s14(1)(C)(a) WorkCover Queensland Act 1996, s167, s167(1) WorkCover Queensland Regulation 1997, Schedule 2 R v Hurle; ex Parte Anderson (1991) 2 QLd Rep 682 Whyte v Robinson [2000] QCA 99, 28/03/00
COUNSEL:	Mr P Edson for the Applicant No Appearance by or on behalf of Respondents
SOLICITORS:	Legal Aid Queensland for the Applicant No Appearance by or on behalf of Respondents.