Gardiner v Atirai - [2009] QDC 421

DISTRICT COURT OF QUEENSLAND

CITATION: Gardiner v Atirai [2009] QDC 421
PARTIES: SEAN MICHAEL GARDINER
(Applicant)
v
JAY WINAU ATIRAI
(Respondent)
FILE NO/S: 341/2006
DIVISION: Civil
PROCEEDING: Application for Criminal Compensation
ORIGINATING
COURT: District Court, Southport
DELIVERED ON: 4 September 2009
DELIVERED AT: Brisbane
HEARING DATE: 22 October 2008, 17 December 2008, 27 August 2009
JUDGE: Dearden DCJ
ORDER: The Respondent Jay Winau Atirai pay the applicant Sean
Michael Gardiner the sum of $19,500
CATCHWORDS: Application – criminal compensation – assault occasioning bodily harm while armed – extent of compensable injury – evidence of further injury that was not available at time of sentence – bruising/laceration – facial fracture – mental or nervous shock
LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss 22, 24, 25, 26, 30
CASES: R v Ward; ex parte Dooley [2001] 2 Qd R 436
Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337
Wren v Gaulai [2008] QCA 148
Facer v Bennett & Anor [2001] QCA 395
Lewis v Williams [2005] QCA 314
COUNSEL: Ms H Moran (Solicitor) and Ms S Scott-MacKenzie for the
applicant
No appearance for the respondent
SOLICITORS: Slater & Gordon Solicitors for the applicant
No appearance for the respondent
Introduction
[1]  The applicant, Sean Michael Gardiner seeks compensation in respect of injuries suffered by him in an incident which occurred on 1 June 2003 at the Logan Diggers Club. The respondent Jay Winau Atirai was sentenced by Judge Wall at the Beenleigh District Court on 25 November 2003 to a sentence of 12 months imprisonment, wholly suspended, with an operational period of two years.
Facts
[2]  The applicant and a co-worker, Ian Patrick Murray, were both employed as security guards at the Logan Diggers RSL Club, Woodridge as of 1 June 2003. On this date the respondent attempted to enter the club several times during the night. The respondent was wearing a security guard’s uniform at the time. The applicant and Mr Murray refused the respondent entry because he was carrying an extendable telescopic baton attached to his trousers and he appeared to be intoxicated. The respondent argued with the applicant and Mr Murray for some time resulting in them escorting him from the premises.
[3]  A short time later the respondent returned and was again refused entry. On this occasion the respondent drew the telescopic baton and waved it at the respondent and Mr Murray. The respondent and Mr Murray moved to restrain the respondent, and he struck the applicant on the face causing a cut to his top lip. Mr Murray was struck with the telescopic baton on the right forearm.
[4]  The respondent was then restrained by the applicant and
Mr Murray, police were contacted and the respondent
taken into custody.[1]
[1]            Sentencing Exhibit 2 (Schedule of Facts).
Injuries
[5]  The Schedule of Facts notes that the applicant suffered
a “cut to his top lip” as well as “swelling and bruising
to his top lip causing him pain and discomfort”[2]
[2]            Sentencing Exhibit 2 (Schedule…

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 Gardiner v Atirai

Details

AGLC: Gardiner v Atirai [2009] QDC 421
Case: [2009] QDC 421
Decision Date: 4/09/2009

CaseChat Overview and Summary

The case of Gardiner v Atirai involved an application by Sean Michael Gardiner for criminal injury compensation against Jay Winau Atirai, who had previously been convicted of assault occasioning bodily harm while armed. Gardiner alleged that Atirai's assault had caused him both physical and psychological injuries. The dispute centred on the extent of Gardiner's compensable injuries, specifically whether the injuries that were not apparent at the time of Atirai's sentencing could be taken into account when determining the amount of compensation.

The primary legal issues were whether the injuries that Gardiner claimed were not available at the time of Atirai's sentencing, including bruising, laceration, a facial fracture, and mental or nervous shock, could be considered in assessing the compensation. The court had to determine the extent to which the injuries were causally linked to the assault and whether they were of a nature that could be compensated under the Criminal Injury Compensation Act. The court also needed to assess the evidence provided regarding the injuries and their impact on Gardiner.

The court concluded that the injuries Gardiner claimed, which were not evident at the time of Atirai's sentencing, could be taken into account. The injuries included significant bruising, laceration, a facial fracture, and evidence of mental or nervous shock, which were deemed to be a direct result of the assault. The court found that these injuries were of a nature that warranted compensation under the Act. After evaluating the evidence and the impact of the injuries on Gardiner's life, the court ordered that Atirai pay Gardiner $19,500 in compensation.

Orders

Orders of the court

The Respondent Jay Winau Atirai pay the applicant Sean

Michael Gardiner the sum of $19,500

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:	Gardiner v Atirai [2009] QDC 421
PARTIES:	SEAN MICHAEL GARDINER
(Applicant) v
JAY WINAU ATIRAI
(Respondent)
FILE NO/S:	341/2006
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2008, 17 December 2008, 27 August 2009
JUDGE:	Dearden DCJ
ORDER:	The Respondent Jay Winau Atirai pay the applicant Sean Michael Gardiner the sum of $19,500
CATCHWORDS:	Application – criminal compensation – assault occasioning bodily harm while armed – extent of compensable injury – evidence of further injury that was not available at time of sentence – bruising/laceration – facial fracture – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss 22, 24, 25, 26, 30
CASES:	R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] QCA 148 Facer v Bennett & Anor [2001] QCA 395 Lewis v Williams [2005] QCA 314
COUNSEL:	Ms H Moran (Solicitor) and Ms S Scott-MacKenzie for the applicant No appearance for the respondent
SOLICITORS:	Slater & Gordon Solicitors for the applicant No appearance for the respondent
Introduction