JMM & Anor v. Hurinui - [2008] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

JMM & Anor v Hurinui [2008] QDC 85

PARTIES:

JMM

(First applicant)

LM

(By his litigation guardian JMM)

(Second applicant)

v

JAMES PIRIPONO HURINUI

(Respondent)

FILE NO/S:

BD 133 of 2008

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

12 February 2008 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

Application heard on the papers

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the first applicant, JMM, the sum of $18,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of armed robbery with personal violence which led to the conviction of the respondent in the District Court at Hervey Bay on 26 April 2007.

Adjourn the application for compensation by the second applicant to a date to be fixed to enable the solicitors for the second applicant to file further written submissions on the issue of whether the second applicant is a person against whom the personal offence of armed robbery with personal violence was committed.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – armed robbery – personal violence - mental or nervous shock

Criminal Offence Victims Act 1995

Brennan v. Smith; Grech v. Smith [2005] QSC 276 - cited
Summers v. Dougherty & Anor [2000] QSC 365 - cited

COUNSEL:

No appearance by or for the applicants

No appearance by or for the respondent

SOLICITORS:

Chris Wlodarczyk & Co for the applicants

Introduction

HIS HONOUR: These are applications for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act1995 for emotional and physical injuries sustained by the applicants as a result of the respondent's robbery with personal violence committed on 19 August 2005.

The first applicant was born on 11 May 1964. She was 41 at the time of the offence. She is presently 43 years old.

The second applicant is a child born on 4 November 1995. He was nine years nine months of age at the time of the offence. He is presently 12 years old.

The applicants have requested that the applications be determined without an oral hearing. The application and supporting affidavits were served on the respondent at the Maryborough Correctional Centre on 25 January 2008. The Official Solicitor to the Public Trustee has filed two affidavits stating that the respondent has advised in writing that he does not wish to participate in the hearing. The Public Trustee is not actively managing the affairs of the respondent pursuant to part 7 of the Public Trustee Act 1978. The respondent has advised the Public Trustee that he has no assets with which to satisfy orders for compensation. The Public Trustee does not hold any assets on behalf of the respondent.

Circumstances of the offence

At about 3.45 p.m. on 19 August 2005 the applicants were about to leave their car at Redbank Plaza Shopping Centre when the respondent used a screwdriver to rob the first applicant.…

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 JMM & Anor v. Hurinui

Details

AGLC: JMM v Hurinui [2008] QDC 85
Case: [2008] QDC 85
Decision Date: 12 February 2008

CaseChat Overview and Summary

The applicants, JMM and another, sought compensation from the respondent, Hurinui, for injuries sustained during an armed robbery incident. The matter was heard in the Queensland District Court. The central issue for the court to determine was whether Hurinui was liable for compensation under section 24 of the Criminal Offence Victims Act 1995 for the injuries suffered by the applicants as a result of the armed robbery with personal violence that led to his conviction in the District Court at Hervey Bay on 26 April 2007.

The court found that the first applicant, JMM, had sustained injuries during the armed robbery and was therefore entitled to compensation. The court was satisfied that the injuries were a direct result of the personal violence associated with the armed robbery and that Hurinui was the person convicted of the crime. Consequently, the court ordered Hurinui to pay JMM the sum of $18,750. Regarding the second applicant, the court was not yet in a position to determine whether the applicant was a victim of the armed robbery with personal violence against Hurinui, as further written submissions were required. The court therefore adjourned the application for compensation by the second applicant to allow the solicitors to file the necessary submissions.

The court ordered that Hurinui pay the first applicant, JMM, the sum of $18,750 by way of compensation and adjourned the application for compensation by the second applicant to a future date to be fixed.

Orders

Orders of the court

1. The respondent pay to the first applicant, JMM, the sum of $18,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of armed robbery with personal violence which led to the conviction of the respondent in the District Court at Hervey Bay on 26 April 2007.

2. Adjourn the application for compensation by the second applicant to a date to be fixed to enable the solicitors for the second applicant to file further written submissions on the issue of whether the second applicant is a person against whom the personal offence of armed robbery with personal violence was committed.

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:	JMM & Anor v Hurinui [2008] QDC 85
PARTIES:	JMM (First applicant) LM (By his litigation guardian JMM) (Second applicant) v JAMES PIRIPONO HURINUI (Respondent)
FILE NO/S:	BD 133 of 2008
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	12 February 2008 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	Application heard on the papers
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the first applicant, JMM, the sum of $18,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of armed robbery with personal violence which led to the conviction of the respondent in the District Court at Hervey Bay on 26 April 2007. Adjourn the application for compensation by the second applicant to a date to be fixed to enable the solicitors for the second applicant to file further written submissions on the issue of whether the second applicant is a person against whom the personal offence of armed robbery with personal violence was committed.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – armed robbery – personal violence - mental or nervous shock Criminal Offence Victims Act 1995 Brennan v. Smith; Grech v. Smith [2005] QSC 276 - cited Summers v. Dougherty & Anor [2000] QSC 365 - cited
COUNSEL:	No appearance by or for the applicants No appearance by or for the respondent
SOLICITORS:	Chris Wlodarczyk & Co for the applicants