Johnston v Ingham - [2010] QDC 351

DISTRICT COURT OF QUEENSLAND

CITATION:Johnston v Ingham [2010] QDC 351

PARTIES: RACHEL MAREE JOHNSTON
(applicant)

And
JADE MAREE INGHAM
(respondent)

FILE NO/S: No 3082 of 2009

DIVISION: Civil

PROCEEDING: Application for criminal compensation

ORIGINATING
COURT: Brisbane

DELIVERED ON: 7 September 2010

DELIVERED AT: Brisbane

JUDGE: Rackemann DCJ

ORDER: That the respondent pay the applicant the amount of $20, 250.

CATCHWORDS: Section 24 Criminal Offence Victims Act 1995 – criminal compensation – assault occasioning bodily harm – psychical and mental injuries suffered by complainant – mental or nervous shock – application of the principle in SAY v AZ ex parte AG of Queensland [2006] QCA 462 – discount of what otherwise would have been received

SOLICITORS: Legal Aid Queensland for the applicant

No appearance by the respondent

HIS HONOUR: This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act 1995.

The respondent was convicted, on her own plea of guilty, of assault occasioning bodily harm. The conviction occurred on 29 June 2009 and related to events which occurred on 20 June 2008.

In my sentencing remarks, I said as follows:

"The facts are as set out in the schedule of facts, which is Exhibit 2. I won't repeat everything which is contained therein, but I will refer to some aspects of it, which show the severity of the attack. In particular, the schedule of facts states that you went to the house where the complainant was. You ended up grabbing the complainant by her hair and throwing her down on the front stairs. You punched the complainant several times with both hands. The complainant was hunched over on the ground near her car and was trying to cover her face. She stood up and was struck on the side of her face and knocked unconscious. You were seen standing in front of the complainant pulling her hair as if you wanted her to get up. You were seen with your right arm around the complainant's neck in a restraint type hold. You were heard to say: 'I should knee you in the face, bitch.'"

As a result of that offence, the applicant suffered personal injury of both a physical and of a mental kind.

Her physical injuries were by way of bruising and also by way of a whiplash-type injury to her cervical spine.

Compensation for those matters falls under item 1 and 22 of the schedule to the Act. The amounts claimed in each case are 2 per cent and 10 per cent, respectively, and I am well satisfied on the evidence that that is an appropriate assessment.

Therefore, the appropriate award for physical injuries is 12 per cent or an award of $9,000.

The more difficult aspect of this claim relates to the claim for mental and nervous shock. I accept the evidence of the applicant and of Dr Maguire, a psychiatrist. It is evident that the degree of her mental or nervous shock is in the severe category and I accept…

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 Johnston v Ingham

Details

AGLC: Johnston v Ingham [2010] QDC 351
Case: [2010] QDC 351
Decision Date: 7 September 2010

CaseChat Overview and Summary

The District Court of Queensland presided over an application for criminal compensation in the case of Johnston v Ingham. The applicant, Rachel Maree Johnston, sought compensation under the Criminal Offence Victims Act 1995 for injuries sustained as a result of an assault occasioning bodily harm by the respondent, Jade Maree Ingham. Ingham had been convicted of the offence and the application followed. The court was tasked with determining the appropriate amount of compensation for both the physical and mental injuries suffered by Johnston.

The court had to address two main issues. First, it needed to assess the physical injuries Johnston suffered, which included bruising and a whiplash-type injury to her cervical spine. The second issue was more complex, involving the determination of the compensation for Johnston’s mental and nervous shock, which was exacerbated by pre-existing post-traumatic stress disorder stemming from previous offences. The court considered whether the compensation should be adjusted to reflect the influence of these pre-existing conditions on her current mental state.

In resolving these issues, the court found that the physical injuries warranted a compensation of $9,000. For the mental injuries, the court acknowledged the severe impact of the assault on Johnston’s mental health but also recognised the pre-existing post-traumatic stress disorder. Applying the principle from SAY v AZ ex parte AG of Queensland, the court applied a discount to the compensation for mental injuries, concluding that 15% was appropriate, amounting to $11,250. Adding this to the physical injury compensation, the court ordered Ingham to pay Johnston a total of $20,250 in compensation.

The final orders of the court mandated that the respondent, Jade Maree Ingham, pay the applicant, Rachel Maree Johnston, the sum of $20,250 as compensation for the injuries sustained from the assault occasioning bodily harm.

Orders