Kane v Horne - [2009] QDC 347

DISTRICT COURT OF QUEENSLAND

CITATION:

Kane v Horne [2009] QDC 347

PARTIES:

Gerard Damien Kane

(Applicant)

v

David Alan Horne

(Respondent)

FILE NO/S:

530/09

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Southport

DELIVERED ON:

12 November 2009

DELIVERED AT:

Southport

HEARING DATE:

2 November 2009

JUDGE:

Rafter SC, DCJ

ORDER:

The respondent pay to the applicant the amount of $18,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of grievous bodily harm of which the respondent was convicted in the District Court at Southport on 18 June 2009

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – GRIEVOUS BODILY HARM – whether applicant’s injuries should be treated as a single state of injury – whether any behaviour of the applicant directly or indirectly contributed to the injury.

COUNSEL:

E. Muir, Solicitor for the applicant

No appearance by or for the respondent

SOLICITORS:

Eric Muir, for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries suffered when he was stabbed by the respondent on 31 December 2007.

On 18 June 2009 the respondent pleaded guilty in the District Court at Southport to unlawfully doing grievous bodily harm to the applicant. He was sentenced to three years imprisonment with an immediate parole release date. He had served 474 days in pre-sentence custody which was declared as imprisonment already served.

The application and supporting affidavits were served on the respondent on 7 October 2009.[1]
[1]Affidavit of Robert Keith Sprott filed 30 October 2009.

Circumstances of the Offence

In his statement to the police dated 7 January 2008[2] the applicant said that on New Year’s Eve 2007 he went to bed after watching the fireworks on television. He was woken at some time between 10 pm and midnight by his housemate calling out to him. He then heard a male person demanding money. He then went to the lounge room where he saw his housemate backed up near the archway to the kitchen and a male person brandishing a wheel brace in his right hand. He said that the male person then turned to him and demanded money. The applicant said that he recognised the male person as someone who had been to his home on one previous occasion and had a drink with a group of others. The applicant said that the male person approached him swinging the wheel brace. The applicant then obtained a fence paling. He said that the respondent struck him with the wheel brace. He said that the respondent then obtained a knife from the kitchen and approached his housemate. The applicant charged towards the respondent with the fence paling and hit him in the chest area. A struggle ensued. The applicant said that the respondent had the wheel brace in one hand and the knife in the other. The applicant said that he…

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 Kane v Horne

Details

AGLC: Kane v Horne [2009] QDC 347
Case: [2009] QDC 347
Decision Date: 12 November 2009

CaseChat Overview and Summary

The applicant, Kane, sought compensation for grievous bodily harm under the Criminal Offence Victims Act 1995, following an incident in which the respondent, Horne, had been convicted of causing grievous bodily harm. The dispute centred on whether Kane's injuries should be treated as a single state of injury for the purposes of compensation and whether any behaviour of Kane directly or indirectly contributed to his injuries. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was the determination of the appropriate compensation amount, contingent upon whether Kane's injuries were to be treated as a single state of injury. This involved an assessment of the contribution, if any, made by Kane to the injuries he sustained. The court had to weigh the evidence and arguments presented by both parties regarding the nature and extent of the injuries, as well as the conduct of Kane that might have contributed to them.

The court found that the injuries sustained by Kane were to be treated as a single state of injury. It concluded that there was no evidence to suggest that any behaviour of Kane contributed to the injuries. The court was satisfied that the application for compensation should be assessed on the basis of the severity and impact of the injuries alone. Accordingly, the court ordered the respondent to pay the applicant $18,750 by way of compensation. This amount was determined to be appropriate given the nature and impact of the grievous bodily harm suffered by Kane.

Orders

Orders of the court

The respondent pay to the applicant the amount of $18,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of grievous bodily harm of which the respondent was convicted in the District Court at Southport on 18 June 2009

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:	Kane v Horne [2009] QDC 347
PARTIES:	Gerard Damien Kane (Applicant) v David Alan Horne (Respondent)
FILE NO/S:	530/09
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Southport
DELIVERED ON:	12 November 2009
DELIVERED AT:	Southport
HEARING DATE:	2 November 2009
JUDGE:	Rafter SC, DCJ
ORDER:	The respondent pay to the applicant the amount of $18,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of grievous bodily harm of which the respondent was convicted in the District Court at Southport on 18 June 2009
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – GRIEVOUS BODILY HARM – whether applicant’s injuries should be treated as a single state of injury – whether any behaviour of the applicant directly or indirectly contributed to the injury.
COUNSEL:	E. Muir, Solicitor for the applicant No appearance by or for the respondent
SOLICITORS:	Eric Muir, for the applicant No appearance by or for the respondent