Kopittke v Winchester - [2009] QDC 396

DISTRICT COURT OF QUEENSLAND

CITATION:

Kopittke v Winchester [2009] QDC 396

PARTIES:

GARY JOHN KOPITTKE

(Applicant)

V

TROY SHANE WINCHESTER

(Respondent)

FILE NO/S:

2590 of 2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

14 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2009

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 3 December 2007

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – GRIEVOUS BODILY HARM – physical injuries and mental or nervous shock.

COUNSEL:

C Reid for the applicant

The respondent appeared for himself

SOLICITORS:

Wallace Davies for the applicant

The respondent appeared for himself

Introduction

The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondent on 18 June 2006.

On 3 December 2007 in the District Court at Brisbane the respondent pleaded guilty to causing grievous bodily harm to the applicant and other offences.

On 11 April 2008 the respondent was sentenced to four years imprisonment with a parole eligibility date after 16 months on 2 April 2009. He had served 130 in pre-sentence custody which was declared to be imprisonment already served under the sentence.

The application and supporting affidavit material was served on the respondent on 16 November 2009. The matter was listed for hearing on 24 November 2009. The respondent appeared and requested an adjournment to obtain legal representation. The matter was adjourned to today. The respondent appeared for himself.

Circumstances of the offence

The respondent’s former partner commenced a relationship with the applicant. There were two children of the relationship between the respondent and his former partner.

On 18 June 2006 the former partner went to meet the respondent to collect the children following an access visit.

The applicant remained at home watching television. The respondent entered the home armed with an aluminium baseball bat. He struck the applicant to the left side of the head. The applicant was knocked unconscious. When he regained consciousness the applicant struck him at least three more times. He was struck to the left knee and left ankle.

Injuries and medical reports

The applicant was taken to the Redcliffe Hospital by a neighbour. He was treated for bruising to his forehead, abdomen, left arm and left leg. He was suffering abdominal pain. A CT scan revealed a ruptured spleen. He was taken to the operating theatre for an emergency splenectomy. He was discharged from hospital on 24 June 2006.[1]
[1] Report of Dr Stephen Kolera, Emergency Department, Redcliffe Hospital dated 4 June 2009

The applicant was examined by Dr Barbara McGuire, Psychiatrist, on 28 April 2009. In her report dated 8 May 2009 Dr McGuire expresses the view that the applicant has…

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 Kopittke v Winchester

Details

AGLC: Kopittke v Winchester [2009] QDC 396
Case: [2009] QDC 396
Decision Date: 14 December 2009

CaseChat Overview and Summary

The case of Kopittke v Winchester involved a dispute regarding compensation for grievous bodily harm. The applicant, Kopittke, sought compensation from the respondent, Winchester, who had been convicted in the District Court at Brisbane on 3 December 2007 for the offence of grievous bodily harm. The dispute centred around the quantum of compensation to be awarded under the Criminal Offence Victims Act 1995. The court was tasked with determining whether the compensation amount sought by Kopittke was appropriate and justified given the nature and extent of the injuries sustained and the resultant mental or nervous shock.

The primary legal issue for the court to decide was the appropriate compensation amount for Kopittke's grievous bodily harm, including both physical injuries and the associated mental or nervous shock. This involved assessing the evidence presented regarding the injuries, their impact on the applicant's life, and the necessity and adequacy of the compensation sought. The court also had to consider relevant legislative provisions, such as section 24 of the Criminal Offence Victims Act 1995, which governs the awarding of compensation to victims of crime.

In delivering the decision, the court carefully examined the evidence and submissions provided by both parties. It found that the compensation sought by Kopittke was reasonable and reflective of the harm suffered, taking into account the physical injuries and the mental or nervous shock. The court was satisfied that the amount of $26,250 was appropriate given the circumstances. Consequently, the court ordered Winchester to pay the applicant the specified sum as compensation under the relevant statutory provision.

The final order of the court was that Winchester pay Kopittke the sum of $26,250 by way of compensation for the injuries sustained as a result of the offence of grievous bodily harm. This order was based on the court's determination that the compensation amount was just and necessary to address the consequences of the harm caused by Winchester.

Orders

Orders of the court

The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 3 December 2007

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:	Kopittke v Winchester [2009] QDC 396
PARTIES:	GARY JOHN KOPITTKE (Applicant) V TROY SHANE WINCHESTER (Respondent)
FILE NO/S:	2590 of 2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	14 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	14 December 2009
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 3 December 2007
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – GRIEVOUS BODILY HARM – physical injuries and mental or nervous shock.
COUNSEL:	C Reid for the applicant The respondent appeared for himself
SOLICITORS:	Wallace Davies for the applicant The respondent appeared for himself