Lewis v Williams

[2005] QCA 314

SUPREME COURT OF QUEENSLAND

CITATION:

Lewis v Williams [2005] QCA 314

PARTIES:

JAMIE LEWIS
(applicant/appellant)
v
OWEN MARK WILLIAMS
(respondent)

FILE NOS:

Appeal No 4065 of 2005
DC No 76 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

26 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

9 August 2005

JUDGES:

McPherson and Jerrard JJA, Wilson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

(a)Allow the application for leave to appeal;    

(b)Allow the appeal;   

(c)Vary the order appealed from by substituting the amount of $22,500 for the amount of $30,000.    

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where appellant was convicted of unlawful assault causing bodily harm – where the prosecution had filed a nolle prosequi on charge of doing grievous bodily harm – where respondent victim lost his sense of smell as a result of the assault – where the respondent victim was granted criminal compensation under the Criminal Offence Victims Act 1995 – whether filing of nolle prosequi prevented respondent victim from claiming compensation for loss of sense of smell – whether loss of sense of smell is a compensable injury – whether quantum of compensation awarded was excessive

Civil Liability Regulation 2003 (Qld)
Criminal Code Act 1899 (Qld), s 663B
Criminal Offence Victims Act 1995 (Qld), s 19, s 20, s 21, s 23, s 24


R v Bennet; ex parte Facer [2001] QCA 395; [2002] 2 Qd R 295, distinguished
Re Rogers, unreported, Helman J, SC No 6086 of 1997, 13 November 1998, followed

COUNSEL:

A W Collins for the applicant/appellant

S T Farrell for the respondent

SOLICITORS:

Bevan & Griffin for the applicant/appellant
Connolly Suthers for the respondent

1. McPHERSON JA:  I agree with the orders proposed by Wilson J and with the reasons of her Honour, which I have had the advantage of reading.

1. An application for an order for compensation under the Criminal Offence Victims Act 1995 is authorised by s 24(2) of the Act if, so far as material here, someone is in terms of s 24(1) convicted on an indictment of a personal offence, meaning an indictable offence committed against the person: s 21. The appellant was convicted at trial on an indictment of assaulting the respondent and doing him bodily harm. This was after the Crown prosecutor at the trial had entered nolle prosequi on a charge of having done grievous bodily harm to the respondent. The reason for taking that course may have been, we were informed, because loss of a sense of smell does not amount to grievous bodily harm within the meaning of the definition of that expression in the Criminal Code.

1. For the appellant, Mr Collins of counsel submitted that loss of the sense of…