MacFarlane v Murgha

[2010] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

MacFarlane v Murgha [2010] QDC 244

PARTIES:

GORDON ALEXANDER MacFARLANE
(Applicant)
v
GAVIN JOSEPH MURGHA
(Respondent)

FILE NO/S:

245 of 2009

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

18 June 2010

DELIVERED AT:

Cairns

HEARING DATE:

4 June 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $18,750.00

CATCHWORDS:

Criminal compensation – physical injuries – psychological injuries

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] QdR 303 at 310
RMC v NAC [2009] QSC 149

COUNSEL:

SOLICITORS:

ILS QLD LIMITED for the applicant
No appearance for the respondent

1. This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

1. The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 28 February 2007, namely assault occasioning bodily harm whilst armed in company.

Facts

1. In the early hours of 13 August 2005, the applicant was assaulted by two males.  The respondent was one of them.  He was the only person charged with the attack on the applicant.  As the applicant was fighting off the other assailant, the respondent attacked him with an aluminium baseball bat striking him to the head with it on a number of occasions (“the incident”).

Injuries

1. The applicant suffered the following injuries as a consequence of the incident:

·Bruising and abrasions;

·Two lacerations to the back of his head which were sutured;

·A broken jaw.

The relevant law

1. COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation”.

1. Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of the COVA. In R v Jones ex parte Zaicov[1] Holmes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed.  Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

[1][2002] 2 QdR 303 at 310

1. Relevantly, the Compensation Table prescribes:

·Item 2 Bruising/laceration etc (severe) …      3% - 5%

·Item 8 Facial fracture (severe) …  20% - 30%

1. Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any…