McDonald v Marshall - [2010] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:

McDonald v Marshall [2010] QDC 297

PARTIES:

ROBERT BRUCE MCDONALD
(applicant)

v

STEVEN ALEXANDER MARSHALL
(respondent)

FILE NO/S:

BD 245 of 2009

DIVISION:

Civil jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

6^TH August 2010

DELIVERED AT:

Maroochydore

HEARING DATE:

11 June 2010

JUDGE:

J.M. Robertson DCJ

ORDER:

Subject to the applicant filing a certificate of conviction I order the respondent to pay to the applicant the sum of $21,750. The applicant did not contribute either directly or indirectly to his injuries.

Criminal Offence Victims Act 1995 (Qld)

R v Chong; ex parte Chong [2001] 2 QD R 301

SAY v Z; ex parte Attorney-General [2006] QCA 472

Dooley v Ward [2000] QCA 493

CATCHWORDS:

COMPENSATION - when applicant previously assessed by same psychologist who attributed mental shock to other causes, where report prepared for compensation claim to other non-compensible factors, where psychologist cross-examined about variations.

COUNSEL:

J. Kimmins for Applicant

K. A. Mellifont as Amicus Curiae for the Attorney-General

SOLICITORS:

Carew Lawyers for the Applicant

Crown Law

Mr McDonald applies for compensation under the now repealed Criminal Offence Victims Act 1995 (the “COVA”) for injuries sustained when he was assaulted by the respondent Steven Marshall outside the Palmwoods Hotel on the evening of 31 August 2007.

The matter has had a very unfortunate chequered history. Mr Marshall pleaded guilty to one count of assault occasioning bodily harm before me in this court on 1 December 2008. He also pleaded guilty to two other more serious offences committed at Hunchy on 5 December 2007. The sentence hearing was adjourned until 16 March 2009 to enable a pre-sentence report to be prepared to enable me to impose sentence on Mr Marshall on that day.

The only reason I have briefly mentioned the history of the criminal proceedings is to demonstrate that paragraph 3 of Ms Parkes’ (solicitor for Mr McDonald) affidavit filed with the application on 2 September 2009 is misleading. I do not suggest that it is intentionally misleading, but it is yet another example of professional sloppiness that judges have frequently associated with these applications which thankfully we will no longer have to hear. A reading of my sentencing remarks on 16 March 2009 should have demonstrated to a lawyer that (a) Mr Marshall was convicted on 1 December 2009 and (b) the transcript of 16 March 2009 was completely unhelpful to understanding the factual basis on which the sentence proceeded.

I have said many, many times that the police statement of the applicant is only relevant to the extent to which the facts relied upon at the time of sentence coincide with the facts set out in the statement. Although it is a case relating to the repealed Code scheme, R v Chong; ex parte Chong [2001] 2 Qd R 301 is authority for the proposition that the relevant facts for the purposes of an assessment under s 24 of the COVA are the…

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 McDonald v Marshall

Details

AGLC: McDonald v Marshall [2010] QDC 297
Case: [2010] QDC 297
Decision Date: 6TH August 2010

CaseChat Overview and Summary

In the matter of McDonald versus Marshall, the Queensland District Court was tasked with deciding the matter of compensation for injuries sustained by the applicant, Mr McDonald. The dispute centred around the assessment of damages for psychiatric injury following a car accident, with Mr Marshall being the respondent and the insurance company involved. The primary issue was whether the applicant was entitled to compensation for his injuries, considering that the psychologist who assessed him had previously attributed his mental shock to other causes.

The court was required to determine if the applicant was entitled to compensation for his injuries, considering that the same psychologist who had previously assessed him had attributed his mental shock to other causes. Furthermore, the court had to examine whether the report prepared for the compensation claim was reliable, given that it appeared to overlook certain non-compensable factors. The court also needed to consider the cross-examination of the psychologist about variations in the report.

The court, after reviewing the evidence, found that the applicant did not contribute either directly or indirectly to his injuries. It was concluded that the applicant was entitled to compensation under the Criminal Offence Victims Act 1995. The court relied on previous cases such as R v Chong; ex parte Chong, SAY v Z; ex parte Attorney-General, and Dooley v Ward in reaching its decision. Consequently, the court ordered the respondent to pay the applicant the sum of $21,750, subject to the applicant filing a certificate of conviction.

Orders

Orders of the court

Subject to the applicant filing a certificate of conviction I order the respondent to pay to the applicant the sum of $21,750. The applicant did not contribute either directly or indirectly to his injuries.

Criminal Offence Victims Act 1995 (Qld)

R v Chong; ex parte Chong [2001] 2 QD R 301

SAY v Z; ex parte Attorney-General [2006] QCA 472

Dooley v Ward [2000] QCA 493

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:	McDonald v Marshall [2010] QDC 297
PARTIES:	ROBERT BRUCE MCDONALD (applicant) v STEVEN ALEXANDER MARSHALL (respondent)
FILE NO/S:	BD 245 of 2009
DIVISION:	Civil jurisdiction
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	6^TH August 2010
DELIVERED AT:	Maroochydore
HEARING DATE:	11 June 2010
JUDGE:	J.M. Robertson DCJ
ORDER:	Subject to the applicant filing a certificate of conviction I order the respondent to pay to the applicant the sum of $21,750. The applicant did not contribute either directly or indirectly to his injuries. *Criminal Offence Victims Act* 1995 (Qld) *R v Chong; ex parte Chong* [2001] 2 QD R 301 *SAY v Z; ex parte Attorney-General* [2006] QCA 472 *Dooley v Ward* [2000] QCA 493
CATCHWORDS:	COMPENSATION - when applicant previously assessed by same psychologist who attributed mental shock to other causes, where report prepared for compensation claim to other non-compensible factors, where psychologist cross-examined about variations.
COUNSEL:	J. Kimmins for Applicant K. A. Mellifont as Amicus Curiae for the Attorney-General
SOLICITORS:	Carew Lawyers for the Applicant Crown Law