McKay v Walsh

[2005] QDC 289

DISTRICT COURT OF QUEENSLAND

CITATION:

McKay v Walsh [2005] QDC 289

PARTIES:

JAMES JOSEPH MCKAY

Applicant

v

KERRY WALSH

Respondent

FILE NO/S:

BD611 of 2005

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 October 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2005

JUDGE:

McGill DCJ

ORDER:

Order the respondent to pay compensation of $54,000

CATCHWORDS:

CRIMINAL LAW – Compensation – brain damage – other injuries - assessment

COUNSEL:

L.R. Smith for the applicant
The respondent did not appear

SOLICITORS:

Trilby Misso Solicitors for the applicant
The respondent was not represented

1. This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 13 January 2003 the respondent pleaded guilty before this court to one count of assault occasioning bodily harm committed on 22 January 2002 on the applicant. A term of imprisonment was imposed. The offence is a personal offence so that s.24(1) of the Act is satisfied. I made an order for substituted service of the application and affidavits in support on 18 March 2005. Evidently the matter came to the attention of the respondent, because on 12 September 2005 a statement, which is more in the form of submissions in writing than evidence, was sent by facsimile to the court. It gives a postal address for the respondent in Papua New Guinea. After seeing a copy of the statement, counsel for the applicant was content to proceed on the original material. I have noted various matters put forward by the respondent in that statement, and will address them below.

1. The applicant claims that as a result of the offence he has suffered the following injuries:

(a)        bruising and laceration to the head and face;

(b)        damage to teeth;

(c)        facial scarring and disfigurement;

(d)        chronic soft tissue musculo-ligamentous injury to the cervical spine;

(e)        closed head injury resulting in cognitive deficits; and

(f)        mental and nervous shock.

The offence

1. The circumstances of the offence appear from the transcript of the sentencing proceedings, and His Honour’s sentencing remarks.  The applicant was one of a group of men who were drinking at the casino; the respondent was with a different group who were also there.  One of the respondent’s group dropped a glass which broke, and the applicant says that as a result some broken glass came near him and almost went into his eye.  He said something about that, and this led to an argument between the two groups in the casino.  Both groups were then ejected from the casino by security guards.  Apparently there was then a fight between the two groups in George Street, although the applicant said that he was the last to get to the fight.  What happened outside was filmed using surveillance video cameras, and during the hearing His Honour saw the video tape (which I have not seen) and noted that the complainant and his group had approached the prisoner’s group with aggressive intent.

1. There was an altercation in which both the respondent and…