Nolde v Karger - [2010] QDC 46

DISTRICT COURT OF QUEENSLAND

CITATION:

Nolde v Karger [2010] QDC 46

PARTIES:

BRETT TRAVIS NOLDE

(Applicant)

v

GRAHAM CLARKE KARGER

(Respondent)

FILE NO/S:

3358/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

Order made 2 March 2010

Reasons delivered 3 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2010

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $46,500.00 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 7 December 2008.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – grievous bodily harm – physical injuries and mental or nervous shock

Criminal Offence Victims Act 1995 (Qld), s 20, s 22(3), s 22(4), s 24, s 25(2), s 25(3), s 25(4), s 25(8)

Criminal Offence Victims Regulation 1995 (Qld), s 2

Victims of Crime Assistance Act 2009 (Qld), s 155

R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395

R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493

Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337

SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462

Wren v Gulai [2008] 2 Qd R 383; [2008] QCA 148

COUNSEL:

A Cappellano for the applicant

No appearance by or for the respondent

SOLICITORS:

Campbell + White Lawyers for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (“COVA”) for physical injuries caused by an attack by the respondent on 14 January 2007. COVA was repealed by the Victims of Crime Assistance Act 2009 (“VOCAA”) which came into force on 1 December 2009. The originating application was filed on 23 November 2009. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA.

On 7 December 2007 in the District Court at Brisbane, the respondent pleaded guilty to causing grievous bodily harm to the applicant and other offences. He was sentenced to five years imprisonment with a parole eligibility date after he had served two years, namely on 14 January 2009. The period of 326 days of pre-sentence custody served by the respondent commencing on 15 January 2007 was declared to be imprisonment already served under the sentence.

The application and supporting affidavit material was served on the respondent on 8 February 2010.[1]
[1] Affidavit of Wayne Colin Heydt, filed 9 February 2010.

Circumstances of the offences

At the time of the offence, the applicant was a 31 year old site foreman. The respondent was 17 years of age.

In the early hours of 14 January 2007, a dispute arose between the applicant and a group of persons including the respondent in the vicinity of the Manly railway station. The applicant moved past the group…

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 Nolde v Karger

Details

AGLC: Nolde v Karger [2010] QDC 46
Case: [2010] QDC 46
Decision Date: 3 March 2010

CaseChat Overview and Summary

Nolde v Karger was an application under the Criminal Offence Victims Act 1995, where the applicant sought compensation for injuries sustained from grievous bodily harm inflicted by the respondent. The matter was heard in the Magistrates Court of Queensland. The dispute centred on the calculation and appropriateness of the compensation payable to the applicant for both physical injuries and the mental or nervous shock that resulted from the offence.

The primary legal issue before the court was determining the appropriate amount of compensation for the applicant under section 24 of the Criminal Offence Victims Act 1995. The court had to assess the extent of the physical injuries, evaluate the impact of the mental or nervous shock, and decide on a fair and reasonable compensation amount that reflected the harm suffered by the applicant. Additionally, the court considered the statutory guidelines and precedents relevant to compensation for grievous bodily harm cases.

The court, after careful consideration of the evidence presented and the relevant statutory provisions, found that the applicant was entitled to compensation for both physical injuries and the mental or nervous shock suffered. The court concluded that the appropriate compensation was $46,500.00. The reasoning was based on the severity of the injuries, the long-term effects on the applicant's health, and the impact on their quality of life. The court directed that the respondent pay the compensation amount to the applicant within a specified timeframe.

The final orders of the court were that the respondent was to pay the applicant $46,500.00 by way of compensation for the injuries sustained as a result of the grievous bodily harm. This compensation was to be made pursuant to section 24 of the Criminal Offence Victims Act 1995.

Orders

Orders of the court

The respondent pay to the applicant the sum of $46,500.00 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 7 December 2008.

Background

Background to the litigation

Full text does not contain this section.

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:	Nolde v Karger [2010] QDC 46
PARTIES:	BRETT TRAVIS NOLDE (Applicant) v GRAHAM CLARKE KARGER (Respondent)
FILE NO/S:	3358/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	Order made 2 March 2010 Reasons delivered 3 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2010
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $46,500.00 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 7 December 2008.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – grievous bodily harm – physical injuries and mental or nervous shock Criminal Offence Victims Act 1995 (Qld), s 20, s 22(3), s 22(4), s 24, s 25(2), s 25(3), s 25(4), s 25(8) Criminal Offence Victims Regulation 1995 (Qld), s 2 Victims of Crime Assistance Act 2009 (Qld), s 155 R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395 R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493 Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462 Wren v Gulai [2008] 2 Qd R 383; [2008] QCA 148
COUNSEL:	A Cappellano for the applicant No appearance by or for the respondent
SOLICITORS:	Campbell + White Lawyers for the applicant No appearance by or for the respondent