O'Hearn v Wang - [2010] QDC 414

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Hearn v Wang [2010] QDC 414

PARTIES:

PATRICK JOHN O’HEARN

(Applicant)

v

HUAN WANG

(Respondent)

FILE NO/S:

Application D107/09

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Toowoomba

DELIVERED ON:

3 November 2010

DELIVERED AT:

Toowoomba

HEARING DATE:

1 November 2010

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $6,000 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault which led to the conviction of the respondent in the District Court at Toowoomba on 11 September 2009

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – physical injuries and mental or nervous shock – assessment of compensation

Criminal Offence Victims Act 1995 (Qld), s 22, 24, 25

Victims of Crime Assistance Act 2009 (Qld), s 149

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

COUNSEL:

P Wilson for the applicant

No appearance by or for the respondent

SOLICITORS:

Parker Simmonds for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused when he was assaulted by the respondent on 3 March 2008. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The application was filed on 25 November 2009 and therefore the application is to be determined in accordance with the Criminal Offence Victims Act 1995.

The application and supporting affidavits were served on the respondent on 11 August 2010.[1] A further affidavit exhibiting additional medical records was served on the respondent on 6 September 2010.[2]
[1]Affidavit of Simon Debritz filed 6 September 2010.
[2]Affidavit of Simon Debritz filed 9 September 2010.

There has been no appearance by or for the respondent.

On 11 September 2009 in the District Court at Toowoomba the respondent pleaded guilty to assaulting the applicant, a police officer who was acting in the execution of his duty. She was sentenced to six months’ imprisonment wholly suspended for an operational period of six months.

Circumstances of the offence

The applicant was a police constable stationed at the prostitution enforcement task force. On 3 March 2008 he made a pre-text telephone call to a mobile telephone number contained in an advertisement in the personal section of classified advertising in the Toowoomba newspaper “The Chronicle”. He later attended at a Toowoomba motel room where he gave the respondent a sum of money in exchange for sexual services. He then identified himself as a police officer and produced his police identification. Another police officer then attended at the motel room and conducted a search. The search revealed a sum of money, a diary, two mobile telephones and some loose papers. While the applicant was interviewing the respondent she suddenly walked over to the other police officer and snatched papers from his hand. The applicant warned her…

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 O'Hearn v Wang

Details

AGLC: O'Hearn v Wang [2010] QDC 414
Case: [2010] QDC 414
Decision Date: 3 November 2010

CaseChat Overview and Summary

O'Hearn applied for compensation under the Criminal Offence Victims Act 1995 (Qld) for injuries sustained during a serious assault by Wang, who was convicted in the District Court at Toowoomba on 11 September 2009. The application was for $8,000 for physical injuries and an additional $5,000 for mental or nervous shock. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues before QCAT were the appropriate compensation amount for physical injuries and mental or nervous shock. The applicant argued that the injuries and shock warranted the full amount sought, while the respondent contested the necessity and extent of the compensation. QCAT had to assess the evidence and determine the appropriate compensation amount.

QCAT determined that the applicant was entitled to $6,000 for the injuries sustained, finding that the physical injuries were significant but not as extensive as claimed. The Tribunal also found that the applicant suffered some mental or nervous shock, but it did not warrant the full amount sought. Consequently, the total compensation awarded was $6,000.

The Tribunal ordered Wang to pay O'Hearn $6,000 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995. This sum was for injuries sustained as a result of the serious assault that led to Wang's conviction in the District Court at Toowoomba on 11 September 2009.

Orders

Orders of the court

The respondent pay to the applicant the sum of $6,000 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault which led to the conviction of the respondent in the District Court at Toowoomba on 11 September 2009

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:	O’Hearn v Wang [2010] QDC 414
PARTIES:	PATRICK JOHN O’HEARN (Applicant) v HUAN WANG (Respondent)
FILE NO/S:	Application D107/09
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Toowoomba
DELIVERED ON:	3 November 2010
DELIVERED AT:	Toowoomba
HEARING DATE:	1 November 2010
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $6,000 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault which led to the conviction of the respondent in the District Court at Toowoomba on 11 September 2009
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – physical injuries and mental or nervous shock – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 22, 24, 25 Victims of Crime Assistance Act 2009 (Qld), s 149 R v Ward, ex-parte Dooley [2001] 2 Qd R 436; [2000] QCA 493
COUNSEL:	P Wilson for the applicant No appearance by or for the respondent
SOLICITORS:	Parker Simmonds for the applicant No appearance by or for the respondent