O'Neil v Holmes & Others - [2007] QSC 77

SUPREME COURT OF QUEENSLAND

CITATION:

O’Neill v Holmes & Ors [2007] QSC 77

PARTIES:

MITARSHA O’NEILL
(applicant)
v
MARK WILLIAM HOLMES
(first respondent)
ADAM TROY BARGENQUAST
(second respondent)
JON DAVID FARTHING
(third respondent)
WADE ANTHONY DAVIS
(fourth respondent)

FILE NO/S:

BS 909 of 2007

DIVISION:

Trial Division

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Wilson J

ORDER:

1. That the first, second, third and fourth respondents pay the applicant $20,625 because of the injuries she sustained when they assaulted her on 10 January 2003;
2. Declare the respondents jointly and severally liable for the payment of that compensation;
3. No order as to costs (including no order as to the costs reserved on 2 March 2007).

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – the applicant suffered physical and psychological injuries following an assault by the four respondents – assessment of compensation

Criminal Offence Victims Act 1995 (Qld) s 19, a 21, s 22, s 24, s 25, s 26
Criminal Offence Victims Regulation 1995 (Qld) s 2

Hicks v The Minister for Justice and Attorney-General[2005] QSC 44, cited
Hohn v King[2004] QCA 254, cited
MR v Webb[2001] QCA 113, cited
R v Morrison, ex parte West [1998] 2 Qd R 79, cited
RLH v Curtis [2001] QSC 137, cited
Zaicov & McKenna v Jones [2001] QCA 442, cited

COUNSEL:

Anton Maher for the applicant
John McDonald (solicitor) for the first, second and fourth respondents
No appearance for the third respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant
John McDonald for the first, second and fourth respondent
No appearance for the third respondent

Wilson J: This is an application for criminal compensation pursuant to the Criminal Offence Victims Act1995 (Qld).

The four respondents were served with the application and supporting material, as was the Public Trustee. The first, second and fourth respondents made submissions by counsel, but the third respondent took no part in the proceeding.

In early January 2003 the first respondent Holmes gave the third respondent Farthing $3,500 in cash to buy cannabis for him. Farthing gave the money to Kerry Palmer, who absconded with it. The four respondents then embarked on a course of conduct designed to locate Palmer and teach him a lesson by assaulting him. That conduct ultimately extended over a three week period and ended in Palmer’s being killed. The four respondents were convicted of Palmer’s manslaughter and of a number of other related offences.

The day after Palmer absconded with the money, the applicant was assaulted. She was lured to Farthing’s home in the early hours of the morning to be questioned about Palmer’s whereabouts, and subjected to abuse, intimidation and threats; a cord was tied around her neck and tightened; one of the respondents…

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'Neil v Holmes & Others

Details

AGLC: O'Neil v Holmes [2007] QSC 77
Case: [2007] QSC 77
Decision Date: 5 April 2007

CaseChat Overview and Summary

In the matter of O'Neil v Holmes & Others, the applicant, O'Neil, sought compensation for physical and psychological injuries sustained during an assault by the respondents, Holmes, and three unnamed others, on 10 January 2003. The case was heard in the Queensland courts, where the primary issue was to determine the appropriate amount of compensation to be awarded to the applicant.

The court was required to consider the extent of the injuries, both physical and psychological, and their impact on the applicant's life. This included assessing the immediate and ongoing effects of the injuries, such as medical expenses, lost income, and the impact on the applicant's ability to work and engage in daily activities. The court also had to evaluate the degree of fault and culpability of the respondents in the assault, as this could influence the quantum of compensation.

After examining the evidence and submissions, the court determined that the respondents were jointly and severally liable for the compensation. The court awarded the applicant $20,625, reflecting the severity and lasting impact of the injuries. The court did not make any order regarding costs, including the costs reserved on 2 March 2007. The decision was made in the interests of fairness and justice, considering the significant impact the assault had on the applicant's life.

Orders

Orders of the court

1. That the first, second, third and fourth respondents pay the applicant $20,625 because of the injuries she sustained when they assaulted her on 10 January 2003;

2. Declare the respondents jointly and severally liable for the payment of that compensation;

3. No order as to costs (including no order as to the costs reserved on 2 March 2007).

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:	O’Neill v Holmes & Ors [2007] QSC 77
PARTIES:	MITARSHA O’NEILL (applicant) v MARK WILLIAM HOLMES (first respondent) ADAM TROY BARGENQUAST (second respondent) JON DAVID FARTHING (third respondent) WADE ANTHONY DAVIS (fourth respondent)
FILE NO/S:	BS 909 of 2007
DIVISION:	Trial Division
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 April 2007
DELIVERED AT:	Brisbane
HEARING DATE:	Heard on the papers
JUDGE:	Wilson J
ORDER:	1. That the first, second, third and fourth respondents pay the applicant $20,625 because of the injuries she sustained when they assaulted her on 10 January 2003; 2. Declare the respondents jointly and severally liable for the payment of that compensation; 3. No order as to costs (including no order as to the costs reserved on 2 March 2007).
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – the applicant suffered physical and psychological injuries following an assault by the four respondents – assessment of compensation Criminal Offence Victims Act 1995 (Qld) s 19, a 21, s 22, s 24, s 25, s 26 Criminal Offence Victims Regulation 1995 (Qld) s 2 Hicks v The Minister for Justice and Attorney-General[2005] QSC 44, cited Hohn v King[2004] QCA 254, cited MR v Webb[2001] QCA 113, cited R v Morrison, ex parte West [1998] 2 Qd R 79, cited RLH v Curtis [2001] QSC 137, cited Zaicov & McKenna v Jones [2001] QCA 442, cited
COUNSEL:	Anton Maher for the applicant John McDonald (solicitor) for the first, second and fourth respondents No appearance for the third respondent
SOLICITORS:	Trilby Misso Lawyers for the applicant John McDonald for the first, second and fourth respondent No appearance for the third respondent