Public Trustee v Kaye - [2012] QSC 372

SUPREME COURT OF QUEENSLAND

CITATION:

Public Trustee v Kaye & Anor [2012] QSC 372

PARTIES:

PUBLIC TRUSTEE on behalf of the estate of Shane Maxwell Warren deceased
(applicant)
v
RIKKI LEE KAYE
(first respondent)
and
JASON MARK WARREN
(second respondent)

FILE NO:

Maryborough S6/11

DIVISION:

Trial Division

PROCEEDING:

Application for criminal compensation

DELIVERED ON:

26 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

12 and 21 November 2012

JUDGE:

Margaret Wilson J

ORDER:

1. The respondents pay the Public Trustee on behalf of the estate of Shane Maxwell Warren deceased $35,000 because of the injuries Shane Maxwell Warren sustained when they did him grievous bodily harm on 15 May 2007;

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

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – GENERALLY – where applicant stabbed six times by respondents and suffered mental shock to a severe degree – where applicant died before hearing of application – whether cause of action survives death of applicant

COUNSEL:

On 12 November 2012:
T George (solicitor) appeared for the applicant
The respondents were self-represented

On 21 November 2012:
T McGarvie (solicitor) appeared for the applicant
The respondent Rikki Lee Kaye did not appear
The respondent Jason Mark Warren was self-represented

SOLICITORS:

Suthers Lawyers for the applicant

MARGARET WILSON J: This is an application for criminal compensation.

The offences

Shane Maxwell Warren (whom I shall call “the applicant’) was born on 2 December 1968.

On or about 15 May 2007 the applicant was asleep in his bed at his home at Pialba. He woke to the sound of loud banging and glass being smashed by the respondents (Rikki Lee Kaye and Jason Mark Warren), who broke into his house. He got up, and armed with a metal baton, approached the rear door. He opened the door and found the respondent Kaye armed with a knife and the respondent Jason Warren armed with a mini samurai sword. The applicant ran to his room and shut the door, but it was kicked in and the two respondents entered the room. The applicant attempted to leave by a rear sliding door, but there was an altercation in which he was stabbed.

The respondents were brothers of the applicant (one a natural brother and the other a cousin who had become a brother by adoption). The incident arose out of acrimony between the applicant and one of the respondents over a woman with whom the applicant had been in a relationship. The applicant had been in prison, and he believed that while he was there the respondent Jason Warren had a relationship with his partner.

Convictions

On 9 April 2009 (approximately 23 months after the attack) the respondents were convicted in the Supreme Court of doing grievous bodily harm and burglary with circumstances of aggravation. Each was given a head sentence of six years imprisonment. In Kaye’s case, one year of a suspended sentence was activated, cumulative upon the six years.

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 Public Trustee v Kaye

Details

AGLC: Public Trustee v Kaye & Anor [2012] QSC 372
Case: [2012] QSC 372
Decision Date: 26 November 2012

CaseChat Overview and Summary

In the case of Public Trustee v Kaye, the primary focus was on a claim for criminal injuries compensation under Queensland law. The applicant, Shane Maxwell Warren, had been stabbed multiple times by the respondents, resulting in severe mental shock. Unfortunately, Mr. Warren passed away before his application for compensation could be heard. The central legal question was whether the cause of action for compensation survived his death. This issue was brought before the court for determination.

The court was required to interpret relevant statutory provisions, particularly those governing the survival of actions for personal injuries post-mortem. It was necessary to examine the legislative intent behind the criminal injuries compensation scheme and assess whether the statutory framework allowed for a posthumous claim by the Public Trustee on behalf of the deceased's estate. The court needed to determine whether the statutory provisions supported the continuation of the action after the applicant's death.

In its reasoning, the court found that the statutory provisions did indeed permit the continuation of the action by the Public Trustee on behalf of the deceased's estate. The court concluded that the legislative intent behind the criminal injuries compensation scheme was to ensure that victims of grievous bodily harm receive appropriate compensation, regardless of their survival status at the time of the hearing. Consequently, the court ruled that the cause of action survived the death of the applicant. The court ordered that the respondents pay $35,000 to the Public Trustee, representing the estate of Shane Maxwell Warren, for the grievous bodily harm inflicted upon him. The first and second respondents were declared jointly and severally liable for the payment of this compensation.

Orders

Orders of the court

1. The respondents pay the Public Trustee on behalf of the estate of Shane Maxwell Warren deceased $35,000 because of the injuries Shane Maxwell Warren sustained when they did him grievous bodily harm on 15 May 2007;

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

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:	Public Trustee v Kaye & Anor [2012] QSC 372
PARTIES:	PUBLIC TRUSTEE on behalf of the estate of Shane Maxwell Warren deceased (applicant) v RIKKI LEE KAYE (first respondent) and JASON MARK WARREN (second respondent)
FILE NO:	Maryborough S6/11
DIVISION:	Trial Division
PROCEEDING:	Application for criminal compensation
DELIVERED ON:	26 November 2012
DELIVERED AT:	Brisbane
HEARING DATE:	12 and 21 November 2012
JUDGE:	Margaret Wilson J
ORDER:	1. The respondents pay the Public Trustee on behalf of the estate of Shane Maxwell Warren deceased $35,000 because of the injuries Shane Maxwell Warren sustained when they did him grievous bodily harm on 15 May 2007; 2. Declare the first and second respondents jointly and severally liable for the payment of that compensation.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – GENERALLY – where applicant stabbed six times by respondents and suffered mental shock to a severe degree – where applicant died before hearing of application – whether cause of action survives death of applicant
COUNSEL:	On 12 November 2012: T George (solicitor) appeared for the applicant The respondents were self-represented On 21 November 2012: T McGarvie (solicitor) appeared for the applicant The respondent Rikki Lee Kaye did not appear The respondent Jason Mark Warren was self-represented
SOLICITORS:	Suthers Lawyers for the applicant