R v Jones ex parte Zaicov - [2001] QCA 442

SUPREME COURT OF QUEENSLAND

CITATION: Zaicov & McKenna v Jones [2001] QCA 442

PARTIES: STEPHEN PETER ZAICOV
(first applicant/first appellant)
RICHARD MARK McKENNA
(second applicant/second appellant)
v
SEAN PATRICK JONES
(respondent)

FILE NO/S: Appeal No 9427 of 2000
SC No 5840 of 2000

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 23 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 20 August 2001

JUDGES: McMurdo P, Williams JA and Holmes J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER:
1.   With respect to the first appellant Stephen Peter Zaicov:

(i)         appeal allowed;

(ii)        vary the order appealed from by substituting the amount of $41,250 for the amount of $37,500.

(iii)       the respondent to pay the appellant’s costs of the appeal to be assessed

(iv) grant the respondent an indemnity certificate under s15 Appeal Costs Fund Act 1973 (Qld)

2.   With respect to the second appellant Richard Mark McKenna

(i)        appeal dismissed.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the percentages allowed for injury under the Criminal Offence Victims Act 1995 have the potential to exceed the scheme maximum – whether s 25(4) Criminal Offence Victims Act 1995 should be read to mean that the court cannot order an amount that is beyond the ranges set out in Schedule 1, but is not constrained to fall within these ranges – whether s 25 requires contribution to be deducted from the allowance for injury rather than the scheme maximum.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – whether the maximum percentages of each item should have been allowed for the gunshot wound and paraplegia – whether the injuries were ‘severe’ – whether the injuries were the most severe injuries of their type.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – whether the trial judge failed to make a separate assessment in respect of the surgical scarring – whether scarring could be regarded as part of the gunshot wound.

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND - APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – whether s 31 Criminal Offence Victims Act 1973 (Qld) precludes the court from granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

Appeal Costs Fund Act 1973 (Qld) s15
Criminal Offence Victims Act 1995 (Qld) s25, s31

Criminal Code (Ald)

Supreme Court of Queensland Act1991 (Qld) s69(1)(a)

Dooley v Ward [2000] QCA 493; Appeal No 8093 of 2000,
1 December 2000,…

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.

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Details

Case: [2001] QCA 442
Decision Date: 23 October 2001

CaseChat Overview and Summary

The case of R v Jones ex parte Zaicov involved the first appellant, Stephen Peter Zaicov, and the second appellant, Richard Mark McKenna, who were appealing against orders made by the District Court of Queensland. The appellants challenged the quantum of compensation awarded to the victim, and the second appellant also contested the denial of an indemnity certificate. The appeal was heard in the Court of Appeal of the Supreme Court of Queensland.

The primary legal issues addressed by the court were whether the trial judge had correctly assessed the compensation payable to the victim under the Criminal Offence Victims Act 1995 (Qld), particularly in relation to the severity of injuries and the application of maximum percentages for different injuries. The court had to determine if the trial judge erred in not separately assessing the surgical scarring, and if the percentages for the gunshot wound and paraplegia were appropriately applied. Additionally, the court examined whether the trial judge should have deducted contributions from the allowance for injury or from the scheme maximum, and if the court could grant an indemnity certificate under the Appeal Costs Fund Act 1973 (Qld) despite the provisions of the Criminal Offence Victims Act 1973 (Qld).

The Court of Appeal found that the trial judge had misapplied the statutory scheme by not deducting contributions from the allowance for injury, rather than from the scheme maximum. The court concluded that the trial judge should have awarded a higher amount for the gunshot wound and paraplegia, as the injuries were severe and the most severe of their type. Additionally, the court held that the trial judge did not need to make a separate assessment for the surgical scarring, as it could be regarded as part of the gunshot wound. The court also determined that section 31 of the Criminal Offence Victims Act 1973 (Qld) did not preclude the granting of an indemnity certificate under section 15 of the Appeal Costs Fund Act 1973 (Qld).

The orders of the court were that the appeal of the first appellant was allowed, and the compensation amount was varied to $41,250. The respondent was ordered to pay the appellant’s costs of the appeal, and an indemnity certificate was granted under the Appeal Costs Fund Act 1973 (Qld). The appeal of the second appellant was dismissed.

Orders

Orders of the court

1. With respect to the first appellant Stephen Peter Zaicov:

(i) appeal allowed;

(ii) vary the order appealed from by substituting the amount of $41,250 for the amount of $37,500.

(iii) the respondent to pay the appellant’s costs of the appeal to be assessed

(iv) grant the respondent an indemnity certificate under s15 Appeal Costs Fund Act 1973 (Qld)

2. With respect to the second appellant Richard Mark McKenna

(i) appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Zaicov & McKenna v Jones [2001] QCA 442
PARTIES:	STEPHEN PETER ZAICOV (first applicant/first appellant) RICHARD MARK McKENNA (second applicant/second appellant) v SEAN PATRICK JONES (respondent)
FILE NO/S:	Appeal No 9427 of 2000 SC No 5840 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	23 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2001
JUDGES:	McMurdo P, Williams JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	1. With respect to the first appellant Stephen Peter Zaicov: (i) appeal allowed; (ii) vary the order appealed from by substituting the amount of $41,250 for the amount of $37,500. (iii) the respondent to pay the appellant’s costs of the appeal to be assessed *(iv) grant the respondent an indemnity certificate under s15 Appeal Costs Fund Act* 1973 (Qld) 2. With respect to the second appellant Richard Mark McKenna (i) appeal dismissed.**
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the percentages allowed for injury under the Criminal Offence Victims Act 1995 have the potential to exceed the scheme maximum – whether s 25(4) Criminal Offence Victims Act 1995 should be read to mean that the court cannot order an amount that is beyond the ranges set out in Schedule 1, but is not constrained to fall within these ranges – whether s 25 requires contribution to be deducted from the allowance for injury rather than the scheme maximum. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – whether the maximum percentages of each item should have been allowed for the gunshot wound and paraplegia – whether the injuries were ‘severe’ – whether the injuries were the most severe injuries of their type. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – whether the trial judge failed to make a separate assessment in respect of the surgical scarring – whether scarring could be regarded as part of the gunshot wound. APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND - APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – whether s 31 Criminal Offence Victims Act 1973 (Qld) precludes the court from granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). Appeal Costs Fund Act 1973 (Qld) s15 Criminal Offence Victims Act 1995 (Qld) s25, s31 Criminal Code (Ald) Supreme Court of Queensland Act1991 (Qld) s69(1)(a) Dooley v Ward [2000] QCA 493; Appeal No 8093 of 2000, 1 December 2000,…