R v Nigel Herbert Wilkinson - [1999] QSC 177

IN THE SUPREME COURT
OF QUEENSLAND

No 9080 of 1998

Brisbane
Before the Hon Justice Atkinson
[Re Wilkinson]
IN THE MATTER of Chapter LXVA of the Criminal Code of Queensland
- and -
IN THE MATTER of R v NIGEL HERBERT WILKINSON
- and -
IN THE MATTER of an application for compensation by “X”
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 29 July 1999

CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDER FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - amount of order - offence committed in 1972 - whether right to compensation arose at the time injury suffered - whether subsequent legislative changes retrospectively affect amount of compensation to be awarded - effect of delay in bringing application.

Acts Interpretation Act 1954 s 20
Criminal Code ss 663A, 663B
Criminal Offence Victims Act 1995 s 46
Johnson v Perez (1988) 166 CLR 351
Re Kendall; ex parte Pink (unreported, Supreme Court of Queensland, de Jersey CJ, 11 September 1998)
Re Stratton and Crimes Compensation Tribunal (1986) 1 VAR 339
R v Anell; ex parte Anderson [1998] 2 Qd R 174
R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457
R v Johnson; re Burns and McKenzie (unreported, Supreme Court of Queensland, Mackenzie J, 14 April 1998)

Counsel:P Gaffney for the applicant
No appearance for the respondent

Solicitors:Legal Aid Office (Queensland) for the applicant
No appearance for the respondent

Hearing Date: 1 June 1999

IN THE SUPREME COURT
OF QUEENSLAND

No 9080 of 1998
Brisbane

Before the Hon Justice Atkinson

IN THE MATTER of Chapter LXVA of the Criminal Code of Queensland
- and -
IN THE MATTER of R v NIGEL HERBERT WILKINSON
- and -
IN THE MATTER of an application for compensation by “X”
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 29 July 1999

On 28 September 1972, Nigel Wilkinson was found guilty by a jury of the attempted murder of the applicant, “X”. After an appeal by the Attorney-General to the Court of Criminal Appeal (as it then was) Mr Wilkinson’s sentence was increased on 14 February 1973 from 8 years’ imprisonment to 20 years’ imprisonment.
The circumstances of the offence were that on 26 February 1972 when “X” was only 21 she was raped by Mr Wilkinson who then attempted to strangle her. She was hospitalised in the Southport Hospital and then the Royal Brisbane Hospital. As part of the investigation of the offence she was required to identify her attacker. During the police interview with the respondent the police asked “X” to come into the room and detail her version of the circumstances in front of him. She gave evidence at the committal. After the committal she had a breakdown and was admitted to the psychiatric unit at the Royal Brisbane Hospital for a fortnight. She was then transferred to another psychiatric hospital from which she ran away and lived on…

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 R v Nigel Herbert Wilkinson

Details

AGLC: R v Nigel Herbert Wilkinson [1999] QSC 177
Case: [1999] QSC 177
Decision Date: 29 July 1999

CaseChat Overview and Summary

The case of R v Nigel Herbert Wilkinson involved an application for criminal injury compensation brought by "X" against the respondent. "X" claimed compensation for injuries sustained as a result of offences committed by the respondent in 1972. The dispute centred around the determination of the appropriate amount of compensation, considering legislative changes enacted after the offence occurred, and the delay in bringing the application. The matter was heard in the Queensland Court.

The primary legal issues addressed by the court were whether the right to compensation arose at the time the injury was suffered and whether subsequent legislative changes could retrospectively affect the amount of compensation to be awarded. Additionally, the court had to consider the impact of the delay in bringing the application on the entitlement to compensation.

The court found that the delay in bringing the application was largely due to the consequences of the injury suffered by "X," including powerlessness, shame, and fear. The court determined that there was no relevant prejudice to the respondent that outweighed the benefit of making an award to "X." The court emphasised that an award of criminal compensation serves to vindicate the applicant and is part of the public recognition of the wrong suffered by the applicant. The court awarded the maximum amount of $5,000 and ordered the respondent to pay the costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case the explanation for the delay is satisfactory in that the delay seems to be caused in a large part by the consequences of the injury suffered by “X” as a result of the powerlessness, shame and fear she suffered because of the crimes committed upon her and there is no relevant prejudice to the respondent which outweighs the benefit of making an award to “X”. This is so particularly when an award of criminal compensation serves to vindicate the applicant and is part of the public recognition, however inadequate, of the terrible wrong suffered by the applicant.Conclusion It is appropriate to award the applicant $5,000 which is the maximum amount that the court is able to award and order the respondent pay the costs,[12] of an incidental to the application to be taxed.[12]R v Holder; ex parte Jenner [1988] Qd R 580.

Ratio Decidendi

Legal Principle Established

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