Raymond v Porter - [2010] QDC 116

DISTRICT COURT OF QUEENSLAND

CITATION:

Raymond v Porter [2010] QDC 116

PARTIES:

NEIL RAYMOND

(Applicant)

V

BRETT JOHN PORTER

(Respondent)

FILE NO/S:

D29/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Gladstone

DELIVERED ON:

18 March 2010 (ex tempore)

DELIVERED AT:

Gladstone

HEARING DATE:

18 March 2010

JUDGE:

Irwin DCJ

ORDER:

Respondent pay the applicant the sum of $43, 290 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld)

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 – application for criminal compensation – respondent convicted of one count of grievous bodily harm – where the applicant suffered a minor laceration, bruising, a severe neck fracture and severe mental or nervous shock as a result of the offence – assessment of compensation

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 applicant sought compensation from respondent, on the basis of his conviction of one count of grievous bodily harm – where a finding was made that the applicant’s post-traumatic stress disorder was compensable as severe mental or nervous shock as a result of the offence – where the applicant subsequently misused alcohol, suffered a marriage breakdown and engaged in conduct which brought him negatively to the attention of the police – whether the applicant’s award of compensation should be reduced because of these factors

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 applicant sought compensation from respondent, on the basis of his conviction on one count of grievous bodily harm – where a finding was made that the applicant had gratuitously pushed the respondent and precipitated the respondent’s excessive response which caused the grievous bodily harm – whether the applicant’s award of compensation should be reduced for this reason

Criminal Offence Victims Act 1995 (Qld), s 20, s 21, s 22, s 24, s 25, s 26, Sch 1

AT v FG [2004] QCA 295, cited

Ferguson v Kazakoff [2001] 2 QD R 320; [2000] QCS 156, cited

JMR obo SRR v Hornsby [2009] QDC 147, cited

R v Ward; ex parte Dooley [2001] Qd R 436, applied

Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, applied

RMC v NAC (2009) QSC 149, cited

R v Tiltman; ex parte Dawe (1995) QSC 345, applied

Wren v Gaulai [2008] QCA 148, applied

COUNSEL:

S.L. O’Gorman (Solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Chris Trevor and Associates for the applicant

No appearance of the respondent

HIS HONOUR: This is an application for criminal compensation under section 24 of the

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 Raymond v Porter

Details

AGLC: Raymond v Porter [2010] QDC 116
Case: [2010] QDC 116
Decision Date: 18 March 2010 (ex tempore)

CaseChat Overview and Summary

Raymond brought an application for criminal compensation against Porter, following Porter's conviction for one count of grievous bodily harm against Raymond. Raymond suffered a minor laceration, bruising, a severe neck fracture and severe mental or nervous shock as a result of the offence. The court was required to assess the amount of compensation to be awarded to Raymond, and to consider whether the award should be reduced in light of Raymond's misuse of alcohol, marriage breakdown, and conduct bringing him to police attention. The court was also required to determine whether the award should be reduced because Raymond had gratuitously pushed Porter, precipitating Porter's excessive response.

The court held that the award of compensation should not be reduced because of Raymond's misuse of alcohol, marriage breakdown, or conduct bringing him to police attention. The court found that these factors did not diminish Raymond's entitlement to compensation for the grievous bodily harm caused by Porter. The court also held that the award of compensation should not be reduced because Raymond had gratuitously pushed Porter, precipitating Porter's excessive response. The court found that Porter's response was excessive and disproportionate to Raymond's conduct, and that Raymond's conduct did not amount to a significant contributing factor to the offence.

The court ordered Porter to pay Raymond the sum of $43,290 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld). The court found that this amount adequately reflected the physical and psychological harm suffered by Raymond as a result of Porter's offence. The court also found that the award of compensation was not reduced by any of the factors considered by the court.

Orders

Orders of the court

Respondent pay the applicant the sum of $43, 290 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld)

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:	Raymond v Porter [2010] QDC 116
PARTIES:	NEIL RAYMOND (Applicant) V BRETT JOHN PORTER (Respondent)
FILE NO/S:	D29/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	18 March 2010 (ex tempore)
DELIVERED AT:	Gladstone
HEARING DATE:	18 March 2010
JUDGE:	Irwin DCJ
ORDER:	*Respondent pay the applicant the sum of $43, 290 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act* 1995 (Qld)**
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 – application for criminal compensation – respondent convicted of one count of grievous bodily harm – where the applicant suffered a minor laceration, bruising, a severe neck fracture and severe mental or nervous shock as a result of the offence – assessment of compensation 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 applicant sought compensation from respondent, on the basis of his conviction of one count of grievous bodily harm – where a finding was made that the applicant’s post-traumatic stress disorder was compensable as severe mental or nervous shock as a result of the offence – where the applicant subsequently misused alcohol, suffered a marriage breakdown and engaged in conduct which brought him negatively to the attention of the police – whether the applicant’s award of compensation should be reduced because of these factors 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 applicant sought compensation from respondent, on the basis of his conviction on one count of grievous bodily harm – where a finding was made that the applicant had gratuitously pushed the respondent and precipitated the respondent’s excessive response which caused the grievous bodily harm – whether the applicant’s award of compensation should be reduced for this reason Criminal Offence Victims Act 1995 (Qld), s 20, s 21, s 22, s 24, s 25, s 26, Sch 1 AT v FG [2004] QCA 295, cited Ferguson v Kazakoff [2001] 2 QD R 320; [2000] QCS 156, cited JMR obo SRR v Hornsby [2009] QDC 147, cited R v Ward; ex parte Dooley [2001] Qd R 436, applied Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, applied RMC v NAC (2009) QSC 149, cited R v Tiltman; ex parte Dawe (1995) QSC 345, applied Wren v Gaulai [2008] QCA 148, applied
COUNSEL:	S.L. O’Gorman (Solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Chris Trevor and Associates for the applicant No appearance of the respondent