Schalk v Smith - [2012] QDC 303

DISTRICT COURT OF QUEENSLAND

CITATION:

Schalk v Smith [2012] QDC 303

PARTIES:

SHANE JOHN SCHALK

(Appellant)

V

DAVID JOHN SMITH

(Respondent)

FILE NO/S:

Dalby 2 of 2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Dalby

DELIVERED ON:

20 September 2012 (ex tempore)

DELIVERED AT:

Goondiwindi

HEARING DATE:

23 August 2012 (Dalby), 29 September 2012 (Goondiwindi)

JUDGE:

Irwin DCJ

ORDER:

The respondent pay the applicant the sum of $11,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offence of unlawful wounding, which lead to the conviction of the respondent in the District Court at Goondiwindi on 3 August 2009.

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 – where the respondent was convicted of one count of unlawful wounding – where the applicant suffered physical injuries and a reactive depression – where there was evidence that the applicant’s use of alcohol also contributed to his depressed emotional state – assessment of compensation.

Criminal Offence Victims Act 1995 (Qld) (repealed), ss 20, 21, 22, 24, 25, 26, 30, Schedule 1

Criminal Offence Victims Regulation 1995 (Qld) (repealed), s 2

Uniform Civil Proceedure Rules 1999 (Qld), rr 27, 105

Victims of Crime Assistance Act 2009 (Qld), ss 149, 155

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

JS v Graveur [2012] QCA 196, applied

Ramaiya v Tanner [2012] QDC 111, considered

R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320, considered

R v Ward, ex parte Dooley [2001] 2 Qd R 436, cited

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

RMC v NAC [2009] QSC 149, considered

SAY v AZ, ex parte A-G (Qld) [2006] QCA 462, applied

Simpson v Escott, unreported, No. 240 of 2009, 26 March 2012, considered

Wren v Gaulai [2008] QCA 148, cited

Zaicov & McKenna v Jones [2001] QCA 442, cited

COUNSEL:

AM Glanville and K Rose for the applicant.

The respondent appeared on his own behalf

SOLICITORS:

Aboriginal and Torres Strait Islander Legal Services for the appellant

The respondent appeared on his own behalf

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for the physical and emotional injuries caused as a result of the actions of the respondent on 13 April 2008.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009. The transitional provision in section 155 (1)(a) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 28 January 2010. This was before the end of two months after commencement as…

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 Schalk v Smith

Details

AGLC: Schalk v Smith [2012] QDC 303
Case: [2012] QDC 303
Decision Date: 20 September 2012 (ex tempore)

CaseChat Overview and Summary

In the case of Schalk v Smith, the applicant, Schalk, sought compensation for injuries sustained from the respondent, Smith, who was convicted of unlawful wounding in the District Court at Goondiwindi. The matter was heard and determined in the Queensland Court of Appeal. The primary issue before the court was the assessment of the amount of compensation that the applicant was entitled to receive under section 24 of the Criminal Offence Victims Act 1995 (Qld).

The court had to consider the extent of the applicant's physical injuries and the impact of the reactive depression that arose from these injuries. The respondent argued that the applicant's use of alcohol was a contributing factor to his emotional state, which may have reduced the amount of compensation payable. The court needed to balance the impact of the injuries against any contributory behaviour of the applicant. The assessment of compensation was also influenced by the legislative framework under which the compensation was to be awarded.

After careful consideration of the evidence and arguments presented, the court determined that the applicant was entitled to compensation for the injuries sustained as a result of the unlawful wounding. The court acknowledged the physical injuries and the reactive depression but also took into account the contribution of alcohol use to the applicant's emotional state. The court concluded that the applicant was entitled to $11,250 in compensation, which was ordered to be paid by the respondent. This decision was based on the balance of the evidence and the relevant legislative provisions.

Orders

Orders of the court

The respondent pay the applicant the sum of $11,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offence of unlawful wounding, which lead to the conviction of the respondent in the District Court at Goondiwindi on 3 August 2009.

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:	Schalk v Smith [2012] QDC 303
PARTIES:	SHANE JOHN SCHALK (Appellant) V DAVID JOHN SMITH (Respondent)
FILE NO/S:	Dalby 2 of 2010
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court, Dalby
DELIVERED ON:	20 September 2012 (ex tempore)
DELIVERED AT:	Goondiwindi
HEARING DATE:	23 August 2012 (Dalby), 29 September 2012 (Goondiwindi)
JUDGE:	Irwin DCJ
ORDER:	The respondent pay the applicant the sum of $11,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offence of unlawful wounding, which lead to the conviction of the respondent in the District Court at Goondiwindi on 3 August 2009.
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 – where the respondent was convicted of one count of unlawful wounding – where the applicant suffered physical injuries and a reactive depression – where there was evidence that the applicant’s use of alcohol also contributed to his depressed emotional state – assessment of compensation. Criminal Offence Victims Act 1995 (Qld) (repealed), ss 20, 21, 22, 24, 25, 26, 30, Schedule 1 Criminal Offence Victims Regulation 1995 (Qld) (repealed), s 2 Uniform Civil Proceedure Rules 1999 (Qld), rr 27, 105 Victims of Crime Assistance Act 2009 (Qld), ss 149, 155 JMR obo SRR v Hornsby [2009] QDC 147, cited JS v Graveur [2012] QCA 196, applied Ramaiya v Tanner [2012] QDC 111, considered R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320, considered R v Ward, ex parte Dooley [2001] 2 Qd R 436, cited Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, cited RMC v NAC [2009] QSC 149, considered SAY v AZ, ex parte A-G (Qld) [2006] QCA 462, applied Simpson v Escott, unreported, No. 240 of 2009, 26 March 2012, considered Wren v Gaulai [2008] QCA 148, cited Zaicov & McKenna v Jones [2001] QCA 442, cited
COUNSEL:	AM Glanville and K Rose for the applicant. The respondent appeared on his own behalf
SOLICITORS:	Aboriginal and Torres Strait Islander Legal Services for the appellant The respondent appeared on his own behalf