Sirriss v Bowman - [2012] QCA 108

SUPREME COURT OF QUEENSLAND

CITATION:

Sirriss v Bowman [2012] QCA 108

PARTIES:

SHERILEE VIOLA SIRRISS
(applicant)
v
BERYL ANNE JOSEPHINE BOWMAN
(respondent)

FILE NO/S:

Appeal No 9385 of 2011
DC No 318 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

20 April 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 March 2012

JUDGE:

Chesterman JA, Boddice and Dalton JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Grant the applicant leave to appeal.

2. Allow the appeal and set aside the order dismissing the applicant’s application.

3. Order the applicant be paid the sum of $22,500 by way of criminal compensation.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – EVIDENCE AND PROCEDURE – where the applicant applied for criminal compensation pursuant to s 663B of the Criminal Code – where pursuant to s 10 of the Limitation of Actions Act 1974 (Qld) the limitation period applicable to that application was six years from the time the cause of action arose – where previous authority held the cause of action arose upon conviction – where the criminal compensation application was dismissed due to delay notwithstanding the limitation period had not expired – whether the delay was sufficient to deprive the applicant of a claim

LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OTHER MATTERS – whether the delay was sufficient to deprive the applicant of a claim

LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT – where an applicant for criminal compensation had an entitlement pursuant to s 663B of the Criminal Code to make application upon the respondent’s conviction – where ‘convicted’ is not defined in the Criminal Code – whether the fact the sentencing judge ordered no conviction recorded deprived the respondent of that entitlement

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where an applicant for criminal compensation had an entitlement pursuant to s 663B of the Criminal Code to make application upon the respondent’s conviction – where ‘convicted’ is not defined in the Criminal Code – whether the fact the sentencing judge ordered no conviction recorded deprived the respondent of that entitlement

Criminal Code 1899 (Qld), s 663B
District Court of Queensland Act 1967 (Qld), s 118
Limitation of Actions Act 1974 (Qld), s 5, s 10
Penalties and Sentences Act 1992 (Qld), s 4, s 12
Uniform Civil Procedure Rules 1999 (Qld), r 371(2)(d)

Birkett v James [1978] AC 297, cited
Fredericks v Wheeler[1997] QCA 245, applied
Hogg v Dudman [2001] QDC 360, cited
R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314, applied
R v Muckan [1975] Qd R 393, cited
R v SBJ[2009] QCA 100, cited
Steinback v Steinback [2000] QDC 312, cited

COUNSEL:

S…

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 Sirriss v Bowman

Details

AGLC: Sirriss v Bowman [2012] QCA 108
Case: [2012] QCA 108
Decision Date: 20 April 2012

CaseChat Overview and Summary

In the case of Sirriss v Bowman, the applicant sought criminal injuries compensation under the Criminal Code, claiming the respondent's conviction warranted such compensation. The respondent argued the application was barred by delay, despite the statutory limitation period not having expired. The court examined whether the delay in filing the claim was sufficient to deprive the applicant of their entitlement to compensation. Furthermore, the court addressed whether the applicant's entitlement to compensation was affected by the sentencing judge's order not to record a conviction.

The legal issues before the court included whether the applicant's delay in filing the compensation claim, despite the statutory limitation period not expiring, was sufficient to deny their entitlement to compensation. The court also considered whether the applicant's entitlement to compensation was affected by the sentencing judge's order not to record a conviction. The court's task was to interpret the relevant statutes, particularly the Criminal Code and the Limitation of Actions Act 1974 (Qld), in the context of the applicant's compensation claim and the respondent's conviction.

The court found that the delay in filing the compensation claim did not deprive the applicant of their entitlement to compensation, as the limitation period had not expired. Additionally, the court held that the sentencing judge's order not to record a conviction did not affect the applicant's entitlement to compensation. The court relied on previous authority, specifically Fredericks v Wheeler [1997] QCA 245, to support its interpretation of the relevant statutes. The court concluded that the applicant was entitled to compensation and assessed the amount at $22,500, including $10,000 for mental or nervous shock.

The court granted the applicant leave to appeal, allowed the appeal, set aside the order dismissing the applicant's application, and ordered the respondent to pay the applicant $22,500 by way of criminal compensation. The court's decision was consistent with previous authority and provided clarity on the interpretation of the relevant statutes in the context of criminal injuries compensation claims.

Orders

Orders of the court

1. Grant the applicant leave to appeal.

2. Allow the appeal and set aside the order dismissing the applicant’s application.

3. Order the applicant be paid the sum of $22,500 by way of criminal compensation.

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

This interpretation of s 12(3) of the 1992 Act is consistent with observations made in Fredericks v Wheeler [1997] QCA 245. In Fredericks, the Court had to consider whether a right of appeal remained when no conviction had been recorded for an indictable offence. In finding such a right of appeal continued to exist, the Court observed:“Under s. 673 of the Code a person summarily convicted of an indictable offence (as the applicant was) is entitled to appeal as if convicted on indictment … Under s. 12(3) of the Penalties and Sentences Act 1992 (‘the 1992 Act’) except as otherwise expressly provided, a conviction without recording a conviction is taken not to be a conviction for any purpose. But under s. 12(4) of the 1992 Act a Court may make ‘any other order that it may make under this or another Act because of the conviction’. On the face of it, the sub-section appears to preserve this Court’s statutory jurisdiction to allow appeals against conviction where, no conviction having been recorded, what is complained of is a conviction on indictment or a conviction which must for the purposes of appeal be treated as if it were on indictment, under s. 673.”Conclusion The applicant is entitled to an award of criminal compensation. The primary judge assessed the applicant’s criminal compensation in the sum of $22,500, including $10,000 for mental or nervous shock. The applicant does not seek leave to appeal that assessment. I would grant the applicant leave to appeal, allow the appeal, set aside the order dismissing the applicant’s application, and order that the applicant be paid the sum of $22,500 by way of criminal compensation. DALTON J: I agree that the Court should make the orders proposed by Boddice J, for the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sirriss v Bowman [2012] QCA 108
PARTIES:	SHERILEE VIOLA SIRRISS (applicant) v BERYL ANNE JOSEPHINE BOWMAN (respondent)
FILE NO/S:	Appeal No 9385 of 2011 DC No 318 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Townsville
DELIVERED ON:	20 April 2012
DELIVERED AT:	Brisbane
HEARING DATE:	28 March 2012
JUDGE:	Chesterman JA, Boddice and Dalton JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Grant the applicant leave to appeal. 2. Allow the appeal and set aside the order dismissing the applicant’s application. 3. Order the applicant be paid the sum of $22,500 by way of criminal compensation.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – EVIDENCE AND PROCEDURE – where the applicant applied for criminal compensation pursuant to s 663B of the Criminal Code – where pursuant to s 10 of the Limitation of Actions Act 1974 (Qld) the limitation period applicable to that application was six years from the time the cause of action arose – where previous authority held the cause of action arose upon conviction – where the criminal compensation application was dismissed due to delay notwithstanding the limitation period had not expired – whether the delay was sufficient to deprive the applicant of a claim LIMITATION OF ACTIONS – GENERAL MATTERS – STATUTES OF LIMITATION GENERALLY – OTHER MATTERS – whether the delay was sufficient to deprive the applicant of a claim LIMITATION OF ACTIONS – LIMITATION OF PARTICULAR ACTIONS – ACTIONS TO RECOVER MONEY RECOVERABLE BY VIRTUE OF AN ENACTMENT – where an applicant for criminal compensation had an entitlement pursuant to s 663B of the Criminal Code to make application upon the respondent’s conviction – where ‘convicted’ is not defined in the Criminal Code – whether the fact the sentencing judge ordered no conviction recorded deprived the respondent of that entitlement STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where an applicant for criminal compensation had an entitlement pursuant to s 663B of the Criminal Code to make application upon the respondent’s conviction – where ‘convicted’ is not defined in the Criminal Code – whether the fact the sentencing judge ordered no conviction recorded deprived the respondent of that entitlement Criminal Code 1899 (Qld), s 663B District Court of Queensland Act 1967 (Qld), s 118 Limitation of Actions Act 1974 (Qld), s 5, s 10 Penalties and Sentences Act 1992 (Qld), s 4, s 12 Uniform Civil Procedure Rules 1999 (Qld), r 371(2)(d) Birkett v James [1978] AC 297, cited Fredericks v Wheeler[1997] QCA 245, applied Hogg v Dudman [2001] QDC 360, cited R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314, applied R v Muckan [1975] Qd R 393, cited R v SBJ[2009] QCA 100, cited Steinback v Steinback [2000] QDC 312, cited
COUNSEL:	S…