Street v Fitzgerald - [2002] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

Street v Fitzgerald [2002] QSC 235

PARTIES:

LARRY DONALD STREET
(applicant)
v
DARREN MICHAEL FITZGERALD
(respondent)

LARRY DONALD STREET
(applicant)
v
SHANE ARTHUR SHIELD
(first respondent)
and
RHONDA MICHELLE DAVISON
(second respondent)

FILE NO/S:

S2901 of 2001
S3298 of 2002

DIVISION:

Trial Division

DELIVERED ON:

16 August 2002

DELIVERED AT:

Brisbane

HEARING DATE:

28 June and 9 August 2002

JUDGE:

Mullins J

ORDER:

1. Darren Michael Fitzgerald and Shane Arthur Shield pay compensation in the sum of $12,375 to the applicant for which they are jointly and separately liable to the applicant.
2. Rhonda Michelle Davison pay compensation in the sum of $2,475 to the applicant (which is 20% of the above figure of $12,375) for which she is jointly and separately liable to the applicant with the said Fitzgerald and the said Shield in respect of that amount of $2,475.

CATCHWORDS:

CRIMINAL LAW - COMPENSATION - armed robbery in company with personal violence - assessment of compensation for injuries sustained as a result of the commission of the offence - whether direct and material contribution by each of three offenders - no distinction between direct and material contribution of two offenders present during the commission of the offence - third offender counselled and procured the offence and liable for 20% of the amount of the assessed compensation - behaviour of applicant contributed to his injuries - contribution assessed at 25% - Criminal Offence Victims Act 1995 (Q), s 25, s 26

Criminal Offence Victims Act 1995

Grahame v Dean [2001] QSC 420
Zaicov & McKenna v Jones [2001] QCA 442

COUNSEL:

SJ Hamlyn-Harris for the applicant
No appearances for the respondents

SOLICITORS:

Legal Aid Queensland for the applicant

MULLINS J: Mr Larry Donald Street (“the applicant”) has made two applications pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”) arising out of an incident on 25 January 1997 when the respondents Shane Arthur Shield (“Shield”) and Darren Michael Fitzgerald (“Fitzgerald”) and another man called Ky Clements entered the applicant’s residence at Vulture Street, East Brisbane. The respondent Rhonda Michelle Davison (“Davison”) did not go to the residence, but had counselled and procured the others to do so. The application against Davison was adjourned on 28 June 2002 due to short service, but was heard on 9 August 2002.

There was no appearance at the hearing on 28 June 2002 on behalf of either Fitzgerald or Shield. Each of them had signed an acknowledgement of receipt of the application and supporting affidavits and indicated to the Public Trustee of an intention not to take part in the proceeding. There was no appearance at the hearing on 9 August 2002 on behalf of Davison.

On 5 May 1998 Fitzgerald pleaded guilty to one count of burglary and one count of armed robbery in company with personal violence arising out of the incident and was convicted of both offences. He was sentenced to a period of imprisonment of 16 years for the first…

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 Street v Fitzgerald

Details

AGLC: Street v Fitzgerald [2002] QSC 235
Case: [2002] QSC 235
Decision Date: 16 August 2002

CaseChat Overview and Summary

In the Supreme Court of Queensland, Street v Fitzgerald involved a dispute over compensation for injuries sustained during an armed robbery. The plaintiff, Street, sought compensation from three defendants: Fitzgerald, Shield, and Davison. The defendants were charged with armed robbery, and the plaintiff suffered injuries during the offence. The legal issues at hand were the assessment of compensation under the Criminal Offence Victims Act 1995 and determining the contribution of each defendant to the plaintiff's injuries. The court had to decide whether there was a distinction between the contributions of the two offenders present during the robbery and the third offender who had instigated the crime.

The court found that no distinction existed between the contributions of Fitzgerald and Shield, who were both present during the robbery. Therefore, they were jointly and severally liable for the full amount of the assessed compensation. However, the court held that Davison, who had counselled and procured the offence, was liable for a lesser portion, specifically 20% of the total compensation. The court also considered the plaintiff's contributory negligence, which reduced his compensation by 25%. The court relied on previous cases such as Grahame v Dean and Zaicov & McKenna v Jones to determine the appropriate compensation.

The Supreme Court ordered that Fitzgerald and Shield pay $12,375 to the plaintiff, jointly and severally liable for the full amount. Davison was ordered to pay $2,475, which is 20% of the total compensation. Davison is also jointly and severally liable with Fitzgerald and Shield for the $2,475 amount. The court's decision was based on the principle that those who contribute directly or materially to the offence should bear a share of the compensation, while also considering the plaintiff's contributory negligence. The orders reflect the court's determination of the respective liabilities of the defendants based on their contributions to the offence and the plaintiff's role in the events that led to his injuries.

Orders

Orders of the court

1. Darren Michael Fitzgerald and Shane Arthur Shield pay compensation in the sum of $12,375 to the applicant for which they are jointly and separately liable to the applicant.

2. Rhonda Michelle Davison pay compensation in the sum of $2,475 to the applicant (which is 20% of the above figure of $12,375) for which she is jointly and separately liable to the applicant with the said Fitzgerald and the said Shield in respect of that amount of $2,475.

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:	Street v Fitzgerald [2002] QSC 235
PARTIES:	LARRY DONALD STREET (applicant) v DARREN MICHAEL FITZGERALD (respondent) LARRY DONALD STREET (applicant) v SHANE ARTHUR SHIELD (first respondent) and RHONDA MICHELLE DAVISON (second respondent)
FILE NO/S:	S2901 of 2001 S3298 of 2002
DIVISION:	Trial Division
DELIVERED ON:	16 August 2002
DELIVERED AT:	Brisbane
HEARING DATE:	28 June and 9 August 2002
JUDGE:	Mullins J
ORDER:	1. Darren Michael Fitzgerald and Shane Arthur Shield pay compensation in the sum of $12,375 to the applicant for which they are jointly and separately liable to the applicant. 2. Rhonda Michelle Davison pay compensation in the sum of $2,475 to the applicant (which is 20% of the above figure of $12,375) for which she is jointly and separately liable to the applicant with the said Fitzgerald and the said Shield in respect of that amount of $2,475.
CATCHWORDS:	CRIMINAL LAW - COMPENSATION - armed robbery in company with personal violence - assessment of compensation for injuries sustained as a result of the commission of the offence - whether direct and material contribution by each of three offenders - no distinction between direct and material contribution of two offenders present during the commission of the offence - third offender counselled and procured the offence and liable for 20% of the amount of the assessed compensation - behaviour of applicant contributed to his injuries - contribution assessed at 25% - Criminal Offence Victims Act 1995 (Q), s 25, s 26 Criminal Offence Victims Act 1995 Grahame v Dean [2001] QSC 420 Zaicov & McKenna v Jones [2001] QCA 442
COUNSEL:	SJ Hamlyn-Harris for the applicant No appearances for the respondents
SOLICITORS:	Legal Aid Queensland for the applicant