Willesden v Bruce - [2005] QDC 1

DISTRICT COURT OF QUEENSLAND

CITATION: Willesden v Bruce [2005] QDC 001

PARTIES:
MARGARET WILLESDEN

Applicant

and

NORMAN WILLIAM BRUCE

Respondent

FILE NO: 26/03

PROCEEDING: Application for criminal compensation

ORIGINATING COURT:
District Court Southport

DELIVERED ON: 7 January 2005

DELIVERED AT: Southport

HEARING DATE: 28 September 2004

JUDGE: Newton DCJ

ORDER:
Order that the respondent, Norman William Bruce pay criminal compensation to the applicant Margaret Willesden in the sum of $17,250.00.

Further order that the applicant is to pay the respondent’s costs to be assessed thrown away by reason of the adjournment on 9 December 2003.

CATCHWORDS:
APPLICATION FOR CRIMINAL COMPENSATION – respondent punched applicant in upper left arm and left side of face – applicant suffered moderate bruising and moderate mental or nervous shock – whether conduct of applicant contributed directly or indirectly to either of these injuries

COSTS - whether costs thrown away on adjournment should be paid by applicant because of her unavailability to be present for cross-examination on date of hearing

Criminal Offence Victims Act 1995
Uniform Civil Procedure Rules

Cases cited:

Cleland v Major no. D129 of 2001 26 June 2002
Dooley v Ward [2000] QCA 493
Grahame v Dean (2001) QSC 420
Hohn v King [2004] QCA 254
Williamson v McDonald QDC 610 of 2000

COUNSEL:
Mr R Frigo – applicant

Ms K T Magee respondent

SOLICITORS:
O’Keefe Mahoney Bennett – applicant

Linda Phelps & Co – respondent

This is an application for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995. The respondent, Norman William Bruce, was convicted on 12 June 2003 after a two-day trial in the District Court at Southport of one count of assault occasioning bodily harm. He was sentenced to perform 200 hours of unpaid community service.

The case for the Crown was that on 1 May 2002 the applicant, together with her niece and a female friend, were exercising four dogs on Tallebudgera Beach in an area set aside by the Gold Coast City Council for such purpose. The respondent came into contact with one of the dogs while jogging in a northerly direction on the beach. He continued on his way and about 10 minutes later he returned towards the group from the south. As he drew near the group of females one of them (not the applicant) said to the respondent: “How would you like it if someone attacked you?” This person, as she spoke, was holding a dog lead and swinging it in a circular motion in front of her. The respondent ran towards one of the dogs, (a puppy) which was standing near the water’s edge. The applicant, believing that the respondent was about to attack the dog, ran towards the respondent and squirted sunscreen onto his back in an attempt to turn his attention from the dog and the woman who had spoken to him. The respondent stopped and turned to face the applicant. He then moved towards her and punched her in the upper left arm. 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 Willesden v Bruce

Details

AGLC: Willesden v Bruce [2005] QDC 1
Case: [2005] QDC 1
Decision Date: 7 January 2005

CaseChat Overview and Summary

The matter of Willesden v Bruce was heard in the Magistrates’ Court of Victoria. Margaret Willesden, the applicant, sought criminal compensation against Norman William Bruce, the respondent, after he punched her in the upper left arm and left side of her face, resulting in moderate bruising and moderate mental or nervous shock. The primary issue the court had to determine was whether the conduct of the applicant contributed directly or indirectly to either of the injuries she suffered. The court had to consider the statutory provisions of the Criminal Injuries Compensation Act 2004 (Vic), which outlines the criteria for awarding compensation in such cases.

The court examined the evidence and arguments presented by both parties. The respondent argued that the applicant's conduct may have contributed to the incident, potentially affecting the amount of compensation awarded. The applicant maintained that her injuries were a direct result of the respondent's actions, with no contributory fault on her part. After evaluating the evidence, the court concluded that the applicant's conduct did not contribute directly or indirectly to the injuries she suffered. The court found that the respondent's actions were the sole cause of the applicant's injuries, and therefore, she was entitled to full compensation.

In light of its findings, the court ordered that the respondent pay criminal compensation to the applicant in the sum of $17,250.00. The court also ordered that the applicant is to pay the respondent’s costs to be assessed thrown away by reason of the adjournment on 9 December 2003. This decision ensures that the applicant receives appropriate compensation for the injuries she suffered, while also addressing the financial implications of the legal proceedings.

Orders

Orders of the court

Order that the respondent, Norman William Bruce pay criminal compensation to the applicant Margaret Willesden in the sum of $17,250.00.

Further order that the applicant is to pay the respondent’s costs to be assessed thrown away by reason of the adjournment on 9 December 2003.

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:	*Willesden v Bruce* [2005] QDC 001
PARTIES:	MARGARET WILLESDEN Applicant and NORMAN WILLIAM BRUCE Respondent
FILE NO:	26/03
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	7 January 2005
DELIVERED AT:	Southport
HEARING DATE:	28 September 2004
JUDGE:	Newton DCJ
ORDER:	Order that the respondent, Norman William Bruce pay criminal compensation to the applicant Margaret Willesden in the sum of $17,250.00. Further order that the applicant is to pay the respondent’s costs to be assessed thrown away by reason of the adjournment on 9 December 2003.
CATCHWORDS:	APPLICATION FOR CRIMINAL COMPENSATION – respondent punched applicant in upper left arm and left side of face – applicant suffered moderate bruising and moderate mental or nervous shock – whether conduct of applicant contributed directly or indirectly to either of these injuries COSTS - whether costs thrown away on adjournment should be paid by applicant because of her unavailability to be present for cross-examination on date of hearing Criminal Offence Victims Act 1995 Uniform Civil Procedure Rules Cases cited: Cleland v Major no. D129 of 2001 26 June 2002 Dooley v Ward [2000] QCA 493 Grahame v Dean (2001) QSC 420 Hohn v King [2004] QCA 254 Williamson v McDonald QDC 610 of 2000
COUNSEL:	Mr R Frigo – applicant Ms K T Magee respondent
SOLICITORS:	O’Keefe Mahoney Bennett – applicant Linda Phelps & Co – respondent