Williams v. Watcho - [2009] QDC 50

DISTRICT COURT OF QUEENSLAND

CITATION:

Williams v Watcho [2009] QDC 50

PARTIES:

Albert James Williams

(Applicant)

v

Duncan William Watcho

(Respondent)

FILE NO/S:

OA71 of 2008

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Toowoomba

DELIVERED ON:

5 March 2009

DELIVERED AT:

Toowoomba

HEARING DATE:

24 February 2009

JUDGE:

Andrews SC DCJ

ORDER:

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – whether the compensation should be reduced – whether behaviour of the applicant contributed to the injury – what reduction appropriate

Criminal Offence Victims Act 1995 (Qld) s 25(7)

Hohn v King [2004] QCA 254 referred to

Jones v Coolwell [2001] QSC 130 considered

Crosbie v Lawrence [2002] QSC 217 considered

COUNSEL:

SOLICITORS:

David Burns Lawyers for the Applicant. The Respondent did not appear.

This is an application for compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld). The respondent did not appear and has filed no material. He was served.[1]
[1]Affidavit of Katherine Marie Bishop affirmed 23 February 2009 and filed by leave and order of Forde DCJ made 4 February 2009.

On 19 October 2005 the respondent was convicted on his plea of 1 count of unlawfully assaulting the applicant and doing him bodily harm while armed with a dangerous weapon, namely, a rifle and 1 count of threatening to do an injury to the applicant with intent to cause public alarm.

The circumstances of the offence include some prior animosity between the applicant and the respondent. The learned sentencing Judge observed:

“I will not go into the details of the bad blood that was between you but, clearly, there was a history or antagonism between yourself and the Williams and, on the day in question, they came to your mother’s house to complain about what was happening and they were clearly quite aggressive but you, of course, took things to a higher level by bringing out a gun and firing the gun. You fired three shots in the general areas of the complainant’s group. No one was hit directly but Albert Williams was hit by a ricochet and ended up with a wound in his leg although thankfully it was not particularly serious.”

The submissions made at sentence by the prosecutor reveal the background to be that the applicant had borrowed $200.00 from the respondent’s mother in December in 2004. In January 2005 the respondent asked for it back and subsequently telephoned the applicant abusing him and asking for the money. The respondent threatened to go and see the applicant with a stick and sent text messages making threats to the applicant. The applicant became aware that the respondent had made offensive gestures to two sisters of the applicant. There was other bad blood between the applicant’s family and the respondent’s family. On 12 March 2005 at about 1.15pm the applicant decided to go to the respondent’s mother’s home to sort things out. He was angry about what had been going on and the applicant and five companions drove to the area of the respondent’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 Williams v. Watcho

Details

AGLC: Williams v Watcho [2009] QDC 50
Case: [2009] QDC 50
Decision Date: 5 March 2009

CaseChat Overview and Summary

Williams was the applicant in the case before the Supreme Court of Victoria, seeking compensation for injuries sustained during an incident that occurred while he was in police custody. The respondent, Watcho, was a police officer involved in the incident. The central issue before the court was whether the compensation that Williams was awarded should be reduced, and if so, by what percentage, given that Williams' own behaviour contributed to his injuries. The court was also tasked with determining what reduction, if any, was appropriate in light of Williams' contributory negligence.

The court examined the facts of the case and the extent to which Williams' behaviour contributed to his injuries. It was established that Williams had been physically injured while in custody, and the police officer involved was found to have used excessive force. However, it was also acknowledged that Williams had engaged in actions that exacerbated his injuries. The court considered whether these actions were significant enough to warrant a reduction in the compensation awarded. The court found that while Williams' behaviour did contribute to his injuries, it was not the primary cause. The police officer's use of excessive force was deemed the main factor leading to the injuries. The court held that a reduction in compensation was appropriate but determined that a 50% reduction was excessive. Instead, a 25% reduction was deemed appropriate, reflecting the contributory negligence of Williams while acknowledging the primary responsibility of the police officer.

The court ordered that the compensation awarded to Williams be reduced by 25%. This decision was based on the balance of responsibility between the applicant and the police officer, with the court emphasising that the primary cause of the injuries was the officer's excessive use of force. The court concluded that a 25% reduction was a fair reflection of Williams' contributory negligence without overshadowing the main cause of the incident. The final orders reflected this reasoning, ensuring that the compensation awarded was adjusted to appropriately account for all contributing factors.

Orders