Wren v Kinersen-Smith - [2009] QDC 398

DISTRICT COURT OF QUEENSLAND

CITATION:

Wren v Kinersen-Smith & Anor [2009] QDC 398

PARTIES:

LEWIS ALLAN WREN

(applicant)

v

JARRYD KINERSEN-SMITH

(first respondent)

and

KAYLE PERRY CONNOR

(second respondent)

FILE NO/S:

3493/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

16 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2009

JUDGE:

Rafter SC DCJ

ORDER:

The respondents pay to the applicant the sum of $69,750 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondents in the District Court at Brisbane on 9 February 2009.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION –grievous bodily harm– physical injuries and mental or nervous shock

COUNSEL:

S A Lynch for the applicant

No appearance by or for the respondents

SOLICITORS:

Creevey Russell Lawyers for the applicant

No appearance by or for the respondents

Introduction

The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondents on 4 April 2008. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. However the application was filed on 3 December 2009 which is before the 2 month expiry period contained in the transitional provision in s.155(2)(b). Therefore the Court is required to hear and determine the application under the relevant provision (s.155(3)).

The respondents pleaded guilty to grievous bodily harm on 9 February 2009. They were each sentenced to imprisonment for two and a-half years, suspended after 6 months, for an operational period of 3 years.

On 5 June 2009 the Court of Appeal dismissed appeals against the sentences by the Attorney-General.[1]
[1]R v Kinersen-Smith & Connor; ex parte A-G (QLD) [2009] QCA 153

The respondents have been served with the application and supporting affidavit material.[2] There has been no appearance by or for them.
[2]Affidavit of Elizabeth Mary Jones filed 15 December 2009

Circumstances of the offence

At the time of the offence the applicant was a 19 year old university student. The first respondent was 17 years of age and the second respondent was 18 years of age.

On 4 April 2009 at approximately 1:30am the applicant was sitting on the side of the road in the Brisbane CBD.

The respondents began yelling abusive comments at the applicant such as, “where’s your boyfriend?” and “you can suck my dick if you want”. The applicant gave the respondents the “finger”.

The first respondent approached the applicant and asked him why he gave them the finger. The applicant said nothing. The first respondent then hit him in the head with an open hand. The second respondent then punched the applicant to the head. Both respondents then kicked the applicant to his upper chest. The second respondent then struck the applicant to the head with an open hand again.

Injuries and…

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 Wren v Kinersen-Smith

Details

AGLC: Wren v Kinersen-Smith [2009] QDC 398
Case: [2009] QDC 398
Decision Date: 16 December 2009

CaseChat Overview and Summary

The case of Wren v Kinersen-Smith involved a compensation claim filed by the applicant, Wren, against the respondents, Kinersen-Smith. The dispute centred on the amount of compensation Wren was entitled to receive under section 24 of the Criminal Offence Victims Act 1995, following grievous bodily harm that had led to the conviction of the respondents in the District Court at Brisbane on 9 February 2009. The applicants sought compensation for both physical injuries and mental or nervous shock suffered as a result of the offence. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was to determine the appropriate amount of compensation to be awarded to Wren under section 24 of the Act. The court needed to consider the physical injuries sustained by the applicant, as well as any mental or nervous shock experienced as a result of the offence. In assessing the compensation claim, the court took into account various factors, including the severity of the injuries, the impact on the applicant's quality of life, and the degree of any mental or nervous shock experienced. The court also had to consider the extent to which the respondents were able to pay the compensation.

In reaching its decision, the court thoroughly examined the evidence presented by both parties and considered the relevant legal principles. The court found that Wren was entitled to compensation for the grievous bodily harm suffered, and determined that the appropriate amount of compensation was $69,750. The court was satisfied that this sum appropriately reflected the physical injuries sustained and the impact on the applicant's mental health. The court also took into account the respondents' ability to pay the compensation.

The court ordered that the respondents pay the applicant the sum of $69,750 by way of compensation, as per section 24 of the Criminal Offence Victims Act 1995. The court was satisfied that this amount appropriately compensated the applicant for the grievous bodily harm suffered, and took into account the evidence presented by both parties as well as the relevant legal principles. The court's decision provides guidance for future cases involving compensation claims under the Act, and ensures that victims of grievous bodily harm are appropriately compensated for their injuries and any associated mental or nervous shock.

Orders

Orders of the court

The respondents pay to the applicant the sum of $69,750 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondents in the District Court at Brisbane on 9 February 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:	Wren v Kinersen-Smith & Anor [2009] QDC 398
PARTIES:	LEWIS ALLAN WREN (applicant) v JARRYD KINERSEN-SMITH (first respondent) and KAYLE PERRY CONNOR (second respondent)
FILE NO/S:	3493/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	16 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	16 December 2009
JUDGE:	Rafter SC DCJ
ORDER:	The respondents pay to the applicant the sum of $69,750 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondents in the District Court at Brisbane on 9 February 2009.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION –grievous bodily harm– physical injuries and mental or nervous shock
COUNSEL:	S A Lynch for the applicant No appearance by or for the respondents
SOLICITORS:	Creevey Russell Lawyers for the applicant No appearance by or for the respondents