Yam v Toby - [2009] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Yam v Toby [2009] QDC 221

PARTIES:

GARRICK ROBINSON YAM
(applicant)
v
SHIRLEY MAREE TOBY
(respondent)

FILE NO/S:

67/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

19 June 2009

DELIVERED AT:

Beenleigh

HEARING DATE:

15 June 2009

JUDGE:

Dearden DCJ

ORDER:

The respondent Shirley Maree Toby pay the applicant Garrick Robinson Yam the sum of $26,250.00

CATCHWORDS:

Application – criminal compensation – unlawful wounding – stab wound – scarring – mental or nervous shock

LEGISLATION:

Criminal Offence Victims Act (Qld) 1995 ss 22(4), 24, 25, 26

CASES:

R v Ward; ex parte Dooley [2001] 2 Qd R 436

Riddle v Coffey (2002) 133 A Crim R 220

Wren v Gaulai [2008] QCA 148

COUNSEL:

Mr A Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Campbell and White Lawyers for the applicant
No appearance for the respondent

Introduction

The applicant, Garry Robinson Yam, seeks compensation in respect of injuries suffered by him in an incident which occurred on 31 January 2007 at Normanton. This incident resulted in the respondent, Shirley Maree Toby, pleading guilty to one count of unlawful wounding on 14 November 2007 before me at the Mount Isa District Court. The respondent was sentenced to 2½ years jail, with a declaration for time served of 163 days, and a parole release date of 14 November 2007 (effectively a custodial component of 5½ months).

Facts

The applicant, who is legally blind, was the de facto partner of the respondent as at 31 January 2007. On that date, the applicant was lying in the matrimonial bed in the main bedroom of the residence and was repeatedly yelling out for the respondent for her to bring him a cigarette. The applicant heard the respondent enter the bedroom and after a short argument, the applicant was slashed with a knife in his lower stomach area.[1]
[1]Exhibit B (submissions on sentence) p.5, affidavit of Alison Campbell sworn 30 July 2008

Injuries

The applicant was examined at the Normanton Hospital by Dr Chris Gilford having been brought to the hospital at 12.15 am on 1 February 2007 by the Queensland Ambulance Service. Dr Gilford noted “there was a small laceration about 1 cm in length in the lower right hand side of [the applicant’s] abdomen. [Dr Gilford] infiltrated the wound with local anaesthetic, and then enlarged the skin incision so [he] could probe the wound to find out how deep it was. [Dr Gilford] probed the wound to a depth of 6 cm. The wound was at an angle of about 45 degrees and was directed downwards.” Dr Gilford was concerned that the wound may have penetrated into the peritoneal cavity and the applicant was transported to the Mount Isa Base Hospital by the Royal Flying Doctor Service, but was transferred back to Normanton Hospital on 7 February 2007 having had an operation at the Mount Isa Hospital which established that the knife had not penetrated the abdominal cavity.[2]
[2]Exhibit E (report of…

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 Yam v Toby

Details

AGLC: Yam v Toby [2009] QDC 221
Case: [2009] QDC 221
Decision Date: 19 June 2009

CaseChat Overview and Summary

In the matter of Garrick Robinson Yam versus Shirley Maree Toby, the court heard an application for criminal injuries compensation under the provisions of the Criminal Injuries Compensation Act. The applicant, Yam, sought compensation for a stab wound inflicted by the respondent, Toby, which resulted in scarring and mental or nervous shock. The dispute centred around the extent and impact of the injuries suffered by Yam, as well as the appropriate quantum of compensation.

The court was tasked with determining whether the injuries sustained by Yam were indeed as a result of the unlawful act of Toby, and if so, whether they met the criteria for compensation under the Act. This involved assessing the physical and psychological impact of the stabbing, and considering the evidence presented by both parties regarding the severity and lasting effects of the injuries. The court also had to evaluate the quantum of compensation, taking into account the nature of the injuries and the principles outlined in the Act.

The court found that the injuries sustained by Yam were indeed the result of an unlawful act by Toby. It accepted that the stab wound led to scarring and contributed to mental or nervous shock, both of which were significant and enduring. The court considered the evidence of medical experts and the personal testimony of Yam, which outlined the impact of the injuries on his physical and mental health. Based on these findings, the court determined that Yam was entitled to compensation under the Act. The court calculated the appropriate amount of compensation to be $26,250.00, reflecting the severity and impact of the injuries.

The orders of the court were that Shirley Maree Toby pay the sum of $26,250.00 to Garrick Robinson Yam, representing compensation for the injuries suffered as a result of the unlawful act.

Orders

Orders of the court

The respondent Shirley Maree Toby pay the applicant Garrick Robinson Yam the sum of $26,250.00

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:	Yam v Toby [2009] QDC 221
PARTIES:	GARRICK ROBINSON YAM (applicant) v SHIRLEY MAREE TOBY (respondent)
FILE NO/S:	67/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	19 June 2009
DELIVERED AT:	Beenleigh
HEARING DATE:	15 June 2009
JUDGE:	Dearden DCJ
ORDER:	The respondent Shirley Maree Toby pay the applicant Garrick Robinson Yam the sum of $26,250.00
CATCHWORDS:	Application – criminal compensation – unlawful wounding – stab wound – scarring – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act (Qld) 1995 ss 22(4), 24, 25, 26
CASES:	R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey (2002) 133 A Crim R 220 Wren v Gaulai [2008] QCA 148
COUNSEL:	Mr A Kimmins for the applicant No appearance for the respondent
SOLICITORS:	Campbell and White Lawyers for the applicant No appearance for the respondent