WHO MAY APPLY FOR COMPENSATION

You are eligible to make an application for criminal compensation if you are a victim who has suffered a personal injury as a result of a criminal offence. An injury includes a bodily injury, mental or nervous shock and pregnancy. Compensation may also be claimed if you have been injured while assisting a police officer to make or attempt to make an arrest or prevent an offence.

There are also circumstances for serious offences where you may apply for compensation where the injury has been caused to another:

• for the death of someone on whom you were dependent, where the death was caused in circumstances constituting murder or manslaughter; or
• for funeral or other expenses from the death of a member of your family, where the death was caused in circumstances constituting murder or manslaughter.

Some examples of injuries which result in criminal compensation are as follows:

• physical or sexual assault;
• suffering a physical or psychiatric injury as a result of a robbery, home invasion or hold-up;
• car crash injuries due to a dangerous driving offence;
• injuries suffered in the assistance of police officers.

Please note that this is not an exhaustive list of circumstances, simply an example of some offences and injuries which may come before the court. 

WHICH COURT WILL DEAL WITH MY APPLICATION?

In the Queensland court system there are three courts, the Magistrates Court, District Court and Supreme Court. Which court hears the criminal charge depends on the seriousness of the charge.

The Magistrates Court hears criminal matters that are of the least serious type. The District and Supreme Courts hear all other offences.

For claims in the District or Supreme Court, depending on the date of the offence, the victim is entitled to seek criminal compensation pursuant to the Criminal Offence Victims Act 1995 (COVA) or the Criminal Code (Queensland).

COVA applies to any serious offence committed on or after 18 December 1995. The Criminal Code applies to all serious offences prior to 18 December 1995. 

MAGISTRATES COURT APPLICATION

The process of applying for compensation in the Magistrates Court differs significantly from the process in the District and Supreme Courts.

Compensation can only be ordered in the Magistrates Court as part and parcel of the sentencing process against the offender. Because of this, an application for compensation must be made when the offender is being sentenced. This means that if you have been injured through the commission of a criminal offence, you should, as soon as possible, find out from the police when and where the matter will be dealt with.

It is important with offences dealt within the Magistrates Court for the victim to inform the investigating police officer that injuries and expenses have been sustained as a result of a criminal offence, and to request that a criminal compensation application be made at the time of sentencing. This is important, as an application cannot be brought at a later time. If requested, the police prosecutor will normally make the claim on your behalf.

The police prosecutor will apply for a compensation order or for a restitution order to compensate you for the pain and suffering caused by the criminal offence or for any medical or other out of pocket expenses incurred by you as a result of the offence. The compensation claim should be supported by a hospital, medical or psychologist’s report. It should also be supported by receipts and other documentation for which you are claiming compensation.

A claim may be made for pain and suffering, medical and associated expenses, past and future loss of wages, future medical and associated expenses, and compensation for loss and destruction of property. Usually the police prosecutor will submit a statement from you outlining your injuries and losses.

A significant drawback with the Magistrates Court application for compensation is that you cannot seek payment from the government if the offender does not or cannot pay. The most you can do is have the magistrate make an order which involves a default period of imprisonment should the offender not pay, as this is a forceful incentive for the offender to pay the amount ordered.

Another drawback of the Magistrates Court application for compensation is that magistrates are reluctant to make awards for compensation similar to those awarded in the higher courts. It is rare to see a Magistrates Court order for compensation extending beyond a few thousand dollars. 

DISTRICT AND SUPREME COURT APPLICATIONS FOR OFFENCES COMMITTED UP TO AND INCLUDING 17 DECEMBER 1995

THE CRIMINAL CODE ACT (QUEENSLAND) 1899

Time Limits

The Criminal Code does not specify the time within which an application must be made following the conviction of the offender (ie. when the offender was found guilty or pleaded guilty to the offence).

However, the court has ruled that the application should almost always be brought within six (6) years of the date of conviction of the offender (i.e. date found guilty or pleaded guilty), or if you were a child at the time of the trial, within six (6) years after you turned 18. In some cases, even this period of time may be too long. For this reason, it is advisable that you bring an application as soon as possible after the date of conviction.

Similarly, an application directly to the government for an ex gratia payment, should be made as soon as possible, and in any event should be brought within six (6) years of the offence date or the conviction date (whichever is the later). An application for an extension of time can be made to the Attorney General. 

DISTRICT AND SUPREME COURT APPLICATIONS FOR OFFENCES COMMITTED ON OR AFTER 18 DECEMBER 1995

CRIMINAL OFFENCE VICTIMS ACT 1995 (COVA)

Who may apply?

COVA applies to any person who has suffered an injury as a result of a serious offence. The Act applies in the following cases:

• An Application may be brought against the offender where the offender is convicted of an indictable offence. In cases where the offender is incapable of paying the award, a further application may be made to the Attorney General for an ex gratia payment by the government.
• Where the offence was committed by a person of unsound mind, an application may be made directly to the Attorney General for an ex gratia payment.
• Where the offender cannot be found or identified after proper enquiry and search and, if the offender had been able to be found, that person would have been charged with an indictable offence, you may make an application directly to the Attorney General for an ex gratia payment.
• Where the offender is not criminally responsible due to being under 10 years of age, you may make an application directly to the Attorney General for an ex gratia payment.

COVA also allows relatives and dependents of a victim of a homicide to apply for:

• compensation for dependency ($20,000.00 maximum);
• funeral expenses ($4,000.00);
• other expenses for damage caused by the crime ($1,000.00).

Time Limits

Under COVA an application for compensation must be made:

• within three (3) years of the date of conviction of the offender (ie. date found guilty or pleaded guilty);
• if you were under 18 years at the time of the trial, within three (3) years after you turned 18.

There are exceptions to these time limits in circumstances where important factors were not known before the time limit expired. If this is the case, you will be required to make an application to the court for an extension of time. This can be a complex application and we recommend you seek legal advice.

Similarly, an application directly to the government for an ex gratia payment is also to be made within three (3) years of the offence date or the conviction date (whichever is the later). An application for an extension of time can be made to the Attorney General. 

Assessing the Compensation Payable

Under COVA assessment of the compensation is made strictly in accordance with the table contained in schedule 1 to the Act. The compensation table lists various injuries and provides an allowable percentage of the scheme maximum (currently $75,000.00) for each injury.

An award under COVA is effectively for pain and suffering only. A victim suffering from various injuries can receive a number of awards for different injuries, subject to the overall maximum of $75,000.00.

Please note that COVA does not provide for any additional allowances for loss of income, medical expenses or any other expenses.

In relation to sexual offences, there is also an added provision that allows the court to award up to $75,000.00 if the victim has suffered an ‘adverse impact’ as a result of a sexual offence. An adverse impact of a sexual offence includes the following:

• a sense of violation;
• reduced self worth or perception;
• post-traumatic stress disorder;
• disease;
• lost or reduced physical immunity;
• lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;
• increased fear or increased feelings of insecurity;
• adverse effect of the reaction of others;
• adverse impact on lawful sexual relations;
• adverse impact on feelings;
• anything the court considers is an adverse impact of a sexual offence.

If you have suffered from an adverse impact as a result of a sexual offence, you should make reference to the impact in your affidavit.

COVA is a ‘last resort’ for compensation. You can only seek compensation if you cannot be adequately compensated by WorkCover compensation, insurance, or by a civil action (ie. private claim lodged in a court by you for damage caused) against the offender or against another party, for example the victim’s employer, hotel proprietor or the like. If the offender is penniless, you may argue that a civil action is not viable.

It is important to bear in mind that contributory negligence (the contribution by you to your injuries) may reduce the amount of compensation granted. The court will have regard to your behaviour which has contributed in any way to the injury suffered. 

PREPARING AN APPLICATION TO THE STATE FOR AN EX GRATIA PAYMENT

Where the offender is unable to pay the compensation awarded by the District or Supreme Court, or where the offender cannot be identified or is of unsound mind, or in cases of injuries incurred while assisting a police officer, you should make a written application to the State (Attorney General) for an ex gratia (“act of grace”) payment.

You are required to complete an application form for compensation and forward it to the Department of Justice. For an application form contact the Department of Justice. There are different application forms depending on whether or not you have obtained a court order for compensation.

Certain applications for criminal compensation can be made directly to the Attorney General without a court order, or the necessity for there to have been a conviction against the offender. An application directly to the Attorney General for an ex-gratia payment of criminal compensation can be made in the following circumstances:

• Where the offender cannot be identified or located
• Where the offender is not criminally responsible
• Where the accused is found ‘Not Guilty’
• Where an injury is suffered whist assisting a police officer

FURTHER INFORMATION 

If you want further information, we recommend contacting the law firm of Campbell & White Lawyers who specialize in this area of law. They are located at Suite 9, 46 Douglas Street Milton QLD 4064, or call them on (07) 3217 6344.