Victims Of Crime Compensation - QLD

Victims of Crime Compensation - What is it?

Victims of Crime Compensation is a compensation payable to individuals who have been injured as result of the commission of a crime.  Basically, this means that a person whom is injured as a result of a crime can claim compensation against the offender for their injury/injuries or failing that, they can apply to the State Government for compensation.  

A victim has two avenues of commencing an action for compensation against the offender.  The first is for an award of personal injuries damages pursuant to the Personal Injuries Proceedings Act, Queensland.  The second is for a compensation order pursuant to the Criminal Offence Victims Act, Queensland. 

The Criminal Offence Victims Act also allows for state government compensation in the event: 

  1. that the offender has no resources pay the amount of compensation awarded to the victim; or
  2. where the offender the offender cannot be bought to justice for certain reasons;
  3. a person was injured in the course of helping police; or
  4. the offence was murder or manslaughter.

Any offence involving threats of violence or actual violence can lead to a claim of compensation being made against an offender, as both physical and psychological injury is compensated.  Common types of offences that may lead to a claim include assault type offences, armed robbery, criminal negligence, grievous bodily harm, and murder (where the spouse and children of the deceased can claim). 

Personal injuries claims are quite complex and there a many steps involved and strict time limits.  Further, difficulties can arise in attempting to enforce an order against the respondent/offender. Accordingly, it is advisable you obtain some legal advice whether you are a claimant/victim or respondent/offender.   

* Important Note: the Criminal Offence Victims Act was replaced by the Victims Financial Assistance and Services Scheme in early 2010.  See below. 

Personal Injuries Claim against Offender Personally

A victim of a crime whom sustained injury, may commence an action against the offender pursuant to the Personal Injuries Proceedings Act, Queensland.  

 In order to be successful, the claimant/victim must show: 

  1. the respondent/offender did an act or made an omission (deliberate or not) ; AND
  2. that act or omission caused injury/ies to the claimant/victim; AND
  3. that the claimant/victim has suffered loss or damage as a result of his or her injury/ies.

 The respondent/offender may enter a defence against the claim of the claimant/victim.  If they have not been convicted, they would have a chance of defending the claim that he or she did the act or made the omission.  Otherwise, they may defend the claim against them in terms of the extent of the injury sustained and the amount claimed as reasonable compensation for the injury. 

It is important to note, strict time limits apply to any claims made under Personal Injuries Proceedings Act.  They are as follows:-

  1. A claimant (i.e. victim) must lodge a Personal Injuries Proceedings Act Form 1 Part 1 with the Respondent (i.e. the offender), which ever is sooner of the following:
    • (a) within 9 months of the date of the crime resulting in injury; OR
    • (b) within 9 months of the date the claimant/victim first experiences symptoms of an injury resulting from the crime; OR
    • (c) within 1 month after the day the claimant/victim first instructs a law firm to act on their behalf in seeking damages; and 
  2. Proceedings must be commenced in Court within 3 years from the date of the incident. Should the claimant/victim fail to do so, their right to claim damages for personal injuries will be lost forever.

 The advantage of making a claim against the offender personally pursuant to the Personal Injuries Proceedings Act, is the fact that the cap on damages is higher than the cap on compensation payable by the government.  Accordingly, an individual is likely to be awarded more through this avenue of compensation.   

Further, even if the offender is not convicted of the crime in court, you can still make a successful claim for personal injuries damages, as the test is easier to prove than in a criminal case.  

In the criminal case against the offender, the prosecution must show the offender committed the crime beyond a reasonable doubt.   

Whereas, all a claimant/victim must show to be awarded damages, is that the respondent/offender deliberately did an act that resulted in their injury on the balance of probabilities. Or in simple terms, they must show it is more probable than not, that the respondent/offender did the act that caused their injury.  Thus while is it much easier to prove your case where the respondent/offender has been convicted, it is not necessary.  

An individual may make a claim for both a compensation order and person injury damages. The reason for doing this is if you think it is possible the offender has resources to pay damages, but you are not yet sure.  In practice, if you find out that the offender does have resources you would dismiss the government compensation claim and proceed only in the personal injuries claim. 

In the rare event compensation is awarded prior to identifying the resources of the offender, an individual is not precluded from also being awarded damages in their personal injury claim. However, the award of personal injury damages will be reduced to take into account that the individual has already been compensated in part.  

The disadvantage of person injury claims is actually enforcing any award of damages made by the Magistrate or Judge.  It can be very difficult to actually get the money payable from the respondent/offender. Sometimes the respondent/offender will not have the resources to pay damages.  

In practice, a good solicitor will always conduct searches to establish whether it is viable to pursue the respondent/offender in a personal injuries claim.  If the respondent/offender has no property, then a good solicitor would advise that it is better to just make a claim for a compensation order under the Criminal Offence Victims Act. 

Application for Compensation Order against the Offender

As noted above, a victim of a crime who has sustained injury/ies may make a claim against the offender for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act, Queensland.

In order to be successful, the claimant/victim must show: 

  • 4. the respondent/offender was convicted of an offence; AND
  • 5. that act or omission/ that constituted the offence, caused injury/ies to the claimant/victim; AND
  • 6. that the claimant/victim has suffered loss or damage as a result of his or her injury/ies. 

The respondent/offender may enter a defence against the claim of the claimant/victim in terms of the extent of the injury sustained and the amount claimed as reasonable compensation for the injury. 

It is important to note, strict time limits apply to applications that a compensation order be made against the offender under section 24.  The application must be made within: 

  • (a) 3 years of the date the offender was convicted; or
  • (b) if the victim was a child at the time of the offence, 3 years after the date they turn 18 years of age.  

The advantage of this process is that as the claimant/victim is that it is easier to prove, as the prosecution has already proven the respondent/offender did the relevant act or made the omission. All the claimant/victim must do to show the respondent/offender convicted an offence is obtain a copy of their certificate of conviction from the relevant Court.

 Further, where the respondent/offender does not have any resources to satisfy the order against him or her to pay compensation, the claimant/offender may apply to the government to for any amount not paid by the respondent/offender.   In order to be successful in the application, the claimant/respondent must show that the offender is unable to pay all or part of the compensation order (you must obtain an order from a Magistrate or Judge to this effect). 

Criminal Compensation Application to the State Government - Where No Offender Brought to Justice

There are also a number of instances where an individual can make an application for compensation from the State Government, where no offender has been brought to justice.

Pursuant to section 33 of the Criminal Offence Victims Act an individual may apply to the State Government for compensation where they sustained an injury as the result of a crime, however the offender cannot be identified despite appropriate inquiries and searches being made (by Police).  The individual must show that the act was report, as soon as possible having regard to all the circumstances, to:

  1. a police officer; or
  2. for a sexual offence-a police officer, doctor or an appropriate agency.

 Section 33 also allows an individual to make a compensation application to the State Government where:

  1. the offender was found not guilty because the were of unsound mind when doing the act; OR
  2. the offender would have been tried on indictment for a personal offence, but for the fact that the offender-
    • (a) has been found to have been suffering from unsoundness of mind when doing the act, or not fit for trial, under theMental Health Act 2000, chapter 7, part 6; OR
    • (b) is not criminally responsible for the act because he or she was under 10 years when doing the act. 
    • Strict time limits also apply to application made to the State Government for compensation pursuant to section 33, namely the application must be made within:
    • (c) 3 years of the date the offence was committed; or
    • (d) if the victim was a child at the time of the offence, 3 years after the date they turn 18 years of age.

Criminal Compensation Application to the State Government - Where Injured during the Course of Helping Police

Pursuant to section 34 of the Criminal Offence Victims Act, an individual may apply for compensation from the State Government, where he or she is injured in the course of assisting Police in: 

  1. attempting to make, or making, an arrest; OR
  2. attempting to prevent, or preventing the commission of an offence.  

Strict time limits also apply to application made to the State Government for compensation pursuant to section 34, namely the application must be made within: 

  • (a) 3 years of the date the person was injured during the course of helping police; or
  • (b) if the victim was a child at the time of assisting police, 3 years after the date they turn 18 years of age.

Criminal Compensation Application to the State Government - Where Offence of Murder/Manslaughter

Under section 35 of the Criminal Offence Victims Act, dependents of a person who was murdered or died as the result of manslaughter, can apply to the State Government for: 

  1. compensation; AND
  2. funeral costs; AND
  3. an amount for damage to any property during the commission of the offence. 

Section 35 also allows for non-dependant family members of the deceased to make an application to the State Government for: 

  1. funeral costs; AND
  2. an amount for damage to any property during the commission of the offence. 

Strict time limits also apply to application made to the State Government for compensation pursuant to section 35, namely the application must be made within:

  • (a) 3 years of the date the murder/manslaughter; or
  • (b) if the victim was a child at the time of the murder/manslaughter, 3 years after the date they turn 18 years of age.

New Victims Financial Assistance and Services Scheme

The new scheme will focus on providing financial assistance and will increase the amount of compensation payable for primary victims and related victims.  It will also extend compensation to secondary victims (witnesses and parents of children injured). 

 A significant change is that the payouts will now be more like that which is applicable under the Workers Compensation Scheme.  Instead of receiving a one off lump sum payment, eligible individuals will receive interim payments for expenses associated with their injury and a payment at the end for any specific future needs relating to their recovery. Expenses likely to be included are medical, counselling and loss of earnings. 

For further information, the following link explains the new scheme by the Department of Justice and Attorney-General: http://www.justice.qld.gov.au/5263.htm

Otherwise keep an eye on this page for updates.

 

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