Criminal injury compensation

Victim Assist Queensland has replaced the previous criminal injury compensation schemes under the Criminal Offence Victims Act 1995 (COVA) and the Criminal Code Act 1899 (the Code).

On 30 November 2009, COVA and the Code criminal injury provisions ended. Victims can no longer apply for criminal injury compensation and must apply for assistance under the Victims of Crime Assistance Act 2009.

Following is more detailed information about the end of criminal injury compensation in Queensland:

• Acts of violence before 1 December 2009
• People injured before 1 December 2009
• Withdrawing a criminal injury compensation application
• Mixed applications
• Lapsing applications for criminal injury compensation

Exception where there has been a conviction of the offender before 30 November 2009
If there has been a conviction of the offender in the Supreme or District court before 30 November 2009, then a victim can still apply to the court under COVA or the Code up until 1 February 2010 (under s24 of the repealed COVA and s663B of the repealed Code chapter).

District and Supreme Court applications for criminal injury compensation
The transitional provisions of the VOCAA provide that where an order for compensation is made after the commencement of VOCAA, any application for an ex gratia payment of compensation (under s32 of COVA or s663C of the Code) must be received by Victim Assist Queensland within six months from the date of the order. There is no provision under VOCAA to extend this timeframe. The only options available after this time are to pursue the offender for the amount of the compensation order and/or to make an application for financial assistance under VOCAA.

Existing COVA and the Code Applications
Within Victim Assist Queensland there is a team continuing to work on COVA and the Code applications that are still being processed. Pending applications are being processed in the same way as before.

If you want information on your COVA or the Code application then you can contact the COVA team through Victims LinkUp on 1300 546587 or email victimslinkup@justice.qld.gov.au.

If the act of violence occurred before 1 December 2009 can a victim apply to Victim Assist Queensland?

If an act of violence occurred before 1 December 2009 and the victim would have had a right to apply under COVA if it had not been repealed (offender has been convicted in the Supreme or District Court, or there has been notification that the offender cannot be prosecuted because of a Mental Health Tribunal outcome or the offender cannot be located) then they have a right to financial assistance from Victim Assist Queensland, as long it is still within the time limitation periods set out in the Act. 

COVA time limitation period for primary victims are as follows:

• Where there has been a conviction of the offender, 3 years from the court conviction of the offender, or if the primary victim was a child at the time of the conviction, by the time they turn 21.

• Where there has been no conviction of the offender, 3 years from the date of the act of violence, or 3 years from when the primary victim’s right was formed (e.g the victim was informed that it will not be possible to prosecute the offender), or if the primary victim was a child at the time, by the time they turn 21.

Or:

• As a dependant or family member of a victim of murder or manslaughter, 3 years from the date of the death of the primary victim.

Examples of victims who are eligible to convert their right under COVA to one for assistance by Victim Assist Queensland:

• A person is injured during a robbery in January 2007. The offender is convicted in the Supreme Court in June 2007. The victim has until June 2010 to put in an application for assistance to Victim Assist.

• A person becomes a victim of a serious sexual assault and reports the incident to the police the next day. In March 2008, 18 months later, the police inform the victim that the offender is unlikely to ever be found. The victim has until March 2011 to apply for assistance from Victim Assist Queensland.

When a victim of an act of violence that occurred before 1 December 2009 is not eligible for assistance under Victim Assist Queensland

For acts of violence that occurred before 1 December 2009, Victim Assist Queensland can only provide financial assistance to victims that would have had a right under COVA if it had not been repealed. The following victims who were injured before 1 December 2009 would not be eligible under the new scheme:

• a parent or witness in the new category of victim called secondary victims is not eligible under Victim Assist Queensland because they were not eligible under COVA
• primary victims where the conviction of the offender was not decided in the Supreme or District Court because they were not eligible under COVA.

People injured before 1 December 2009 that are still waiting for the matter to go to court

If a person is injured in an act of violence before 1 December 2009, it must be proven that they would have been eligible to claim under the old criminal compensation scheme of Criminal Offence Victims Act 1995 (COVA) or the Criminal Code on 30 November 2009, before they can to apply to Victim Assist Queensland. So, people who are still waiting for the matter to go through court after 1 December 2009, for an act of violence that occurred before 1 December 2009, must wait for a court conviction, or notification that the offender cannot be convicted, before they apply for financial assistance.

Can a criminal injury compensation application be withdrawn and an application to Victim Assist Queensland made instead?

Some victims that were eligible under COVA and had submitted an application for compensation may feel that they would prefer to apply for assistance under Victim Assist Queensland. If their COVA or Code application was withdrawn by 30 November 2009 then they may reapply under Victim Assist Queensland.

If a victim did not withdraw their pending COVA or the Code application by 30 November 2009 then they must proceed under COVA or the Code.

Victims are advised to speak to their legal advisor if this applies to them.

Mixed applications under COVA and Victim Assist Queensland

A primary victim can only make an application under one scheme. If a victim has already had their application dealt with under COVA (this includes if the application was rejected) they will not be eligible for a grant of assistance under Victim Assist Queensland.

If a dependant or family member of a primary victim that has died before 1 December 2009 makes a claim and receives a payment under COVA, they cannot then apply again under Victim Assist Queensland. However, another dependant or family member of that primary victim who has not yet made an application under COVA, can still make an application to Victim Assist Queensland if it is still within 3 years from the death of the primary victim. 

The person applying to Victim Assist Queensland will only receive assistance up to the value of the maximum pool that would have been available to them under COVA less any payment already made regarding the act of violence under COVA to other dependants or family members.

Example:

Jane and Ted’s father dies in 2008 from injuries caused to him during an armed robbery in his home. Jane and Ted both pay an equal share for the funeral of their father, which costs $8000. Jane puts a claim in under COVA in 2008 and receives a $4000 payment. In 2010 Ted applies for funeral assistance to Victim Assist Queensland. The maximum pool available under COVA for funeral expenses was $6000. Ted therefore receives assistance of $2000 under Victim Assist Queensland taking the total claimed by Jane and Ted for their father’s funeral to the maximum $6000 available.