SUPREME COURT OF QUEENSLAND

1. McMURDO P: I agree with the reasons for judgment of Holmes J and wish to add only the following.

2. Counsel for the appellants applied for a certificate under the Appeals Costs Fund legislation in the event that either appellant were successful on a matter of law.

3. In R v Llorente, ex parte Hendry,^[1] this Court ordered costs against the respondent and as the matter was remitted to the District Court granted the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).  That case concerned criminal compensation under an earlier scheme covered by Ch 65A, Criminal Code.

4. The earlier scheme did not include a provision comparable to s 31, Criminal Offence Victims Act 1995 (Qld) which provides:

“A court is unable to make an order for the payment of costs of an application for a compensation or repayment order”

 An order for the costs of an appeal is not “an order for the payment of costs of an application for a compensation or repayment order”.  There is nothing in the Criminal Offence Victims Act 1995 (Qld) to preclude this Court from ordering the respondent pay the costs of the appellant Zaicov’s successful appeal and, as in Hendry, granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).  In the circumstances that seems the appropriate course.

5. I agree with the orders proposed by Holmes J.

6. WILLIAMS JA:  I have had the advantage of reading the reasons for judgment prepared by Holmes J.  I agree generally with what she has said and I can state my reasons for arriving at the same conclusion briefly.

7. Section 25 of the Criminal Offence Victims Act 1995 sets out in precise terms the manner in which the amount of compensation payable is to be calculated.  Subsection (1) states that the court is “limited to ordering the payment of an amount decided” under the section.  By operation of subsection (2) a “compensation order” may only require payment of not more than the “scheme maximum”.

8. Importantly for present purposes, subsections (4), (5), (6) and (7) deal with the amount which “should be ordered to be aid for an injury”. That expression must be given the same meaning when used in each of those subsections. Further, each time that expression is used it must relate to the same stage in the process of deciding the amount of money which is to be the subject of the “compensation order” referred to in subsections (1), (2) and (3).

9. When the section is considered in that way it seems to follow that “any behaviour of the applicant that directly or indirectly contributed to the injury” – the situation with which subsection (7) is concerned – must be brought into account when determining “the amount that should be ordered to be paid for an injury specified in the compensation table” as provided for in subsection (4).

10. That has the rather surprising consequence that, at least in theory, the court could apply a different percentage reduction because of contributing behaviour to each of the separate relevant injuries. But that is just one of the oddities which results from the way in which the legislation is structured.

11. The decision of Mackenzie J in R v Ferguson, ex parte Matthews [1998] 2 Qd R 282, dealing with compensation awarded pursuant to s 663B of the Criminal Code, and holding that where a claimant was otherwise entitled to the maximum amount any reduction for conduct contributing to the injury was to be made from the maximum amount, was handed down in September 1996 after the Criminal Offence Victims Act 1995 had been enacted.  In consequence it cannot be argued that Parliament did not intend to alter the position under the pre-existing law.

12. Ambrose J at first instance in this case supported his conclusion that the deduction should be from the scheme maximum by pointing to the injustice which may result from the construction which I feel constrained to adopt. One cannot justify from a logical perspective a construction which could result in two people with identical injuries receiving the same amount of compensation though one was held to have contributed to the extent of 50% to the injury being sustained. But at the end of the day I have come to the conclusion that that is just another of the oddities about the legislation.

13. A query was raised by counsel for the appellants as to whether leave to appeal was necessary, and leave was sought if required. The decision in question was made by a Judge of the Trial Division of the Supreme Court and pursuant to s 69(1)(a) of the Supreme Court of Queensland Act 1991 an appeal lies as of right to this Court.

14. The orders of the Court should therefore be:

1. With respect to the first appellant Stephen Peter Zaicov:

1. appeal allowed;

2. vary the order appealed from by substituting the amount of $41,250 for the amount of $37,500;

3. Order that the respondent pay the appellant’s costs of the appeal to be assessed;

4. Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).

2. With respect to the second appellant Richard Mark McKenna:

1. appeal dismissed.

15. HOLMES J:  The appellants suffered gunshot wounds inflicted by the respondent in the same incident.  Each appeals what he contends was an inadequate assessment of criminal compensation in respect of his injuries.  Mr Kimmins represented both.  Mr Hinson SC appeared as amicus curiae on behalf of the Attorney-General to assist the court, since the respondent had not resisted the applications for compensation, and did not, in the event, appear to defend the appeals.

The injuries

16. The appellant Zaicov was struck by a single bullet which passed through his chest and spine. It also penetrated his spleen and damaged his left kidney. Both organs were removed, leaving Mr Zaicov with a surgical scar described as running from the junction of the ribs down to the navel, about half an inch wide. As a result of the spinal injury, he was paraplegic beneath the first lumbar segment. After extensive rehabilitation, Mr Zaicov was able to walk with crutches for 200 metres and to ride a three-wheeled Harley Davidson motor cycle, but had, in the main, to spend his time in a wheelchair. A psychiatrist who assessed him some 3½ years after the injury concluded that he was suffering from a mood disorder with significant depressive features and some anxiety symptoms.

17. Like Mr Zaicov, Mr McKenna was injured by a single bullet. It caused a fracture of the vertebra at L3 and left him with lower back, hip and left leg pain. According to the psychiatrist who assessed him, he had suffered from a post traumatic stress disorder for two years after the injury. It had subsided to a generalised anxiety disorder, likely to be a long-term condition.

The assessments of compensation

18. The respondent stood trial for the attempted murder of each appellant, with, in each case, an alternative count of grievous bodily harm with intent. He was convicted of two counts of grievous bodily harm simplicter. The learned trial judge also heard the application for criminal compensation. He took the view that the jury’s verdict was consistent with an acceptance that the respondent was acting in self-defence, in response to threats of death or serious injury made by the appellants. Accordingly, he held each appellant 50 percent to blame for his own injury.

19. By reference to the compensation table in Schedule 1 to the Criminal Offence Victims Act 1995 the learned judge at first instance applied in Mr Zaicov’s case Item 26 (gunshot wound (severe)), allowing 20 percent of the scheme maximum in respect of the internal injuries;  Item 33 (mental or nervous shock (severe)) at 20 percent;  and Item 34 (paraplegia) at 70 percent.  Those percentages, then, totalled 110 percent.  Notwithstanding the contention of the appellants’ counsel that any apportionment should be made in respect of that percentage, his Honour approached the matter differently.  He applied the 50 percent reduction for contribution to the scheme maximum of $75,000, thus arriving at an award of $37,500.

20. In Mr McKenna’s case his Honour applied Item 23 (back injury (severe)), allowing 30 percent of the maximum; Item 33 (mental or nervous shock (severe)) at 25 percent; and Item 26 (gunshot wound (severe)) at 20 percent of the maximum, giving a total of 75 percent of the scheme maximum. That sum was then reduced by 50 percent.

The degree of contribution

21. On appeal, Mr Kimmins asked this court to set aside the 50 percent apportionment made by the learned judge at first instance, and substitute in each case an assessment of contribution at between 20 and 33 1/3^rd per cent.  However, no error was identified in the manner in which the learned judge approached the apportionment of responsibility.  There was, rather, a bald assertion for the appellants that the degree of contribution assessed was excessive.  His Honour had the distinct advantage of hearing all the evidence upon trial and was in a far better position than this court, or for that matter, counsel, in arriving at an appropriate assessment.  There is no basis on which this court should interfere with his Honour’s conclusion.

The percentages assessed for each injury

22. In respect of Mr Zaicov, Mr Kimmins argued that the maximum percentages, of 40 percent and 100 percent respectively, should have been allowed for the gunshot wound and paraplegia. As to the nervous shock item, the appropriate award was at the upper end of the range, between 30 and 34 percent. He complained also that no allowance had been made for scarring. Item 28 (bodily scarring (severe)) should have been applied, he said, allowing 25 percent (30 percent being the maximum in respect of this item). In respect of Mr McKenna it was argued that the maximum figure, for back injury at 40 percent, for gunshot wound (severe) at 40 percent, and nervous shock at 34 percent, should, in respect of each injury, have been allowed.

23. The assessments made by the learned judge at first instance seem to me unexceptional. That is particularly so when regard is had to s 22(4) of the Criminal Offence Victims Act 1995, which provides:

“(4) The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.”

The reference to “maximum amount of compensation provided” in that provision relates to the percentages provided for by the compensation table, rather than the scheme maximum: Dooley v Ward.[2]

24. The appellants’ injuries were undoubtedly severe, and they were recognised by the learned judge as such. Each injury was, accordingly, assessed within the range of percentages allowed in the compensation table for severe cases of each item. It is clear, however, that they were not the worst injuries of the kind which could be suffered. Mr Zaicov’s paraplegia, for example, was described in one report as “incomplete”. Although, of course, severely disabled, he did have some, albeit extremely limited, mobility. It is self evident that his was not the most serious case of paraplegia that could be encountered. Similarly with the other injuries suffered by the two appellants; they were severe, but they were not the most severe injuries of their type. I can see no basis for a disturbance of his Honour’s assessments.

25. In relation to Mr Zaicov, his Honour made no separate assessment in respect of the surgical scarring. The applicant might have been allowed a separate amount in respect of this feature (although for my part I would have allowed no more than a percentage at the low end of the minor/moderate range); but it was equally open, in my view, for the learned judge to regard the scarring as part and parcel of the gunshot wound. As was observed in MR v Webb,[3]

“It is often the case than an applicant’s injury could be categorised under more than one head in the compensation table.  Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim.”

I do not consider that there is any error shown in the learned judge’s failure to make a separate allowance.

On what figure, or at what stage, should apportionment be made?

26. The question of real difficulty presented by the appeal is as to how apportionment should be approached when the percentages allowed for injury have the potential to exceed the scheme maximum. His Honour, as already noted, took the view that in a case where the maximum was exceeded, it was from the maximum figure that the reduction for contribution should be made. Mr Kimmins for the appellants argued, both at first instance and here, that the appropriate method was to total the percentages which would otherwise be allowed for each injury and to deduct contribution from that figure.

The statutory scheme

27. Reference was made both at first instance and before this court to R v Ferguson; ex parte Matthews, a case concerned with compensation under s 663B(2) of the Criminal Code,[4] and Seymour v Lackey, a personal injury case involving apportionment of liability where damages exceeded the court’s statutory jurisdiction.^[5]  I do not think that those or other similar authorities can offer much assistance in construing the statutory regime for criminal compensation for which the Criminal Offence Victims Act 1995 provides.

28. Part 3 of the Act sets up a scheme for the payment of compensation for injury, death and in certain instances, expenses, resulting from an indictable offence, or occasioned in the course of assisting a police officer. Division 2 of that Part deals with applications to the court for compensation. Section 24 permits the making of an application by, and the making of a compensation order for an amount to be paid to, a person injured where the culprit has been convicted on indictment. Section 25 addresses the process by which the amount to be paid under a compensation order is to be reached, while s 26 imposes limits on the number of orders which may be made in certain cases where more than one injury is suffered, more than one incident involved, or more than one offender responsible.

29. The remaining sections in the division deal with: repayment orders which may be made where the State meets a compensation payment; notification of an application to the relevant offender, and enforcement of an order against him; the independence of the compensation regime from the sentencing process; and the standard of proof and non-application of strict evidence rules to an application.

The assessment process under s 25

30. Of particular importance in the present appeal is s 25 of the Act, which sets out the way in which a compensation order is to be arrived at:

“25. (1)  In making a compensation order, a court is limited to ordering the payment of an amount decided under this section.

  (2)  A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the “scheme maximum”).

  (3)  If more than 1 amount is payable under subsections (4) to (6), the amounts must be added together, and, if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid.

  (4) In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for-

1. if there is only 1 percentage listed opposite the injury – an amount up to the amount that is the listed percentage of the scheme maximum; or

2. if there is a range of percentages listed opposite the injury – an amount that is within the listed range of percentages of the scheme maximum.

  (5)  In deciding the amount that should be ordered to be paid for an injury specified under a regulation, the court is limited to making an order for the prescribed amount.

  (6)  In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by –

1. comparing the injury with injuries to which subsections (4) and (5) apply; and

2. having regard to the amounts that may be ordered to be paid for those injuries.

  (7)  In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.

  (8)  A decision on the amount that should be ordered to be paid under a compensation order –

1. does not involve applying principles used to decide common law damages for personal injuries; and

2. is to be decided by applying the principles mentioned in section 22(3) and (4).”^[6]

31. It can be seen that some of the subsections ((4), (5), (6), and (7)) deal with “the amount that should be ordered to be paid for an injury” while others are concerned with the amount of the compensation order. “Injury” is defined in s 20 as “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”. Given that definition, and the format of the compensation table which sets out, item by item, the different injuries that might be suffered, it is apparent that the term “injury” in subsections (4), (5), (6), and (7) refers to each instance of physiological or psychological damage sustained, be it in one event or not, rather than any more general state of the victim.

32. It seems tolerably clear, then, that the court must commence its task by reference to the individual injuries sustained and for that purpose must apply subsections (4), (5), (6) and (7), each of which is concerned with deciding the amount which “should be ordered to be paid for any injury”. The various injuries being assessed under those subsections, other considerations come into play as to what compensation order is then made: viz subsections (1), (2), (3), and (8). Where more than one injury is involved, and hence more than one amount, subsection (3) must be applied so that the amounts are added together and limited, if necessary, to the scheme maximum.

33. Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second to add those amounts together, and the third, to arrive at the amount of the compensation order. Obviously, where only one injury is involved, the second of those steps is omitted. It follows from this analysis that subsection (7) comes into operation at the time when the amounts to be paid for the respective injuries are being assessed, and not at a later stage when the total amount payable under the compensation order is being determined. That is to say, it is in determining the percentage allowed for each injury that the court must have regard to relevant matters, including contribution.

34. In applying the subsections relating to assessment of the amount to be paid for an injury, the question arises to whether subsection (4) should be read literally. In other words, in limiting the court to an order “that is within the listed range of percentages”, is it to be taken as preventing the court from ordering an amount less than the lowest percentage in the range (for example in the case of mental or nervous shock (severe) 20 percent) even after contribution? Looking at s 25 as a whole, and adjusting the meaning of the competing subsections “to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions”,^[7] the better conclusion is that subsection (4) should be read as meaning that the court cannot order an amount that is beyond the range, but is not constrained to fall within it.  To take a different view would render subsection (7) ineffective.

Inequity of treatment as between applicants – s 26(2)(a)

35. The learned judge at first instance considered that s 26 of the Criminal Offence Victims Act applied, so as to require the first appellant to be treated as having suffered a single injury.  Section 26(2)(a) supported, in his view, a construction of the Act in favour of making a reduction for contribution from the scheme maximum.  It describes, as an objective of the subsection, ensuring “that the way in which incidents of personal offences happen or personal offences are prosecuted does not cause … an inequity of treatment between applicants”.  In the case of a person who had suffered a number of injuries, his Honour observed, the total of the percentages added together might be as high as 150 percent.  Such a person could never obtain more than the scheme maximum of $75,000; so that a person who had contributed to his own injury to the extent of 50 percent would be in exactly the same position as someone who was entirely blameless  That result was inconsistent, he considered, with the objective of avoiding inequity of treatment.

36. However, the objective expressed in subsection (2) is limited to s 26, which is concerned with whether more than one compensation order may be made. It has no application to the calculation of the amount to be paid under a compensation order under s 25. Indeed it is difficult to see that s 26 had any relevance to the appellants. In each case they suffered injury from a single incident, not a “substantially single incident whether consisting of one or more than one personal offence” nor a “series of incidents of personal offences”.

37. Although there is a good deal to be said for the concern that the construction I have proposed has the potential to work an inequity as between the blameless applicant, who can never receive more than the scheme maximum, and the culpable applicant, in respect of whom reduction will still not bring him below the scheme maximum, I do not think that consideration can prevail. Firstly, the fact that s 25, unlike s 26(2) does not provide for an objective of avoiding inequity as between applicants in the context of resolving the amount to be paid under a compensation order, strengthens a conclusion that such an objective is not a factor at that stage.^[8]

38. Secondly, the Criminal Offence Victims Act is clearly beneficial legislation.  One of its purposes is to “make provision for the payment of compensation to [victims of crime]”, and Part 3 establishes a scheme for that purpose.  Its provisions should be “construed so as to give the most complete remedy which is consistent ‘with the actual language employed’ and to which its words are ‘fairly open’”.^[9]  It can fairly be said, in my view, that s 25 is, at the least, open to the construction that contribution is to be deducted from the allowance for injury rather than the scheme maximum.

39. Thirdly, the circumstance suggested, in which contribution would be ineffective because the percentage assessed exceeded the statutory maximum by a percentage equal or greater to the percentage by which the amount would be reduced for contribution, must be confined to a limited class of cases which would invariably involve more serious injuries. Indeed, for an applicant to escape the effect of contribution entirely it would require, if the level of contribution were substantial, gross injury, and at the least, a combination of serious injury and minor contribution. It is to be noted, for example, that in Mr Zaicov’s case, although he suffered paraplegia, contribution if deducted from the total percentage figure for his injuries, rather than the scheme maximum, would still reduce his award very significantly, to some $33,750 less than the scheme maximum he might otherwise have expected. The notion of a less rigorous application of contribution in such cases is not as objectionable as it might be in the case of less severe injuries.

40. Finally, and most convincingly, there is no warrant in any provision of the Act for deduction of contribution from the scheme maximum. The scheme maximum provides nothing but the upper limit for an award (s 25(2) and (3)). It is the end limit, not the starting point from which compensation is to be assessed. To approach the matter differently, either by deducting contribution from the scheme maximum, or by totalling amounts for various injuries and then making a global reduction for contribution is to ignore the requirement of s 25(7) that factors including contribution must be taken into account in considering the individual injury or injuries.

41. In most cases, because the reduction for contribution will be uniform across an applicant’s injuries, it will not matter whether the arithmetical exercise of deducting a percentage for contribution is performed before or after the amounts for different injuries are totalled. It is conceivable, however, that in performing the exercise required by s 25(7) a court might decide that an individual had contributed to different injuries to differing extents. In that event, of course it would no longer be a matter of applying a single percentage, and it would be essential to perform the deduction on an injury by injury basis.

Conclusion

42. It follows, in my view, that the approach which should have been taken was to assess each of Mr Zaicov’s injuries, allowing in the process for contribution. Thus in respect of the gunshot wound, 10 percent should have been allowed; in respect of mental or nervous shock, 10 percent; and in respect of his paraplegia, 35 percent;  giving a total of 55 percent or the amount of $41,250.  A similar approach should have been adopted in respect of Mr McKenna, but the end figure arrived at would have been the same.

43. I would, therefore, allow the appeal of the first appellant Stephen Peter Zaicov and vary his Honour’s order by ordering that the respondent pay to him the amount of $41,250. I would dismiss the appeal of the second appellant.

44. I also agree with the proposal of the President in relation to the costs of the appeal. I further order that the respondent pay the costs of the appellant Zaicov’s appeal and be granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld).