Hohn v King[2004] QCA 254

SUPREME COURT OF QUEENSLAND

[1]  WILLIAMS JA:  This application primarily raises the question whether or not the applicant’s conduct disqualified him from claiming criminal compensation pursuant to the Criminal Offence Victims Act 1995 (“the Act”) or whether his behaviour had the consequence of reducing the amount of compensation to which he would otherwise be entitled.  Depending upon the resolution of that issue the applicant asks this court to review the extent of the reduction determined by the learned judge at first instance and also to review the assessment of quantum.

[2] Both at first instance and on the hearing of the application for leave to appeal (which was heard on the merits) the respondent, the person convicted of the offence committed against the applicant, did not appear.  At the request of this court counsel for the Attorney-General appeared as amicus curiae, but his submissions were limited to contending that leave to appeal should not be granted, and if leave was granted the award at first instance ought not be varied. 

[3] The relevant facts have been fully canvassed in the reasons for judgment of both Chesterman J and Atkinson J and it is unnecessary for me to repeat them.

[4] At first instance the District Court judge relied on s 25(7) of the Act in order to reduce the assessment of quantum by one third.  That provision of the Act obliges a court to have regard to “any behaviour of the applicant that directly or indirectly contributed to the injury” in determining what amount if any should be ordered to be paid by way of compensation for the injury.  That substantially re-enacts s 663B(2) of the Criminal Code which provided a basis for awarding criminal compensation between 1968 and the enactment of the Act; under that provision the court was obliged to have regard “to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by him” both in determining whether or not to make an order and in determining the amount of any order.

[5] No submission was made either before the court at first instance or this court with respect to s 19 of the Act, particularly subsection (2)(a) thereof.  But as that provision has been dealt with by Chesterman J in his reasons it is desirable that I express my views on its applicability.

[6] The scheme entitling a person to obtain criminal compensation is created by Part 3 of the Act.  Section 19(1) says that the “part establishes a scheme for the payment of compensation to a person ... (a) for injury suffered by the applicant caused by a personal offence committed against the applicant”.  Section 21 defines a “personal offence” as an “indictable offence committed against the person of someone.”  That broad entitlement is then cut down by s 19(2) which provides:

“The part does not allow anyone to apply to a court or to the State for the payment of an amount for –

(a) injury caused to the applicant by an offence to which the applicant was a party; or

(b) an unlawful killing to which the applicant was a party.”

[7] Years of experience with the criminal justice system makes one aware that the circumstances in which crimes are committed are infinitely variable and often quite bizarre.  One can well understand why the legislature in establishing such a scheme wanted to ensure that it did not provide a benefit to persons who sustained an injury “by an offence to which the applicant was a party”.  In my view the broad intent of the legislature in enacting that provision is clear, though the wording used will undoubtedly give rise to argument in particular cases.   Where s 19(2) applies the court has no jurisdiction to even consider making an award.

[8] Probably a good example of a case which would now come within s 19(2) is the application for compensation made by Jackson against Fergus.  The circumstances giving rise to that application for compensation can be ascertained by reading the judgment of the Court of Appeal in R v Fergus [1996] QCA 151.  The reasons for judgment of Moynihan J in refusing to award compensation can be found at [1998] QSC 204.  Briefly the relevant facts were as follows.  A woman who had a grievance against Fergus recruited three men from a hotel for the purpose of inflicting punishment upon him.  Jackson was one of the three men, and there was some evidence that he was equipped with a short, round wooden stick when he and the others arrived at the house in which Fergus resided.  The telephone was torn from the wall to prevent Fergus calling for help.  The members of the group of three were in varying degrees abusive and violent towards the respondent, but ultimately the main fight developed between the man Grey and Fergus.  Grey got the better of the fight and Fergus was being badly beaten as the pair passed through the house and then down stairs and into the yard.  As they went through the kitchen Fergus picked up a knife which he put down the back of his pants.  It is sufficient to say that in the fracas that ensued Grey suffered a fatal stab wound inflicted by Fergus.  As Moynihan J said on the compensation application brought by Jackson it was “accepted that I should proceed on the basis that the most likely explanation of what occurred is that the respondent [Fergus] attacked the applicant [Jackson] who had gone to aid Grey after he had been stabbed.”  At the first trial Fergus was convicted of doing grievous bodily harm to Jackson with intent to do so; he was also charged with the murder of Grey but that jury could not then agree.  On a retrial Fergus was acquitted of murder.  On each of the murder trials the defences of intent, accident, provocation and self-defence went to the jury.  As the Court of Appeal noted there was substance in the submission that Fergus must be taken to have been in fear of his life when he stabbed Grey.

[9] Self-defence was an issue with respect to the charge involving Jackson, but as Moynihan J said on the compensation hearing: “... the jury must have been satisfied that the applicant’s [Jackson’s] conduct did not constitute a threat to the respondent [Fergus] in the relevant sense or that the respondent used unreasonable force in circumstances where the respondent’s conduct should not be ‘too closely scrutinised with the advantage of hindsight’ having regard to the circumstances in which he found himself.”  It should also be noted that Moynihan J sentenced Fergus to four years imprisonment wholly suspended; that is an indication that the offence was seen as an over-reaction to the circumstances in which Fergus found himself.

[10]  In refusing compensation applying s 663B(2) of the Code Moynihan J said: “Put shortly the applicant [Jackson] was in my view, the author of his own misfortune.  He joined in and participated in a home invasion and prolonged attack on the respondent with circumstances I have earlier canvassed.  Had he acted lawfully he would not have been in the house or been involved in what went on there.  He would not have suffered any injury.”

[11]  That to my mind would be a situation now covered by s 19(2)(a) of the Act.  The claimant for compensation suffered an injury caused by a personal offence (doing grievous bodily harm with intent) in the course of his committing the offence of invading the house of the offender and assaulting the offender.

[12]  Another possible set of circumstances giving rise to the application of s 19(2)(a) might be the following.  A and B intend to rob a bank by blasting open the strong room with dynamite.  They take a quantity of that explosive with them to the premises.  A handles the explosive material in a criminally negligent way causing a premature explosion which occasions grievous bodily harm to B.  In consequence A is convicted of causing grievous bodily harm to B.  I would think that B would not be entitled to claim criminal compensation because his situation would be covered by s 19(2)(a). 

[13]  Those two examples to my mind indicate an area of operation of s 19(2)(a).  On that approach the applicant here would not be caught by that provision.  The assault on him by the respondent was conduct entirely divorced from the offence the applicant may have intended to commit.  It cannot be said that the injury sustained by the applicant was in any relevant sense caused by the offence which he may have intended to commit. 

[14]  To my mind the subsequent provision of the statute obliging the court to have regard to any behaviour of the applicant that directly or indirectly contributed to the injury indicates that the wider construction of s 19(2)(a) contended for by Chesterman J in his reasons should be rejected.  In my view if the injury in question is sustained in circumstances strictly within s 19(2)(a), as I have construed it, then the court has no jurisdiction to consider compensation.  But otherwise the claimant’s behaviour, even criminal behaviour, contributing to the injury will fall to be evaluated under s 25(7).  Even then the behaviour may be of such a nature that the court concludes that the claimant’s conduct was the sole or primary cause of the injury so that no compensation should be awarded.  Otherwise, the amount of compensation would be reduced because of the contributing behaviour.

[15]  Against that background this case, in my view, calls for the application of s 25(7) and the court must determine the extent to which the applicant’s behaviour contributed to the injury he sustained.  It must be remembered that the applicant has not been charged with any criminal offence arising out of the events in question and that means that the court is not bound to conclude that the applicant went with the respondent to the secluded place only with criminal activity in mind.  The applicant has maintained that he was approached by a third person enquiring whether he was interested in buying some roofing iron or marijuana.  It would appear from his remarks that at the end of the trial the sentencing judge was prepared to act on the basis that the prime, if not sole, reason for the applicant going with the respondent was for the purposes of obtaining of marijuana.  That should, for present purposes be accepted.  But it may well be that in addition the applicant intended to obtain some other property.

[16]  Whilst it is correct to say that experience in the courts shows that drug transactions are often associated with violence, or threats of violence, that does not mean that a person intending to buy a relatively small amount of marijuana invites, or accepts, the risk of being brutally assaulted.  The legislation, particularly given the distinction between s 19(2) and s 25(7) to which I have already adverted, does not provide that a person intent on committing a criminal act is deprived of a right to seek compensation for a personal offence committed against him, particularly where the latter offence is not necessarily related to the offence he intends to commit.

[17]  In her judgment Atkinson J has detailed a number of circumstances which may be considered as relevant by a court when determining whether behaviour of the claimant for compensation “directly or indirectly contributed to the injury”.  That is by no means an exhaustive list of relevant considerations, but it does indicate the range of behaviour which may be regarded as relevant in a particular case.

[18]  In the present case the applicant’s behaviour in going with the respondent to an isolated area with a view to purchasing some marijuana indirectly contributed to the injury.  He placed himself in a vulnerable position with a person, otherwise unknown to him, who had, at least, some obvious criminal tendencies.  Further, as is suggested by Atkinson J in her reasons for judgment, one does not know whether there was marijuana available to the respondent for sale to the applicant.  The whole episode may well have been a ruse on the part of the respondent to rob the applicant of the $3,000.00 he had with him with a view to purchasing marijuana. 

[19]  I do not find it necessary to canvass in detail the other cases in Queensland where a reduction has been made in the award of compensation on account of the claimant’s behaviour.  Those cases, to my mind, clearly demonstrate that in the present circumstances a reduction in the order of one third was clearly justifiable.  I agree with all that was said by the Full Court of South Australia in South Australia v Abdel-Ghani (1997) 93 A Crim R 259 as to the approach of an appellate court to the reduction in compensation made by a judge at first instance in assessing criminal compensation.

[20]  In concluding that a one third reduction was appropriate I must say that I also agree with the criticisms levelled by Atkinson J at the reasoning of the learned judge at first instance in arriving at the figure of one third for the reduction.  Though his reasoning cannot, in my view, be supported he nevertheless arrived at the right result.

[21]  I also agree with all that has been said by Atkinson J in relation to the assessment of quantum.  The applicant suffered extremely severe head injuries as a result of the assault on him and the learned judge at first instance failed to appreciate the significance of that injury.  It would appear that his ultimate conclusion was unduly influenced by the unfavourable impression he had formed of the applicant at an earlier trial.  Further, it seems clear that he failed to appreciate the seriousness of the psychological consequences of the brain damage.

[22]  In consequence I agree with the basic approach to the assessment of quantum made by Atkinson J, but would reduce the quantum under each heading by one third in consequence of the applicant’s behaviour contributing to the injuries he sustained. 

[23]  On that basis, after one third contribution, the applicant would be entitled to $30,000.00 for his head injury, $5,000.00 for his neck injury, $1,000.00 for the bruising and lacerations to chest and abdomen areas, $13,500.00 for nervous or mental shock, and $1,000.00 for scarring, making a total of $50,500.00.

[24]  The orders of the court should therefore be:

1. Grant leave to appeal;

2. Allow the appeal;

3. Order that compensation in the sum of $50,500.00 be paid to the applicant by the respondent such sum to be paid to The Public Trustee as administrator for Barry William Hohn for all financial matters in accordance with the Guardianship and Administration Act 2000;

4. Order the respondent pay the applicant’s costs of the application and appeal to be assessed.

[25]  CHESTERMAN J:  On 19 June 2001 the respondent, Scott Phillip King, was convicted of doing grievous bodily harm to the applicant Barry William Hohn, and of armed robbery.  He took $3,000 in cash from the applicant having first disabled him with a club.  The respondent was sentenced to concurrent terms of imprisonment:  four years for doing grievous bodily harm and eight and a half years for the armed robbery.

[26]  On 11 March 2004 the applicant applied for compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) (‘the Act’).  On 1 April 2004 his Honour Judge Howell determined that the applicant should recover $29,916.66 by way of compensation from the respondent.  An order was made that the money be paid to the Public Trustee as administrator for the applicant who had suffered some brain damage as a result of the respondent’s attack and is unable to manage his own affairs.  The judge assessed compensation pursuant to the Act in the sum of $44,835 but reduced it by a third for the applicant’s ‘contribution’ to the infliction of his injuries.

[27]  The applicant seeks leave to appeal against the assessment and order made by Judge Howell.  It is submitted on his behalf that the assessment was inadequate and that the reduction made for the applicant’s responsibility for his injuries was too high.

[28]  The facts may be briefly stated.  The offences committed by the respondent occurred on 26 June 2000.  At the time the respondent was 25 years of age and the applicant 52.  Prior to that day they did not know each other but had a mutual acquaintance, Matthew Bayliss.  The applicant wished to buy a substantial quantity of marijuana, a pound weight of it, and asked Bayliss if he knew of someone who dealt in it.  Bayliss mentioned the respondent as a possible supplier and arranged a meeting for the two men for 26 June 2000 at the Withcott Hotel.  The applicant went to the hotel dressed in a shirt, a pair of stubby shorts and thongs.  He took $3,000 in cash with him which he put in a plastic bag and placed in his underpants. 

[29]  The introduction between applicant and respondent having been effected they drove from the hotel to a location known as Murphy’s Creek, somewhere between Withcott and Helidon, where the respondent’s uncle had a property.  It appears to have been secluded.  The respondent left the applicant at the property with a stubby of beer.  He drove away.  He explained he was going to obtain the drugs, or to meet another man who would supply them.  The applicant sat at a picnic table to drink his beer.  The respondent returned unnoticed and struck the applicant from behind with a fence paling fashioned into a rudimentary cricket bat.  He struck the applicant on the head, twice, with considerable force.  The applicant was severely injured.  He suffered a fracture to the skull in two places and has, as I mentioned, been left with a degree of residual brain damage.  The respondent stole his money and left him for dead.  The applicant regained consciousness and managed to crawl to the road adjoining the property.  He clung to a tree and, by good fortune, was seen by a neighbour driving to town.   He was taken to the police station at Helidon and then to hospital.

[30]  The applicant has not worked since 1994.  He has been in receipt of a disability pension which he continues to receive.  The respondent’s attack has left him with impaired intellectual functioning.  He has become anxious and depressed and has diminished intelligence.  He has become irritable and lost the capacity for self control.  These traits have exacerbated his pre-existing alcoholism.

[31]  In an affidavit sworn by the applicant in support of his claim for compensation he said that Bayliss had approached him ‘to know if I was interested in buying roofing iron and marijuana’.  The applicant replied that he ‘would be interested in buying the roofing iron but not the marijuana.’  According to the affidavit the applicant took $3,000 in cash and went to the Withcott Hotel with Bayliss where they ‘met up with two other persons (with whom he) discussed … the roofing iron and marijuana.’  He ‘accompanied the other person … to have a look at the roofing iron.’

[32]  Judge Howell regarded this account as a lie.  He had no doubt that the applicant intended to use his $3,000 to buy marijuana.  The evidence given by Bayliss at the respondent’s trial clearly showed this to be so.

[33]  Section 22 of the Act provides:

‘(1)A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise.

(2)…

(3)Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.

(4)…’

[34]  Section 23 provides that any payment of compensation by the State is ex gratia and is made without obligation to do so.  Section 25 contains limits on the amount that may be ordered by way of compensation and constrains the method by which the amount of compensation is to be assessed.  Importantly s 25(7) provides:

‘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.’

[35]  Judge Howell explained why the amount he assessed as compensation should be reduced by a third.  His Honour referred to s 25(7), recited the circumstances in which the applicant came to be injured, and went on:

‘The legislation, when initially introduced, has as its main aim good citizens who are the innocent victims of criminal violence.  Two obvious examples:  a lady walking down a street and is suddenly attacked and set upon by a stranger … Or a child who is the victim of child molestation.

The applicant here, just to state the obvious, is no paragon of virtue, no Simon pure sweet innocent.  He was a person who moved with ease in the drug scene, was familiar, it seems, with all the proceedings necessary in being involved in such scene.  He was clearly … actively involved in the drug scene and dealing with shadowy figures.  … 

One can have … sympathy … for someone who suffered the … serious injuries that this applicant did, but by his clear, conscious, voluntary involvement in the drug scene … he (was) a person for whom one would not have … much sympathy if violence involved (sic).  It would be obvious that anyone so involved could reasonably always anticipate the possibility of double-crossing, violence and such like.’

[36]  His Honour pointed out that the applicant had not initiated or provoked any violence but was ‘awaiting for the drug transaction to take place’ when he was struck with the club.  Having again referred to s 25(7) the judge continued:

‘That has the relevance, … whether an award should be made at all, or if an award … should be reduced by contribution …’

[37]  His Honour chose the latter course and proceeded to assess the appropriate compensation.  Having done so he returned to the topic of the applicant’s responsibility, or share of the responsibility, for his injuries and referred to the obvious point that most respondents are destitute and that compensation, if it is paid, comes by way of ex gratia payment from the State.  His Honour recommended ‘to those responsible for the public purse that they give serious consideration to whether or not there should be payment … in full of the (amount assessed) or whether there should be a lesser payment or no payment at all, whether the applicant should be left to enforce this judgment against the respondent …’.

[38]  The respondent did not appear on the application for compensation, or for leave to appeal, and was not represented.  There is no cross-application for leave to appeal against the order that the respondent compensate the applicant.  The
Attorney General briefed counsel to appear as amicus curiae but Mr Fraser’s submissions were limited to resisting the application for leave to appeal.  He did not contend that the order for compensation should not have been made.   Nevertheless there is, in my opinion, a real question whether the applicant was entitled to compensation.

[39]  Counsel’s submissions did not draw the court’s attention to s 19 of the Act, but it is at least arguably relevant and may determine the outcome of the application.  The section was not drawn to the attention of Judge Howell who therefore did not consider it.  The section relevantly provides:

‘(1)This part establishes a scheme for the payment of compensation to a person (the “applicant”) –

(a)for injury suffered by the applicant caused by a personal offence committed against the applicant;  or

(b)…

(c)…

(d)…

(2)The part does not allow anyone to apply to a court or to the State for the payment of an amount for –

(a)injury caused to the applicant by an offence to which the applicant was a party;  or

(b)an unlawful killing to which the applicant was a party.’

[40]  The meaning of s 19(2)(a) is not immediately apparent.  In particular the phrase ‘injury caused … by an offence …’, which is the operative part of the provision excluding the right to compensation, has two possible meanings.  There is no doubt that the word ‘by’ indicates a causal connection between the offence to which the applicant is a party and the applicant’s injury.  The critical question is how direct or immediate the connection must be.  A first reading of the section suggests that it applies only where an applicant is a party to the very offence the commission of which caused the injury.  This meaning appears to follow naturally from the words ‘injury caused to the applicant by an offence …’.  But if this be the meaning the subsection will scarcely have any operation.  It is not easy to comprehend how an applicant might commit an offence against himself.  No doubt the phrase ‘to which the applicant was a party’ imports the operation of s 7 and s 8 of the Criminal Code which define who, apart from the actual perpetrator, is criminally responsible for an offence by being a party to it.   Even so it is hardly likely that an applicant would assist or encourage the commission of an offence an element of which, or the likely consequence of which was the infliction of personal injuries on himself.  If this is the true construction of the subsection its scope is very limited.

[41]  It may be noted in passing that s 19(2)(b) does have a discernible operation.  The dependant of a homicide victim may apply for compensation.  If, say, a wife had procured the death of her husband on whom she was dependant s 19(2)(b) would exclude her from claiming compensation. 

[42]  There is an alternative construction of s 19(2)(a) which depends upon extending the causal connection between the offence and the injury.  On this construction the word ‘by’ means ‘in the course of’, or ‘as a consequence of’.  It would apply to the applicant in this case.  If the applicant were a party to an offence in the commission of which or during the course of which he was injured he would have no right to compensation. 

[43]  This construction would give the subsection a discernible scope unlike the narrower construction.  The construction may be assisted by the fact that the subsection speaks of injury caused by an offence, in contradistinction to a ‘personal offence’, the commission of which by s 19(1)(a) is a prerequisite to a payment of compensation.  ‘Personal offence’ is defined by s 21 to be an indictable offence committed against a person.  By speaking of an ‘offence’ rather than more narrowly a ‘personal offence’ s 19(2)(a) may contain an indication that it is not the offence which caused the injury to the applicant which is referred to.

[44]  The meaning of the subsection is obscure so it is permissible to consult the Legislation Bulletin No 5 of 1995 which accompanied the introduction of the Act into Parliament.  The Bulletin is of some help.  It explains that s 19 was intended to ‘exclude compensation for people who suffer injury as a result of taking part in an offence’.  Although succinct the explanation suggests that the meaning of s 19 is the second of those I have considered.  The substitution of the phrase ‘as a result’ for the preposition ‘by’ suggests that the causal connection between injury and offence which will disentitle an applicant from claiming compensation is wider than that which would exist where the applicant was injured by the commission of the very offence to which he is a party. 

[45]  One can readily imagine circumstances in which someone could be said to have been injured as a result of an offence although he was not a party to an attack upon himself.  If A should attack the person or property of B who retaliates and uses excessive force thereby inflicting injury on A which is not excused or authorised by the Code, A will have been injured by the commission of a personal offence.  He would not be entitled to compensation because his injuries would have occurred as a result of participation in the offence against B.  Similarly if A and B plan and carry into execution an offence against the person or property of C but B unilaterally, in the course of committing that offence, attacks A, perhaps to recover all the spoils for himself, it can properly be said that A was injured as a result of taking part in the offence with B against C.  This of course is the example of the applicant here.

[46]  The applicant was injured as a result of taking part in an offence.  The offence was neither of those of which the respondent was convicted.  It was an offence against the Drugs Misuse Act 1986 (Qld), but nonetheless, the applicant was injured as a result of taking part in that offence.  The respondent’s crimes of causing grievous bodily harm and armed robbery occurred in the course of the drug transaction.  The opportunity for it existed only because of that transaction.  Accordingly I would conclude that s 19(2)(a) precluded the applicant from recovering any compensation for his injuries.

[47]  If this analysis be wrong I consider that the same result follows from the operation of s 25(7).

[48]  Judge Howell appears to have overstated the applicant’s involvement in drug dealing.  He has a criminal history for minor offences, all of which are very old, but  there are no convictions for drug offences.  His attempt to purchase marijuana in June 2000 indicates that he was not ‘familiar … with all the proceedings necessary in (the drug) scene.’   The approach to Bayliss gives rise to the inference that he did not know anyone from whom he might buy marijuana.  Nevertheless he was anxious to purchase a considerable quantity of the drug, no doubt for on-sale at a profit.  There is no suggestion that the applicant himself smoked the drug.  If he did he would have known of a supplier. 

[49]  Despite the overstatement the central proposition in the judge’s reasons is correct.  The respondent’s attack upon the applicant occurred in the course of an intended drug transaction of significant proportions.  The respondent and applicant met only for the purpose of buying and selling an illicit drug.  The applicant went to a secluded farm with the respondent, whom he did not know, to deal in drugs.  Judge Howell did not misstate things when he said that those who participate in such commerce are likely to encounter deceit and violence.  The applicant himself must have foreseen the possibility of trouble.  There is no other explanation for concealing the purchase moneys in his underclothing.  If he foresaw the possibility that the respondent might attempt to steal the money without providing marijuana in return he must have foreseen that if he resisted there would be some violence.  One does not need more than a passing knowledge of what occurs in the criminal lists of this court to know that the sale and purchase of illicit drugs is not uncommonly accompanied by violence, which is sometimes extreme.

[50]  In these circumstances it is, in my opinion, appropriate to regard the applicant’s participation in the joint criminal enterprise with the respondent which led to his assault by the respondent as something which disentitles him to compensation.  In the words of section 25(7) it is a relevant factor which should have led to no order being made.

[51]  In a study on the operation of criminal compensation schemes in general and the operation of schemes in Britain and Ontario in particular, Responses to Victimisation by Miers (Professional Books, Oxon, 1978), the author makes the point that commonly the administrators of such schemes deny relief to those who have been injured while actively participating in criminal behaviour.  According to the author (pp. 181-2):

‘The reason usually given is that the state does not subsidise criminal behaviour.  So, when the British Board rejected an application from a burglar who had been peppered with shot by an irate householder early one morning, it was drily observed that “we did not consider that it was appropriate that those injured while engaged in criminal activities should receive an award.”

This is really only half a reason.  If we wish to argue that the applicant receive reduced or no compensation on such facts it is because we are tempted to say that it is inappropriate to call him a victim. …  in these cases of participatory criminal assault it is both an inadequate and inaccurate portrayal of human behaviour to designate one of the participants a “victim” and the other an “offender”.  This entails a basic insight into the rationale of a victim compensation scheme.  Not only is it that such a contributing victim does not measure up to the notion of an “innocent victim”, but the word “victim” itself, which carries connotations of undeserved suffering, must be reserved from such a person.’

[52]  Professor Freckelton has made a particular study of criminal compensation schemes in Australia.  One of his articles, ‘Criminal Injuries Compensation:  A Cost to Public Health’ (1999) 7 Journal of Law and Medicine 193, reinforces the notion that the schemes are intended for ‘innocent victims’ or those ‘who, through no fault of their own, suffer unjustifiable invasions of their personal integrity.’  (See p. 196). 

[53]  In another article by Professor Freckelton, Compensation for Victims of Crime, a paper submitted to the 11th International Symposium on Victimology July 2003 at Stellenbosch in South Africa it was said apropos of recent legislative changes in Australia (p. 25):

‘Another component of current Australian political responses to the awarding of pecuniary compensation, especially for pain and suffering experienced by victims of crime, has been a new stringency. … In a number of … jurisdictions, increased rigour has been applied to determining whether a victim, by reason of their background or the conduct surrounding their being injured, should be regarded as disentitled from receiving compensation or undeserving to draw upon the public purse.  A range of moral judgments has accompanied such designations, including those which are antagonistic toward persons receiving the fruits of state compensation if they have at any stage been involved in criminal activity ...’

[54]  Rights conferred under the Act must be assessed in accordance with its terms and are not dependant upon principles of the common law which govern an entitlement to damages for personal injuries.  Nevertheless it is instructive to consider what response the common law would have made to a claim by the applicant against the respondent for damages occasioned by his assault.  There is no doubt the claim would fail because to uphold it would be to condone a breach of the criminal law.  In Gala v Preston (1991) 172 CLR 243 the plaintiff was one of a group of young men who had together stolen a motor car which they then drove to another town where they contemplated breaking and entering premises.  Due to the negligence of the driver the car left the highway and hit a tree.  The plaintiff and other occupants were injured.  His claim for damages was dismissed on the basis that he and the negligent driver (and the others) had been engaged in a joint criminal activity – unlawful use of the motor vehicle. 

[55]  Dawson J said (at 278):

‘There would be a fundamental inconsistency between the civil and criminal law if a civil remedy were to be afforded to one accomplice against another based upon the latter’s failure to observe a standard of care fixed by reference to their joint criminal activity.  That one should seek to ameliorate his position at the expense of the other in that situation would be wholly repugnant to the accepted standards of the law.  …  the law will not set a standard of care to be observed between accomplices in the performance of their criminal venture.  It is not because it is impossible to do so, but because it is repugnant to the law to do so.’

[56]  Toohey J said (at 291):

‘(The principle) is not of wide operation;  in particular, it does not preclude recovery in cases which involve no more than a breach of a regulation, or which turn on a negligent act or omission which is merely incidental to the commission of an offence.  It gives effect to the view, seen as reflecting prevailing community standards, that a person who is injured while participating in conduct which has been identified by the criminal law as inimical to society should not be entitled to the compensation that the civil law ordinarily provides.’

[57]  The tort involved in Gala v Preston was, of course, negligence, not an intentional tort such as assault, but the formulation of the principle which precludes recovery in negligence applies also to the other tortious means by which personal injuries may be inflicted.  Trading in illicit drugs is forbidden by statute.  The common law is not to be pressed into service to regulate the conduct of those who buy and sell drugs.  Those who transact business in contravention of the Drugs Misuse Act may not rely upon the sanctions of the civil law to make their trade safe.  There is no reason why a drug trader should be recompensed under the Act when the criminal activity in which he participated works out unfavourably and he is injured.  There may or may not be honour among thieves but the public should not have to pay compensation to an injured thief when they do fall out.  It would be, as Dawson J said, repugnant to the criminal law to compensate an applicant who is injured by his accomplice in the performance of their criminal venture.  The prohibition demanded by the Drugs Misuse Act would be compromised if a participant in the sale of illicit drugs could obtain compensation for an injury sustained when the other party to the contract broke it and chose to take drugs or money by force rather than by the due performance of their criminal contract.  The Act should not be given that effect.  For the same reason that the common law would not give relief the Act should not compensate a criminal when the execution of his crime goes astray.

[58]  A similar view was taken by Moynihan J in R v Fergus, ex parte Jackson (unreported, Supreme Court of Queensland, 29 September 1998). The facts were that a woman with whom the respondent had cohabited felt spurned by him.  She sought revenge and recruited three men she met in a hotel to punish the respondent.  The applicant was one of the three.  They drove to the respondent’s house which they entered.  The respondent and another man were home when the group entered and subjected them to abuse and violence.  One of the invaders, perhaps the applicant, was armed with a wooden club.  A telephone was torn from the wall to prevent the respondent and his companion calling for help.   The respondent and Grey, one of the three, fought their way through the kitchen where the respondent picked up a knife with which he eventually stabbed Grey after they had struggled out of the house and got into the yard.  Grey died from his wounds.  The applicant went to assist Grey but was also stabbed by the respondent who was tried for murder and for causing the applicant grievous bodily harm with intent to cause that harm.  He was acquitted of murder but convicted of the offence against the applicant.

[59]  Moynihan J found (at para 12):

‘…the jury must have been satisfied that the applicant’s conduct did not constitute a threat to the respondent … or that the respondent used unreasonable force in circumstances where the respondent’s conduct should not be “too closely scrutinised …” ’.

[60]  An award of compensation was refused.  The judge drew attention to s 663B(2) of the Criminal Code which provided that in determining whether or not to make an order for compensation the court should have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered.  Moynihan J said (at paras [13] and [14]):

‘…the application is to be determined on the basis that the applicant had come to Grey’s assistance … however … the stabbing of Grey was the consequence of the invasion and the subsequent activities of Grey and … the applicant. 

Put shortly the applicant was … the author of his own misfortune.  He joined in and participated in a home invasion and prolonged attack on the respondent …  Had he acted lawfully he would not have been in the house or been involved in what went on there.  He would not have suffered any injury.’

[61]  There is a difference between the terms of s 25(7) of the Act and s 663B(2) of the Code.  The latter limited the restriction on an award of compensation to the consideration that the applicant had contributed, directly or indirectly, to the infliction of the injuries.  The latter is wider in scope.  It obliges the court to have regard ‘to everything relevant’ to the question whether any compensation should be ordered.  That the behaviour of the applicant directly or indirectly contributed to the injury is only an example of something relevant.  It is therefore a mistake to approach applications for compensation under the Act as though the applicant’s conduct as a cause of the injuries is the only relevant factor which might lead to a denial or reduction of compensation.  Clearly the fact that an applicant suffered injuries in the course of committing a crime in which he willingly engaged with the respondent is something relevant to the assessment.

[62]  We were referred to Street v Fitzgerald; Street v Shield [2002] QSC 235 (unreported, Supreme Court of Queensland, 16 August 2002), in which Mullins J reduced an award of compensation by a quarter.  The applicant was a drug dealer who used his residence to sell small quantities of cannabis and amphetamines.  His habit was known to a former resident who informed Fitzgerald and Shield of his activities.  They went to the home armed with a sawn-off shotgun intending to rob the applicant of money and drugs.  They were accompanied by a third man.  In the course of the armed robbery a woman resident was murdered and the applicant was severely assaulted.  A small amount of cash and drugs was taken.

[63]  Her Honour considered (at para 21), ‘whether there was any behaviour of the applicant that directly or indirectly contributed to each of the injuries for which he (sought) compensation.’  A finding was made that the applicant’s involvement in drug dealing from his residence was behaviour of that type.  Her Honour did not separately consider whether the applicant’s illicit possession and sale of drugs was a relevant factor which precluded an order of compensation at all.  Her Honour considered only the question whether the applicant’s behaviour was causative of his injuries, and assessed it by reference to the great premeditated violence of the respondents. 

[64]  There is, in any event, a distinction between that case and this.  Street was not engaged in any criminal enterprise or activity with the respondents.  They occupied their own separate corners of the underworld.  The respondents entered the applicant’s space uninvited and unwanted.  The applicant was not injured, as was Mr Hohn, in the course of a joint illegal enterprise by one of his co-adventurers.

[65]  Judge Howell rightly identified the applicant’s engagement with the respondent for the purchase of drugs as a fact relevant to the applicant’s entitlement to compensation.  His Honour correctly determined that it deprived the applicant of ‘innocence’ and excluded him from the category of those whom the Act intends to be recipients of compensation.  It may be remarked in passing that his Honour’s depiction of an ideal applicant was probably mistaken.  It may have been thought that Simon Pure was an appropriate, eponymous, name to depict a suitable candidate for compensation.  According to Brewer’s Dictionary of Phrase and Fable however, the name, which was that of a character in a late Restoration play, in modern usage signifies a hypocrite or dissembler.

[66]  The judge did not refuse the application for compensation.  His Honour reduced the amount assessed but then recommended that the State give careful consideration to whether any ex gratia payment should be made.  This was an erroneous exercise of the judicial function.  His Honour should have made an order which reflected his opinion of the merits of the application.  If that opinion were that the applicant should receive nothing he should have so ordered.  If, by contrast, the opinion was that he should receive two thirds of the assessed compensation then that should have been the order.  It is unsatisfactory that the judge should have made an assessment by reference to what he considered the relevant facts and law but then seek to have the applicant deprived of the result of that judicial process. 

[67]  In my opinion the proper application of s 19(2) and s 25(7) of the Act should have resulted in a refusal of compensation.  This opinion is not, I note, shared by the other members of the court.  There was, in any event, no cross-appeal from the order actually made and counsel for the Attorney-General did not seek any order less rewarding to the applicant than that made by the District Court.  The reasons I have expressed would have led me to propose as the appropriate order that leave to appeal should be refused.  Given the difficulties to which such a proposal would give rise in the determination of the application I instead express my agreement with Williams JA that the appropriate reduction in the applicant’s compensation, given the approach to the Act adopted by the majority, is one third.

[68]  ATKINSON J:  The applicant, Barry Hohn, was savagely beaten and robbed by the respondent, Scott King on 26 June 2000.  On 19 June 2001, the respondent was convicted by a jury in the District Court in Toowoomba of unlawfully doing grievous bodily harm to the applicant and of robbing the applicant whilst he, the respondent, was armed with an offensive instrument, namely a homemade cricket bat, and further that the respondent used personal violence on the applicant.  He was sentenced by Judge Boulton to concurrent terms of eight and a half years’ imprisonment for armed robbery and four years for doing grievous bodily harm. 

[69]  An application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (“COVA”) was heard on 1 April 2004 by another judge.  His Honour assessed $29,916.66 as the compensation payable to the applicant by his litigation guardian, the Adult Guardian, to be held on trust by the Public Trustee for the applicant.  The applicant has sought leave to appeal against that decision.  The application for leave to appeal was made pursuant to s 118(3) of the District Court of Queensland Act 1967.  Leave was sought on the basis that the overall result was so unjust as to require this court’s intervention.[1]

[70]  It was argued that the injustice arose because the assessment of the contribution of the applicant to his injuries of 33.3 per cent was manifestly excessive and the overall award was plainly unjust because its quantum did not reflect the severity of the injuries suffered.

[71]  The respondent did not appear on the hearing of the application or of the application for leave to appeal.  However in this court, counsel appeared for the Attorney- General as amicus curiae to assist the court.  No cross-appeal was lodged and no arguments were specifically addressed to s 19(2)(a) of COVA.  Counsel for the Attorney-General did not argue that the applicant was disentitled to compensation.  In those circumstances, it would be inappropriate for this court to decide the matter on that basis without the advantage of hearing full argument.  To do so, in my view, would be a breach of natural justice.[2]

Circumstances of the offence giving rise to the application

[72]  The circumstances of the offence are most clearly set out by his Honour Judge Boulton in his remarks when he sentenced the respondent and by this court in R v King.[3]  A young man known to Mr Hohn, Matthew Bayliss went to Mr Hohn’s house on the morning of 26 June 2000 and arranged for Mr Hohn to purchase some marijuana.  Pursuant to that arrangement, Mr Bayliss introduced Mr Hohn to the respondent, Mr King.  In preparation for his proposed purchase of marijuana, Mr Hohn, who was dressed in a flannelette shirt, football shorts and thongs, tucked $3,000 in cash into his underpants. 

[73]  Mr Hohn has from time to time maintained a story that he intended to buy some roofing tin as well as, or instead of, the marijuana.  However it appears that the learned sentencing judge accepted that Mr Hohn had intended to buy marijuana.  As his Honour said, it is not known whether or not there was in fact any such marijuana.  Mr Hohn has not been charged with any offence arising out of this activity.

[74]  Mr King drove Mr Hohn to an isolated property at Murphy’s Creek.  There was no-one home at the time.  Mr King created the impression that he was waiting for some other person to deliver the marijuana.  While Mr Hohn was sitting at a table drinking a stubby of beer, Mr King struck him twice to the back of his head from behind with a fence paling fashioned into a rudimentary cricket bat and stole his money. 

[75]  Mr King quite callously left Mr Hohn for dead, unconscious in a pool of blood.  It appears that Mr Hohn bled very extensively and when he regained consciousness he crawled out to the roadway and managed to flag down a car.  The driver took him to the Helidon Police Station from whence he was taken by ambulance to the hospital.

Injuries Suffered by the Applicant

[76]  Mr Hohn was admitted to the Toowoomba Hospital on 26 June 2000 at 1.44 pm.  He had obviously been struck many times to the head, chest and abdomen.  The injuries he sustained from this assault included compound fractures of the skull, intracerebral contusions and pulmonary contusions.  These injuries had the potential to result in death or permanent disability.

[77]  A CT scan of the head showed a right temporal bone fracture extending to the vertex with an underlying right temporal lobe contusion.  A CT scan of the chest demonstrated bilateral pleural effusions with areas of pulmonary haemorrhage.  MrHohn’s scalp wounds were scrubbed and repaired.  He then spent three days in the intensive care unit.  On 29 June 2000, his condition deteriorated markedly and a repeat CT scan showed two large intracerebral haematomas.  He was transferred as an emergency to the Princess Alexandra Hospital neurosurgical unit.

[78]  At the Princess Alexandra Hospital he was attended by Dr Adrian Nowitzke.  Dr Nowitzke said that he was transferred to the Princess Alexandra Hospital because the confusion that he had evidenced on admission had progressed.  His management at the Princess Alexandra Hospital consisted of nursing care, observation, early rehabilitation therapy and a repeat CT scan of the brain.  His condition gradually improved and his post-traumatic amnesia ceased on 12 July 2000.  Dr Nowitzke says that he would have benefited from further rehabilitation therapy and this was arranged for him through Toowoomba Hospital, however, he discharged himself from the hospital on 14 July 2000.  Mr Hohn said he discharged himself because he believed another patient was trying to sexually abuse him.

[79]  On 23 July 2000, Mr Hohn again presented to the Toowoomba Hospital where he came under the care of Dr Damien Grinsell, a surgical registrar.  At this time, his symptoms were ongoing headaches, nausea, vomiting, lethargy and problems with balance.  A repeat CT scan showed the intracerebral contusions as seen previously, but also a large degree of cerebella oedema and swelling.  This was consistent with an ischaemic event to both cerebellum which Dr Grinsell thought may or may not have been a result of his previous injury.  Dr Terry Coyne, an experienced neurosurgeon who examined Mr Hohn on 23 July 2002 for the purposes of the COVA application, said that the multiple areas of decreased attenuation intercranially, which were demonstrated by the CT scan, were consistent with the residual effects of the previous trauma.  It would appear therefore that all of his brain injury was attributable to the assault on him by Mr King.  Mr Hohn gradually settled and was transferred to the rehabilitation unit on 9 August 2000 and discharged home on 16 August 2000.   At this time, he was noted to have some cognitive defects with some increased distractibility and social disinhibition.

[80]  Mr Hohn was subsequently seen by his general practitioner on a number of occasions during this period.  He continued to have severe headaches and depression over the next two months and this continued throughout 2000 and 2001 with typical symptoms of post-traumatic stress disorder in keeping with a severe head injury.  He frequently recounted the story of the assault inflicted with a cricket bat.

[81]  Dr Coyne summarised his findings on 2 August 2002 as follows:

“In summary, Mr Hohn appears to have sustained a closed head injury along with bilateral pulmonary contusions in his incident of June 2000.  Mr Hohn’s head injury appears to have been significant, with a skull fracture and multiple haemorrhagic contusions on both sides of his brain being demonstrated on imaging studies, and a post traumatic amnesia period of approximately 2 weeks.  At approximately 2 years following his injury he continues to notice headaches and intermittent vertigo, and these symptoms would be consistent with the nature of the injury he sustained.  Mr Hohn also describes ongoing difficulty with short term memory and anger control, which are also consistent with his head injury.

There is evidence that Mr Hohn had difficulties with alcohol misuse prior to his head injury, and it is possible that this may be a pre- existing contributing factor to any cognitive and emotional disturbance.

A formal neuropsychological assessment may be of assistance in precisely quantitating Mr Hohn’s cognitive impairment.  However, this would be unlikely to differentiate between deficits related to his head injury and any related to alcohol misuse.  However, given the structural changes present on Mr Hohn’s CT scans after his injury, it is likely his head injury would be the most significant factor in any cognitive disturbance.

Mr Hohn also describes neck pain and an exacerbation of pre existing inter scapular pain consequent to his incident of June 2000.  These symptoms most likely represent an aggravation of pre existing cervical degenerative disc disease as a result of the blows to his head.

Mr Hohn’s medical records indicate that a post traumatic anxiety/depressive condition has been diagnosed.  Further comments regarding this would be best made by a psychiatrist or psychologist.  Mr Hohn’s symptom of impotence would be most likely related to psychological factors.

There is no specific medical or surgical therapy to offer Mr Hohn for his symptoms of headache, vertigo, cognitive impairment or neck pain.  Management can only remain symptomatic, with Mr Hohn using any simple measures he has found helpful. 

It is likely that Mr Hohn’s symptoms related to his head and cervical spine injury have become stable, and they are likely to continue at much their current level in the future.

I would assess Mr Hohn as having sustained a 7.5 per cent permanent impairment of the whole person as a result of his head injury, and a 5 per cent permanent impairment of the whole person as a result of his cervical spine injury, these injuries being sustained in his incident of June 2000.”

[82]  The applicant’s scars have been examined by Dr Andrew Ives, a plastic and reconstructive surgeon.  He found two scars on the left forehead and the right parietal region.  They have healed well with some mild concave deformity of the left forehead which causes Mr Hohn no concern.

[83]  A clinical and forensic psychologist, Manuela Habicht, who is director of psychology for the Toowoomba Health Service District, examined Mr Hohn on five occasions and prepared a detailed report for the purposes of this application.  As was the case in the reasons for judgment given by the same trial judge in Johnson v Bancroft on the same day, his Honour made critical observations about a psychologist, not before the court, whose approach he regarded as aimed at justifying a finding of a diagnosis of post-traumatic stress disorder rather than at making a true diagnosis.  His Honour did not make any such criticism of Dr Habicht.  For reasons not articulated, the trial judge said he approached her diagnosis of post-traumatic stress disorder with “real caution.”

[84]  In her lengthy, detailed and thorough report, Dr Habicht described Mr Hohn’s symptoms on presentation as anxiety symptoms, depressive symptoms, alcohol-related symptoms, persecutory ideas and somatic complaints.  His landlady, who was his some time de facto partner, described similar symptoms and a marked lack of anger control.

[85]  Dr Habicht observed that Mr Hohn was an obese 54 year old man who showed some obvious signs of self-neglect.  He remained depressed and angry.  He was a heavy drinker.  He is now 56 years old.

[86]  Dr Habicht administered a number of psychometric tests:  the Minnesota Multiphasic Personality Inventory 2 (MMPI-2), Detailed Assessment of Post traumatic Stress (DAPS), Structured Clinical Interview for DSM-IV Axis 1 Disorders (SCID-I), Personality Assessment Inventory (PAI), the Wechsler Adult Intelligence Scale (WAIS-III) and the Wechsler Memory Scale (WMS-111).  She examined the results of each and summarised his condition as follows:

“In my professional opinion this 54 year old male presents with a history of assault that has been identified as the antecedent for the development of Post Traumatic Stress Disorder, Major Depressive Episode as well as Acquired Brain Injury.  Using a Barona Index the client’s estimated pre-morbid full scale IQ is 80.  However his full scale IQ was measured as being 71 following the assault.  It was further noticeable that the client scored very low on Digit Symbol Coding, which is the most brain sensitive Wechsler test.  Any lesion in any location can lower the result of this test.  He also scored low on Block Design, which is also brain sensitive, especially to either left or right parietal lesions.  These findings are consistent with Dr Terry Coyne’s … report that the client’s head injury, ‘given the structural changes present on Mr Hohn’s CT scans after the injury’ would be the most significant factor in his cognitive disturbance.  His pre-morbid full scale IQ would have [been] likely to have put him into a low average level of intellectual functioning, whereas his intellectual functioning can now only be described as borderline to extremely low.  The client’s records indicate a history of extensive hospitalization following the assault.  The client is likely to have suffered alcohol abuse prior to the assault, however the assault appeared to be a major contributing factor to the development of alcohol dependence.”

There is no reason to reject or treat with caution this carefully prepared report.  The opinion is entirely justified by the clinical findings and investigations and is consistent with other medical reports.

[87]  A report was also prepared by an orthopaedic surgeon, Dr Robert Ivers.  Dr Ivers was of the opinion that Mr Hohn had pre-existing cervical spondylosis which had been aggravated as a result of the injuries he suffered in the assault.  Following the assault, his symptoms had become much worse and were likely to remain.

[88]  Mr Hohn described himself as suffering from bad headaches and head spins, nervousness, insomnia, hypervigilance, loss of confidence, neck pain, tinnitus, depression, lack of motivation, teariness, short term and long term memory loss, confusion, vertigo, dizziness, pain to his head, chest and abdomen, and scarring. 

[89]  In his sentencing remarks, Judge Boulton noted that the applicant had significant after effects.  Since these events, his memory had been poor, his personality had changed, he had become less able to control himself and his reactions were more impatient and “cranky” as he put it.  His Honour said that Mr Hohn gave a very good demonstration of that, albeit unintentionally, when he was giving evidence in the witness box.  He was a difficult witness to deal with and lost control of himself on a number of occasions.  The behaviour of the applicant had led to the first trial of the respondent being aborted.  As the learned judge remarked when sentencing Mr King,

“It would have been a cruel irony if, as a result of the injuries sustained by the complainant, there had been the necessity to declare a mis-trial which may have resulted in you going scot-free as a result of what you had done to this man.   Fortunately, through a deal of patience and forbearance, the trial was able to run its full length.”  

[90]  This court, in dismissing the respondent’s appeal against conviction,[4] recognised the difficulty the trial judge faced in controlling the witness and that Mr Hohn’s disinhibited outbursts were in all probability “the product of an impaired capacity to exercise self-control, not a calculated decision to make them”.[5]

[91]  Mr Hohn is no longer able to manage his own affairs.  On 10 January 2004, the Guardianship and Administration Tribunal ordered that the Public Trustee be appointed administrator for all of his financial matters and that the Adult Guardian be appointed to determine where and with whom he lived and for legal matters not relating to his finances or property.

The judgment appealed against

[92]  The judge who heard the application for criminal compensation was not, as I have mentioned, the trial judge as Judge Boulton was to retire about six months after the application was made and was not due to sit in Toowoomba again.  A judge hearing such an application is required to have regard to the factual basis on which the respondent was sentenced.[6]  The learned judge referred to his recollection of the earlier trial before him which had miscarried.  His Honour said that that had occurred “because the applicant was extraordinarily insulting to the defence counsel”.   His Honour says that he later found out that the applicant’s disinhibited behaviour was a result of the injuries he suffered which his Honour referred to as “what we call mild brain damage.”  His memories of the aborted trial appear to have given his Honour some degree of displeasure towards the applicant which may have carried over into the compensation application.  Mr Hohn was an extremely difficult witness given to aggressively insulting and prejudicial outbursts whilst being cross-examined.  His Honour took the view that no direction to the jury could neutralise the effect of Mr Hohn’s irrational behaviour during the trial.  His Honour also expressed the view that had the defence been fully informed as to the medical reasons for these outbursts before the trial commenced, the defence case could have been conducted differently.  Mr Hohn’s disinhibited and irrational demeanour as a witness was, however, caused by the assault on him and the brain injury which he suffered.

[93]  With regard to the legislation to compensate victims of crime the judge hearing the application opined:

“The legislation, when initially introduced, has as its main aim good citizens who are the innocent victims of criminal violence.  Two obvious examples:  a lady walking down a street and is suddenly attacked and set upon by a stranger, or strangers.  Or a child who is the victim of child molestation.”

With due respect it appears that his Honour has misunderstood the effect of the legislation.  The contribution of a victim to the injury suffered is a relevant, but not necessarily, a disentitling factor.

Compensation for victims of crime

[94]  In 1968, a modest compensation scheme for victims of crime was introduced in Queensland by the Criminal Code Amendment Act 1968, which added Ch LXVA to the Criminal Code.  Section 663B(1) provided for a maximum of $2,000 compensation for “a person aggrieved” by an indictable offence of which the offender had been convicted. 

[95]  Subsection 663B(2) dealt with the question of whether an award could be reduced or refused by reference to any contribution by the behaviour of the victim of the offence.  It provided:

“In determining whether or not to make an order under subsection (1) of this section and in determining the amount of any order, the Court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by him, and to such other circumstances as it considers relevant (including whether the person aggrieved is or was a relative of the convicted person or was at the time of the commission of the offence, living with the convicted person as his wife or her husband or as a member of the convicted person’s household) and to the other provisions of this Chapter.”

[96]  An amendment in 1975 raised the maximum amount of compensation, which could be awarded under Ch LXVA of the Criminal Code, to $5,000.  In 1984, a further amendment of the relevant chapter linked the quantum of compensation to amounts that would be paid under the Workers Compensation Act 1916 for similar injuries.  Subsection 663B(2) remained unchanged.

[97]  In 1995, the question of compensation for victims of crime was dealt with in a separate, stand-alone statute, the Criminal Offence Victims Act, which came into effect on 18 December 1995.  It was clearly influenced[7] by the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by resolution of the General Assembly of the United Nations in 1985 (the “UN Declaration”).  Clause 8 of the UN Declaration provides for the payment of compensation by offenders to victims of crime.  It says:

“Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants.  Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.”

[98]  A victim of crime under s 5(a) of COVA is defined to include any person who suffered harm from a violation of the State’s criminal laws because a crime was committed that involved violence committed against the person in a direct way.[8]  The therapeutic value of such schemes has been set out comprehensively by Dr Freckelton in his learned article published in the Journal of Law and Medicine in 1999.[9]

[99]  The amount that may be ordered in making a compensation order under COVA is governed by s 25 of that Act.  Subsection 25(8) makes it clear that a decision on the amount that should be ordered to be paid under a compensation order does not involve applying principles used to decide common law damages for personal injuries and is designed to help the applicant rather than to reflect the compensation to which the applicant might be entitled under common law or otherwise.[10]  Subsection 25(7) provides that:

“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.”

[100]  The behaviour of the victim of the crime is relevant and is one of the matters to be taken into account.  However, the legislation is not in terms limited to “good citizens who are the innocent victims of criminal behaviour.”  Crime, its causes and incidence, is more complex than such an attitude would suggest.  Demographically, the group responsible for the majority of assaults, young people, particularly young males aged 15 to 24,[11] is the same group most likely to be victims of assault.[12]   As s 25(7) recognises, criminal offending does not only occur in a world neatly divided between the innocent and the guilty, the good and the bad, but one which contains many shades of grey.  Compensation awarded to victims of crime does not depend on a simplistic approach but takes into account all the relevant factors including any behaviour of the applicant which contributed, whether directly or indirectly, to the injury.

[101]  His Honour dealt with that question but mis-stated the effect of the evidence.  He said that:

“The applicant here, just to state the obvious, is no paragon of virtue, no Simon pure sweet innocent.  He was a person who moved with ease in the drug scene, was familiar, it seems, with all the proceedings necessary in being involved in such scene.  He was clearly, on my view, actively involved in the drug scene and dealing with shadowy figures.”

[102]  The use of the term “Simon pure” in the context is, for the reasons set out in Johnson v Bancroft at footnote 3, obscure and ambiguous.  There was no evidence to suggest that the applicant, a middle-aged alcoholic with no relevant criminal history was “a person who moved with ease in the drug scene.”  Rather the way in which he was attacked and robbed tended to suggest the contrary.  His desire to be involved in the cash purchase of a large amount of marijuana made him vulnerable to robbery or violence but such an outcome was hardly inevitable. Given that there was no suggestion that he had any drug debts or any evidence that he had any knowledge of, by reason of prior involvement in, drug dealing, such violence could not even have been considered likely.  He did not, for example, set out to rob or assault another during which he received retributive violence.  There was no doubt, however, that his behaviour in seeking to purchase marijuana unlawfully for $3,000 cash contributed, at least indirectly, to the injury he suffered.  In such circumstances it must be taken into account and must reduce the compensation awarded.

[103]  His Honour assessed the indirect contribution of Mr Hohn to his injury at 33.3 per cent.  So far as quantum is concerned, his Honour assessed 33.3 per cent of the scheme maximum for the applicant’s fractured skull head injury with brain damage, six per cent for the neck injury, two per cent for scarring and one per cent for other bruising, and 17.5 per cent for nervous and mental shock.  This amount led to a total of $44,875 which was then reduced by one third to $29,916.66.

[104]  His Honour then offered this advice to executive government:

“As most every respondent in these applications is a person of straw the payment, if any, is usually from the public purse.  I would recommend to those responsible for the public purse that they give serious consideration to whether or not there should be a payment from the public purse in full of the said amount of $29,916.66 or whether there should be a lesser payment or no payment at all, whether the applicant should be left to enforce this judgment against the respondent personally.”

With respect, this was an unfortunate confusion of the judicial and administrative role.  If the judge was of the view that the exercise of his judicial discretion required him to decide that the applicant was not entitled to compensation pursuant to s 25(7) of COVA then his Honour should have so decided.

[105]  In deciding whether or not a victim of crime should have his or her compensation reduced or refused pursuant to s 25(7) of COVA, the judge assessing the compensation should pay close regard to the circumstances of the particular offence and exercise his or her discretion judicially.  Factors relevant to the discretion under s 25(7) are likely to include, but are not limited to:

(1)whether or not the victim was committing an offence at the time of his or her injury;

(2)whether any such offence committed by the victim involved personal violence to the offender or another;

(3)whether the victim offered violence to the offender or another before, during or after the offence;

(4)whether the victim was armed or used a weapon;

(5)whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;

(6)whether the offender responded with more force than was justified for self-defence;

(7)whether the victim offered provocation to the offender;

(8)any differences in size, strength and power between the victim and the offender;

(9)whether the violence used by the offender was disproportionate to any violence offered by the victim.

[106]  It is only in the most unusual case that a victim of a crime of personal violence should be denied compensation altogether.  It would suggest that a high degree of culpability for the offence lies on the victim rather than merely on the offender.

[107]  Section 25(7) of COVA is in similar terms to s 7(9) of the Criminal Injuries Compensation Act 1978 of South Australia.[13]  In South Australia v Nguyen[14], Olsson J observed with regard to the role of the judge considering the award of compensation:

“Whilst s 7 of the Act is expressed in permissive terms, it seems to me that the word ‘may’ employed in it is used in the imperative sense, in that the discretion conferred must be exercised in a judicial manner having due regard to the policy and purposes of the statute.  It follows that, once the conditions precedent to the making of an order under the discretionary power have been established, the order must be made unless there are good reasons for not doing so. …  In other words, once the conditions precedent established by s 7 have been made out, it would be an erroneous exercise of judicial discretion to refuse to make an order for compensation – save to the extent that such a course may otherwise be warranted or required by another provision of the statute.

…

The essential Scheme of the statute is to create what is prima facie an entitlement to compensation, subject only to satisfaction of certain prerequisite jurisdictional requirements.  However, it remains open to the court to moderate that entitlement in circumstances in which it is considered, as a proper exercise of judicial discretion, that certain factors of the type identified in subs (9) of s 7 arise for appropriate consideration.  Where those factors arise the court must have due regard to them.  In an extreme case they may be of such weight as to warrant a total denial of compensation.”

[108]  These are observations with which I respectfully agree.  In that case, the award was reduced on appeal by 50 per cent in circumstances where the victim produced a knife and threatened a group including the offender with whom he had been having an altercation.  The offender then drew a folded knife from his pocket and attacked the victim, stabbing him several times in his upper body, slashing his right forearm and cutting a section from his right ear.

[109]  A number of decisions in Queensland reflect these principles.  An example of circumstances which did not warrant a reduction is found in R v Browne, ex parte Nairn.[15]  The victim was assaulted by two other residents of the house in which he lived.  One struck him a number of times with an axe, in the face, on the calf of the right leg, on the bare toes of the left foot, and the left arm, above the elbow, causing its amputation.  The other man attacked the victim with hot water and a pick handle.  Helman J held that the victim’s seizing of a knife at the conclusion of the incident in an effort to protect himself would not justify a reduction of the compensation that might otherwise be awarded.

[110]  In Jones v Coolwell,[16] Helman J deducted 15 per cent from a compensation award where the applicant punched the offender and demanded payment of a small drug debt.  The offender then stabbed the victim several times.  His Honour said that the respondent’s reaction was so disproportionate as to call for only a small adjustment.

[111]  In Crosbie v Lawrence,[17] Philippides J deducted 20 per cent from compensation awarded for a stabbing as the applicant had contributed substantially to his own injury.  A member of the applicant’s group threw the first punch and the applicant physically attacked the respondent before the stabbing.  The respondent had attempted to walk away from the altercation and told the applicant he wanted no part in it.  Her Honour held that whilst the respondent’s response was disproportionate, only a single wound was inflicted and it was not life-threatening. 

[112]  Mullins J took the view in Street v Fitzgerald[18] that the applicant’s behaviour as a known drug dealer who had been dealing in cannabis and amphetamines from his residence for some time which was known to the respondent and therefore caused the applicant to be chosen as the target for the armed robbery must be viewed as behaviour which contributed to the injuries inflicted.  Her Honour reduced the compensation awarded by 25 per cent on that account.

[113]  In Re Guppy,[19] Helman J reduced by a third the compensation awarded to a victim who had been stabbed a number of times by an offender who was smaller in size, had been threatened and was fearful for his life and acted in self-defence but had used excessive force.  In Grahame v Dean,[20] Cullinane J made a similar reduction where the victim of grievous bodily harm was the step-father of the offender who had mistreated the respondent over a long period and had apparently recently assaulted the offender’s mother.

[114]  In Buckland v Estate of Kennedy,[21] Ambrose J reduced by 50 per cent the compensation awarded to a man who was stabbed in the abdomen by his de facto wife.  He had abused her over a long period of time which had led to a domestic violence order which was in force at the time of the offence.  That evening he had struck her across the face in public view on two occasions and had belittled and humiliated her to the point where she lost self-control and stabbed him.

[115]  In R v Fergus; ex parte Jackson,[22] Moynihan J refused compensation to a man who suffered grievous bodily harm who was “the author of his own misfortune.”  He joined in and participated in a home invasion and a prolonged attack on the respondent who reacted with what must have been considered unreasonable force.

[116]  This court should not interfere with the exercise of discretion by the judge at first instance unless there are clear errors of law or fact.[23]  As was held by the Full Court of the Supreme Court of South Australia in South Australia v Abdel-Ghani:[24]

“The extent to which the court ought to reduce the quantum of compensation, by reason of the conduct of the victim, is a matter of judgment upon which minds will reasonably differ.  The process of determining the appropriate reduction is much like a consideration of the extent to which damages ought to be reduced for contributory negligence.  It is a matter of judgment after a consideration of the whole circumstances and in particular in the light of the conduct of the victim that contributed to his or her injury.  Whilst it is the victim’s conduct which has to be considered, that conduct must be considered in the whole matrix of facts which involves a consideration of the conduct of the person who has committed the offence.

Because the exercise involves a judgment upon which reasonable minds will differ, the circumstances in which this Court will intervene to vary a judgment, where that judgment has been arrived at without any error of principle or misapprehension of the facts, will be rare.

In relation to claims involving contributory negligence, in Grantham v South Australia[25] Bray CJ approved the following test enunciated by Willmer LJ in Koningin Juliana:[26]

‘Apportionment of fault is not an easy task for any judge, but it must be said that the trial judge, who has the benefit of hearing the evidence at first hand and sensing the atmosphere of the case, enjoys an enormous advantage over any appellate tribunal.  It has been established by a long series of decisions, culminating in that of the House of Lords in The McGregor [sic], … that in the absence of an error of law, where the appellate tribunal accepts the findings of fact of the Court below, it should only revise the apportionment in very exceptional cases.  In the present case I can detect no error in law on the part of the learned judge, and I accept the findings of fact stated by him in the course of his full and careful judgment.  This alone would, in my view, be a sufficient reason for not interfering with his apportionment of fault.’

Like cases involving contributory negligence it should only be in very exceptional cases, where there is no error of law and the findings of fact are not disturbed, that this Court would interfere with the exercise of a judgment of a judge of the District Court in relation to the extent of the reduction for conduct contributing to the injury to the victim.”

[117]  In this case there were errors both of fact and of law:  the trial judge referred to his recollection of the aborted trial rather than the trial before Judge Boulton at which the respondent was convicted; he mis-stated the application of COVA in relation to victims who may have contributed to their injuries or the offence constituting their injuries; he made an error in relation to the degree that Mr Hohn’s behaviour contributed to his injuries, in particular, the extent of Mr Hohn’s involvement in criminal offending; and he made an error in relation to the extent of Mr Hohn’s injuries, in particular, his nervous or mental shock injuries and his brain damage.  This court must then exercise the discretion afresh.

[118]  When one considers all of the factors relevant to contribution it appears that the applicant may have intended to commit the criminal offence of purchasing the dangerous drug, marijuana, but it was not shown that he was in fact doing so. He has not been charged with any criminal offence in relation to this incident.  He was unarmed and did not offer any violence or provocation to his attacker.  It was a cold-blooded and vicious attack by a much younger man who armed himself with a home-made cricket bat for the purpose of the attack.  In those circumstances a deduction of 20 per cent adequately recognises the extent to which the victim contributed, directly or indirectly, to his injury.

[119]  So far as the quantum is concerned, one must look at each of the injuries sustained and assess the percentage of the scheme maximum of $75,000 appropriate for each injury.[27]  The contribution of 20 per cent is then deducted from each individual award.[28]

[120]  The compensation table found in Sch 1 of COVA provides that a person who suffers a fractured skull with brain damage is entitled to 10 to 100 per cent of the scheme maximum depending on the degree of severity of the brain damage.  Mr Hohn suffered from what Dr Coyne described as a “significant” head injury which resulted in a 7.5 per cent whole person impairment.  His continued symptomology showed that the brain damage was severe.  The percentage of the scheme maximum for severe brain damage is 25 – 100 per cent.  Mr Hohn’s injury falls in about the middle of this range or about 60 per cent or $45,000.  After contribution, the amount that should be awarded under this head is $36,000.

[121]  The relevant range for a neck injury was two to 40 per cent.  The medical opinions before the court showed a permanent five per cent impairment of the whole person which put it at the top end of the moderate and the low end of the severe range.  The appropriate percentage of the scheme maximum was therefore 10 per cent or $7,500.  After contribution, the amount awarded under this head is $6,000.

[122]  The bruising and lacerations to his chest and abdomen area were serious at the time but have not left any permanent injuries.  It should therefore be considered as in the middle of the minor to moderate level at two per cent or $1,500.  The amount awarded under this head, after contribution, is $1,200.

[123]  The range available for nervous or mental shock is two to 34 per cent.  His injury was in about the middle of the severe range which would give an assessment of 27 per cent or $20,250.  The amount awarded under this head, after contribution, is $16,200.

[124]  His scarring was assessed at two per cent or $1,500 which is the least which could be allowed for minor scarring.  No higher award was appropriate on the evidence.  This amount, after contribution, is $1,200.

[125]  The total compensation that should have been awarded, after contribution of 20 per cent, was $60,600.  This amount should be substituted for the amount awarded by the judge at first instance. 

[126]  The application for leave to appeal should be granted and the appeal allowed with costs.