DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under Chapter 65A of the Criminal Code. On 29 July 1994, each of the respondents pleaded guilty in the District Court at Brisbane to a charge of deprivation of liberty alleged to have been committed with respect to the applicant on 27 February 1993. Each was released on entering into a recognisance in the sum of $500 for a period of 12 months. No conviction was recorded. An application for compensation was filed on 17 May 2000. It has been adjourned from time to time and came on for hearing on 1 December 2000. The application was heard on affidavit, although one witness, Dr. Dwyer, was cross-examined.

Facts

2. [2]
   There are some differences in the material as to some of the details concerning the circumstances of the offence. I have been provided with the transcript of the sentencing hearing, as well as the sentencing remarks, as the latter do not contain any description of the details of the offence on the basis of which the respondents were sentenced. On the same day each respondent also pleaded guilty to a similar charge in respect of another individual. The Crown Prosecutor, when outlining the facts, said that the complainants were two boys; the applicant at the time was 10, the other complainant 12. They had been at a football match at a particular park with some friends which they left at about 6 p.m. and were walking home when they saw a dog in the back yard of a house, and went to pat it, although it was barking at them at the time.

3. [3]
   The house was the residence of one of the respondents, Mr. Yuile, who was then at a barbecue at his neighbour’s house. The boys were standing with two other boys when that respondent called out to them and ran in their direction and they ran away. One of the respondents chased them on foot while the other three followed by car. They caught up with the applicant and the other complainant, pushed them into the car and said something about taking them to the police. They then picked up the other respondent. After some discussion about what should be done, they were taken back to the park from which they had originally come, their names were taken and one respondent made some threat about what would be done if they were seen near the yard again. The boys subsequently went home and the applicant complained to his mother who went to the police station as a result of which the matter was investigated.

4. [4]
   The Crown Prosecutor stated that one respondent who had been spoken to by the police had alleged that the children were actually inside the yard. This discrepancy was not pursued on behalf of the respondents during the sentencing hearing; His Honour indicated that he did not regard the matter as a very serious offence and had foreshadowed imposing a bond during the Crown Prosecutor’s submissions, and the representatives of the respondents did not seek to dissuade him from that course. It appears from the transcript of a statement given by the applicant to the police on 28 February 1993 that the applicant had then spoken of leaning over the fence to pat the dog but did not say anything about going into the yard. In his affidavit sworn on 8 May 2000, however, the applicant said that he was with a larger group of children, including twins and they were going to the twin’s house. “We tried to cut across a private property to get to the twin’s house. As we were cutting across the property, we noticed that there was a party going on next door. I recall men from the party next door yelling at us and then chasing us. They jumped the fence”. The respondents’ statements were also put in evidence; these speak of being at a party next door to the Yuile house when the children were seen in the yard of that house by Mr. Yuile. It was this that prompted him to call out.

5. [5]
   Another matter which was referred to in the applicant’s affidavit is that he said that, after he was let out of the car at the park, one of the men grabbed him by the arm and punched him in the back of the head with a closed fist before the man got back into the car and drove off. He also said that there was talk in the car of doing various unpleasant things to them. When the respondents were sentenced, two charges of assault against the respondent, Mr. Yuile, were not proceeded with and pleas to the two counts of deprivation of liberty were accepted in satisfaction of the indictment.

Significance of Basis of Sentencing

6. [6]
   In Chong v. Chong (Appeal 1165/98, Court of Appeal, 13.8.99, unreported), Demack J said at para. 21:

“The compensation is in respect of the injury suffered by reason of the offence (or offences) of which the offender is convicted.  It was not only proper but necessary for the judge to recall the basis upon which Chong was sentenced.  A preferable way of presenting that material would be through the tender of the transcript of the submissions on sentence.”

The other members of the court agreed generally with His Honour’s judgment;  McMurdo P said at para. 8:

“I agree with the reasons given by Demack J that it was necessary for the primary judge to recall the basis upon which the offender was sentenced in order to determine the application for criminal compensation.”

In that case, there was medical evidence that the appellant had been shot twice with a 12 gauge shotgun, but the application for compensation was in respect of an offence of one count of unlawful wounding, where the sentencing proceeded on the basis that there had been one discharge of the shotgun. 

7. [7]
   In context, it seems to me clear that the point being made by the Court of Appeal was that reference to the sentencing remarks, and if necessary the submissions on sentencing as to the facts, was necessary in order to identify the particular criminal conduct constituting the offence of which the offender was convicted, in order to ensure that what was given was compensation for injury “suffered … by reason of the offence … of which the offender is convicted.”: s. 663B(1). Hence, if A is charged with two counts of assault occasioning bodily harm alleged to have been committed on B, one involving a punch in the face causing a small laceration, and the second involving a breaking of his arm, and is convicted of the first but not of the second, compensation can only be ordered in respect of the small laceration of the face.

8. [8]
   I do not think however that it means that one is obliged for the purposes of dealing with an application for compensation to assume that nothing happened to the applicant other than what was accepted for the purpose of sentencing as the conduct constituting the offence for which the respondent was convicted. In the example I have just given, if the only application is in respect to physical injuries, then there would be no difficulty, but what if the applicant claims that in addition he suffered mental or nervous shock? If there is medical evidence that subsequently the applicant was suffering from post-traumatic stress disorder, I do not read what was said in Chong as meaning that it would not be appropriate to have regard to all of the relevant facts to determine whether that psychiatric injury was suffered by the applicant by reason of the punch in the face.  I do not regard the approach taken in Re: Hondros [1973] WAR 1 and R v. Bowen (1969) 90 WN (Pt.1)(NSW) 82 as applicable, as those cases proceeded on the basis that an order for compensation was part of the sentencing process, and no “subsidiary curial process” was involved.  That may be the case for compensation ordered under the Penalties and Sentences Act 1992, but an order under Chapter 65A of the Code is made in a separate civil proceeding between different parties.  See s. 663B(1)

9. [9]
   The same applies to the application of subsection (2) involving questions of whether there was behaviour of the applicant which directly or indirectly contributed to the injuries suffered by him. In my opinion, it would put too narrow a construction on this subsection to confine its operation to conduct which was taken into account for the purposes of sentencing. There may be circumstances which are relevant for the purposes of an application for compensation which are not relevant to sentencing. In addition, the standard of proof is different. Accordingly, in my opinion, a court may be in the position of having to make findings of fact as to what happened in order to deal with an application for compensation, not for the purpose of determining what conduct constituted the offence, but for the purpose of determining issues such as causation or contribution under subsection (2).

10. [10]
    In the present case, for example, there are perhaps three of these issues which arise. No compensation can be ordered in respect of any injury suffered by reason of any blow to the head suffered by the applicant, because the respondents have not been convicted of any offence in respect of such a blow. There was also reference in the applicant’s material that certain threats had been made to him while he was in the car, but these are not matters referred to in sentencing and therefore they are not part of the offence of deprivation of liberty for which the respondents were convicted. It is therefore necessary to consider whether any psychiatric problems the applicant subsequently suffered were suffered “by reason of the offence” of deprivation of liberty.

11. [11]
    Finally, I must deal with the question of whether there was conduct by the applicant which contributed to his injury. In my opinion, it is permissible and proper for me to make a finding as to whether the applicant was in the yard of the respondent, Mr. Yuile, and that this was what prompted the attention which he subsequently received from the respondents, even though this issue was not expressly resolved by the sentencing judge. In the light of the affidavit material before me, particularly the applicant’s affidavit, I am justified in finding on the balance of probabilities that the applicant did go into Mr. Yuile’s yard, and that it was his presence in the yard which prompted the attention he subsequently received from Mr. Yuile and the other respondents.

12. [12]
    In Chong, Demack J identified the facts which had to be proved by an applicant as follows:

“(a): conviction of an offender on indictment; 

(b): of an offence relating to a person;   

(c): whereby injury was caused to the victim.”

 Point (a) is uncontroversial in the present case.  Counsel for the respondents submitted that the offence, deprivation of liberty, was not necessarily one “relating to the person of any person” but conceded that, on the facts as presented for the purpose of sentencing, there was some pushing involved when the applicant was put into the motor vehicle, and that deprivation of liberty which did involve something of that nature qualified as such an offence.  In these circumstances, it is unnecessary for me to consider point (b) further.  As to the question of injury, it was disputed whether the applicant had suffered any relevant injury, and whether any such injury was suffered by reason of the commission of the offence. 

What Qualifies As “Mental Shock and Nervous Shock”?

13. [13]
    The injury relied on was post-traumatic stress disorder. Section 663A defined that injury as including “mental shock and nervous shock”. The scope of this concept was considered recently by Thomas JA sitting in chambers: Ferguson v. Kazakoff [2000] QSC 156.    His Honour there held that the expression “mental shock or nervous shock” described a situation of injury to health, illness, or some abnormal condition of the mind or body over and above that of a normal human reaction or emotion following a stressful event.  It was not confined to a recognised psychiatric disorder, but it involved something more than a natural human reaction to what may be a very distressing experience.  It was not enough to show fear, fright, unpleasant memories or anger towards the offender, or a combination of these.  However, ultimately His Honour did not attempt a comprehensive definition of the term.  He did however think that the test applied in R v. Horne; ex parte Hill (SC 8829/99, Byrne J, 29.12.99, unreported) was not appropriate to apply to the definition of “injury” in the Criminal Offence Victims Act 1995.  That was a decision of Byrne J dealing with an application under Chapter 65A of the Code, but Thomas JA thought that the reference in s. 663A to “bodily harm” imposed some fetter on that definition in comparison with the definition of “mental or nervous shock” in s. 20 of the 1995 Act.  This change is one which I would have attributed fairly readily to changes in legislative drafting practice rather than any attempt to alter the meaning.  In that case, Byrne J held that an applicant had not suffered mental or nervous shock because a variety of psychological symptoms did not meet the threshold of diagnosis of any mental disorder. 

14. [14]
    Byrne J relied on statements by Macrossan CJ in R v. Morrison ex parte West [1998] 2 Qd.R. 79 at 81-82. The issue in Morrison was whether the limitation of s. 663AA(1) applied in circumstances where the applicant suffered a severe psychiatric illness as a result of a long course of criminal conduct by the respondent.  An attempt was made to avoid this conclusion by submitting that there had not been any “shock”.  Macrossan CJ said that the words should receive a wide interpretation, that a broad meaning should be attributed to the expression in s. 663A and the same meaning should be carried over where the same phrase appeared in s. 663AA(1): 

“The phrase should be construed as including the full range of psychiatric illnesses whether or not they would, in the absence of the phrase of the definition of “injury”, have been taken to be included within “bodily harm”.”

His Honour’s concern was essentially to reconcile the two tests, so that there would not be some category of cases where a psychiatric injury fell within s.663A, but not within s. 663AA(1).  As Thomas JA pointed out, His Honour was not concerned with determining the boundary between psychiatric injury which qualified under the statute and mental or emotional consequences of an offence which did not. 

15. [15]
    For Davies JA, the issue to be decided in Morrison was whether the appellant suffered physical injury: p.90.  He did not speak about the limits of the concept of “mental shock or nervous shock”.  The third member of the court, Fitzgerald P, dissented.  He cited a number of passages in judgments of courts in other States, some of which seem to identify a concept of mental shock and nervous shock with some form of psychiatric illness (e.g. Hinze v. Berry [1970] 2 QB 40 at 42 per Denning MR) or any form of psychological disturbance: R v. Fraser [1975] 2 NSWLR 521 at 525 per Wootten J.  Personally, I find the approach of Byrne J persuasive, at least in the case of an application of the Code, and certainly of much assistance in identifying where one should draw the line.  However, for present purposes, this does not matter because in my opinion even on His Honour’s test, a condition of post-traumatic stress disorder would amount to mental shock or nervous shock.

The Injury

16. [16]
    There were two reports in evidence from Dr. Dwyer, who apparently originally saw the applicant in connection with a course of psychiatric treatment for a schizophreniform psychosis. Dr. Dwyer considered in his first report whether that condition was a consequence of the incident in 1993, and concluded that there was no causal connection between the abduction and the psychosis. At that stage he commented that he was unable to determine whether the plaintiff had suffered post traumatic stress symptoms following the abduction. It appears that at that stage there was some difficulty in obtaining proper information about the subject because of interference with the applicant’s thought processes associated with his more recent psychiatric condition. In a subsequent report (Exhibit 1) after Dr. Dwyer had additional material in the form of the record of interview and the transcript of the sentencing process, he concluded that it was more probable than not that the applicant did suffer post traumatic stress disorder following the incident.

17. [17]
    Dr. Dwyer said that the applicant had found the event very frightening, and thought his life was threatened. There was persistent re-experiencing of the trauma by nightmares and intrusive recollections, and some avoidance behaviour. However, the symptoms had significantly abated and there was no longer any disorder, although there was some post-traumatic features, principally in the form of some persistence of nightmares. Dr. Dwyer thought the applicant would benefit from therapy aimed at dealing with such symptoms, but did not go into detail. He noted that he was hampered by the fact there was no psychiatric or psychological examination performed at the time of the incident. That is an omission which cannot be retrospectively remedied.

18. [18]
    The applicant in his affidavit speaks of how scared he was during the incident, his fear that he was going to be killed, his having suffered nightmares, and his being anxious in connection with similar motor vehicles. He also refers to a feeling that nothing could kill him, which seems inconsistent with the usual symptoms one hears about from applicants suffering post-traumatic stress disorder, commonly their being very nervous and vigilant of any future attack. The applicant also attributed some recurrence of bad behaviour at school to this incident. He had previously had counselling for this, with some success. Dr. Dwyer said that this could be a manifestation of post traumatic stress disorder in a young child. Some of the later matters of which the applicant complains, such as experimentation with drugs and unlicensed driving when he was older, are, I think, too tenuously connected with any post-traumatic stress disorder. There was no suggestion from Dr. Dwyer that those features were related.

19. [19]
    There is another aspect of Dr. Dwyer’s evidence which I should mention. In his earlier report, he speaks of the abduction having lasted for several hours. That is not expressly supported by the applicant’s affidavit, and is not at all consistent with the account given by the respondents, or the impression from the transcript of the sentencing hearing, which although it does not give a time, identifies a course of conduct which would not have taken more than a few minutes. In addition, it is worth noting that the applicant and his companion were taken to a familiar place which was obviously within walking distance of their homes, since they had been walking home from it before the incident happened. Overall, the description of the incident does not seem to me a very serious case of deprivation of liberty, a view obviously shared by the sentencing judge, although for the purposes of an application for compensation what is of more importance is the extent of the consequences to the applicant.

20. [20]
    It was submitted on behalf of the respondents that the applicant had not established that he had suffered an injury at all, that is a relevant psychiatric injury. Although Dr. Dwyer was of the opinion that it was more likely than not that the applicant had suffered from post-traumatic stress disorder as a result of this incident, he noted that it would have been better if the applicant had been examined about the time of the incident. There is a reference to the applicant having received counselling after the incident, but there is no evidence from anyone who counselled the applicant at that time to report on the state of the applicant’s symptoms then. It was submitted that I should draw an adverse inference against the applicant because of the failure to lead this evidence, but in view of the lapse of time and the difficulty that I would expect would now be experienced in trying to locate such evidence, I think it would be unrealistic to draw an adverse inference in the circumstances of this case because of the absence of any evidence from that source.

21. [21]
    Ultimately, it becomes a question of whether I am persuaded that the opinion of Dr. Dwyer is correct. Although it is, I think, tentatively expressed, I regard this as an example of due caution on the part of Dr. Dwyer in arriving at such a conclusion, which gives added credibility to the fact that he did arrive at the conclusion. Although in his first report he was unsure about the diagnoses at that stage he did not have all the relevant material available and the matter may have been complicated by the presence of symptoms associated with the other psychiatric condition. Overall I am persuaded on the basis of Dr. Dwyer’s evidence that it is more likely than not that the applicant suffered post-traumatic stress disorder following this incident and I so find.

Causation

22. [22]
    It was submitted on behalf of the respondents that the applicant had not shown that any such condition had been caused by the elements of the offence rather than any other conduct which he may have claimed was attributable to the respondents. This, I think, gives rise to a question about causation. The expression “by reason of the offence” indicates an element of causation is involved, but it is not clear whether the conduct constituting the offence must be the sole cause of the injury suffered. With physical injuries, it will often be easy enough to identify what is attributable to the offence, but a situation can arise where there is some psychiatric injury which is really attributable to the combination of a whole range of things. Strictly speaking, the psychiatric injury was caused by the combined effect of whatever actually happened to the applicant, and if this was more extensive than those things treated as amounting to the offence for the purpose of sentencing, then an issue arises as to causation.

23. [23]
    There is some authority to support the proposition that it is enough if the offence was a material contribution to the injury. This was the test applied by Lee J in R v. Tiltman; ex parte Dowe, (Motion 324/95, 22.6.95, unreported).  His  Honour’s approach was that if the offences leading to convictions made a material contribution to the applicant’s injury, there was an entitlement to compensation for the whole injury unless the offender was able to separate the effects of the compensable and non-compensable conduct. The approach in Tiltman was approved and applied by Robertson DCJ in Steinback v. Steinback [2000] QDC 312. In the present context, this would mean that it would be sufficient if the abduction was a cause of the post-traumatic stress disorder, even if there were other things which were not part of the offence which were causes as well, so long as it was not the case that if the other things had happened alone, they would have produced the post-traumatic stress disorder anyway. 

24. [24]
    The medical reports do refer to the assault, and to various threats of things being done to him having been made while he was in the car, such as being bashed with a baseball bat or being cut up and fed to dogs. Dr. Dwyer seemed to proceed on the basis that these things did actually occur. His evidence was, however, that the abduction itself was the most significant feature in developing the condition, because that was the feature that was associated with the nightmares and unpleasant memories. If one approaches the matter on the basis adopted by Lee J therefore, or if one adopted the test of causation in tort, the injury would have been caused by the abduction.

25. [25]
    More recently, apportionment on the basis of causation has been approved by the Court of Appeal in relation to an order for compensation, although in a somewhat specialised context. In Hollywood v. Levack [2000] QCA 472, the court considered an application for compensation in respect of nervous shock or the adverse impact of a sexual offence in circumstances where the respondent had been convicted of maintaining a sexual relationship with a child and four counts of indecent acts between 31 December 1991 and 1 April 1997.  Accordingly, they straddled the date of commencement of the 1995 Act on 18 December 1995.  Compensation under the 1995 Act applied only to injuries suffered as a result of offences committed after the commencement date of that Act.  What complicated the matter further was that the basis of assessment under the Code and under the 1995 Act are quite different. Under the Code there is a statutory limit in the case of psychiatric injury of (relevantly) $20,000: s. 663AA(1); subject to that the court applies principles derived from the common law in the assessment of damages.  These are expressly excluded from assessments made under the 1995 Act: see s. 22(3), 25(8). 

26. [26]
    The court held that the applicant was entitled to an assessment in respect of each period and the court must do the best they can in ascribing appropriate compensation in respect to each period. Where there was a combined effect that was difficult to dissect, the way to proceed was to apportion between the effects attributed to each period and if no better suggestion appeared, for example, as a consequence of medical evidence, the length of the respective periods over which the offending conduct occurred might be used.

27. [27]
    In that case the offence of maintaining a sexual relationship was committed over a period approximately three quarters of which was prior to the date of commencement of the 1995 Act. Accordingly, the trial judge had assessed compensation in the sum of 75% of the figure that would have been allowed if the whole event had occurred under the Code, and 25% of the figure that would have been allowed if the whole event had occurred under the 1995 Act. This approach was approved by the Court of Appeal. In that case Tiltman was distinguished on two grounds, one of which would only apply where the relevant acts constituting the offence straddle the date of commencement of the 1995 Act. 

28. [28]
    Apportioning on the basis of causation where there are multiple causes of what is essentially a single psychiatric injury certainly has considerable practical attraction. Consider a case where a person is involved in two armed robberies in fairly quick succession, and as a result suffers psychiatric injury. If both armed robbers are convicted of their respective offences, one compensation order is to be made in respect of the substantially single state of injury suffered by the applicant, whether under the 1995 Act (s. 26(3)(b)) or under the Code (s. 663B(1)), and at least under the 1995 Act the compensation order may be apportioned between them, depending on their direct and material contribution to the injury: s. 26(6)(a). It would appear that the same approach should be adopted in the case of an application under the Code: Freeman v. Grahame [2000] QCA 387.  The whole procedure is essentially straightforward, but only if both offenders have been convicted. 

29. [29]
    It would, however, be easy enough to imagine a situation where that does not occur. One of the offenders may be acquitted at his trial; or one may be still awaiting trial; or one may not have been located. I do not see why the other offender should have to pay more compensation merely because of one of these circumstances, which would have nothing to do with that offender. It would obviously be desirable in a practical sense if a court could apportion responsibility in such circumstances, although I am aware of no direct authority for such a course.

30. [30]
    In Sanderson v. Kajawski [2000] QSC 270, the court took into account the fact that the sexual abuse to which the applicant had been the subject had been a major but not the sole cause of her current problems, when assessing the amount of compensation payable under the 1995 Act.  The reasons for judgment however do not clearly indicate that this was on the basis of apportioning by reference to the different causes of the injury, and it may well be no more than recognition that in that case not all of the applicant’s problems were associated with the injury which had been caused by the offending. 

31. [31]
    In Starr v. Lane [2000] QSC 86, Williams J had before him an applicant who alleged various injuries, including shock and post-traumatic stress, as a consequence of the conduct of the respondent, but only a relevantly minor part of that conduct (a blow to the head) had amounted to an offence for which she had been convicted.   His Honour was satisfied that as a result of the totality of the injuries received on the day in question, the applicant had suffered what could be described as nervous shock and developed post-traumatic stress syndrome involving depression, but did not find that continuing severe headaches were as a consequence of a blow to the head.  His Honour made an award in respect of the laceration to the head, and continued:

“In addition to that the applicant would be entitled to a small amount for nervous shock which was associated with that head injury and the headaches which directly ensued.”

It is not clear however that this was on the basis of apportionment of compensation for the whole of the psychiatric consequences between the blow to the head and the other injuries suffered which were much more severe. 

32. [32]
    Overall, in my opinion, there is no clear authority justifying apportionment on the basis of causation in circumstances where psychiatric injury to an applicant occurred as a consequence of a number of events, some of which are encompassed by the offences of which the respondent has been convicted, and some of which are not. Personally, I think that that approach has a good deal to commend it, particularly in the light of the approach adopted by the Court of Appeal in Hollywood (supra), but because in the present case the medical evidence is that the conduct which constituted the offence was probably the major cause of the probable post traumatic stress disorder, I should treat that disorder as an injury which resulted from the commission of that offence.  That would be consistent with the decisions in Tiltman and Steinbeck which have involved the most careful consideration of principle in this area to date. 

Assessment

33. [33]
    The next issue is to assess the amount of compensation. This should be done in accordance with the ordinary principles of assessment of damages for personal injuries in civil cases: Freeman v. Grahame [2000] QCA 387.  The effect of Dr. Dwyer’s evidence is that the plaintiff suffered a post traumatic stress disorder after the incident, but evidently of a relatively mild kind.  He required and received some counselling, but it is not suggested that anything further in the way of treatment was received or was then thought necessary.  I think it is reasonable to infer that if there had been a serious state of post traumatic stress disorder present at that stage which required psychiatric treatment, the counsellor would have noticed it and recommended such a course. Although there were  some symptoms which have persisted to some extent, it also appears that most of the symptoms abated well before the applicant was seen by Dr. Dwyer. 

34. [34]
    The material speaks of some modification in behaviour on the part of the applicant as a result of this incident, in terms of things that he avoided, but nothing very serious or substantial, at least by comparison with many of the cases which come before the court where people are seeking compensation for post traumatic stress disorder caused by criminal offences. It is not suggested by Dr. Dwyer that the plaintiff is in need of any substantial treatment at this stage. He does suggest that the applicant would benefit from some specific therapy, but he does not detail what is required, and my impression is that nothing very much is required. He described the symptoms as having significantly abated with the passage of time.

35. [35]
    As an example of post-traumatic stress disorder, it is much less serious than most of the descriptions of the symptoms associated with such a condition which I have heard about in the course of hearing other applications for compensation. Some of these are most disabling, sometimes involving extreme reclusive behaviour, or other substantial changes in lifestyle. In some cases the victim is required to have extensive psychiatric treatment which might involve hospitalisation. The present applicant cannot have been so seriously upset that he required psychiatric treatment, otherwise the severity of his condition would surely have been recognised either by his mother or by the counsellor at Inala to whom he was taken. Obviously, the manifestations of post-traumatic stress disorder can vary enormously, and compared with many other sufferers of that condition, the consequences to this applicant seem to me to be relatively mild.

36. [36]
    One matter which seems to have distressed the applicant considerably, and may well have aggravated his condition, is a feeling that the respondents were dealt with too leniently when they came to be sentenced. This is a very common response on the part of victims of crime, and it is clear that this is not something for which compensation can be ordered under the Act, nor can this or any consequences which flow from it be taken into account as part of the injury for which compensation is ordered.

37. [37]
    Counsel referred me to a number of decisions in other applications for compensation by way of comparison. In the matter of Balbone (Appn 137/94, Robin DCJ, 4.10.94), His Honour ordered compensation of $3,000 which was cumulative on a figure of $1,000 ordered during sentencing, and took into account that that applicant had a potential right to claim compensation from a co-offender who had not then been located.  In R v. Barr; ex parte Hodgson (App 1787/96, Healy DCJ, 15.10.96), compensation of $7,000 was ordered for post-traumatic stress disorder which appears to be somewhat more severe than that suffered by the present applicant; the applicant in that case suffered recurrent and intrusive recollections as well as distressing dreams, was totally uncomfortable in the company of men or women for about three months after the incident, became hyper-vigilant, had difficulty sleeping and left Queensland immediately after the incident.  It appears that this assessment did not include any compensation for loss of income which was assessed separately, along with compensation for physical injuries, at $15,000. 

38. [38]
    In R v. Barrett; ex parte Paterson (Appn 809/96, Shanahan CJDC, 12.7.96), criminal compensation was ordered against the present respondents in respect of post-traumatic stress disorder suffered by the other complainant referred to earlier, the 12 year old.  Compensation totalling $15,000 was awarded, although this included a figure of $9,000 in respect of costs of psychiatric treatment, including psychometric evaluation and psychological desensitisation treatment, which was supported by expert evidence.  There is no equivalent evidence in the present case.  Apart from this the compensation was $6,000.   The reasons suggest that that applicant suffered a more severe case of the disorder.  After the incident he had difficulty sleeping, and had the light on all night, locked the doors all the time, and took to keeping a machete or knives and baseball bats close to him when he was in bed.  He also slept with a pillow slip around his neck.  He was unable to cope with going to school, and apparently had not returned to school on a regular basis since the incident.  Overall, it appears the psychiatric consequences of the incident for that applicant were rather more severe than for the present applicant.

39. [39]
    There were two other features of that decision which I should mention. The first is that His Honour evidently proceeded on a view of the facts which differed from my findings on the evidence before me, which did not involve the applicant in that case entering the respondent’s yard. The other is that His Honour proceeded on the basis that the applicant in that case had been subjected to threats to have his arm broken, to be beaten up and to be killed, and had been assaulted twice by one of the men, by being grabbed around the throat and by being kicked in the backside. His Honour appears to have disregarded the fact that the respondents had not been convicted of assaulting the applicant, so that compensation could not be awarded for the consequences of the assault. I should point out that this decision was before the Court of Appeal decision in Chong was delivered.  It is important to bear all of these matters in mind when considering the comparability of the award in that case. 

40. [40]
    I was also referred to Zammit v. Queensland Corrective Services Commission (Writ 186/94, Muir J, 1.9.98, unreported) where damages for psychiatric injury involving post-traumatic stress disorder were awarded in favour of an employee, with an assessment of pain, suffering and loss of amenities of $20,000.  The plaintiff in that case was sufficiently severely affected to be admitted to psychiatric institutions for a period of time and required further therapy for a period of 12 to 18 months with a view to resolving his disability.  He had become unable to work because of it.  Overall, it appears to be a much more severe example of post-traumatic stress disorder than is the present.  In FAI General Insurance Co Ltd v. Curtain (No. 2078/96, Court of Appeal, 8.8.97), the plaintiff suffered post-traumatic stress disorder as a result of her being almost involved in a motor vehicle accident.  She fainted and was taken to hospital and had subsequently suffered serious symptoms which had had a very substantial effect on her life, including loss of job and social life, and interference with short term memory.  In that case damages for pain and suffering were assessed at $25,000 by the trial judge and not altered on appeal, although the component for economic loss was reduced.  It is obvious that the condition suffered by that plaintiff was much more severe than that suffered by the present applicant. 

41. [41]
    I should include a reference to Keeys v. State of Queensland (Plaint 1544/95, McGill DCJ, 14.11.96, unreported) where a  police officer suffered post traumatic stress disorder as a result of an incident when he was fired upon without warning while on patrol, the bullet passing through part of his uniform, but not actually striking his body. There had been substantial disruption with his personal life, although by the trial there had been some improvement, and there was prospect of further improvement. He was unable to work for a time and was unable to return to anything like police work. The plaintiff however was beginning to get back to work in another field, and there were prospects of further improvement.  That decision was taken on appeal but not as to quantum: [1998] 2 Qd.R. 36.

42. [42]
    On the whole, I assess compensation in respect of the post traumatic stress disorder prima facie at the sum of $4,000. This reflects a comparison between my assessment of the severity of the example of post traumatic stress disorder suffered by the applicant in the present case and that suffered by the various other applicants or plaintiffs in matters to which I have referred. I should say that because of the difference in approach to assessment under the Criminal Offence Victims Act 1995 I do not consider that decisions on assessment of compensation for post traumatic stress disorder under that Act provide any real assistance here and have not considered any in terms of quantum. 

Conduct Contributing

43. [43]
    The next issue is whether the award should be reduced because of the actions of the applicant. As mentioned earlier, I find the applicant did go with the other complainant into the yard of one of the respondents, and that it was this that prompted the attention of the respondents in the first place. Had they not done so, I am satisfied that the offence would never have been committed, and hence the injury would never have been suffered. In a practical sense therefore, the applicant’s own acts were a cause of his injury. Compensation may be refused where the applicant was injured in an incident which involved the commission of a criminal offence against him, but where the whole incident was initiated by criminal conduct on the part of the applicant and others: R v. Jackson (Appn 7337/98, Moynihan SJA, 29.9.98, unreported).  In that case the applicant had suffered injury while participating in a home invasion on the property of the respondent.  The respondent had been convicted of doing grievous bodily harm to the applicant, evidently on the basis that what he did was in the circumstances an over-reaction, but His Honour regarded the applicant’s unlawful actions as having made him “the author of his own misfortune”.  Compensation was refused under s. 663B(2) of the Code. 

44. [44]
    Obviously, if the acts of the applicant which initiated the incident were criminal, that is a relevant factor, but the operation of the section is not confined to this. In Ned v. Ned [2000] QDC 323, Robertson DCJ, ordered compensation where the applicant had suffered an injury of a knife wound in the course of what was initially a consequential fist fight, and reduced the compensation by one third under s. 24(7) of the 1995 Act on the basis that his conduct in participating in a consequential fight contributed indirectly to his own injury. 

45. [45]
    In Pootchemunka v. Marpondin (Appn 6947/99, Chesterman J, 18.8.99) compensation ordered under the Code was reduced by 20% because the applicant had instigated a fight between himself and the respondent, including striking the respondent with a stick, following which he retaliated with a knife and injured her.  In Buckland v. Kennedy [2000] QSC 337, an applicant who had been stabbed by the respondent had his compensation reduced by 50% because there was a long history of assault and abuse from the applicant to the respondent. 

46. [46]
    In the present case, the applicant was trespassing in the yard of one of the respondents, and that was the cause of the incident. I would infer that he knew that that was wrong at the time because he did not mention this when he spoke to the police, and gave instead the story about trying to pat a dog behind a fence. I take into account that the applicant was relatively young at the time, and that he was with a friend who was a little older, and I do not think that compensation should be entirely excluded on the basis of his own actions. The applicant’s criminality was of a relatively minor nature, but the offence of which the respondents were convicted was a relatively minor example of that offence, a view obviously shared by the sentencing judge. In all the circumstances I think it appropriate to reduce the compensation payable by 25% under s.663B(2) to take into account this factor.

47. [47]
    Accordingly, the applicant is entitled to compensation in the sum of $3,000. Pursuant to Freeman v. Grahame [2000] QCA 387, the appropriate course is to determine the respective shares of the respective joint offenders and divide that amount between them in that way.  The consequence will be that the amount ordered against each will not reach the statutory maximum.  The respondents were all represented at the hearing by the same counsel who did not seek to differentiate between their liability.  Accordingly, it is appropriate to divide the compensation equally between them. I therefore order each respondent to pay to the applicant compensation in the sum of $750.  I will circulate these reasons and invite submissions as to costs.