DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for an order that the respondent pay the applicant criminal compensation pursuant to s 24(2) of the Criminal Offence Victims Act 1995 (the Act) for the following items that appear in the schedule of the Act being:-

1. (a)
   Item 1 – bruising laceration (minor/moderate) (2%) $1,500.00

2. (b)
   Item 4 –fractured nose (displacement/surgery) (15%) 11,250.00

3. (c)
   Item 5 – loss or damage of teeth (3%)   2,250.00

4. (d)
   Item 17 – fracture/loss of use of finger (5%)   3,750.00

5. (e)
   Item 27 – facial disfigurement or bodily scarring

 (minor/moderate) (9%)   6,750.00

6. (f)
   Item 33 – mental and nervous shock (severe) (30%) 22,500.00 

TOTAL $48,000.00

2. [2]
   This application is a civil proceeding and the issues of fact on the application must be decided on the balance of probabilities (s 30 (1) and (2)).

3. [3]
   The facts that have to be proved by the applicant are:

1. (a)
   Conviction of the respondent on indictment

2. (b)
   Of a personal offence

3. (c)
   Injury suffered by the applicant

4. (d)
   Because of the offence (s 24)

4. [4]
   “Injury” so far as is relevant on this application is defined by s 20 of the Act as bodily injury, mental or nervous shock or any injury specified in the compensation table. A “personal offence” is defined by s 21 of the Act as an indictable offence committed against the person of someone.

5. [5]
   The Act requires 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 (s 25 (7)).

6. [6]
   The conviction of the respondent on indictment relied upon by the applicant is that which occurred when on 12 November 1998 the respondent pleaded guilty before His Honour Judge McGill SC in the District Court at Emerald to the following offence:

“that on the 19^th day of July 1998 at Moranbah in the State of Queensland the respondent entered the dwelling of the applicant with intent to commit an indictable offence in the dwelling

and the respondent used actual violence

and the respondent damaged property”

His Honour did not record a conviction and sentenced the respondent to probation for a period of two years.  His Honour also ordered the respondent to pay the applicant for damage to his property the sum of $500 within two months.

7. [7]
   The submissions on sentence made by the prosecution and on behalf of the respondent to His Honour were not tendered in evidence in these proceedings. However, His Honour found these facts :

“The circumstances of the offence were that on 19 July 1998 you went to the house of the complainant.  You had been told that your former de facto wife was there with your children.  You had been in a de facto relationship with this woman for some 14 years and had separated earlier in the year.  You had subsequently been experiencing some difficulty in obtaining access to your children.  Having been told anonymously that they were at the complainant’s residence, you went there to ask about them.

When you arrived and called out for them, you received a hostile reception from the complainant, as a result of which you attacked him and caused him some injuries to the face, some swelling to the eye and cheek areas, and chipped a tooth.  He also suffered damage to the ligaments of the finger.  He was forced back onto a couch in the lounge room, which is behind the front door, and in this process there was some damage done to the floor, presumably by the feet of the couch.  In addition, a wooden ornament carving of some dolphins was knocked over and part of a flipper was broken. 

I accept that none of this damage was deliberately caused by you.  I have referred to the background circumstances.”

Further His Honour said:

“You have no criminal record, which is a significant factor, particularly in view of your age, and indicates that this offence involves behaviour which is quite uncharacteristic.  That in itself suggests that you were driven to behave in this fashion by the frustration arising from difficulties over obtaining access to your children and from the reaction that you were met with when you arrived at the premises.

In the course of the struggle you were bitten on one finger but not, I gather, very severely.  It was enough to bring the struggle to an end.”

8. [8]
   The application has been contested by the respondent.

9. [9]
   It was common ground on the hearing of this application that the respondent and his former partner Donna Summers had been in a relationship for about 12 years. When the respondent and Ms Summers moved to Moranbah in 1992 they lived as de facto husband and wife except for a period of separation of about eight months. They reconciled in about February 1994 and became engaged and planned to get married. They had two children. A daughter Cassidy born 1 February 1995 and a son Reece born 1 April 1997. Some time in early 1998 the respondent and Ms Summers separated. Ms Summers formed a relationship with the applicant. The respondent claims that relationship was formed before the respondent and Ms Summers separated whereas the applicant and Ms Summers claim their relationship was formed after Ms Summers left the respondent. Ms Summers and the applicant subsequently married in May 1999.

10. [10]
    The applicant made a statement to police which in these proceedings he swore the contents were true and correct. In this statement he states he had never had any dealings with the respondent prior to 19 July 1998. He knew the respondent as being the person who was dating his current girlfriend Donna, up until about 10 months ago. He had been seeing her for the past three months. At approximately 3.30pm on 19 July 1998 he was asleep on the lounge when he was woken by a loud hammering on the door. He got up to answer the door and saw the respondent standing there. He said “has Donna been out here this weekend?”. Before the applicant could answer, the respondent started to attack the applicant. The respondent grabbed the applicant by the shirt with his left hand and started to punch the applicant in the face with his right clenched fist. The respondent would have struck the applicant in the face and head about four or five times. By this stage the respondent had pushed the applicant down into the single lounge chair. He was still striking him in the head and the face and was shouting “has Donna been out here ya cunt. Has Donna been out ya cunt”. The more the respondent said it, the more he hit the applicant. As the respondent shoved the applicant back into the lounge, a carved wooden dolphin statue he had in his lounge room was knocked over and the fins broke off. As he landed on the lounge chair, the chair skidded on the polished floor and left marks in the polished timber. The applicant made an effort to defend himself and tried to fight back. Being in the lounge chair he was not in a good position to do this. The only way the applicant could get the respondent off him was to bite his finger. The applicant managed to bend his head down and he got hold of the respondent’s finger in his teeth. The applicant bit fairly hard but not enough to draw blood. The applicant managed to get to his feet and although he still had his finger in his teeth the applicant said to the respondent “fuck off you cunt. This is my house”. The applicant then shoved the respondent towards the door. The respondent said “yeah, I’m going, I’m going”. The applicant then said “I’m calling the cops. I’ll see ya in court ya cunt”. The respondent then left. The applicant immediately called the police and then attended the police station to make a complaint.

11. [11]
    Further, in his statement to the police the applicant stated that as a result of the assault he received swelling to both eye(s) and cheek area, nose, a chipped tooth and an injury to his right index finger.

12. [12]
    Further, his evidence is that on the day of the offence he was to commence work at 6.00pm but due to his injuries he arranged to have three days off work as annual leave. He attended the Moranbah Police Station and gave a statement to Constable Bazzo and photographs were taken of his injuries. Later that night he was examined by Dr Rowles at the Moranbah Base Hospital. A statement was subsequently provided by Dr Rowles for the Queensland Police Service. The applicant states this statement outlines the injuries he sustained as a result of the assault.

13. [13]
    Dr Rowles in his statement states that from his examination of the applicant he ascertained the following injuries:-

1. Periorbital Haematoma to the right eye.

2. Chipped Left upper Incisor.

3. Swelling of his right ear and pain in the left tempiro mandibular joint.  This injury was X-rayed and no fracture was diagnosed.

4. Swelling of the Proximal Interphalangeal joint of his right index finger.

5. Haematoma to the right temple region with facial and forehead bruising.

6. Bruising to the left knee, front of right chest wall and scapular region.

14. [14]
    Dr Rowles goes on to state that the applicant was also complaining of headaches and other muscular pains and aches. Further on 5 August 1998, two and a half weeks after he first examined the applicant, he examined the applicant again. He found that the applicant still had swelling and restricted movement to his right index finger. Tenderness in the region of the left temporo mandibular joint, along the right orbital margin. On 1 September 1998 he examined the applicant again. He X-rayed his right index finger at the proximal interphalangeal joint. There was no fracture seen and it appeared the applicant had sustained damage to his joint ligament. He thought that would take some months to heal. Through his examinations of the applicant it was his medical opinion that his injuries were consistent with him being assaulted in the manner he and Constable Bazzo described.

15. [15]
    The applicant states that upon returning to work he was too embarrassed to tell his fellow workers how he received his injuries and he immediately became withdrawn and did not want to engage in any form of conversation with them. He also had difficulty for the following weeks wearing the required safety glasses due to his swollen nose. He also suffered various bruises over his body from the various punches which took one to two weeks to fade. Since the assault he has never obtained full movement in his right index finger. He is right handed and due to his employment as a plant operator at the mines, he does experience difficulty in carrying out his work. After a short period of time his finger would begin to ache and he would then heavily rely on his remaining fingers which caused them to ache by the end of the day. He was examined by Dr Bullwinkle in 1999 in relation to his finger and X-rays were taken. He was informed by the doctor he had a chip in his finger and there was ligament damage but the finger should eventually heal itself. He states it is nearly three years from the assault and he still does not have full movement in his finger and it has not improved very much.

16. [16]
    The applicant also states that immediately after the assault he was unable to breathe out of his nose. Three months after the injury he was still unable to breathe from his nose so an appointment was arranged with Dr Rabie who is a specialist and it was arranged for him to undergo a septoplasty as well an inferior turbinate reduction to improve his nasal airway. As a result of not being able to breathe out of his nose he would wake up constantly during the night with a dry throat from having to constantly breathe out of his mouth. He also suffered from dry and cracked lips. The surgery was eventually carried out on 29 January 1999 and as a result he is able to breathe out of his nose again. He had to wait a substantial period of time before he was able to see Dr Rabie and then wait for a further period of time before the doctor was able to perform the operation. Immediately after the operation he also obtained one to three weeks off work to recover which was taken as annual leave.

17. [17]
    The applicant also states that there have been proceedings in the Family Court between the applicant’s wife and the respondent in relation to residence and contact with the children

18. [18]
    The applicant states that prior to the assault he was a happy-go-lucky person but since the assault, he has felt a feeling of helplessness. He is ashamed of being assaulted by the respondent and embarrassed that he was attacked for a period of approximately five minutes and was unable to stop the assault except for biting the finger of the respondent. Since the assault he fears the respondent will attack him again especially considering there is still hostility between him and Ms Summers in relation to the children. That has forced the applicant to have some dealings with the respondent. Whilst Ms Summers resided in Moranbah there was constant conflict between Ms Summers and the respondent when the children were provided for contact. When he accompanied Ms Summers on as many occasions as possible he was submitted to verbal abuse by the respondent. He states this all occurred in the presence of the children. As a result contact was arranged to take place in front of the Moranbah Police Station. Since Ms Summers has resided in Rockhampton the children are provided at her parents home in Rockhampton half an hour prior to the respondent collecting the children. He states the respondent has also abused Ms Summers parents and has caused great stress to her parents.

19. [19]
    The applicant also states that Ms Summers and the children moved to Rockhampton so they could have a normal life without any interference from the respondent. Due to the constant abuse when the children were provided to the respondent for contact periods and his visit to the applicant’s premises, in breach of the domestic violence order Ms Summers wanted to be safe and the decision was made to move to Rockhampton. This involved Ms Summers having to obtain an order from the Family Court to remove the children to Rockhampton which was at a considerable cost to herself. She subsequently had to reduce her maintenance payments to counteract the additional costs to the respondent having to travel to Rockhampton to have contact with the children. On the applicant’s days off, he travels to Rockhampton to be with his family and there are additional costs in fuel expenses and having to rent an additional home in Rockhampton. He states Ms Summers would have continued to reside in Moranbah if it were not for the interference in her life from the respondent.

20. [20]
    The applicant also states that on one occasion during one of his contact periods the respondent took the children to New South Wales and did not return them and therefore Ms Summers had to apply for a recovery order from the Family Court. The recovery order was made on 20 October 2000. In his affidavit the applicant states “the magistrate was outraged with the respondent’s behaviour and said he showed contempt for previous orders made by the court”. He also states there is also a domestic violence order for the protection of Ms Summers and himself from the respondent. That order is dated 14 September 1999. The applicant also refers to an occasion when the respondent attended at his residence at Moranbah demanding to see the children when it was in a non-contact period and refused to leave which he states was clearly in breach of the domestic violence order. He states the Moranbah police were contacted but the respondent was not charged with any offence. He states “this is indicative of the respondent’s lack of respect for the law and I live in fear that the respondent will try to attack to me again as we reside in the same town”. He states subsequent to the assault, he has had security screens fitted to his entire home, had deadlocks fitted on doors and window locks fitted in the entire premises.

21. [21]
    In his evidence the applicant describes how the unprovoked assault has affected him. He states he feels his whole attitude to life in general has been altered since the assault. He is no longer trusting of people and has lost motivation. He now avoids doing many activities socially in Moranbah and fears that he will see the respondent which may trigger a further attack. He is now more of a light sleeper and wakes up fairly regularly to any unusual sounds. Prior to the assault he was a heavy sleeper. He now wishes to put this behind him to try and get on with his life and accept his injuries.

22. [22]
    The respondent’s evidence is that when in March 1998 Ms Summers said she wanted to leave him and take their children to Rockhampton and live with her parents that came as a total surprise and shocked him deeply. He did not know what to do. At that time Cassidy was three years and Reece was only 10 months old. He asked Ms Summers if she needed some time away to work things out. He tried everything he could to work things out between them but Ms Summers would not try. He suggested they try some sort of counselling but she did not seem to care and she left. He obtained legal advice about whether Ms Summers could take the children from Moranbah and was told there was nothing he could do. He now knows this to be incorrect. He was left without a motor vehicle to be able to go and see the children. He had no idea when he could see his children or how he was going to get there. He was very confused and emotionally strained. He was also financially strained because in the previous six months they had spent $30,000 fixing up their house in Moranbah. He had financial commitments, was paying off the house and the renovations and a joint loan. About two weeks later he drove to Rockhampton on his first visit to see his children. One of his children, Cassidy, spoke about a man she had seen kissing Ms Summers. The respondent did not know what or who Cassidy meant. Cassidy said it was in the kitchen at “Nanna’s house” and his name was “Nifty”, which he now knows is the applicant’s nickname. It was at this time he found out that there was a third party involved in their separation which was devastating to him. He was also concerned that Ms Summers was acting like that in front of the children so soon after the separation which must have been confusing for the children. He did not know the applicant and had never met him, however Ms Summers had told him years earlier that she had been with him for a while in about 1993 when they broke up for about six months and before they had the children. The respondent asked Ms Summers about the applicant. He told her he wanted to get his family back together and he would do anything to work things out with her. The respondent states the whole time he was trying to get his family back together the applicant was on the scene. He believed this made things impossible for him. Ms Summers would not even talk to him let alone try to work things out. About two months after Ms Summers and the children left she moved into a house which she shared with the applicant. This made things much worse for him. He realised he had no chance and now his kids were living with this person. He states that fact alone was devastating. His roster at the time meant it was 14 days between visit when he could see his children and there was a five hour drive to Rockhampton and back that reduced the contact time. He was concerned about the children and their reaction to the circumstances. One weekend he drove from Moranbah to Rockhampton to see them and was told by Ms Summers parents that they were not there and they were out in Moranbah at the applicant’s place. Ms Summers had known that he was coming to see the children when she took them to the applicant’s home without advising him. She knew he would be driving a 10-hour trip for nothing. He was devastated to learn that his children were in Moranbah and had been concealed from him. Two days later Ms Summers rang and said he could come and see them. When he got there Ms Summers said she and the children had been coming out from Rockhampton to Moranbah while he was at work to spend weekends with the applicant. They had an argument about it because the respondent had not had a chance to see the kids in Moranbah and she did not tell him they would be there. He had to take time off work to drive to Rockhampton to see the children. When he learned that the children had been concealed from him over a lengthy period at the applicant’s house he was even more distressed. Neither Ms Summers nor the applicant took any steps to allow him to see his children. It would not have caused them any difficulty. Members of his family did not have the opportunity to see the children.

23. [23]
    Regarding what I will now call “the incident” at the applicant’s house the respondent’s evidence is that on that weekend he had just finished his shift on the Sunday afternoon and was advised by a friend that Ms Summers and the children were in Moranbah and at the applicant’s house and the friend enquired whether he had seen them. He did know that they were there and had not seen them or been given the opportunity to see them. At that time he had not seen his children for two weeks and he was desperate to see them. His mother and father and sister’s family had not seen them for two months. He decided to go around to the applicant’s house which was only two streets away from his house to see if they were there. He walked up the stairs and opened the screen door to knock on the door and then closed the screen door. The applicant answered the door. When he opened the door the applicant became very angry when he saw that the respondent had come to his house. The applicant said “what do you fucking want?” The respondent asked if Donna and the kids were there to which the applicant did not answer. The respondent asked again if they were there and could he see his children and the applicant again would not answer and just said “get off my property”.

24. [24]
    The respondent states the applicant then pushed the screen door open very hard hitting him in the head. The applicant then pushed at the respondent’s chest, tried to push the respondent away, down the stairs. The respondent states he was very upset and now angry and retaliated and they started to fight. It was a proper fight toe to toe with both of them swinging punches with both hands. He pushed him back through the open door and they were fighting inside his house. The applicant was also scratching and gouging at the respondent’s eyes. This went on for only 1-2 minutes. The whole time the respondent kept asking “where are my children?”. The respondent states the fight stopped when the applicant bit the respondent’s thumb and would not let go. The applicant then pushed the respondent out the door and down the steps. When the applicant let go he said “now get off my fucking property”. The respondent left. He did not get to see his children.

25. [25]
    The respondent states he did not go there to start a fight. He was left with a badly bitten thumb and scratches around his eyes and cheeks and bruising to his face. Both eyes came up black the next day and the bruising lasted about a week. He did not think it was necessary to go to a doctor. His thumbnail went black over about a week and fell off and the thumb was too sore to use for about three months. There was no feeling at all in the end of the thumb for about three months and it took about six months for the nail to grow back.

26. [26]
    He states when he left the applicant’s house the applicant did not look any different to what he had before. The respondent could not see any scratches or swellings. He was not marked. He did not see any broken tooth. His nose did not look swollen or out of alignment.

27. [27]
    The respondent states he was charged with assault. On the basis of legal advice he pleaded guilty and received a two-year good behaviour bond and a fine. He states he regrets taking that legal advice and does not accept total responsibility in light of the circumstances surrounding the incident.

28. [28]
    The respondent also states that there have been disputes between himself and Ms Summers regarding access to the children. He has consistently had to fight for Ms Summers to comply with contact orders. There have been Father’s days and the children’s birthdays when he has had no contact not even a telephone call. There have been disputes over when his rostered day off commences after he finishes night shift at 7.00am. Ms Summers has alleged that his day off therefore does not commence until the following day. He also states that Ms Summers changed the children’s surnames. On another occasion she proposed to move with the children to Brisbane without his consent and in breach of court orders. In Christmas 1999 it was his turn to have the children but about one week before Christmas day Ms Summers wrote and told him that she was taking the children to Rockhampton on 20 December 1999 and relocating them there. He had no other prior warning. This was in breach of the existing orders and then he would not have contact on Christmas day. As a result of the letter and Ms Summer’s previous actions he did not return the children to her after his next contact visit and applied for residence of the children. Ms Summers brought the recovery order against him and the children were returned to her. He still does not know where they live or have a contact phone number. Ms Summers will not allow any contact during any of his annual leave. His parents and family can still only see the children occasionally when he is able to bring them to Rockhampton where his parents now live and to Moranbah where his sister and her family live. In 1998 shortly after the incident on 19 July 1998 his then solicitors received a letter from Ms Summers solicitors seeking a property settlement and asking for detailed information. At about the same time the respondent had been told by his mother that Ms Summers told her at a chance meeting that “it was time I started to pay”. The ongoing disputes and Family Court proceedings with Ms Summers and the applicant have been very stressful and emotionally draining for him and for his mother and father also.

29. [29]
    The respondent states he has not seen the applicant for about two years. After the day of the fight he saw him only about three or four more times when he came with Ms Summers when she was dropping off or collecting the children. The respondent states at these meetings there would be brief arguments between Ms Summers and the applicant and respondent but the respondent did not approach the applicant or make any threatening movements or gestures. The last time that the applicant came to a contact changeover the applicant got very angry during the argument and came towards the respondent leaning forward but Ms Summers pulled him back by the arm saying “don’t do it! don’t do it!”. On all other contact visits he saw only Ms Summers parents at the house in Rockhampton or Ms Summers herself. He has not seen the applicant at any other time in the last two years except occasionally driving by. He has not approached the applicant in the street or at any other place. He has been told by his sister that the applicant and Ms Summers have attended all normal pre-school and school functions with the children such as sporting carnivals, break-up parties and other special functions. Friends would also tell him about seeing them regularly at barbecues and the pub and he saw them twice at a disco and his presence did not seem to affect them in any way.

30. [30]
    The respondent also states that the applicant has taunted him when the respondent telephoned to make some arrangements for the children. The respondent denies that he ever pushed or raised his hand to Ms Summers in any way nor has he ever abused Ms Summers parents. He denies there was constant abuse by him at contact change-overs. He denies breaching the domestic violence order. Regarding the magistrate’s remarks referred to by the applicant in his affidavit the respondent states that he was not present in court that day.

31. [31]
    The respondent also states that the applicant has engaged in fights before 19 July 1998. The applicant has never given any indication that he is afraid of the respondent. The respondent states the applicant has been the initial aggressor on every occasion they have met. The applicant inflicted substantial injuries upon the respondent during the fight at his house. The conflict in respect of contact because of the non-compliance by Ms Summers with the orders of the Family Court in relation to the children is ongoing but that ongoing problem is unrelated to the incident the subject of this application.

32. [32]
    I have considered the photographs of the applicant’s injuries taken by the police.

33. [33]
    Evidence from the applicant and Ms Summers is that their relationship was formed after Ms Summers separated from the respondent. Their evidence it is to the effect that the respondent has been “the aggressor” and has been abusive towards the applicant and Ms Summers. The applicant denies ever being involved in any major fights nor starting any fights with any person although he states he had been involved in a few verbal arguments on occasions prior to 1993 that amounted to minor scuffles and no damage was caused to either party. The applicant also states another incident occurred on 25 June 2001 when the respondent drove past him in his vehicle and put his left hand up above his steering wheel and placed his hand in the shape of a gun and moved his hand as if he were pulling a trigger on a gun. The applicant has stated he is in fear every day the respondent will try to cause further harm to him.

34. [34]
    Ms Summers denies commencing the relationship with the applicant before separating from the respondent. Further she states she did not kiss the applicant in front of the children and exercised the utmost caution not to display any signs of affection between herself and the applicant until the children were at a comfortable level with the applicant. Ms Summers describes in her evidence access to the children as “a bitter history between myself and the respondent in family proceedings”. However she states this has mainly been caused by the respondent not following any orders made. Ms Summers accepts in her affidavit that changing the names of the children was the wrong thing to do and there has been a subsequent agreement where the children are registered under the name Summers-Gardner. Ms Summers states her relationship with the respondent is not a good one. The effect of her evidence is that is the fault of the respondent.

35. [35]
    Ms Summers also states following the incident on any subsequent contact she had with the respondent she never saw any bruises or marks to his body as a result of the assault. Whereas when she saw the applicant after the incident he had extensive damage to his body which was clearly visible. She states there was bruising on his face and particularly around his nose and it had swelled considerably. He had numerous scratches. She recalls his finger being swollen and he had great difficulty in using his hand for a few days. The swelling and bruising took at least one month to disappear from his body. He was unable to move his finger for at least a couple of weeks. She has noticed since the assault that the applicant locks the home securely and he is very security conscious.

36. [36]
    She describes the applicant as a placid gentle person and he is the opposite of the respondent. She states it is obvious by the comments made by the respondent the hatred he feels towards the applicant. She states the respondent has shown a disregard for the law and subsequent to them reaching consent orders on 11 September 2000 she has had to make an application for recovery as he took the children on holidays in New South Wales and he told her he would not be bringing them back. She states the respondent has shown a violent history in the past and may have the capacity to further assault the applicant.

37. [37]
    Evidence from Constable Bazzo was given in the form of an affidavit filed on 2 August 2001 and sworn 27 July 2001. He is currently stationed at Beerwah Police Station on the Sunshine Coast. He was not cross-examined. However, he states he recalls the assault of the applicant by the respondent that occurred on 19 July 1998 in Moranbah. He recalls attending with the applicant on the day of the assault. The applicant informed him that he had an injured finger, chipped tooth, sore nose and was generally in pain. Various scratches were visible on his face. It was obvious by the swollen and puffy look of his nose, that he had suffered damage. His chipped tooth was visible. He recalls seeing the applicant within a week of the assault and bruising on the bridge of his nose and on his face was evident. His nose was still swollen and puffy. On the day after the assault he attended at the residence of the respondent to speak to him in relation to the assault but based on advice from his solicitor the respondent did not wish to be interviewed. He then charged the respondent with entering a dwelling and committing an indictable offence, assault occasioning bodily harm and wilful damage. At no stage did the respondent indicate to him that he had been injured. He does not recall seeing any injuries on the respondent’s face or body as a result of the assault.

38. [38]
    The applicant’s general medical practitioner, Dr Rowles, saw the applicant in relation to the injuries he sustained in the assault in July 1998. In one report from him he deals with facial pain and teeth grinding and percentage disabilities he would ascribe to those conditions. He states he would expect facial discomfort to be a long-term problem and apart from analgesics there was little to be done. In another report he deals with the items in the schedule to the Act and what he would estimate to be the relevant percentages to be applied to those items. In his third report he states after 2½ years the applicant still suffers from an ongoing anxiety state that causes him to maintain a constant state of vigilance for intruders and invasion of his privacy. Dr Rowles states that the applicant has been left with permanent mental and physical disabilities that will stay with him for years and affect him and his family.

39. [39]
    The applicant has also been examined by Dr Keen, a psychologist who interviewed the applicant on 10 December 2000. In his report Dr Keen states that the applicant reported experiencing muscle twitching and muscle spasms in the left side of his face especially around his left eye and left lip. From the text of the report I took this to have occurred after the incident. The applicant also reported experiencing tremor and shakiness especially when he thinks that the alleged offender is near him. He also reported experiencing numbness, pins and needles and loss of feeling in his left side of his face following the incident of the assault. He was also experiencing frequent severe headaches during the past 2.5 years. The applicant considered his relationship with his partner as being very good. Dr Keen sets out in his report 26 items of psychological issues. He states the applicant stated that he has been frequently irritated, has been having frequent outbursts of anger (16.14), has been having difficulty in concentration (16.15), has lost his interest in everyday activities (16.18), his libido has significantly declined (16.19), he gets frequent headaches and abdominal pain (16.22) and he has experienced thoughts of death and suicide (16.24). Dr Keen’s opinion is that the applicant has suffered post-traumatic stress disorder and a major depressive disorder. Dr Keen says the best that can be said is that hopefully there will be some improvement in the applicant’s condition. However the ultimate degree of improvement cannot be predicted at this time. At the present time the best than can be done is that he be subjected to the best possible treatment and that hopefully this will reduce his remission. Dr Keen emphasises the applicant has experienced and is continuing to experience a severe degree of emotional pain and suffering. He has encouraged the applicant to consult with his general practitioner.

40. [40]
    Dr Littleton who is a dental surgeon has also provided a report regarding the applicant. The applicant presented to him on 3 August 1998 complaining of fractured teeth as a result of trauma. Dr Littleton found a mesial-incisal fracture on tooth 22 on which he performed an odontoplasty. He states no other teeth warranted treatment as a result of the trauma. He states the applicant presented again on 27 March 2001 complaining of wearing away his teeth due to grinding them at night as a result of stress of his pending court case. Dr Littleton states there may well have been some wear of his teeth as a result of his grinding episode but he believes that as it is probably related to his court case it should be self-limiting ie if the court case is the trigger then this grinding episode should cease on the completion of the court case. He did not believe an occlusal splint was warranted at this stage although if the applicant continues to grind his teeth that can be considered in the future. Regarding damage to the teeth on a scale of 1-12 Dr Littleton considers this damage minor – say 1 or 2.

41. [41]
    The applicant has also been examined on 19 July 2001 by Dr Turner an occupational physician. Dr Turner saw the applicant on behalf of the respondent’s solicitors. Dr Turner notes the applicant is currently working 12 hour shifts as a plant operator in an open cut coal mine. He exhibited depressed effect throughout the consultation. Her examination of his face revealed no disfigurement as a result of any lacerations. There was no visible scarring. Dr Turner thought there had possibly been some peripheral nerve damage to the applicant’s facial nerves resulting in twinges of pain and reported twitching of the corner of his eye and corner of his mouth. She states although there was a subjective report of twinges of pain and twitching of his eye and the corner of his mouth, there were no objective signs of any impairment as a result of bruising or laceration to the left side of his face. With regard to the applicant’s nose Dr Turner found there was no impairment to his nose. With regard to his finger it was Dr Turner’s opinion there was no impairment to the joint of the second finger of his right hand. Further, in her opinion there was no facial disfigurement arising from the applicant’s injuries.

42. [42]
    The applicant was also examined on 23 July 2001 by Dr Flanagan a psychiatrist. Dr Flanagan saw the applicant on behalf of the respondent’s solicitors. The applicant related to Dr Flanagan the background circumstances, what occurred during the incident and what happened thereafter, his symptoms and his past history in similar terms to those deposed to by the applicant in his affidavits in support of his application.

43. [43]
    The applicant told Dr Flanagan that the applicant had been aware of the three-year limit for seeking criminal compensation and had postponed it to the last minute for fear of reprisal.

44. [44]
    Dr Flanagan carried out a mental state examination of the applicant. Dr Flanagan states that the applicant was rather restricted in his effect due to evident anxiety. He was intensely preoccupied with the matter described and expressed a sense of victimisation and injustice as well as a sense of helplessness. Dr Flanagan states there was intense preoccupation with his face and some of the symptoms in this area verged on the bizarre. The applicant appeared to be of average intelligence. There were no psychotic features. He did not feel suicidal but at times wondered if life was worth living if things were to go on as they had been.

45. [45]
    With respect to a diagnosis Dr Flanagan states this is a difficult case to formulate. In his opinion the most appropriate diagnosis is that of a mixed anxiety disorder of moderate severity. He states it is mixed in that it includes features of generalised anxiety disorder, panic disorder, PTSD, social phobia and specific phobia. He thinks one might argue that the term phobia implies excessive and irrational fear that is recognised by such as the sufferer whereas in this case the subject would regard his fear as being justified. However, in fact Dr Flanagan thinks it is likely that the fear of preoccupation with the respondent is morbid rather than realistic. In addition to the mixed anxiety disorder the facial symptoms in Dr Flanagan’s view represent a somatoform disorder which may in fact be secondary to the anxiety disorder. He does not think that the whole syndrome of facial symptoms can be explained in terms of soft tissue or nerve damage. In Dr Flanagan’s opinion while the applicant’s condition approximates post traumatic stress disorder, it does not meet criteria for this condition. The experience of the assault does not qualify for criterion A, nor does he have true re–experiencing symptoms and the avoidance is for the respondent in the present and in light of his continuing alleged threats and abuse. As regards major depressive order, while his mood is depressed this in Dr Flanagan’s view is very much secondary to anxiety and fear as well as a sense of outrage. In Dr Flanagan’s opinion the applicant does not sufficiently meet other criteria for major depressive disorder. The major differential diagnosis in Dr Flanagan’s view would be of a severe adjustment disorder.

46. [46]
    Dr Flanagan also states the question of causation is likewise a difficult and complex one. In the first instance from the information he has there is no evidence of any pre-existing psychiatric disorder and his pre-morbid personality functioning was in the normal range. Three years ago the applicant was, as the applicant understands it, the victim of a violent and unprovoked assault that involved home invasion. This had been preceded over a period of time by being the victim of verbal abuse by the respondent and having his partner abused and being powerless to prevent that. Further the assault was followed by the ongoing stress and conflict arising from the respondent’s access to his children who were in the custody of the applicant’s partner. Further, significant but relatively minor physical injuries were followed by persistent physical symptoms in the region of the injuries. These symptoms have acted as a constant reminder and focus for concern for what he has suffered and have developed into a somatoform disorder which has exacerbated some of his other symptoms, particularly the social phobia.

47. [47]
    Dr Flanagan states there is no doubt the assault, particularly as it involved in the applicant’s view, the outrage of home invasion and relative helplessness, is a major factor of the etiology of his syndrome. However, the preceding and ongoing conflict and alleged harassment, abuse and threats have also been a significant factor in contributing to and maintaining the disorder.

48. [48]
    Dr Flanagan states the assault damaged his self-esteem, offended his sense of justice and sensitised him to the attacker. People with traumatic syndromes, whether or not the syndromes meet criteria for PTSD have their tolerance fall or resistance to repeated stress reduced dramatically, particularly where the repeated stress is similar to or related to the original trauma. Whether the applicant’s emotional reaction to the respondent is correctly described as anxiety or fear depends on how realistic the perceived threat is. Regardless of this the alleged continuing harassment is conditioned by the fact that the harasser has demonstrated to the subject in an unmistakable way his dangerousness and unpredictability. Thus, the continuing described activities of the respondent would have been much less stressful to the subject had he not been assaulted by him three years ago. Dr Flanagan states the recent shooting gesture allegedly made by the respondent was so upsetting to the applicant. It may have been much less so had the applicant not received in his view clear evidence that the respondent could be dangerous.

49. [49]
    If required to give percentages in regard to causation Dr Flanagan would estimate the value of the assault to be 75% and of the preceding and subsequent stress to be 25%.

50. [50]
    In regard to severity he would describe this as moderate. He would further quantify this as being in the more severe range of moderate with his score on the global assessment of functioning scale being about 50.

51. [51]
    The respondent’s sister Kristie Lyn Claffey also gave evidence. She saw the respondent on the afternoon after the incident. The respondent was very upset about it and would not talk about it at all. She saw that his thumb was red and swollen and he put ice on it and he was all red around the eyes but she did not remember noticing anything else except a couple of small scratches around his eye. Her evidence was to the effect that following the incident the applicant has been out and about the town, driving around, shopping at Coles and going to the gym. A couple of weeks before she swore her affidavit she saw the applicant out driving around and shopping in Moranbah. When the applicant and Ms Summers were living in Moranbah she would usually see them together. They acted like any other people talking between themselves and stopping to talk to other people. She particularly noticed that they were very affectionate in public and had an arm around each other. She has seen the applicant come with Ms Summers to collect Cassidy from the pre-school a few times and the applicant and Ms Summers acted like any other couple. There was also an occasion when one night the applicant and Ms Summers were at a disco where the respondent and his sister and a few of her girlfriends were also in attendance. Notwithstanding the proximity of all the parties Ms Claffey’s evidence was that neither the applicant or Ms Summers looked nervous or uncomfortable. She has also seen the applicant and Ms Summers on a weekend pull up in a car at a friend’s house and go into the house with the applicant carrying an esky and Ms Summers bringing in the children. She has also seen the applicant and Ms Summers and the children at the Moranbah pool. The respondent was also swimming in the pool and the children were inter-acting with Ms Summers and the respondent. Ms Claffey did not see any behaviour by the applicant that indicated that he was frightened by the respondent.

52. [52]
    Some of the evidence of Ms Claffey is to the effect that an inference ought to be drawn that Ms Summers had already formed a relationship with the applicant before formally announcing the separation to the respondent. Further, Ms Claffey states that while Ms Summers and the applicant were living in Moranbah and her children and Cassidy and Reece spent lots of time together during the respondent’s contact visits, she noticed that the respondent never made any disparaging remarks in front of the children about the applicant or Ms Summers and nor has he ever done so in her presence.

53. [53]
    Ms Claffey states the whole dispute between Ms Summers and the respondent has been over the relocation of the children and contact with them and this has been very upsetting and stressful for all of the family. She states when the Family Court proceedings were finally finished the whole family was very relieved that it was all over. She states then these proceedings started.

54. [54]
    Evidence has also been given by Dr Rabie a specialist in otolaringology, head and neck surgery in the form of a report dated 6 April 2000. He states that the applicant was referred to him by Dr Steve Connell his local GP in October 1998. The applicant presented to Dr Rabie with symptoms of blocked nose as he claimed followed previous injury to his nasal skeleton, which was documented by his local GP at the time. Dr Rabie states the applicant had been complaining of a significant degree of discomfort particularly in the right side associated with localised pain. Dr Rabie’s examination indicated that the applicant had a fracture dislocation of the nasal septum associated with significant deviation of the same to the right side and overall virtually no airway in the right nasal cavity as a result of marked compromise of the same caused by deviation of the nasal septum. The applicant was found to have very large inferior turbinates on the left side and the overall finding at the time indicated that his nasal airway was severely compromised as a result of the fracture dislocation of the nasal septum. Dr Rabie carried out surgery on 29 January 1999. Dr Rabie states that from the claimed history and the clinical finding, there is no doubt that the finding of the nasal cavity on examining the applicant would indicate a previous trauma directly to the nose that may have led to a fracture dislocation of the nasal septum with marked diminution of his nasal airway to the right side as a result of the same. Dr Rabie states however it is hard to tell the timing of this particular injury although the applicant claimed it had happened some years ago. Dr Rabie states on the other hand this will almost certainly be related to direct trauma to the nasal structure. He states the applicant may have sustained undisplaced fracture of the external nasal skeleton, which did not require any further intervention. Dr Rabie thought the prognosis should be good given the fact that the operation was successful and the applicant was satisfied with the same.

55. [55]
    Dr Connell’s file was tendered as evidence in these proceedings. Contained in the file is a letter regarding the applicant from Dr Connell to Dr Rabie dated 16 June 1998. This predates the incident. In the body of the letter appears the following:

“Neville tells me that as a child he sustained a fractured nose.  For many years he has suffered chronic nasal congestion especially on the right side.  Frequently he has pain in the bridge of his nose and face.  He is a non smoker.  Nasal steroids have made minimal impact and he is keen for surgical assessment.”

In the file there is also a letter from Dr Rabie to Dr Connell dated 12 October 1998.  Although this letter comes after the incident the following appears in this letter:-

“Thank you very much for referring Mr Doyle who presented with symptoms of blocked nose associated with previous history of injury.  He has a significant degree of discomfort particularly on the right side.  Indeed this man has had symptoms of sore throat and he indicated that he sustained a fracture of the nose many years ago.”

56. [56]
    When cross examined the applicant stated prior to the incident the difficulties he had with his nose were “seasonal allergies, and that sort of thing”. Further, I set out the cross examination of the applicant from T 9/48 to T 11/38.

“MS PAGANI:  Thank you, your Honour.  You know well that you suffered from that very same nasal problem well prior to your altercation with Mr Gardner; you know that, don’t you?--  No I suffered from allergies.  From Mr Gardner assaulting me, hitting me in my nose, I could not breathe out of my nose whatsoever.  I could only breathe out of my mouth.

Well you’ve already told the Court that you had no other nasal problems except for the allergy type?—Yep.

And that you hadn’t seen any doctors before ’98.  I suggest to you, sir, that on the 12 June 1998, which was  a date before the assault, do you agree with that?--  18 July?

No, do you agree – yes, the assault was on the 18 July?—19 July the assault.

19 July?--  Yeah.

All right, so on the 12 June 1998, a date before the assault, you attended upon Dr Steve Connell complaining of chronic nasal congestion, pain in your face, pain on the bridge of your nose – you did that, didn’t you?--  I seen Dr Connelly about -----

Connell?  Connell, about allergies.

HIS HONOUR:  No, no, counsel is saying to you, that on 12 June 1998, you presented to Dr Connell complaining of a number of symptoms and counsel refers you to those symptoms which included, I think, pain on the nose and I don’t have the exact words, but counsel’s asking you, what do you say about that.  Do you accept that or not?--  Some of those.  The allergies that I had but I mentioned to him that I got hit when I was younger with a bassinton bat and I can’t -----

Sorry, you mentioned that you got hit when you were younger with a bat; did you say?--  Yeah, well that’s – he asked me, had it been fractured.  I can’t recall seeing Dr Connell but from what I recall, he asked me – it wasn’t fractured like, I never knew that it was when I was a child, I just know that the only time I got hit was with a bat when I was (a) kid.  I never knew it was fractured.

HIS HONOUR:  All right.  But what counsel’s asking you is, and Mrs Pagani, I didn’t faithfully recall the words you put but I think they should be put again.

MS PAGANI:  I’ll put the entirety of the note, your Honour.  I suggest to you that you attended in June 1998 upon Dr Steve Connell and you told him various things and I will list the things that I’m suggesting you told Dr Connell, the first was that as a child you suffered – you sustained a fractured nose.  I’m suggesting to you that you told Dr Connell that in June ’98?--  I can’t recall ever telling him that.  I said, ‘I might have’.  The only time I can recall is if I got hit by a bassinton bat when I was a child.  It might have been fractured then.

HIS HONOUR:  Now what do you mean?  What sort of bat is it please?--  It’s a bassinton bat.

A badminton bad?--  Badminton bat, sorry.

Yes.  All right.

MS PAGANI:  Do you accept you told him that you sustained a fractured nose when you were a child?--  I never knew that I had a fractured nose.

HIS HONOUR:  No, you’re not being asked what you knew.  Counsel’s asking you, did you say that to Dr Connell?—I can’t recall saying that, no.

MS PAGANI:  Well I suggest that you did say that and that you also said this to Dr Connell, for many years you have suffered chronic nasal congestion especially on the right side.  You said that to Dr Connell; did you?--  I’m not – I can’t recall that, no.

Well, sir, you did suffer chronic nasal congestion especially on the right side for many years prior to the assault; didn’t you?--  All is I know is I’ve – why I went to see, is I had seasonal allergies and I use spray for it and I can’t recall that.

XXN:  MS PAGANI

I suggest you also said this to Dr Connell.  You have frequent pain in the bridge of your nose and face?--  I can’t recall that, sorry.

Well it is true that you did have frequent pain in the bridge of your nose and face; didn’t you?--  Sorry, I – I just use – weren’t working so -----

You – do you accept, sir, that you have told Dr Connell about your fractured nose and the problems and the problems caused by it?--  I never – I don’t recall ever telling him that.

You recall having a referral from Dr Connell to Dr Rabie; don’t you?  He referred you – Dr Connell referred you over to see Dr Rabie?--  Not sure on that.

Well how did you get to see Dr Rabie, sir?  Do you know that?--  Yeah, I got referred to him.

Well who referred you?--  I’m not it – I thought it was my doctor, Dr – Dr Rowles.

Well do you also accept whether or not Dr Rowles did it, that on 12 October ’98, you were referred by Dr Connell to Dr Rabie?--  Not sure on that.

Sir,  I suggest that you also told Dr Connell that you had symptoms of a sore throat and a significant degree of discomfort particularly on the right side?---- I don’t recall saying that.

57. [57]
    Later in his cross examination (T 79) he agreed he did not tell Dr Keen that he ever had nasal problems. Regarding his problems he said “I know I have seasonal nasal problems, but …”

Later he was asked this question and gave this answer “so we’re going back to Dr Connell.  You can’t recall ever telling anybody you had a fractured nose?—no

A little later “you didn’t tell him about pain you’ve experienced in your face from nasal problems?—never had any pain.”

A little later when asked if he had told Dr Keen that he had been to Dr Connell and arranged surgery before the assault the applicant replied that he couldn’t remember Dr Connell.  Later in his cross-examination (T95/30) he was asked this series of questions and gave these answers:

“You used to get frequent pain from your nasal problems before this event?--  Before being assaulted are you saying?

You had a history prior to mid ’98 of having facial pain associated with your nasal problems?--  I had  - I used to use a puffer, a seasonal puffer.

So you complained of facial pain as well didn’t you?--  I can’t recall that, sorry.

Do you remember having facial pain before mid – before July ’98?--  I remember getting season stuffiness and-----

Yes.  Yes?-- -----I used the spray.

Do you remember having facial pain before mid – before July ’98?--  I can’t recall that.”

58. [58]
    Then when re-examined by his Counsel after confirming that the majority of blows inflicted upon the applicant were to his head he was asked these questions and gave these answers:

“All right.  You were asked a number of questions yesterday about your nose prior to the assault, say the month before the assault, was your nose swollen in any way?--  No.

You were asked about yesterday and today about difficulties you’d had with your nose before the assault and you used the word seasonal.  What did you mean by that?--  Oh I – certain months of the year like when, like the pollens and that, my nose got clogged up a bit so I’d use sprays on it.

All right.  Well just describe how it would be clogged up?--  Oh just with mucus.

All right.  When that – how often would that happen?--  Oh once a year.

And for how many years had that gone on?--  Oh, I can’t recall.

All right.  Following the assault was the condition of your nose better, worse or no different to what it as before the assault?--  Oh it was worse.  I couldn’t even breathe out of way.

In what way was it worse – and I’m asking you what you noticed about it?--  It was swollen and I just couldn’t breathe out of it; it’s just like clogged like there’s nothing in there, it’s just clogged and I’d wake up just breathing out of my mouth all the time and my mouth would get all dry and my lips would be all dry and cracked.”

59. [59]
    The respondent submits there is no jurisdiction to entertain this application. As I understand the applicant’s submissions on this issue that is because:-

1. (a)
   the personal offence for this application must be the indictable offence in respect of which an intention was formed prior to or upon the entering the dwelling house;

2. (b)
   although the respondent admits assaulting the applicant he does not admit it was an unlawful assault.  His case is that he was both provoked and acted in his own defence, the applicant struck the first blow;
3. (c)
   the respondent does not admit, either directly or by his plea to the offence charged, that he entered the dwelling with intent to commit an indictable offence against the person of someone;

60. [60]
    It is to be noted that the offence to which the respondent pleaded guilty is the offence of burglary provided for by section 419 of the Criminal Code.  That offence is to be found in that Part of the Code headed “Offences relating to property and contracts”.  In R v Moors ex parte Alex (1994) 2 Qd R 315 Mackenzie J, (Thomas J (as he then was) concurring) said at p. 320 in relation to s. 663B of the Code in which the expression used is “any indictable offence relating to the person of any person ...” :

“The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property.  The person aggrieved by the offence is my opinion is a person in respect of whose person the offence was committed.  The relevant offence is the offence referred to in the indictment.”

Further, in French v Green Court of Appeal No. 4481 of 1997 judgment delivered 19 December 1997 in which R v Moors ex parte Alex was referred to the Court said:-

“The use of the expression ‘any indictable offence relating to the person of any person’ is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person.”

 Later the Court said:

“... it is quite clear that the reference to the ‘person of any person’ is a reference to the physical person and not to a person’s property.  Further, it is the offence which must relate to the person, not any injury caused thereby.  In order that compensation be payable, the offence as charged must have a relationship to the person of the applicant.”

61. [61]
    Although the courts in R v. Moors ex parte Alex and in French v. Green were dealing with the expression used in s.663B of the Code which is in different terms to that used in the Act to define ‘personal offence’, in my opinion the considerations expressed by the courts in relation to what is required before compensation is payable are the same considerations when the definition of ‘personal offence’ in the Act is being considered.  That is to qualify for compensation the offence must relate to the person and have a relationship to the person.

62. [62]
    In my opinion, although the offence to which the respondent pleaded guilty is within that Part of the Criminal Code headed “offences relating to property and contracts” that does not mean the respondent was not convicted of an indictable offence committed against the person of someone.

63. [63]
    It is correct to say on the evidence before me the specific indictable offence which was alleged against the respondent to have been the offence the respondent intended to commit when he entered the applicant’s dwelling is not identified. For argument’s sake one can imagine or one has experienced through the courts occasions when a person enters the dwelling of another with the intent to steal some property from the dwelling, however, the owner confronts the offender and is assaulted by the offender. Equally a person may enter the dwelling of another with the intent to assault the owner and the offender does assault the owner in the dwelling. In my opinion, each of those circumstances are provided for within the terms of s.419 of the Code. In my opinion, in each of those occasions an indictable offence is committed against the person of someone.

64. [64]
    In my opinion, the proper inference to be drawn from the facts as found by His Honour Judge McGill S.C. is that the prosecution alleged an assault was the indictable offence the respondent intended to commit when he entered the applicant’s dwelling and was the indictable offence he committed once he entered the applicant’s dwelling.

65. [65]
    If I am wrong to make that finding nevertheless the offence provided for by s. 419 of the Code provides for a circumstance of aggravation. That circumstance of aggravation charged against the respondent and to which he pleaded guilty was that he used “actual violence”. Again the form of the charge does not go on to state against whom the actual violence was used. In my opinion it is not necessary to do so. In my opinion His Honour Judge McGill SC had presented to His Honour and His Honour found facts that amounted to the use of the respondent of actual violence to the applicant. Hence, in my opinion the respondent was convicted of an indictable offence committed against the person of the applicant.

66. [66]
    With respect to the respondent’s submission he was not guilty of the offence because he was provoked or acted in self-defence, in my opinion as the respondent pleaded guilty to the offence he cannot in these proceedings claim there is no jurisdiction because of those possible defences. That is I take it to be the law that the entering, and acceptance, of a plea of guilty is an admission of all the facts essential to the offence (Di Camillo v Wilcox (1964) WAR 44, 46 and Re Guppy (1998) QSC 256.)  That does not mean to say the respondent cannot on the hearing of this application lead evidence with the intention of proving the applicant was guilty of offering the respondent provocation for the assault or that the respondent acted in self defence or to prove some other relevant matter.  That process provided for by subsection 7 of section 25 is to be distinguished from jurisdiction which arises upon the conviction of the respondent on indictment for a personal offence whereby the applicant suffers injury because of the offence.

67. [67]
    The versions of the events that led to injuries being suffered by the applicant are quite different. That is on the one hand the applicant claims he gave no cause to the respondent to attack him and that he has suffered the several physical injuries set out in his application including mental and nervous shock. Included in those physical injuries is a fractured nose. On the other hand the respondent claims that the applicant was the aggressor and that the respondent retaliated and a fight started. These claims are made in a context of a breakdown of the relationship between the respondent and Ms Summers and the formation of the relationship between Ms Summers and the applicant and disputes about access to two young children. A great deal of evidence was led by the applicant about what he described as the difficulties Ms Summers was having with the respondent before and after the incident and which was impacting upon the applicant directly by being assaulted by the respondent but also by being the subject of abuse from the respondent and fear that the respondent would again cause the applicant harm. The respondent denied being aggressive or abusive towards the applicant or Ms Summers, although he admits an assault upon the applicant and difficulties between himself and Ms Summers over access to the children.

68. [68]
    I was not impressed by the applicant nor Ms Summers as credible and reliable witnesses. That is not to say I accept every aspect of the respondent’s evidence.

69. [69]
    There are several reasons why I was not impressed with the applicant and Ms Summers.

70. [70]
    Regarding the applicant, I accept he was punched to the head and face a number of times by the respondent. I have considered that a person could suffer a fractured nose when punched to the head and face a number of times. Further, the photographs show marks to the applicant’s face that support his evidence of being struck to the face. Constable Bazzo’s evidence supports the applicant that he had signs of injury and swelling of his face and nose. Ms Summers’ evidence also supports the applicant that he had signs of injury to his face and nose.  However, Dr Connell’s records show that the applicant had considered the condition of his nose before this incident warranted seeing Dr Connell.  Further, when he saw Dr Connell the records suggest the applicant told him that he had fractured his nose as a child and for many years had suffered symptoms especially in the right side.  Also he frequently had pain in the bridge of his nose and face and he was keen to have a surgical assessment.  Further, Dr Rabie’s letter to Dr Connell in October 1998 suggests the applicant told Dr Rabie at that time that he had sustained a fracture of the nose many years ago.  The applicant said when cross-examined he did not know his nose has been fractured as a child.  I am prepared to consider it is possible that someone may be struck on the nose as a child and not know their nose is fractured and many years later be suffering symptoms and tell a doctor of the only traumatic incident they can think of and the doctor records the doctor’s assumption in the doctor’s records.  However, I found the applicant’s answers in cross-examination inconsistent with the balance of Dr Connell’s records and Dr Rabie’s report in which the applicant is recorded saying to Dr Rabie he had fractured his nose many years ago.  That is even allowing for the possibility Dr Connell made an assumption the applicant had suffered a fractured nose, Dr Rabie also records the applicant had stated to him he fractured his nose many years ago.  As Dr Rabie also recorded the applicant told him he had fractured his nose many years ago, I do not accept the possibility Dr Connell recorded his assumption about what the applicant told him.  I find the applicant told both doctors he fractured his nose before the incident.  In my opinion, by his answers in cross-examination the applicant intended to minimize the problems he had had with his nose before the incident and he was being evasive.  The evidence in Dr Connell’s records and Dr Rabie’s report which I accept, is inconsistent with the applicant’s answers in cross-examination and in re-examination to the effect he had seasonal problems once a year. 

71. [71]
    Further, the applicant’s evidence is that the effect upon him of the assault was that immediately after the assault he was unable to breathe out of his nose. I have considered if the applicant fractured his nose as a child, in this incident he may have fractured his nose again or suffered symptoms of a significant kind from a blow to the nose. However, in my opinion had the applicant suffered a serious injury to his nose such that he was, immediately after the assault, unable to breathe out of his nose that would have been something I would have expected he would have told Constable Bazzo for the purposes of the applicant’s statement. Further there is no mention in the statement of Dr Rowles that the applicant complained to him that he suffered any significant injury to the nose and in particular that immediately following the assault the applicant was unable to breathe through his nose. Further there is no mention in Dr Rowles’ statement of any continuing problems being suffered by the applicant with respect to his nose although Dr Rowles saw the applicant on 5 August 1998 and again on 1 September 1998. It is to be noted Dr Rowles had an x-ray performed regarding the swelling to the right ear and pain in the left temporo mandibular joint. In my opinion, if the applicant was immediately after the incident and thereafter suffering symptoms such that he was unable to breathe out of his nose, it is likely that would be something Dr Rowles would have mentioned in his statement and investigated just as he did with the ear and jaw area.

72. [72]
    It is also to be noted that on sentencing of the respondent it was not recorded by his Honour Judge McGill S.C. that the applicant suffered a fractured nose. That would not necessarily prevent the applicant recovering compensation if a fractured nose were found to be an injury by reason of the offence. In this respect, I respectfully agree with his Honour Judge McGill S.C.’s judgment in Orley v. Bath & Ors [2000] QDC 338 paras. 6-12.  Further, I consider the applicant had no control over what the prosecution put forward on sentencing.  However, I consider the applicant was fully aware of the pre-existing condition of his nose and he did not in his evidence in this application disclose this nor provide any allowance for this pre-existing condition.

73. [73]
    My confidence in the applicant was further undermined when he was asked if he punched back at the respondent during the fight and he said “no he couldn’t punch him and he couldn’t retaliate to punch him back” (T17/10). A little later when reminded that he said that at no time did he strike at the respondent at all he said he might have punched the respondent and then added that the applicant did not deliver any more punches to the respondent and the respondent did not have any scratches on him whatsoever. The applicant’s finger was X-rayed by Dr Bullwinkle who told the applicant there was a small chip in it and ligament damage. Although Dr Bullwinkle apparently told him there was nothing the applicant could do about it and more than three years have transpired since these events this was another area where there seemed to be something significant had happened to the applicant which might be a cause for him to recall that he delivered a blow to the respondent. However, the applicant when cross-examined at first denied punching the respondent and when pressed accepted the only way he could have injured his own finger was that he had a punch at the respondent (see T21/10-20 and T23/28). I would have thought if the applicant was frank and reliable, he would have answered the questions directly that he did punch the respondent. The way he initially answered I consider was evasive.

74. [74]
    Further, the applicant did not call evidence from Dr Bullwinkle regarding his observations of the applicant. Dr Turner’s evidence was that the applicant has not been left with any impairment of the finger. I would have thought if the applicant was told what he claims he was told by Dr Bullwinkle, he would have called evidence from Dr Bullwinkle to support his claim.

75. [75]
    I also found the applicant’s reasons for bringing this application when he did unconvincing. That is he told Dr Flanagan that he was aware of the three-year limit for seeking criminal compensation and had postponed it to the last minute for fear of reprisal. When cross-examined and asked to explain this he said he was always concerned that the respondent was going to come around again and that he had to get his wife down to Rockhampton so she would not be subject to any more abuse. However the applicant’s solicitors had sought a report from Dr Rabie who provided a report to them dated 6 April 2000. The applicant’s response to this was that he had to have something done to his nose because he could not breathe out of it. He agreed that he had the operation from Dr Rabie in January 1999. He accepted then that he was gathering evidence early in the year 2000. He then reiterated that the reason for bringing the application when he did was that he had to make sure that his wife was not going to be subject to any more abuse. However, then he acknowledged that his wife had been away from Moranbah for about a year. It also appears that Dr Keen was asked by the applicant’s solicitors to write a report towards the end of the year 2000 as Dr Keen interviewed and examined the applicant on 10 December 2000. While I can understand that evidence can be gathered and nevertheless the filing of an application is delayed while an applicant determines whether the time is right for bringing an application, the applicant’s answers did not satisfy me.

76. [76]
    I also consider the applicant did not give to Dr Keen and Dr Flanagan a complete history regarding the applicant’s previous medical history and exaggerated some of his symptoms. I also consider that the quantity of symptoms expressed by the applicant to Dr Keen and Dr Flanagan were excessive.

77. [77]
    The applicant did not tell Dr Keen nor Dr Flanagan that he had pre-existing problems with his nose such that he sought an opinion from Dr Connell and wanted surgical intervention. Dr Connell’s letter to Dr Rabie refers to the applicant having suffered for many years chronic nasal congestion and frequent pain in the bridge of his nose and face. While it is possible those conditions may in the opinion of a psychologist or psychiatrist have no or little bearing upon the applicant’s condition bearing in mind all other matters that the applicant claims he suffers from because of the offence, those matters were not mentioned by the applicant to those persons. I do not accept the omission to mention those matters to those persons was because the applicant may have forgotten or did not think they were important enough to mention to those persons. That is because in addition to not mentioning those matters to those persons the evidence of the plaintiff’s work history shows that between 1990 and 1999 in the course of his work he has suffered numerous injuries. When cross-examined about these physical injuries I consider the applicant was evasive and attempted to understate the position reflected in the records of his employer. It may well be he did not suffer permanent disability from the various events that occurred during the course of his employment. The applicant accepted that as at December 2000 he had accrued 52.86 weeks of sick leave and accrued annual leave of 13.09 weeks. Therefore, while he may not have taken time off work and may not have been left with permanent disability from the various events that occurred during the course of his employment yet it is his omission to mention in his history what appears to have been a persisting back problem and the way he answered the questions about this history during cross-examination that contributed to undermining my confidence in the applicant. His claim that these were matters that had to be reported I consider was not a reasonable response to the questions that sought to establish the fact that he had on many occasions physical problems. In this respect I refer to the cross-examination from T50 to 59.

78. [78]
    Included in the applicant’s cross-examination about previous physical injuries was an occasion when the applicant alleged that on 6 March 1998 he injured his arm due he claimed to a seat adjustment malfunction in his vehicle. He made a claim upon his employer with respect to that injury. He agreed that the matter was investigated and that as a result of the investigation the foreman asserted to the applicant that his injury could not have happened in the way he said because it was found the seat could only move 2.5cm and that after that advice he withdrew his work cover claim. Therefore, the applicant withdrew his application. Although the applicant explained the reason he withdrew his claim was because his employer wanted zero tolerance with respect to claims and did not want any compensation claims or anybody taking sick leave the circumstances of the claim by the applicant upon his employer and his withdrawal of the claim adds to my view about the applicant as a credible witness. That is because it appears the applicant was prepared to make a claim upon his employer that was not justified.

79. [79]
    Further his answers when cross-examined about previous fights he may have been involved in before this incident, I found to be vague and evasive (see Transcript 66-68).

80. [80]
    The applicant was also cross-examined about his statement to Dr Keen that he has been having frequent outbursts of anger. The applicant explained that he felt anger inside himself. How the applicant expressed himself during cross-examination appeared to me to be inconsistent with how Dr Keen expressed what the applicant had said to Dr Keen. While one might consider that Dr Keen may have made a mistake in that respect it is difficult to see a mistake being made when one bears in mind the applicant’s answers during cross-examination.

81. [81]
    Further the applicant said to Dr Keen that his libido had significantly declined. When cross-examined about that the applicant indicated he did not understand what was meant by the word “libido”. Dr Keen may have used Dr Keen’s words to express what the applicant told him. However, when Ms Summers was cross-examined she was asked about her sexual relationship with the applicant. She answered that she had noticed that his sexual drive was not quite as what it used to be and then added “like, we do have sex often ‘cause we don’t see each other – oh, now that I have moved to Rockhampton it’s probably – we don’t see each other that often, so we spend a lot of – as much time as possible together”. I consider her evidence was inconsistent with what the applicant apparently told Dr Keen. If Ms Summers is correct then the true position would seem to be the applicant is engaged less frequently in sexual relations with Ms Summers because she and the applicant are separated by distance.

82. [82]
    The applicant did express concern in discussing sexual relations with his wife during cross-examination. When I used the words “sexual relations” he said he did not really want to say anything about that in front of the respondent. The applicant asserted that the respondent was “smirking” at this point during the proceedings. While I made no observation to that effect myself and it is possible the respondent may have been smirking my observations of the respondent throughout the proceedings did not cause an unfavourable impression of the respondent. It is difficult to describe my impression of the respondent. Certainly, he did not misbehave during the proceedings and during his cross-examination as one may have expected if the allegations made by the applicant and Ms Summers about him were correct. It does not necessarily follow that a person in the position of the respondent against whom those allegations are made, will act badly in the court room and during cross-examination. However, the respondent did not conduct himself in an adverse way. Compared to the applicant’s demeanour I was favourably impressed by the respondent although I do not accept every aspect of the respondent’s evidence.

83. [83]
    I also found the applicant’s complaints to Dr Keen to be inconsistent with a person who is able to work 12 hour shifts in a mine and lead what appears to be a normal life with Ms Summers and her children. When asked what the applicant had done about rehabilitation he answered “I couldn’t afford to do anything”. However, the applicant earns over $100,000 a year. I have considered the possibility that the applicant may deny the need for help. I have also considered he may have responded by saying he had not been told by any doctor he needs help. Therefore, by answering he could not afford it suggested to me he accepted he needed help, but had not accessed help because of lack of money. I do not accept his evidence money has been the obstacle to his receiving assistance for his symptoms.

84. [84]
    It may well be that the evidence of Ms Summers supports the evidence of the applicant. However, my impression of Ms Summers when she gave evidence was that she still harbours considerable animosity towards the respondent. That animosity may be justified for a number of reasons. One of those reasons of course could be the respondent’s physical attack upon the applicant which may be seen by Ms Summers as another occasion that the respondent has had a “win” over the applicant and herself. Another reason could be, if it were true, the respondent’s continuous verbal abuse and threatening manner before and since the incident and the conflict over access to the children and the subsidiary conflicts involved with access arrangements such as residence, surnames and access by grandparents and other family members. However, I am not prepared to accept her evidence because I consider it is coloured by the animosity she harbours for the respondent. Further, when cross-examined about her statement in her affidavit that when she saw the respondent after the incident he did not appear to have any injuries she accepted she told the applicant’s solicitor she had not seen the respondent for some time. However, Ms Summers was nevertheless prepared to swear her evidence which, in my opinion, had a misleading quality about it when she knew she had not seen the respondent for some time.

85. [85]
    As I have said Constable Bazzo was supportive of the applicant’s evidence and he was not cross-examined. However, it appears to me he was being asked by the solicitors for the applicant three years after the incident to specifically recall amongst other things, what observations he made about the applicant’s nose following the incident. Constable Bazzo cannot of course say the applicant’s nose was fractured. Whilst the statement made by the applicant to Constable Bazzo on the day of the incident does contain a claim by the applicant he received swelling to both eyes and cheek area, nose, chipped tooth and an injury to his right index finger and Constable Bazzo states it was obvious by the swollen and puffy look of the applicant’s nose that he had suffered damage and that within a week after the assault he saw bruising on the bridge of the nose and his nose was still swollen and puffy, that evidence does not persuade me the applicant suffered a fractured nose nor a significant injury of some kind to the nose from a blow from the respondent.

86. [86]
    I have also considered the respondent’s credit on this application. In terms of demeanour I would accept him over the applicant or Ms Summers. When cross-examined the respondent, in my opinion, answered questions directly and was not evasive. I have also taken into account that the respondent claims he suffered significant injuries from the incident. He may have been supported to some extent on this claim by his sister. His sister’s evidence would suggest the applicant is leading a normal life on the surface. His sister gave evidence by telephone. It was difficult to assess the respondent’s sister over the telephone. She made a good impression over the telephone. However, the respondent also claimed from his observations the applicant did not look any different to what he looked before the incident and he did not see any scratches or swellings. In my opinion, the photographs of the applicant show scratches and marks on his face. The respondent states the applicant was not marked. That is not consistent with the photographs. Further, the respondent states he was devastated that because Ms Summers and the children moved in with the applicant he realised he had no chance to reconcile with Ms Summers and his children were living with the applicant which he found devastating. Further, he and Ms Summers had spent money on the house, he had no motor vehicle and had not seen the children. In those circumstances, I consider the respondent may consider he has cause to be abusive or aggressive at times and I accept at times he has been abusive and aggressive. That is not to say I do not accept his evidence. It is to say I have considered his credit and while I do not accept all his evidence, I generally prefer the respondent as against the applicant and Ms Summers.

87. [87]
    That is, I do not doubt that the respondent has not taken the separation from Ms Summers and the contact that the applicant therefore has with the respondent’s children and Ms Summers subsequent marriage to the applicant well. I accept the respondent has been verbally abusive and threatening towards the applicant and Ms Summers at times. However, I do not accept it has been one-sided as claimed by the applicant and Ms Summers. I accept that the applicant and Ms Summers have also presented to the respondent hostility and from time to time have not accommodated the respondent’s commitments to his work and place of residence when seeking access to the children. While it may be hoped the applicant, the respondent and Ms Summers could get on with their lives without conflict I consider to date that has not been the reality.

88. [88]
    While the parties to this application and Ms Summers have sought to blame the other and describe themselves as blameless for the conflicts between them before the incident, during the incident and since the incident I find that is not the true position on the part of either the applicant or the respondent or Ms Summers. In my opinion, the interpersonal conflicts between the respondent and Ms Summers arising from their relationship and the breakdown of their relationship is a substantial factor impacting upon the applicant. In my opinion, while the incident was serious, it was nevertheless minor in terms of the affect it has had upon the applicant compared to the other conflicts between the applicant, Ms Summers and the respondent. Those other conflicts have lead to proceedings in the Family Court for orders to recover the children and the parties give access to the children outside the Police station. These are indications the conflicts are not minor.

89. [89]
    Section 22(3) of the Act provides that the compensation to be provided to an applicant 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.  Further, s 22(4) of the Act provides that the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.  I have referred above to the effect of s. 25(7) of the Act.  In my opinion s. 24(3) of the Act is also relevant and, in my opinion, it provides that the court retains a discretion whether to make an order depending upon the circumstances.

90. [90]
    I am satisfied on the balance of probabilities that the respondent punched the applicant’s head and face with his right clenched fist a number of times and that the applicant punched the respondent to defend himself. Otherwise I do not accept the applicant’s account or the respondent’s account of what happened in the incident. Further, if I was satisfied on the balance of probabilities that the applicant had formed a relationship with Ms Summers before she left the respondent, and I am not so satisfied, I would not accept that is a relevant consideration to the assessment of the compensation in this application.

91. [91]
    I am satisfied on the balance of probabilities that the applicant suffered bruising to a minor degree to be compensated under item 1 at 1% which is the sum of $750. It has been observed in Dooley v. Ward (2000) QCA 493 to qualify for the 5% which is the top of the “severe” range, one would not have to be beaten black and blue from head to toe; but the bruising and lacerations must have some claim to be one of the “most serious cases”.

92. [92]
    I am not satisfied on the balance of probabilities that the applicant suffered a fractured nose. Any injury to the nose was bruising to the nose which is to be compensated for within the sum of $750 I have referred to above. In my opinion, the applicant knew of the extent of the condition of his nose before the incident, however, persisted in this application to claim the incident caused this condition and the need for an operation and time to recover from the operation. He did not in his evidence, disclose nor provide any allowance for this pre-existing condition. If I were wrong on this finding, nevertheless, I would not award the applicant any sum for the fractured nose as I consider on the evidence from Dr Connell’s records the applicant had a pre-existing condition of the nose for which he was keen for surgical intervention. I consider that evidence would be a relevant consideration for the purposes of s. 25(7) of the Act and in all the circumstances a decisive consideration.

93. [93]
    I find on the balance of probabilities the applicant suffered loss or damage to one tooth to be compensated under item 5 at 1% which is the sum of $750.

94. [94]
    I accept the evidence of Dr Turner that the plaintiff has no impairment or disability of the joint of the second finger of his right hand. I am not satisfied on the balance of probabilities that the applicant suffered a fracture or loss of use of his finger. I am satisfied on the balance of probabilities that he had swelling of the proximal interphalangeal joint of his right index finger to be compensated in item 1 bruising.

95. [95]
    I accept the evidence of Dr Turner that the applicant has no facial disfigurement arising from the applicant’s injuries. I am not satisfied on the balance of probabilities that the applicant suffered any facial disfigurement or bodily scarring. The applicant suffered bruising to his face to be compensated within item 1, bruising.

96. [96]
    I am not satisfied on the balance of probabilities that the applicant suffered mental or nervous shock because of the offence. In my opinion, the applicant has suffered no more than a combination of fear, fright, unpleasant memories and anger towards the respondent (R v. Kazekoff ex parte Ferguson (2001) 2 Qd.R. 320, 325).  For the reasons referred to earlier, I did not find the applicant to be a credible witness.  I am not prepared to accept the opinion of Dr Keen or Dr Flanagan because those opinions are based on the reliability of what the applicant has told them.  I do not accept the evidence from Dr Rowles on this issue for the same reason.  I consider some of the symptoms suffered by the applicant may be genuine, however, I consider a substantial number of those symptoms are an exaggeration on his part.  I consider those symptoms that are genuine have been caused by the ongoing conflict between the respondent and Ms Summers because of the breakdown of their relationship and their inability to manage access to the children and on the respondent’s part to accept the applicant’s involvement in Ms Summers life and hence in the lives of his children.  I consider as the applicant said with respect to this “I’m in the middle of it”.

97. [97]
    Therefore, I assess the applicant’s compensation in the total sum of $1,500 subject to s. 25(7) or s. 24(3) of the Act.

98. [98]
    I find that the applicant was hostile towards the respondent immediately before the incident. However, I find that hostility was in the form of the applicant stating to the respondent “what do you fucking want?” and the applicant’s refusal to answer questions put to him by the respondent whether his wife and children were there and could he see his children. Further, that the applicant just said “get off my property”. I do not accept that the applicant then pushed the screen door open very hard hitting the respondent in the head. I do not accept that the applicant then pushed at the respondent’s chest, trying to push him away down the stairs. I find the applicant did not give the respondent provocation for the assault nor that the respondent acted in self-defence. Notwithstanding the hostility of the applicant to the respondent I have described above I find the applicant did not behave in a way that directly or indirectly contributed to his injuries.

99. [99]
    However, in arriving at the assessments for compensation, I found the applicant was not a credible witness. The applicant made a number of substantial claims in these proceedings upon which he has failed. I can see from the conduct of these proceedings the respondent has incurred considerable cost to defend the applicant’s claims.

100. [100]
     Further, the applicant’s claim to have suffered a fractured nose and the consequences thereof was persisted with by the applicant despite his knowledge of the condition of his nose before the incident. Further, his claim to have suffered mental or nervous shock was based upon exaggerations and was made in the context of substantial conflict between the respondent and his former partner as to which the applicant sought to paint himself as blameless as did his witness, Ms Summers.

101. [101]
     The applicant made other claims upon which he was also unsuccessful.

102. [102]
     The applicant sought $48,000 and has had assessed $1,500 for two items of his claims at the lowest end of the range for each item. These proceedings were contested over a period of three days followed by lengthy written submissions. That is the respondent was substantially successful on the application after lengthy and costly proceedings.

103. [103]
     I do take into account when balancing these circumstances that I did not accept all of the respondent’s evidence, and that he did commit this offence and did cause the applicant bruising and a chipped tooth for which he ordinarily ought to pay compensation. Further, the respondent did not make an open offer to the applicant to resolve the claims.

104. [104]
     Further, in my opinion, s. 31 of the Act does not allow the court to make an order for costs. Although the wording of s. 31 does leave room to argue that the court could make an order for costs in favour of a respondent in a case where the application is vexatious (see Reddicliffe v. Toth & Ors No. 610 of 2000, 18 February 2000, Brabazon DCJ). In this application as the applicant did suffer some injury because of the offence, I could not conclude the application was vexatious.  However, overall I consider the application was not meritorious.

105. [105]
     In my opinion all these circumstances are relevant for the purposes of s. 25(7) of the Act. Therefore, in deciding whether to award the amount of $750 for each of the items of injury I found the applicant suffered because of the offence, after balancing these circumstances I refuse to order these amounts be paid by the respondent.

106. [106]
     If I were wrong to apply s. 25(7) of the Act to these circumstances, I nevertheless consider these circumstances are generally relevant. After balancing these circumstances I would exercise my discretion pursuant to s. 24(3) of the Act and refuse to make a compensation order.