Riddle v Coffey[2001] QDC 366

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 4 December 2000 in the District Court at Cairns the respondent pleaded guilty to the charge that on 2 April 1999 at Cairns he did grievous bodily harm to the applicant.

2. [2]
   The applicant who was born on 22 March 1955 and was 44 at the time of the offence, now seeks compensation for the injuries suffered by him as a result of the offence pursuant to s. 24 of the Criminal Offence Victims Act 1995 (“the Act”).

3. [3]
   The respondent appeared at the hearing of this application and was represented by Counsel. He gave and produced evidence. The respondent challenges the severity of the applicant’s injuries and argues that the behaviour of the applicant on 2 April 1999 and during the evening before, directly contributed to his injuries and warrants a reduction in the amount of compensation payable.

The facts

4. [4]
   I was the sentencing Judge in this matter and what follows is a brief summary of the facts that were put to me by the prosecution at the time of sentence and which were generally accepted by the defence. The offence occurred at the home of the respondent in a Cairns suburb. The respondent had known the applicant and his family for a number of years, however for some three years prior to the beginning of 1999 the applicant and his family had been living away from Cairns. Upon their return to Cairns they were living in a caravan park and looking for somewhere to live. The respondent was in the process of moving to Victoria to assist on his parents’ farm and he offered to rent his home in Cairns to the applicant and his family. It was agreed that the applicant and his family would move into the house and stay there with the respondent during the few weeks that it would take the respondent to get organised to leave.

5. [5]
   As at 1 April 1999 the applicant, his wife and their two children then aged 12 and 7 had been living with the respondent in the respondent’s home for about five weeks. During that time however, the applicant and his wife were not getting on well together and a few nights prior to 1 April the applicant started sleeping away from his wife in the downstairs part of the house. Tensions were also building between the applicant and the respondent over the respondent’s apparent slowness to move out of the house.

6. [6]
   On 1 April the applicant and his wife and the respondent spent the day painting in the downstairs area of the house. During the afternoon there was some dispute between the three of them as to how the work was to be done. However, the job was eventually finished with the assistance of a friend of the respondent’s who was a professional painter and at about six o’clock the applicant and the respondent started drinking homebrew beer. The applicant’s wife made dinner and the respondent’s girlfriend Sharon Staunton arrived at the house.

7. [7]
   It was after this time that a verbal dispute commenced involving the applicant and his wife and the respondent. The applicant and the respondent exchanged angry words and as a result the applicant left the kitchen area and went downstairs. The others in the house had dinner but the applicant refused his. The respondent later went downstairs and a further verbal exchange took place between the applicant and the respondent. The respondent went back upstairs followed by the applicant. The applicant poured a drink for everyone and matters calmed for a while.

8. [8]
   However, the tensions rose again and at one stage the respondent said that the applicant really wanted to die and that he would do it for him. He said words to the effect, “Just sign something letting me do it”. The applicant did actually sign something to this effect. The verbal abuse between the two men continued and eventually the respondent told the applicant that he had to move out of the house. The applicant said that he would do so but in a week’s time but the respondent told him to get out “Now” and again made some comment about chopping the applicant’s head off.

9. [9]
   The applicant’s wife tried to defuse the situation but that upset the applicant who got up and pushed the table towards her and tempers were raised all around.

10. [10]
    The applicant then went downstairs again and decided to leave the home straight away and so started to pack. The applicant’s wife got ready for bed and as she headed to the bedroom she saw the respondent in the lounge room standing next to his girlfriend and holding a cane knife. His girlfriend said “You’re not going to use that” to which the respondent replied “If I have to defend myself”. The respondent’s girlfriend told him to put the knife down which he did and then everyone went to bed.

11. [11]
    The applicant however, after packing downstairs, came upstairs to continue packing during the course of which he woke his wife. He was still angry and upset and at one point went over to her, twisted her thumb and said “You’re aware I’d like to kill you”. The respondent may have overheard this. The applicant’s wife was not overly concerned and when the applicant left the room she went to sleep.

12. [12]
    After the applicant returned downstairs the respondent locked the doors and placed a chair against the door with a glass or glasses on the chair to act as some kind of alarm system.

13. [13]
    Subsequently, the applicant’s wife was awoken by her husband who was on the verandah outside of her room, banging on the wall. The applicant was very angry thinking that his wife had locked him out. The applicant’s wife got up and let him in, telling him that the respondent must have barricaded the door. She then went back to her room and the applicant went down the hallway. He can’t recall exactly why but concedes that it was most likely that he wanted to confront the respondent.

14. [14]
    As he walked down the hallway the applicant was confronted by the respondent who jumped out in front of him wielding the cane knife. In one movement a light was switched on and the applicant was hit. He immediately turned to go and was struck a number of blows to his head and back. At that stage the applicant did not realise what he had been hit with and he said to the respondent “You don’t have to do this I’m leaving”. As the applicant was holding onto a door frame he was struck again to his back and shoulder area. By this stage the applicant thought that the respondent was going to kill him so he turned to grab hold of the weapon and then saw that it was a cane knife. The respondent swung the knife again at the applicant’s head and shoulder area. The applicant blocked the knife with his left forearm and the blow broke his forearm. The applicant then tried to force the respondent back into the wall and at that stage received a cut to his thigh. The applicant struggled with the respondent to stop any further attack and they ended up in the bathroom where he pushed the respondent against the wall causing a hole to be made in the wall. The applicant repeated “I’m going, I’m going” and was trying to stop further cuts with the knife but was cut to the top of the shoulder and his neck area. The respondent was calling out “You’re attacking me, you’re attacking me” but in fact the applicant was trying to prevent the respondent from attacking him further.

15. [15]
    The incident ended when the respondent’s girlfriend came to the bathroom doorway and said “What have you done?” and told the applicant to go. The applicant backed down the hallway with the respondent following telling him to go. The applicant went down the front stairs of the house onto the roadway where he tried to wave a car down for assistance. Fortuitously a police car pulled over, an ambulance was called and the applicant was taken to hospital for urgent medical treatment.

16. [16]
    At the sentencing proceedings the summary of facts as outlined by the prosecution was in effect accepted on behalf of the respondent, except that the respondent asserted that no light was on or turned on in the hallway when he confronted the applicant so that the respondent could not see the applicant and whether he was armed in any way. The respondent alleges that the attack occurred in darkness until Sharon Staunton turned on the light.

17. [17]
    Further, it was submitted on behalf of the respondent that he heard the applicant say very loudly that he (the applicant) was going to go and deal with the respondent once the applicant was let into the house by his wife. In those circumstances the respondent was in great fear of the applicant. Indeed, a psychological report prepared for the sentencing proceedings stated that “The aggressive behaviour of a guest at his [the respondent’s] house culminating in his experiencing profound fear for his life and that of other residents in his house.”

18. [18]
    When sentencing the respondent I said:

“I accept that what occurred prior to this incident, during the 24 hours prior to this incident, could be described as quite bizarre behaviour, both on your part and on Mr. Riddle’s part, and it is most unfortunate that one or other of you did not diffuse the situation by leaving or walking away, but instead the whole thing escalated over what appears to be absolute trivialities.

There had been disputes, arguments between you and Mr. Riddle also involving his wife.  I accept that that resulted in you becoming very angry and also, as a result of Mr. Riddle’s behaviour, becoming quite fearful.  I accept that you had asked him to leave and in fact you felt it necessary to barricade the doors.  In that sense there was a significant element of what could be called self defence in the way that this incident evolved.  You were confronted by a very angry man who had been acting bizarrely earlier and I accept that in the dark and in the circumstances you found yourself in, you did not really know whether he was armed or not and what you were confronting.

But, quite clearly, by using the cane knife and using it repeatedly, not only did you overstep the bounds of a reasonable response, which is the way your barrister put it, but in my view you overstepped those bounds by an extreme degree by delivering multiple blows that caused significant lacerations and injuries.”

19. [19]
    In this hearing I have before me a statement of the respondent dated on or about 25 July 2001, the contents of which he swore during the hearing to be true and correct. In that statement the respondent outlines the history of his relationship with the applicant and his family and the circumstances in which they came to be residing in his house. The respondent states that he told the applicant and his wife that he did not want “any drugs, guns or domestic violence during their stay with me” and that that was a condition of their residency with him.

20. [20]
    In his version of the events leading up to his attack on the applicant the respondent states that he believed that the applicant had been smoking marijuana that evening and that when the applicant was downstairs he was repeatedly hitting one of the support poles and shaking the whole house. When the respondent went downstairs to ask the applicant to leave the premises he saw a cane knife on the bench close to the applicant. The applicant held up his cigarette lighter and asked the respondent if he had plenty of insurance.

21. [21]
    When the applicant came upstairs again he had his fists clenched tightly and pushed the respondent across the room and pinned him against the sofa. The applicant refused to leave the premises. The applicant grabbed the fingers of the respondent’s right hand and threatened to break them and as he pulled away jumped towards the respondent and nearly knocked him out of his chair. At that stage the respondent threatened to call the police. The applicant then went downstairs and took the phone off the hook. When the applicant return upstairs again he was taunting the respondent and calling him names and apparently trying to provoke him.

22. [22]
    When the respondent went downstairs and picked up the cane knife the applicant spotted the knife and gestured for the respondent to cut his throat saying “Go on, have a go”. The respondent replied “If you want me to do it write it down.” That was when the piece of paper was signed by the applicant.

23. [23]
    Although things calmed for a while, later the applicant stood over the respondent as he sat at the table, threatened to get him and gestured by running his finger across his throat. After more of an exchange the applicant calmed down but said “You’re weak and I can easily take that cane knife off you”.

24. [24]
    Later the applicant obtained a quantity of marijuana from his wife’s bedroom and placed it on Sharon Staunton’s cigarette packet with some cigarette papers and told her to roll it up. Initially she refused but the applicant forced her to make a joint and light it. During the incident when the applicant pushed the table towards his wife the bottom of the respondent’s glass was snapped off. The table was pushed by the applicant a second time and caused Sharon Staunton’s glass to shatter. The respondent described the applicant as “shaking uncontrollably and his mouth was full of froth as he yelled abuse and threats at us. He sprayed the whole table with spit”.

25. [25]
    The respondent goes on in his statement:-

“ As soon as he left I ran for my bedroom and Staunton and White quickly turned the lights off.  I was scared and grabbed the cane knife and got Staunton behind me in the passage.  Riddle came into the house again and went for White.  He was threatening to kill everyone.  He was hurting White.  I could hear her moaning and begging him to stop.  It went on for about five minutes.  I heard a couple of solid thuds and White was silent.  I was standing in the corridor behind the partly open door.

Riddle came into the lounge room and turned on the light.  He pulled the phone out of the wall and dropped it on the floor and kicked it under my computer desk.  He started pulling on the cables under the computer table until they separated.  He grabbed an armful of equipment off the table and disappeared downstairs.  There was no light on under the house.  He walked upstairs and started searching the house for about ten minutes. He had further words with White and left.  I has (sic) moved down to the end of the hall to keep out of sight because I was scared of Riddle.”

26. [26]
    It was at that stage that the respondent locked and barricaded the doors. According to the respondent the applicant forced his way into the house twice and on the second occasion he heard him rattling through a cutlery drawer in the kitchen. Afterwards he saw that a carving knife, which had been in the sink, was gone. He noticed the applicant moving quietly on the stairs, heard him say something to White and White reply “John Coffey” and then the applicant said loudly “Right I’ll go get him”. The applicant then burst through the hallway door and charged at the respondent. The respondent then describes a physical attack on him whereby he essentially used the cane knife as a shield rather than a weapon.

27. [27]
    An affidavit by Sharon Staunton sworn on 3 September 2001 confirms certain aspects of the respondent’s version of events, particularly the threatening behaviour by the applicant towards the respondent earlier in the evening and her being “coerced” by the applicant into rolling and lighting a joint of marijuana.

28. [28]
    The applicant has filed an affidavit which was sworn on 3 August 2001 in response to the respondent’s version and he was cross-examined at length during these proceedings. Essentially, the applicant denies the allegations of physical aggression by him towards the respondent and confirms the version of events relied upon by the prosecution in the sentence proceedings.

29. [29]
    In addition to the evidence already referred to I have also perused a video tape of the applicant being attended to by ambulance officers produced by WIN TV, a number of photographs taken by investigating police, a transcript of a field tape of a conversation between attending police and the applicant, extracts from the committal proceedings, and various statements made by the applicant and his wife.

30. [30]
    Whilst the evidence does demonstrate that both the applicant and the respondent were acting belligerently and provocatively towards each other throughout the evening prior to the offence being committed and that the applicant was aggressive both physically and verbally towards his wife, I am satisfied that the applicant’s version of events is the more probable. There is no suggestion on the applicant’s version that the applicant was armed with anything or intended to confront the respondent in anything other than a verbal manner when he was let into the house. The objective evidence of the position of his injuries being mainly to the back of his head, shoulder and back and the blow to his forearm support the applicant’s contention that he was hit from behind initially and once he turned around was acting in a defensive manner. The respondent’s version does not accord with the submissions made on his behalf on sentence and indeed, is inconsistent with his plea. I do not accept the respondent’s argument that the applicant was acting unlawfully in re-entering the house after he had been ‘evicted’ by the respondent.

31. [31]
    Section 25(7) of the Act provides:-

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

As was held in the recent decision of the Court of Appeal in Facer v Bennett & Bennett^[1]:

“In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in unfairness and would be incongruous.”

See also R v Bowen^[2];  Re Hondros^[3] and Re Rogers^[4].  The applicant in this case conceded that the only reason he proceeded down the hallway upon being given entry to the house by his wife was to confront the respondent.  The applicant should have been aware that as a result of what had passed between himself and the respondent earlier, any confrontation with the respondent was likely to be aggressive and it is probable that if the applicant had not re-entered the house or had gone no further than the bedroom in which his wife was sleeping he would not have been attacked by the respondent.

32. [32]
    However, the number of and the ferocity of the blows that the respondent delivered to the applicant with the cane knife are out of all proportion to any fear or anger provoked by the behaviour of the applicant and it certainly cannot be argued, as it was on behalf of the respondent, that the applicant was the author of his own misfortune. However, I will reduce the amount of compensation to which the applicant is entitled by the nominal percentage of 10% to reflect the behaviour of the applicant that contributed to his injury.

The injuries

33. [33]
    When the applicant was seen in the Emergency Department of the Cairns Base Hospital, it was estimated that he had lost approximately 600 ml of blood. Examination of his wounds revealed:

“…a large laceration to the left posterior occiput that was “W” shaped in nature.  Exploration of the wound revealed an obvious edge of bone, possibly a fracture.  There were two lacerations in the left forearm, each approximately 10 cm in length, and obvious muscle belly involvement.  There was no change in sensation or loss of distal pulses.  A 20 cm wound was noted in the left lateral thigh with again, obvious muscle involvement.  The distal pulses and  sensation were also intact.  A 25 cm laceration over the right shoulder was noted which again had obvious muscle involvement, however there was no bone visible in the base.  Adjacent to this there was a smaller superficial laceration to the right anterior shoulder.”

34. [34]
    A CT scan of the applicant’s head showed three compound fractures to the occiput with no gross depression. There was also a small contusion on the left with a small amount of intra-cranial air. The applicant underwent compound scrub and repair of the lacerations to the skull, leg, back, forearm and an open reduction internal fixation of the left ulna. The wounds to his head were closed in theatre with staph and strep cover.

35. [35]
    An affidavit by Dr. Timothy David Dewhurst sworn on 3 August, 2001 who has the ongoing care of the applicant, states that –

“Despite successful management of these wounds, Mr. Riddle continues to suffer significant physical symptoms and disabilities.  His right shoulder appears deformed, hanging lower and he has reduced mobility.  His left arm required a plate, which resulted in a non-union at the fracture site, further reducing mobility and use of his left arm.  His left thigh wound has caused muscle loss with subsequent knee instability resulting in poor ability to run and fatigue with walking.  These injuries significantly impact on his ability to perform even basic physical tasks.  Mr. Riddle also suffers from ongoing pain at all of these sites, especially on movement, further restricting mobility.  Physically the wounds also have caused major scarring and cosmetic deformities that impact on all of his relationships.

Emotionally, Mr. Riddle has suffered from an almost equal disability.  After two years, he still suffers from persisting negative emotions and thoughts relating to the incident.  He initially suffered from symptoms that were consistent with a post-traumatic stress disorder arising from the severity of the injuries, where he believed he would die.  This resulted in persistent avoidance of people and relationships, avoidance of public places, ongoing agitation, especially relating to violent acts in the media, persisting flashbacks of the events, persisting self doubt and questioning, and poor sleep with dreams and pain relating to his injuries.  These symptoms have reduced over time, but have never disappeared, and re-emerge under stress.

These injuries have caused ongoing problems for Mr. Riddle in his life, where he subsequently lost his long term de facto relationship.  He is now currently unable to resume further significant relationships due to his physical and emotional difficulties.  He also feels that he has wasted two years of his life and yet wishes to be able to move on.  This has resulted in significant frustration.

These injuries have also prevented him from maintaining his full time employment as a video cameraman, and even now he is only able to work to a maximum of four hours.

His prognosis remains uncertain.  Whilst he currently improving in both the physical and emotional areas of his life, this incident has certainly caused him to suffer from permanent disabilities in a number of areas of his life.  It is only going to be with time that the full extent of the impact of these injuries will be known.”

36. [36]
    In December 2000 the applicant was interviewed and assessed by Sheldon Goldenberg, a psychologist, and in his report dated 6 June, 2001 Mr. Goldenberg lists the ongoing symptoms still suffered by the applicant as a result of the attack.

• Erratic sleep
• Loss of appetite
• Loss of motivation to continue with work
• Fear that Mr. Coffey would “finish the job” after his gaol term
• Loss of self esteem
• “Inability to move around”
• The necessity to have Deborah look after him despite the fact that the relationship was very strained
• Inability to have a normal life, to continue with his hobbies and passions
• Ongoing nightmares
• Feelings of tension all through his body
• Loss of feeling in some areas related to the wounds as well as pain in others
• A general sense of self hatred
• Flashbacks
• Feelings of sadness and depression
• Loss of confidence
• Ongoing pain and discomfort, although reduced and intermittent
• Stiffness and soreness (which doctors state will exist indefinitely

37. [37]
    Mr. Goldenberg’s psychological assessment included “an Extensive Clinical Interview plus the completion of elements of a personality inventory”. Mr. Goldenberg summarises that the applicant is suffering symptoms consistent with depression (moderate) and Post-Traumatic Stress Disorder (moderate to severe). He states that there is no evidence to indicate that the applicant suffered from either of those conditions prior to the attack. Mr. Goldenberg recommends that the applicant receive treatment for both his depression and Post-Traumatic Stress Disorder symptoms as soon as possible and support for Chronic Pain Management.

38. [38]
    A victim impact statement prepared by the applicant and dated 18 November 2001 details the considerable pain and shock suffered by the applicant immediately after the attack and his ongoing symptoms and the impact of those on his relationships with his family and others and on his lifestyle generally. I also have before me a series of photographs showing the extensive scarring on the applicant’s head, neck, back, arm, shoulder and thigh.

39. [39]
    For the purpose of this hearing the respondent had the applicant assessed by David MacIntosh, a consultant orthopaedic surgeon and Denice Jeffery, a psychologist.

40. [40]
    In an unsigned report dated 29 August 2001 Mr. MacIntosh confirms that the applicant suffers some minor discomfort due to the occipital injury, muscle damage to the right shoulder and some weakness around the shoulder, some weakness of extension of his wrist and fine movements in his hand with respect to the fracture of his left ulna and weakness of the quadriceps muscle in his left thigh. Mr. MacIntosh is of the opinion that the impairment suffered by the applicant amounts to 5% loss of function of his right arm and 5% loss of function of his left arm and 5% impairment of his left leg due to muscle damage. He states that the physical effects of his injuries would amount to difficulty with heavy work or more extreme sporting activities but that the applicant should be able to return to his normal work activities on a full time basis with little physical disability.

41. [41]
    In her report dated 3 September 2001, Ms Jeffery details that the applicant underwent a structured interview for Post Traumatic Stress Disorder (SI-PTSD) and completed three psychological tests – the Trauma Symptom Inventory (TSI), the Personality Assessment Inventory (PAI) and a Beck Depression Inventory (BDI-II). Ms Jeffery concludes that the applicant “is suffering from Post-traumatic Stress Disorder (mild) and a mild to moderate depression, which may or may not represent diagnostic criterion overlap caused solely by the traumatic incident of April 1999”. Although she states that the clinical picture has been somewhat distorted by his self reported alcohol abuse.

42. [42]
    The respondent also produced as evidence copies of Dr. Dewhurst’s notes, the medical records of the applicant maintained by the Cairns Base Hospital and the medical records relating to the applicant maintained by the Cairns Integrated Mental Health Service. None of these records add anything of significance to the reports I have already referred to.

43. [43]
    On the face of her report Ms Jeffery undertook a more in-depth and detailed assessment of the applicant for the purpose of her report than did Mr. Goldenberg and indeed, her report is the more careful and considered of the two reports. Accordingly, I accept her conclusions regarding the emotional and psychological injuries suffered by the applicant and find that he is suffering from mild Post-traumatic Stress Disorder and moderate depression.

44. [44]
    I do not however, accept the respondent’s argument that the applicant’s compensation should be limited to the percentage of impairment of his limbs referred to by Mr. MacIntosh when compensation is assessed pursuant to the Act. The percentage of loss of function or impairment in a medical sense is completely unrelated to the percentage of the Scheme Maximum referred to in the Act. Neither do I accept that awards for both loss of use of limbs and bodily scarring is “double dipping”.

45. [45]
    Whilst the applicant has incurred permanent impairment to both arms and his left leg which injuries can be compensated under items 13, 16 and 19 of the Compensation Table which is Schedule 1 to the Act, the medical evidence also supports an entitlement to separate compensation for moderate stab wounds.

46. [46]
    After a consideration of all of the material before me I assess compensation in accordance with the Compensation Table as follows:-

47. [47]
    This amount should be reduced by 10% and accordingly I order that the respondent do pay to the applicant the sum of $70,200.00 by way of criminal compensation.