Flanagan v Flanagan[2001] QDC 56

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant applies for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995.  Until the hearing the applicant was relying only on an affidavit filed by himself in this Court on the 13^th October 2000 to which was exhibited a copy of a report by Dr Francis Tomlinson.  Obviously having regard to the comments of the Chief Justice in HW v. LO [2000] QCA 377 at para 30, the applicant’s solicitors filed an affidavit of the Doctor annexing his report on the 8^th November 2000.  The remaining material on the file related to failed attempts by the applicant to serve the respondent.  On 11^th December 2000 His Honour Judge Dodds in this Court made an order for substituted service on the father of the respondent and service was effected on the 15^th January 2001.  There was no appearance by or on behalf of the respondent.  Prior to the hearing the material did not disclose proper proof of conviction for any offence.   Mr Grant-Taylor appeared for the applicant.  I have to say somewhat reluctantly and at my request he tendered the sentencing remarks of His Honour Judge Pratt QC dated 1^st of July 1999.  The sentencing remarks are marked Exhibit 1. The affidavit of the applicant to which I have earlier referred makes no reference to the commission of an offence.  In his affidavit he says that after what he describes as a number of conversations with his wife he went to sleep and woke up some days later in hospital.  In his affidavit there is no evidence of what injuries he actually suffered in the assault.  There is no report from the hospital where apparently he was admitted for treatment.  As I say the only medical report is the report of Dr Tomlinson dated 13^th December 1999.  Section 30 of the Act states:

“(1)A proceeding on an application to a court for a compensation or repayment order is a

civil proceeding.

2. (2)
   Without limiting subsection (1), issues of fact on the application must be decided on the balance of probabilities.

3. (3)
   On an application, the court may receive information in any form the court considers appropriate.”

2. [2]
   For the reasons expressed by me at paragraph 9 of my judgment in the matter of Ned v. Ned [2000] QDC 323 and for the reasons expressed by the Chief Justice in HW v. LO [2000] QCA 377 at paras 27-33, s. 30 does not excuse an applicant from providing sufficient evidence of important facts.  As the Chief Justice observed at para 31 of his judgment in HW v. LO (in relation to applications under the Code scheme but equally applicable to applications under the Act):

“Applications of this character are usually heard in the absence of an active contradictor.  It is therefore especially important that evidence of sufficient extent be put before the Court, and in proper form.”

3. [3]
   The sentencing remarks of His Honour Judge Pratt do not shed any light on the nature of the injury suffered by the applicant, nor does His Honour mention the offence of which the respondent was convicted. Mr Grant-Taylor made the telling point that because costs are not allowed in relation to these applications, solicitors don’t wish to go to the expense of obtaining the transcript of the proceedings. Admittedly such transcripts are often full of irrelevant material, but in this case the transcript would have been of considerable assistance, at least in relation to some description of the injuries suffered by the applicant as a direct result of the offence and also some indication of the offence for which she was convicted. Nevertheless, no such evidence is before the Court and no adjournment was sought to obtain further evidence.

4. [4]
   I am prepared to infer that the respondent was convicted of the offence of grievous bodily harm. I also infer (with less conviction) that she pleaded guilty and there was a contested sentence before His Honour Judge Pratt. The sentencing remarks in effect set out His Honour’s reasons for judgment and determinations of fact in relation to that sentence.

5. [5]
   Mr Grant-Taylor understandably urged me to proceed on the basis of his client’s affidavit filed in these proceedings which as he pointed out was not challenged, rather than on the basis of the facts found by His Honour Judge Pratt. In my view this would be contrary to law and in this regard I particularly rely on the judgments of the various members of the Court of Appeal in Chong v. Chong (Appeal No. 11658 of 1998, unreported judgment of the Court of Appeal delivered on 13^th August 1999), and in particular the judgment of Demack J.  As His Honour observed in Chong:

“It was not only proper but necessary for the Judge to recall the basis upon which Chong was sentenced.  A preferable way of presenting that material would be through the tender of the transcript of the submissions on sentence.”

6. [6]
   Apart from some indirect references in the affidavit of the applicant the only evidence relating to injuries sustained in the offence is the report of Dr Francis Tomlinson, neurosurgeon. Dr Tomlinson reviewed Mr Flanagan on the 23^rd November 1999 and also reviewed his medical records and imaging from the Royal Brisbane Hospital.  I infer therefore that Dr Tomlinson had some previous involvement in the applicant’s care.  I infer that the offence was committed on or about the 15^th November 1997.  The applicant told Dr Tomlinson that he returned to tow-truck driving six months after the injury and that approximately at the end of 1998 he returned to truck driving on a permanent basis.  There is apparently some difference between produce driving and overnight transport, although there is no sworn evidence to this effect.

7. [7]
   Mr Grant-Taylor submits that I can proceed on the basis that Dr Tomlinson’s opinion set out in the last paragraph of his report; in other words, I can be satisfied that the applicant has established a causal connection between the injuries referred to in that paragraph and the offence. The difficulty with that proposition is that in the paragraph above which relates to examination Dr Tomlinson for example refers to the wasting of the small muscles of the hand, which I assume are referable to an injury suffered by the applicant in 1980. As I have noted there are no primary hospital records or reports before this Court nor do I have the advantage of information relating to the injuries that was provided to Judge Pratt. It is a most unsatisfactory situation bearing in mind that the application must be decided on the balance of probabilities.

8. [8]
   Having regard to all the evidence I proceed on the basis that the applicant sustained a skull fracture which resulted in minor brain damage in the incident, together with some facial fractures and facial injury. In my view this is an appropriate case in which I should proceed under s. 26 and having regard to s. 26(4) of the Act I am satisfied that the applicant has suffered a substantial single state of injury in the incident. I am satisfied that the appropriate item number in the compensation table in Schedule 1 is item 10 and doing the best I can I will allow the applicant 15% of the scheme maximum which is $11,250.

9. [9]
   It remains for me to consider the application of s. 25(7) of the Act to the circumstances of this case. To say that the sentencing Judge, His Honour Judge Pratt QC was unimpressed with the applicant as a witness would be a significant understatement. As I have noted I infer that the sentence proceeded on the basis of a contested sentence and evidence was called for and on behalf of the Crown which included the applicant. Judge Pratt observed, after making comments in relation to the applicant’s performance in the witness box and in particular his denials of the obvious:

“… They bear out much other evidence which is placed before me, which I accept, that Mr Flanagan is nothing but a manipulative, abusive, violent, mendatious scoundrel who has been submitting the accused, his wife, to a great deal of physical, emotional, sexual and psychological abuse for many years.”

His Honour went on to further say:

“I have been left with no doubt that when she struck Mr Flanagan with the iron bar on the subject occasion she (the respondent) was, indeed, suffering from the battered wife syndrome as described and diagnosed by Doctor Curtis.”

10. [10]
    His Honour accepted evidence placed before him that the weekend before the offence was committed the applicant had presented the respondent with a list of three men which he had obtained apparently at the club Libido at Southport. His Honour further found that the applicant had instructed the respondent that previous weekend to ring those numbers which he had written next to the mens’ names and arrange to have them attend him for group sex the following weekend. His Honour found as a fact that this triggered the subject incident because when the applicant returned the following weekend the respondent had not contacted the three men and said she did not wish to participate. His Honour said this:

“(The respondent) was involved in a domestic relationship characterised by a pattern of coercive control by Mr Flanagan’s use of physical, sexual and psychological abusive behaviour as Doctor Curtis found.”

He said:

“The domestic violence which she sustained was a pattern of coercive control, characterised by the use of physical, sexual and psychologically abusive behaviours … She was in genuine and justifiable fear, fear which was greatly magnified by past battering.”

11. [11]
    His Honour accepted an opinion from clinical psychiatrist Dr Curtis that:

“A battered woman’s appraisal of threat is understood best in terms of her past history with the batterer.  The cyclical nature of the violence and the dynamic nature of the relationship, together with the woman’s post trauma carry-over reactions from previous episodes, determines how a battered woman perceives a specific situation as dangerous.”

12. [12]
    His Honour found as follows:

“It was when she was in that frame of mind that the accused struck Mr Flanagan.  Her response, of course, can not be condoned, but it can be understood and to a very large extent excused.”

13. [13]
    His Honour proceeded to impose a wholly suspended term of nine months imprisonment on the respondent.

14. [14]
    These comments, which I accept, bear significantly on the application of s. 25(7) to the facts of this case. I find that the applicant by his own conduct has contributed substantially directly and indirectly to the injury he sustained. Doing the best I can I intend to reduce the award by a component of 60%. I order the respondent to pay to the applicant by way of compensation under the Act, the sum of $4,500.00.