DISTRICT COURT OF QUEENSLAND

1. [1]
   INTRODUCTION

On the 6 January 2002 Senior Constable William Kaz was called to a violent disturbance at 15 Barber Street, Cherbourg. He was with his partner Constable Kath Whiley. When the police officers arrived at the house soon after 4.30pm, John Eric Murray was standing outside the premises abusing his niece Miriam Murray. Both were extremely intoxicated, aggressive and abusive. Miriam Murray went into the house followed by John Murray. The police were obliged to follow as it appeared obvious that violence was imminent. In the course of subsequent events both inside and outside the house, Senior Constable Kaz was threatened, abused, spat upon and bitten by Miriam Murray, punched in the jaw by John Murray, and struck between the legs by another person Steven Priestley. Senior Constable Kaz suffered a number of physical injuries. He has also suffered a moderately severe mental or nervous shock injury. He seeks compensation from John Murray for injuries suffered as a result of a serious assault for which Murray was convicted and sentenced in this Court on 22 January 2003.

2. [2]
   THE INCIDENT ON 6 JANUARY 2002.

To understand the ambit of the claim it is necessary to set out a brief summary of what occurred.

3. [3]
   Once the police officers were inside the house they found that they were outnumbered by a number of aggressive and drunk people including the Murrays. Constable Whiley attempted to remove Miriam Murray from the house. She responded by hurling a chair at the female officer. Senior Constable Kaz then restrained Miriam Murray who spat in his face. Spittle landed on his mouth and chin. He then attempted to arrest her. She struggled violently. In a cowardly act, John Murray then punched Senior Constable Kaz on the left side of his jaw. The force was so great that it knocked him to the ground and caused his mouth to bleed. Senior Constable Kaz then restrained John Murray to prevent any further assaults.

4. [4]
   Steven Priestley then attempted to assault Senior Constable Kaz with a chair. The police officer produced his OC spray in self defence. As the situation was getting out of control, he directed his partner to call for backup.

5. [5]
   Senior Constable Kaz then arrested John Murray and placed him in the rear of the police vehicle. Murray managed to escape and again attempted to attack Senior Constable Kaz and he too was sprayed with capsicum spray.

6. [6]
   In the meantime Constable Whiley had restrained Miriam Murray. Other police arrived, and some of them and Senior Constable Kaz attempted to arrest Miriam Murray by placing her on the ground to be handcuffed. She was resisting violently. She then bit Senior Constable Kaz forcefully on his knee. He was wearing police shorts and the bite was directly to his skin. It drew blood and caused him severe pain. To stop her biting him it was necessary for him to take her by the hair and pull her head back.

7. [7]
   The combined might of the police officers finally prevailed and all three civilians were arrested and conveyed to the Murgon watchhouse.

8. [8]
   The travails of Senior Constable Kaz were not over. At the watchhouse, Priestley violently kicked open the door of the police vehicle which struck Senior Constable Kaz between the legs causing him severe pain and discomfort.

9. [9]
   Senior Constable Kaz later went to the Cherbourg Hospital where his injuries were treated by a doctor. He was fearful that he may have contracted HIV or Hepatitis C and blood samples were taken. Ultimately the results were negative, but he had a lengthy wait before he could be sure.

10. [10]
    It is obvious therefore that Senior Constable Kaz suffered injuries from a number of sources on 6 January 2002.

11. [11]
    THE CRIMINAL PROCEEDINGS.

12. [12]
    The material in support of the application establishes that only John Murray has been convicted of an offence arising out of the incident. Miriam Murray was charged with serious assault, but after the incident she suffered from a severe brain injury which rendered her unfit for trial. A letter from the Director of Public Prosecutions dated 2 June 2003 states relevantly that the discontinuance of the proceedings was based on her unfitness for trail, and not any perceived weakness in the case against her which was obviously very strong. The material is silent as to the fate of any proceedings involving Priestley.

13. [13]
    John Murray was convicted of serious assault on 22 January 2003. The transcript of the proceedings before Judge Hall establishes that the offence was based on the punch to Senior Constable Kaz early on in the fracas.

14. [14]
    SENIOR CONSTABLE KAZ’S INJURIES

15. [15]
    The written submissions in support of the application seek compensation for all the injuries suffered by Senior Constable Kaz. In my view, the submission misconstrues the nature of the scheme for compensation under the Criminal Offences Victims Act.

16. [16]
    The affidavit of Dr Salehi establishes that when he examined Senior Constable Kaz at the hospital the next morning he noted that the police officer was complaining of pain to his jaw on chewing. An x-ray did not disclose a fracture. When he returned on the 9^th January, the doctor noted bruising to the left knee, which did not affect walking or movement.

17. [17]
    By far the most significant injury suffered by Senior Constable Kaz as a result of the events of the 6 January 2002 is a mental or nervous shock injury which is described in the report of Alan Chittenden a clinical psychologist.

18. [18]
    It is quite clear that Mr Chittenden has made no attempt to relate Senior Constable Kaz’s present psychological problems to any one incident of that day. Indeed, to do so would be almost impossible. Rather he has considered the whole incident involving as it did abuse, physical violence, and being spat on and bitten over an extended time, in which he was clearly in fear for his own safety and that of his partner.

19. [19]
    I am satisfied that he is suffering from a moderate post-traumatic stress disorder which is a discrete mental or nervous shock injury going beyond an “injury to health, illness or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event…”: per Thomas J (as His Honour then was) in R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 followed by the Court of Appeal in Beardsley v Loogatha [2001] QCA 438. This is despite the fact that far some curious reason that seems to defy logic, the drafter of Regulation 1A of the Criminal Offence Victims Regulation 1995 includes post-traumatic stress disorder in the definition in sub-section two as an “adverse impact” of a sexual offence which by definition in sub-section one has to be an impact which is “not otherwise an injury under section 20.” The definition of “injury” in section 20 includes “mental or nervous shock”. I observe that it includes any injury “prescribed under a regulation”, but this illogicality is difficult to reconcile as a matter of common sense. I have commented to this effect on a number of occasions in the past but no-one takes any notice. Mr Downs, who appeared as town agent for the Solicitors for S.C. Kaz, and who was not responsible for the drafting of the written submissions, valiantly attempted to rescue the situation by arguing that the punch to the jaw was, on the evidence, a substantial cause of the mental or nervous shock injury, and therefore by application of the reasoning of Lee J in R v Tiltman; ex parte Dawe SC No. 324 of 1995, 22 June 1995 where His Honour said (in relation to an application under the Code Scheme), “Unless the respondent is able to separate the effects of the compensable and non-compensable conduct on the applicant with some precision, the applicant is entitled to have his compensation assessed on the whole injury”, Senior Constable Kaz is entitled to compensation for all the injuries. As Thomas JA observed in Hollywood v Levach [2000] QCA 472, it is unrealistic to speak of the respondent in applications of this kind which are almost always ex parte. In Steinbeck v Steinbeck [2001] QCA 12, the Court of Appeal approved my approach to causation by application of Lee J’s reasoning in a case involving mental injury as a result of sustained sexual abuse which resulted in two discrete convictions. There are two fatal flaws in Mr Down’s supplementary argument. Firstly, it would fall on the evidentiary point. Mr Chittenden’s evidence clearly establishes that it was the fear of being infected that caused such a dramatic effect on Senior Constable Kaz. The blow to the face was purely incidental. Secondly, as with the written submissions, the argument misconstrues the compensation scheme set up under Criminal Offence Victims Act.

20. [20]
    THE CRIMINAL OFFENCE VICTIMS ACT SCHEME

21. [21]
    Part 3 of the Criminal Offence Victims Act “establishes a scheme for the payment of compensation to a person…

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

4. (d)
   for injury suffered when helping a police officer to make an arrest or prevent an offence.” (s 19 (1) (a) and (d)) (my emphasis).

22. [22]
    For compensation payable under s 19 (1) (a) a person must apply to a court and satisfy the requirements of s 24 (1) (a) or (b). In this case, Senior Constable Kaz is clearly entitled to compensation under this section for the injury he suffered when John Murray punched him in the jaw.

23. [23]
    For compensation payable under s 19 (1) (d) a person must apply to the State for payment for injury suffered when helping a police officer: s 34.

24. [24]
    In other words, an application under s 19 (1) (d) is not made to a Court. Under the Act, a person retains any common law rights to compensation: s 22 (1).

25. [25]
    I should also mention s 33 (1) (b). That section does not come into play here because Miriam Murray has not been “found” to be unfit for trial, rather the DPP has determined that she is unfit and has elected not to proceed. The facts in this case have perhaps exposed a hiatus in the Act, which may lead to an injustice to a victim of a criminal act.

26. [26]
    For the assistance of any future application to the State under s 34, I indicate that had it been necessary for me to so find, I would have been satisfied that all of Senior Constable Kaz’s injuries came about as a result of him helping other police “to make, or attempt to make an arrest, or to prevent, or attempt to prevent, an offence or suspected offence”: s 34. If I had been called upon to make an assessment under s 24 for injuries of the kind suffered by Senior Constable Kaz (absent the injury to the jaw), I would have awarded him 15% of the scheme maximum under Item 32, that is $11,250.00.

27. [27]
    CONCLUSION

28. [28]
    It follows that the only injury compensable under the Criminal Offence Victims Act is the injury to the jaw. In the written submission, the solicitors for Senior Constable Kaz submit that the appropriate item is 9. Item 9 is clearly reserved for much more serious injuries than this. I will allow 3% of the scheme maximum under Item 1 which is $2,250.00. Senior Constable Kaz did not contribute either directly or indirectly to the injuries he suffered that afternoon.

29. [29]
    ORDER

30. [30]
    I order John Eric Murray to pay to William Kaz the sum of $2,250.00 under the Act.