Nikas v Melville[2004] QDC 460

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D8 of 2004

MOUNT ISA

DATE 21/07/2004

HIS HONOUR:  This is an application for compensation under the Criminal Offence Victims Act 1995 by Daniel Barry John Nikas. 

The respondent, Edward Lee Melville, was not here when called, the explanation being that he is incarcerated in the Townsville Correctional Centre serving two years' imprisonment, which was the sentence set by Judge Forde in respect of two counts of serious assault constituted by spitting on the applicant, who was a police officer attempting to control him when he became disorderly in the Mount Isa watch-house.   Mr Melville, who was only 17 - he may have been 18, just - was also convicted of other offences, many of them committed as a juvenile and coming on top of earlier offending as a juvenile. 

All of that serves to explain the sentence, which is surprisingly lengthy given the offender's age. It is perhaps surprising that the offences are dealt with in the District Court.  That is a possibility given the relatively recent provisions in the Criminal Code regarding serious assaults. 

One may be forgiven for thinking that the possibility of compensation being available under the Act where there's a conviction on indictment plays some part in the increasingly common phenomenon of serious assault charges of this kind appearing in District Court lists.

It may be that that is entirely appropriate if it offers the only means of amends being made to police officers who ought never to be subjected to the degrading experience of being spat upon by those who the performance of their ordinary duties brings them into contact, often hostile contact, with. 

The system is rather irrational.  I would think it never happens, for practical purposes, that the offender is in a position to pay compensation, so that it is the taxpayers of the State who have to pay.  It is regrettable there is not some extra-curial means of dealing with these situations. As it is, the Court has to provide resources to process the applications and the applicant, of course, incurs his or her own costs, none of which are recoverable. 

This is a typical criminal compensation hearing in which the respondent, who will certainly have no resources of a financial kind and little prospect of getting any in the foreseeable future, plays no part, so that the applicant's material is unchallenged and effectively has to be accepted by the Court.  In many such situations it may be there are aspects a more active respondent could have explored or that the State authorities could explore if they were so minded. 

A troubling feature of the situation is that Mr Melville was uninjured when brought into the watch-house but suffered, in some way, cuts to his nose and mouth, which were bleeding.  That is something which we would hope does not ordinarily happen to a citizen in the hands of the police.  There is no basis on which the rights and wrongs of how it happened can be explored today. 

What did happen gave the respondent the possibility of spitting a fluid, which certainly included blood, at the applicant.  He, at the relevant time, was accompanied by a colleague who seconds before left the cell.  The respondent compounded the situation by spitting again in a similar way.  The bloody fluid came into contact with the applicant's face and parts of it got into his mouth.  The respondent gave voice to concerns, which I am sure the applicant would have had anyway, by yelling comments along the following lines - I quote Judge Forde's sentencing remarks:

"Fuck you, you will get hep A and hep B.  Your life is fucked and I don't care.  I will only go away for two months for this but you will be fucked for life, fuck you."

Which his Honour thought was the most disconcerting aspect of the particular charges.

The consequences for the applicant were all too predictable, and the Court has no difficulty in accepting what he and the psychologist, Mr Jordan, say about them.  He had an agonising wait of six months while testing confirmed the claims that had been made all along that Melville was not suffering from any communicable disease.

The applicant's plans with his partner to begin having a family were put on hold and their intimate relations were obviously compromised severely.  His attitude to his police service changed, and likewise he says his attitude to people of Aboriginal extraction like Mr Melville.  Fortunately he has been able to stick with ordinary police duties, unlike some in his position who have been psychologically unable to achieve that. 

A particular feature of the applicant's history has been an apparent highly adverse reaction to medication of a somewhat experimental kind which he elected to take as a prophylactic against HIV.  The six-month period has elapsed.

On the psychological side the applicant does not conceal that he has recovered well.  Understandably he still has less enthusiasm for police work than what he started out with.  Mr Jordan does not consider that post-traumatic stress disorder can properly be diagnosed during the six-month period, but he does consider there was an adjustment disorder, which has fortunately subsided since.

Mr Evans' useful submissions have references to two similar matters in which he was involved before Senior Judge Skoien. They are Tolscher v. George, 6 of 2001, 6th of November 2001; and Wakerly v. Jupiter, 19 of 2002, 25th of September 2002.

The latter, in particular, involves spitting and an applicant whose post-traumatic stress disorder resolved after the six months, and clear tests. But as the Judge said, it is unlikely that the anguish such applicants suffer would dissipate overnight.

Whereas Wakerly involved spitting, his Honour's other matter involved biting, which I think was accompanied by similar statements from the offender, which would serve to underline the police officer's concern of being at risk of contracting a communicable disease.

In both of those matters his Honour assessed the psychological aspect by applying 20 per cent of the scheme maximum which is the top of the range of item 32 in the schedule, "mental or nervous shock, moderate".

I must say I have reservations about the application of that percentage where the concededly "moderate" mental or nervous shock has resolved after months. However, Senior Judge Skoien quite deliberately took that approach as one can see from his reasons. I think it would be invidious to depart from what appears to be a tariff that has been set by him.

I cannot find any basis on which distinctions ought to be made, and in those circumstances I accept the submission of Mr Evans that an appropriate award is $15,000, and that is what the respondent will be ordered to pay to the applicant pursuant to the Act.