Willesden v Bruce[2005] QDC 1

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995.  The respondent, Norman William Bruce, was convicted on 12 June 2003 after a two-day trial in the District Court at Southport of one count of assault occasioning bodily harm.  He was sentenced to perform 200 hours of unpaid community service.

2. [2]
   The case for the Crown was that on 1 May 2002 the applicant, together with her niece and a female friend, were exercising four dogs on Tallebudgera Beach in an area set aside by the Gold Coast City Council for such purpose.  The respondent came into contact with one of the dogs while jogging in a northerly direction on the beach.  He continued on his way and about 10 minutes later he returned towards the group from the south.  As he drew near the group of females one of them (not the applicant) said to the respondent: “How would you like it if someone attacked you?”  This person, as she spoke, was holding a dog lead and swinging it in a circular motion in front of her.  The respondent ran towards one of the dogs, (a puppy) which was standing near the water’s edge.  The applicant, believing that the respondent was about to attack the dog, ran towards the respondent and squirted sunscreen onto his back in an attempt to turn his attention from the dog and the woman who had spoken to him.  The respondent stopped and turned to face the applicant.  He then moved towards her and punched her in the upper left arm.  The applicant stumbled backwards and was then punched to the left side of her face, causing her to stumble backwards again.  The respondent then ran off in the direction of the Tallebudgera Surf Club.

3. [3]
   The case for the accused, put shortly, was that he was being whipped by the women, with the dog leads; they (the women) were attempting to cut his path of escape off; and the applicant was also simultaneously squirting sunscreen in his face.

4. [4]
   The jury was not asked to make any special findings in relation to the facts, but its verdict of guilty clearly indicates that it rejected the version of events put forward by the accused (respondent) as this was the sole basis upon which the exculpatory claim of self-defence rested.  In discussion with counsel during the trial (in the absence of the jury) I made the following observations:

“It’s a clear case of self-defence.  If the jury accept your client’s evidence that he acted in self-defence they must acquit. … His evidence was that he did what he did to make sure that the sunscreen wasn’t squirted in his eyes. …

…

Now, obviously if they accept that your client was being whipped by [the] women who were attempting to cut his path of escape off and that one of them was also simultaneously squirting sunscreen over him in his face, they are likely to take a more charitable view of reasonableness from your point of view.  On the other hand, if they accept that there was no whipping involved and there was simply this squirting of the [sunscreen] in an attempt to distract him from moving towards the puppy, they are likely to take a less charitable view of reasonableness of his response. …  They have got to decide the facts.  Once they have decided [them], it seems to me to be a relatively straightforward exercise to apply the section [relating to] self-defence.”

5. [5]
   It should be noted that the respondent did not give or call evidence at the hearing of this application.  The only sworn evidence as to the facts was that given by the applicant.  Notwithstanding the submission of counsel for the respondent that the applicant has overstated the circumstances surrounding the incident, I found her to be generally a truthful witness, both at the trial and during this hearing.  I accept the evidence given by her and by the other Crown witnesses.

6. [6]
   There is no doubt, even on the Crown case, that the respondent was being assaulted by the applicant at the time he punched her.  Sensibly, the only logical basis upon which the jury’s verdict can rest is that the respondent used unreasonable and excessive force in the circumstances.  However, that does not, in my view, preclude a consideration of the behaviour of the applicant in order to determine whether that contributed directly or indirectly to her injuries.  Indeed, such an exercise is required to be performed pursuant to the provisions of s 25(7) of the Criminal Offence Victims Act 1995.

7. [7]
   Factors relevant to such consideration were identified by Atkinson J in Hohn v King [2004] QCA 254 as including:

1. Whether or not the victim was committing an offence at the time of his or her injury;
2. Whether any such offence committed by the victim involved personal violence to the offender or another;
3. Whether the victim offered violence to the offender or another before, during or after the offence;
4. Whether the victim was armed or used a weapon;
5. Whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;
6. Whether the offender responded with more force than was justified for self-defence;
7. Whether the victim offered provocation to the offender;
8. Any differences in size, strength and power between the victim and the offender;
9. Whether the violence used by the offender was disproportionate to any violence offered by the victim.

8. [8]
   Cullinane J has suggested that in considering whether any behaviour of the applicant has directly or indirectly contributed to the injuries for which she seeks compensation, a broad and common-sense approach is to be adopted rather than a technical and narrow approach - see Grahame v Dean (2001) QSC 420 at para 34.  It is also appropriate to bear in mind the fallacy that succession in time implies a causal relationship.  This was recognised by Hall DCJ in Williamson v McDonald QDC 610 of 2000 at p 5 where his Honour stated:

“In my view, notwithstanding the clear literal meaning of the words of s 25(7), it cannot have been the intention of parliament that anything but wrongful conduct by an applicant should cause a reduction in his or her award.  If it were so, a rape victim who had resisted and was severely bashed to overcome her resistance, would be held to have contributed to her physical injuries.  A post hoc ergo propter hoc connection is quite simply not enough…”

9. [9]
   Having in mind the applicant’s evidence and the verdict of the jury, I am satisfied that the violence used by the respondent was disproportionate to any violence offered by the applicant.  This conclusion is partly based upon the obvious differences in size, strength and power between the applicant and the respondent.  In my view, the applicant acted appropriately and normally in the circumstances confronting her at the relevant time.  Accordingly, I find that there was no behaviour on the part of the applicant that contributed to either of her injuries.

10. [10]
    The applicant seeks an order for compensation in respect of bruising and mental or nervous shock.  She attended the Hinterland Medical Centre at Nerang on         2 May 2002 where she was examined by Dr Penwarn; she also had her face        X-rayed on the following day and no fractures were detected.  The applicant revisited Dr Penwarn for further treatment on 4 May 2002, 4 September 2002,    15 April 2003 and 28 May 2003.  All those appointments related to the effects of the assault upon her.  In an affidavit sworn on 7 October 2003 the applicant deposes to her injuries having included swelling to her face and the near closure of her left eye.  She claims that she was punched in the face, cheek, jaw and arm and that “the pain was so shattering” that she thought she was going to die.  As at the date of the swearing of her affidavit her jaw was said to still be sensitive and her left cheekbone under the eye still very tender and sore to touch.  She further deposes to having developed mental and nervous anxiety which has adversely impacted on her life and mental state.  She consulted Mr Chittenden, a Registered Psychologist, on 24 June 2003.  The applicant confirms in her affidavit that the information provided by her to Dr Penwarn and to Mr Chittenden was true and correct to the best of her knowledge and belief.  On 13 December 2002 the applicant attended an optometrist, Mr Rosser, who examined her left eye as the applicant was still experiencing visual trouble following the assault upon her.  As at the date her affidavit was sworn, the applicant claims her eyesight had deteriorated and that she still experienced blurred vision in her left eye.  That eye, at times, twitches all day and the applicant finds this particularly uncomfortable and distracting.  She states that she did not have this condition before the assault.  The applicant has confirmed in her affidavit that the information she provided to Mr Rosser at the time she attended upon him was true and correct to the best of her knowledge and belief.

11. [11]
    Dr Penwarn has provided a report dated 28 May 2003.  In that report he states as follows:

“Margaret presented to myself at Hinterland Medical Centre on the 2^nd May 2002, following an alleged assault incident which occurred one day prior.  Margaret stated on this date that an unknown male allegedly punched her the previous day and contact was allegedly made around her left eye, left lateral mandible and left lateral shoulder.  Margaret described on this date no loss of consciousness from the incident.  She described symptoms persisting pain and discomfort on the left side of her face, around her left eye and head, and also pain in her left shoulder with movements.  Margaret stated she normally wears contact lenses and was unable to put them in that morning due to her discomfort.  She denied any double vision, however her vision was narrowed out of her left eye due to swelling.   The examination on this date revealed left eye swelling, evidently in the peri-orbital region around the eye with purple/red bruising and some swelling and bruising also over the left zygoma with no evident step fracture on examination and palpation.  There was also tenderness and swelling with bruising around the left lateral mandible in the middle aspect.  Margaret was unable to open her mouth due to the swelling and pain, however had no specific temporo-mandibular joint tenderness bilaterally, her visual acuity in her left eye was 6/12 and right eye 6/12 both aided with contact lenses in-situ.  Her eyes revealed no evident injection or haemorrhage.  Examination of the left shoulder revealed a full range of motion with no swelling or bruising, however there was tenderness over the deltoid region and pain with extension and external rotation of the left shoulder.  Margaret also displayed tenderness over her left parietal region on palpation with no swelling or bruising evident in this area.  An overall impression of soft tissue injuries to the left peri-orbital region/zygoma and shoulder, as well as mandible was made on this date.  An X-ray was requested to ensure there was no fracture.  Margaret’s X-ray revealed no evident orbital fracture, no depression or displacement of the zygomatic arch and no evident mandibular fracture.

Margaret was again reviewed on the 4^th May 2002 and she described pain persisting in her left shoulder, which was radiating down the posterior shoulder and back.  Margaret also noticed swelling over her left forearm and the mid to medial aspect, and swelling and bruising persisted around her left eye, which on examination revealed firm subcutaneous swelling over the superior zygoma and tenderness associated with this.

Margaret was again seen on the 4^th Sep 2002 stating that her left eye and face swelling and tenderness persist.  She denied any double vision, however described some twitching around her left eye at times and stated she was having difficulty wearing her glasses due to pressure over a sore left lateral orbital region.  Margaret also described her anxiety in going down to the beach due to the previous incident since her alleged assault and felt stressed with anxiety when thinking of this situation.  She did describe she was able to open her mouth without any problems on this date.  Examination revealed evident firm swelling around her left face on palpation especially over the superior lateral zygoma with tenderness approximately 1-2cm in diameter and also swelling in the left lateral deltoid with tenderness which is possibly due to an unresolved haematoma.  There was no evident swelling in the left mandible, which appeared to have resolved on this date.

Margaret returned to the medical centre on the 15^th April 2003 in a tearful state due to multiple issues.  Margaret’s mother had been diagnosed with cancer and she was caring for her mother in a palliative setting.  Margaret stated she used to go for a walk for stress relief in the past but now felt unable to do so, due to anxiety associated with the past assault.  She stated she was feeling tense, anxious and depressed in her mood with a very low mood on a scale of zero to ten, being described on this date as zero, with admission to suicidal ideation at times.  An adjustment disorder with depression and anxiety was diagnosed on this date and her previous alleged assault appears to have some impact and contribution to this overall diagnosis.  Margaret was advised to see a specialist, Dr Trevor Lotz, and was started on antidepressant/anti-anxiety medication on this date.

Margaret was last reviewed on the 28^th May 2003 and she stated she had not seen the specialist as yet.  She stated she was still suffering from pain in her left shoulder around the inferior deltoid region since the alleged assault.  She also described continuing fluttering and pressure sensation at times around her left eye in the lower region and the lateral zygoma region, which was worse with wearing glasses.  I recommended an X-ray and ultrasound of her left shoulder to ensure there was no tendon or muscle injury or abnormalities in the shoulder joints.  Margaret’s mood had improved dramatically scoring nine out of ten, on a scale of zero to ten, and this could be attributed to the medication, which she was taking, and she noted very good improvement in her mood herself.  She still felt some stress and difficulty in sleeping at times and was prescribed a sleeping medication for intermittent use.”

12. [12]
    Although no discrete compensable injury is identified in this application with respect to the applicant’s injuries to her left eye, it is relevant to note the contents of a report dated 21 June 2003 by Mr Rosser, who is a qualified optometrist.  In his report Mr Rosser states:

“Margaret has been a patient of mine for several years.  She wears spectacles and contact lenses for Hyperopia. 

She presented to me on the 13^th of December 2002 for an eye examination, and was still having visual trouble since being assaulted some seven months ago. 

Her symptoms were the Left eye was intermittently blurry and still had a sticky or gluey feeling even though she was not suffering from diplopia now, like she first did after the assault.  She had been trying to wear her contact lenses again and was aware of her left eye being sensitive whenever she wore the contacts.  The left eye showed general swelling around the upper and lower eyelids, compared to the right eye and she was particularly sensitive to any touching of the temporal areas.  The corneas were clear and there was no limbal redness.  Internals showed the optic nerves to be of good pallor and the vessels were of normal appearance and the Fundii were in general good condition.  IOPs R15 L16.

I performed a dilated fundus examination and took photographs and did a visual field test all of which appear normal. 

Subjective R x R +6.00/-1.25 x 180 6/9 L + 7.50/-0.75 x 180 6/9 VA ou 6/7.5

Margaret is still able to wear her contact lenses, however, she still appears to be sensitive around her eyelids and cheekbone when either inserting or removing the contact lenses, and her wearing time of the lenses may well be reduced because of the sensitivity around the left eyelid.  She should be able to continue wearing her contact lenses at this stage, however, I have advised Margaret to have regular 6 monthly checkups with me.”

13. [13]
    In a report dated 16 July 2003 Mr Chittenden, a Registered Psychologist, states that:

“21. Margaret Willesden was undoubtedly involved in a traumatic event in which she suffered physical injuries which, although have (sic) largely dissipated, have left her with tenderness around the face and some minor disfigurement which her doctor maintains may be permanent, and this unfortunately has the effect of reminding her of what occurred when she looks at herself in the mirror.  At the time of the attack she felt intense fear and helplessness, and following the incident she had intrusive distressing dreams which woke her up, and she avoids talking about the incident.

22. She is quite unable to continue her previous enjoyable activities such as walking her dogs on the beach, as this brings about marked distress and anxiety and there are times when it would appear she suffers from panic attacks.

23. She experiences a marked loss of interest in the things she once enjoyed and this, to a certain extent, is also due to problems concentrating and being able to focus her mind on the task in hand.

24. She is suffering from insomnia, poor concentration, and she has become excessively vigilant, particularly when out and about, constantly becoming anxious if she sees anyone who slightly resembles her attacker or she sees a vehicle similar to the one that he drove.  She also has an increased startle response, which means that any sudden noises around her also creates (sic) an anxiety response, to the point that she has become extremely security conscious, prefers not to spend time outside, and has to a certain extent become something of a recluse.

25. There is no doubt that following the incident she suffered from quite severe symptoms of a Post Traumatic Stress Disorder – DSM IV 309/81, and I believe is still suffering, although the symptoms have to a certain extent diminished.  She would benefit from a course of treatment from a Clinical Psychologist which should include cognitive behavioural therapy, desensitisation and relaxation to help her come to terms with what has occurred and to help her cope with the anxiety and stress which she finds extremely difficult to cope with.

26. I believe the psychological impact made upon her would be seen as within the moderate range, but it has undoubtedly seriously affected the quality of life as she does not have the same freedom, she is afraid to exercise her dogs, and finds it extremely difficult to understand why a person should act in such a way against somebody who did not in any way provoke him.

27. Undoubtedly, the situation will probably affect her ability to cope with studying at TAFE College, as she does have great difficulty concentrating, and although she is very determined to try and overcome the situation and get on with her life, I think she will always have some residual anxiety and will never feel completely stress-free.”

14. [14]
    I accept the evidence of Dr Penwarn, Mr Rosser and Mr Chittenden.

15. [15]
    The compensation table in Schedule 1 to the Criminal Offence Victims Act 1995 sets out a number of injuries together with the percentage of the scheme maximum which may be awarded in respect of such injuries.  The scheme maximum is currently $75,000.  Injury no. 2 in the schedule refers to bruising/laceration etc (severe) in respect of which an award of between 3%-5% of the scheme maximum may be awarded.  The applicant seeks an award at the top of the range under injury no. 2 but this would be appropriate only if her injuries were the worst possible case of bruising/laceration.  In Dooley v Ward [2000] QCA 493 the Court of Appeal stated, at para 9, that:

“The learned primary Judge … assessed the amount for bruising and laceration at $3,750.00, which is 5% of the scheme maximum.  That cannot be supported.  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 laceration must have some claim to be one of the ‘most serious cases’.  Here there were no lacerations and only some moderate areas of swelling to the upper lip, right side of mouth, three fingers and the right elbow.  We can find nothing in the evidence to suggest that any of this swelling was long-lasting or causative of significant pain.  Since the view that the injury is in the category of ‘most serious cases’ of ‘severe’ bruising and laceration cannot be supported, this Court has to re-assess; we would assess at 2% i.e. $1,500.00.”

16. [16]
    In this case the applicant sustained swelling to her left eye, swelling and bruising over the left zygoma, swelling and bruising around the left mandible and was unable to open her mouth due to the swelling and pain.  Two days later the applicant noticed swelling over her left forearm but this may not have been visible to Dr Penwarn.  In my view, it is more appropriate to assess compensation for bruising in this case under injury no. 1 in the compensation table which refers to bruising/laceration etc (minor/moderate) and which permits an assessment at between 1% and 3% of the scheme maximum.  The bruising suffered by the applicant I think is more accurately to be categorised as moderate, rather than severe.  Having regard to the medical evidence in this case I am satisfied that an award at 3% of the scheme maximum is appropriate in all the circumstances.  This yields the sum of $2,250.00.

17. [17]
    Injury no. 33 in the compensation table refers to mental or nervous shock (severe) and permits an award at between 20%-34% of the scheme maximum.  The respondent submits that the opinion of Mr Chittenden that the applicant suffered mental or nervous shock should not be accepted in circumstances where that opinion was given after only one consultation, was based on the accuracy of the history provided by the applicant, and in circumstances where the psychologist did not administer acknowledged available tests to determine whether a patient is distorting their symptoms.  It should be remembered, however, that no evidence was called by the respondent that contradicted the conclusions reached by          Mr Chittenden and that the criticisms referred to above were put to him in cross-examination on the hearing of this application but did not result in                      Mr Chittenden changing any of his views.  The submission made on behalf of the applicant that an award of 30% of the scheme maximum should be made in respect of mental or nervous shock cannot be supported when the most severe case attracts an award under injury no. 33 of 34% of the scheme maximum.  On the other hand, the submission of Counsel for the respondent that an award of only 5% should be made for mental or nervous shock is also unsupportable, having regard to Mr Chittenden’s conclusion that the applicant will always have some residual anxiety and will never feel completely stress-free.  The submission further overlooks Mr Chittenden’s description of the symptoms of a post-traumatic stress disorder suffered by the applicant as “quite severe”.   Having regard to Mr Chittenden’s assessment that the psychological impact upon the applicant falls within the moderate range, I am of the view that compensation for this injury is better assessed under injury no. 32 which refers to mental or nervous shock (moderate) which permits an award at between 10%-20% of the scheme maximum rather than under injury no. 33 which is reserved for severe cases of mental or nervous shock.  Accordingly, I assess the applicant’s psychological injury under injury no. 32 at 20% of the scheme maximum which yields $15,000.00.  The total is therefore $17,250.00.

18. [18]
    I order that the respondent, Norman William Bruce pay criminal compensation to the applicant Margaret Willesden in the sum of $17,250.00.

19. [19]
    There remains for consideration the question of costs thrown away by reason of the application being adjourned by consent on 9 December 2003.  The application was initially listed for hearing on that date.  An order for the payment of costs of an application for a compensation order cannot be made (see s 31 Criminal Offence Victims Act 1995).  However, that section is no impediment to making an order for costs relating to an adjournment of a criminal compensation application (see Cleland v Major no. D129 of 2001 26 June 2002) per Wall QC DCJ.  The respondent seeks an order for costs on the basis that the applicant was not available for cross-examination on 9 December 2003.  In support of this application for costs it was submitted on behalf of the respondent that at all material times it should have been apparent to the applicant and her solicitors that the respondent was not impecunious.  He vigorously defended the charge at trial and the applicant’s solicitors should have attended to the possibility that he would defend the application for criminal compensation by anticipating the possibility that at the very least the applicant might be required to be available for cross-examination.

20. [20]
    It was further submitted by the respondent that rule 439(2) of the Uniform Civil Procedure Rules provides that if an affidavit to be relied on at the hearing is served on a party more than one business day before the hearing and the party wishes the person who made the affidavit to attend the court for cross-examination, the party must serve a notice to that effect on the party on whose behalf the affidavit is filed at least one business day before the date the person is required for examination.  Accordingly, it was submitted, the applicant’s solicitors should have recognised that if the respondent required any of the applicant’s witnesses to be available for cross-examination, the rules require that notice be given no later than 5 December 2003.  On 4 December the respondent’s solicitors gave notice to the applicant’s solicitors that they required the applicant for cross-examination.  The applicant was not available for cross-examination because she would be travelling overseas.  By 4 December the respondent had briefed Counsel and the matter was ready to proceed to hearing.  The applicant’s unavailability occasioned the need for the matter to be adjourned and for costs of the adjournment to be thrown away.

21. [21]
    In resisting the respondent’s application for costs thrown away by the adjournment of the hearing, Counsel for the applicant points to rule 390 of the Uniform Civil Procedure Rules which states that evidence in a proceeding started by an application may only be given by affidavit.  Accordingly, it was submitted, it is entirely unreasonable to contend that the applicant’s solicitor is charged with a positive obligation to ensure that the applicant is on standby to be cross-examined when the general rule (vide rule 390) is that the evidence may only by given by affidavit.  It was submitted that an applicant in a criminal compensation proceeding has no onus cast upon him or her to be ready to present his or her case as if it were contested.  Counsel for the applicant contends that the respondent is entirely at fault for the inordinate delay in notifying the applicant that her application was contested.  The respondent was served over a month before the hearing date and did nothing, until 4 December 2003, to notify the applicant that her application was to be contested.

22. [22]
    In my view, in circumstances where the respondent has acted completely in accordance with his obligations under the rules, a prudent solicitor in the position of the solicitors for the applicant should have been aware of the possibility of the respondent exercising his rights under rule 439.  Accordingly, I consider it appropriate that the applicant is to pay the respondent’s costs to be assessed thrown away by reason of the adjournment on 9 December 2003 and I so order.