Bell v Denham[2005] QDC 259

HIS HONOUR: This is an application for criminal compensation. The main issue is this: is Mr Bell entitled to compensation at all?.

The starting point is the proceedings before Judge Noud of this Court on 16 August 2002. The prosecutor asked for the return of an indictment before the Court which charged the Denham brothers and a man called Howie with assault occasioning bodily harm in company. The indictment alleges that they unlawfully assaulted Mr Bell and did him bodily harm.

The accused were discharged on that indictment and a new indictment was presented. It alleged that on the same day Howie and the Denham brothers took part in a fight of such a nature as to alarm the public in Truro Street, Hervey Bay, to which the public had access. That is the offence of affray (see section 72 of the Criminal Code).

It is then necessary to see the factual basis on which the sentence proceeded. The prosecutor outlined a series of events before the actual event referred to in the indictment in which Mr Bell, a friend called Cuffe, and those accused in these indictments were involved in a series of altercations. They began at a nightclub, later took place at the respondent’s house, and the final event was outside Mr Bell’s house.

The prosecutor described the event outside Mr Bell’s house as a fight between the parties. Later he described it as an altercation. He referred to there being two camps of people, the Denham camp and the camp of Bell and Cuffe. He did say that Mr Bell was punched and kicked and received some bruising and swelling to his forehead.

When the judge asked him about the nature of the offence, there was a discussion about an activity which might disturb people and make them fearful. There was reference to the infliction of violence in a public place. The prosecutor said to the judge that it was probably just enough to know that there was violence inflicted. There was no greater description of what happened to Mr Bell. In fact, the whole point of this application, and the previous indictment, was the fact that he was beaten up outside his mother’s house.

Later, when defence counsel addressed the judge, he referred to the events in the nightclub and at the respondent’s house, and eventually went on to refer to the event outside Mr Bell’s house as a fight. He said, in making some observations about the nature of the charge, that unless the combatants in such a case can maintain a plea of self-defence, they become players in the affray charged.

He explained to the judge that Messrs Bell and Chuffe had been charged with wilful damage to property while at the respondent’s house, and that the accused were charged with affray while outside Mr Bell’s house.

Those observations to the judge led to him making very little reference in his sentencing remarks to the facts. He referred to the affray, the details of which had been put before the Court, and he said this:

“The law would seem to be aimed at preventing fear being caused to members of the community, and whilst there was violence on this occasion, there is no suggestion, as I understand, that a member of the community has come forward complaining about the actual affray. That does not mean to say that you can do what you like in a public place….”

He went on to say that a lenient approach should be taken in relation to the affray.

In that respect it might be kept in mind that the maximum punishment for being involved in an affray was much less than the maximum punishment for the offence of assault occasioning bodily harm in company.

It is necessary to turn to the Criminal Offence Victims Act to see whether or not Mr Bell might be entitled to compensation because of these facts. The Act sets up a scheme for compensation for injury, death and expenses from indictable offences.

Section 19 provides that there is a scheme for payment for those applicants who suffer injuries caused by a personal offence committed against them. “Injury” is defined to include both bodily injury and mental and nervous shock.

Crucially, there is a definition of “personal offence” – an indictable offence committed against the person of someone. If an accused person is convicted on indictment of a personal offence, or is convicted on indictment and a personal offence is taken into account on sentence, then the person against whom the personal offence is committed may apply to the Court before which the person is convicted for compensation. The Court may then make an order, which is called a compensation order, for an amount to be paid because of the injury. That is to say, there has to be a direct causal link between the matter which is the subject of the conviction and the injury.

It can be seen that the critical issue is the existence of a personal offence. There is no doubt that Mr Bell was injured. There is no doubt that the injury was caused by the activities of the two accused who attacked him outside his mother’s house. However, it is not possible to see that their conduct amounted to a personal offence. They have not been convicted of a personal offence. Ordinarily one thinks of the offence of affray as an offence against public order.

Because there was no personal offence committed, it is not possible to compensate him for what happened.

Also, it is necessary to take into account the principles set out in Facer v. Bennett (2001) QCA 395, judgment 24 July 2001. The Court of Appeal was there dealing with the necessary connection between a trial or sentence proceedings and the later compensation proceedings. As the Court then explained:

“In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury’s verdict in a criminal trial. In certain circumstances where the jury’s verdict leaves open a number of possibilities as to the evidence, the sentencing judge may be required to form his own view of the evidence for sentencing purposes, provided it is not inconsistent with the jury’s verdict. In the criminal compensation hearing the judge should take the view of the evidence consistent with that taken at sentencing. To do otherwise would result in an unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial which is relevant as a result of s. 25(7) of the Criminal Offence Victims Act to the issue of contribution. Thus, although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.”

It is necessary to decide what compensation Mr Bell would otherwise be entitled to.

The detriments he suffered are set out in his affidavit and the report of the psychologist. He was severely assaulted by each of the respondents. There were hard, painful punches to his head. He fell to the ground, and he was there punched or kicked in the head. He had limited recollection or what happened because of the blows. He went to hospital to Hervey Bay. He had haemorrhages in both eyes, and a sore jaw. For many weeks after the accident he could not open his jaw properly. There was bruising around the eyes that lasted for a long time. It took a couple of months for that to subside. He had sore teeth and a sore jaw that prompted him to go to the dentist. A tooth was broken, even though that was connected with decay to some extent.

The psychologist reports that afterwards he became very angry and did not trust people and became involved in a number of fist fights which had to be stopped by his friends. To him it seemed that he was seeking revenge. That aggressive behaviour was not in keeping with his normal way of conducting himself.

The expected trial process was very stressful for him. It appears that the prospect of a trial was avoided when the accused pleaded guilty to the reduced charge of affray. He reported that he had cried himself to sleep on many nights.

Because of this event he and his family left the Hervey Bay area, which was a considerable burden to them.

The psychologist recorded complaints which are typical of post-traumatic stress disorder. That is, flashes of memories and feeling the fear and pain all over again. His relationship with a girlfriend broke down. He described having suicidal thoughts. There is still sleep disturbance. It is not surprising that the psychologist would describe the range and degree of trauma as severe.

I have already mentioned the bruising and lacerations he had. It also appears from his statement that here was some scarring left to his face. There is no mention of any present difficulty with his ability to get a job.

Bearing in mind those facts, it is appropriate to assess compensation to this effect: for the bruising and lacerations, 3 percent of the scheme maximum of $75,000; for the post-traumatic stress disorder, 20 percent; for the scarring to his face, 2 percent. That is a total of 25 percent, and the compensation amounts to $18,750.

Despite Mr Freeman’s best efforts on his behalf, the application has to be dismissed.