DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT

1. [1]
   This is an application for criminal compensation under the Criminal Offence Victims Act 1995 (the Act).  In issue is the amount of compensation and whether it should be reduced under s 25(7) of the Act which provides:

In deciding whether an amount, or what amount should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the Applicant that directly or indirectly contributed to the injury.

2. [2]
   Affidavits were filed by the applicant and medical practitioners and a psychologist who have treated or examined him. The respondent also filed an affidavit touching the circumstances leading to the claim, which involved a physical altercation between the complainant and the respondent outside a hotel at Mackay on the evening of 28 June 2002. The fight apparently ended quite quickly and both parties returned to the hotel but, later, the applicant sought medical treatment. His left eye was discovered to be badly injured, and had to be removed. The respondent was not questioned about the matter until 21 January 2003 and then arraigned before Britton SC,DCJ at Mackay on 2 May 2003 on an ex officio indictment, when he pleaded guilty to one count of causing grievous bodily harm.

3. [3]
   The respondent was represented by Counsel on sentence. His Honour’s sentencing remarks include, relevantly, the following:

It appears that you had been to the Kuttabul Hotel after work.  You there met the complainant who was previously unknown to you.  You became involved in conversation with him and I infer that you were both drinking alcohol at the time.  A degree of intoxication ensued.  There was a verbal argument over some trivial matter which was initiated by the complainant.  You and he ultimately went outside and had a consensual fight.  It appears that you knocked him to the ground, but that you then got on top of him and punched him a number of times to the left side of the head.  You apparently do not recall very much of that part of the fight.  You do recall however, being on top of him and at some stage being dragged away.  It appears that really seemed to resolve the differences between you and the complainant.  You both went back into the hotel and continued drinking and talking together.

4. [4]
   The affidavits sworn by the applicant and the respondent each contain allegations which differ from these findings. The applicant alleges he became involved in an argument with the respondent which, he believes, started over the patting of a dog and the respondent, who seemed to the applicant to be quite intoxicated, asked the applicant to step outside to settle the matter and he agreed to do so believing, he says, that “… I could talk sense to the respondent and resolve the matter without either of us fighting and avoid the conflict.  I did become involved in a fight with the respondent …”.  This is different from his Honour’s finding that there was a verbal argument over some trivial matter, which was initiated by the complainant.

5. [5]
   In his affidavit the respondent admits he was intoxicated. He says he began to have a conversation with the applicant about pigs, which led to an exchange of insults and, the respondent alleges, the appellant then stood up and pushed him, with enough force to make him stumble backwards. The respondent says he walked back to the appellant and asked him if he wanted to fight. The applicant replied in the affirmative and they both walked outside and there the applicant came towards him and “… I could see that he was intending to thro (sic) a punch”.  The respondent remembers punching the applicant but not what occurred afterwards; he does not, however, dispute his Honour’s finding that after he knocked the applicant to the ground he then got on top of him and punched him a number of times to the left side of the head.

6. [6]
   The respondent’s affidavit also contains evidence of conversations he had with a police officer and other persons and exhibits statements and statutory declarations from the hotel proprietor and other persons, and a police note about the matter. None of this evidence was placed before the sentencing judge.

7. [7]
   In Facer v Bennett (2001) QCA 395 Philippides J said at p 7:

[18] In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury’s verdict in the 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 that it is not inconsistent with the jury’s verdict.  In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in 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 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.

8. [8]
   In accordance with these principles it is appropriate, here, to reject the applicant’s assertion that it was the respondent who asked him to “step outside” the hotel “to settle the matter”. The statement is intended to imply that it was the respondent who instigated the events which led to the fight. His Honour found that fight was consensual, and flowed from an argument initiated by the applicant. In light of those findings, the identity of the invitor is irrelevant.

9. [9]
   The respondent’s evidence that he said something insulting to the applicant, whereupon the applicant stood up and pushed him is not, it seems to me, inconsistent with the finding that there was a verbal argument, initiated by the applicant. Otherwise, however, the hearsay evidence in the respondent’s affidavit about his conversations with a police officer, and the exhibited documents are irrelevant. The police notes contain a more detailed version of the conversation which led up to the consensual fight which, it seems to me, is potentially more damaging to the respondent than his Honour’s findings because it contains a version from the applicant which suggests the respondent played a greater role in the events which led to the fight – for example, that he “ordered” the complainant outside. While these things are not necessarily inconsistent with the matters his Honour took into account in his sentencing remarks, they take the matter no further.

10. [10]
    The circumstances here, involving injuries suffered in a consensual fight attract interest in the sense they raise, more vividly than cases involving an obviously innocent victim, the question whether contribution falls to be considered. Some of the factors relevant to the matters raised by s 25(7) were listed by Atkinson J in Hohn v King (2004) QCA 254 at pp 24-25.  Her Honour said:

[105] In deciding whether or not a victim of crime should have his or her compensation reduced or refused pursuant to s 25(7) of COVA, the judge assessing the compensation should pay close regard to the circumstances of the particular offence and exercise his or her discretion judicially. Factors relevant to the discretion under s 25(7) are likely to include, but are not limited to:

1. (1)
   whether or not the victim was committing an offence at the time of his or her injury;

2. (2)
   whether any such offence committed by the victim involved personal violence to the offender or another;

3. (3)
   whether the victim offered violence to the offender or another before, during or after the offence;

4. (4)
   whether the victim was armed or used a weapon;

5. (5)
   whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;

6. (6)
   whether the offender responded with more force than was justified for self-defence;

7. (7)
   whether the victim offered provocation to the offender;

8. (8)
   any differences in size, strength and power between the victim and the offender;

9. (9)
   whether the violence used by the offender was disproportionate to any violence offered by the victim.

[106] It is only in the most unusual case that a victim of a crime of personal violence should be denied compensation altogether. It would suggest that a high degree of culpability for the offence lies on the victim rather than merely on the offender.

[107] Section 25(7) of COVA is in similar terms to s 7(9) of the Criminal Injuries Compensation Act 1978 of South Australia. In South Australia v Nguyen, Olsson J observed with regard to the role of the judge considering the award of compensation:

“Whilst s 7 of the Act is expressed in permissive terms, it seems to me that the word ‘may’ employed in it is used in the imperative sense, in that the discretion conferred must be exercised in a judicial manner having due regard to the policy and purposes of the statute. It follows that, once the conditions precedent to the making of an order under the discretionary power have been established, the order must be made unless there are good reasons for not doing so. … In other words, once the conditions precedent established by s 7 have been made out, it would be an erroneous exercise of judicial discretion to refuse to make an order for compensation – save to the extent that such a course may otherwise be warranted or required by another provision of the statute.

…

The essential Scheme of the statute is to create what is prima facie an entitlement to compensation, subject only to satisfaction of certain prerequisite jurisdictional requirements. However, it remains open to the court to moderate that entitlement in circumstances in which it is considered, as a proper exercise of judicial discretion, that certain factors of the type identified in subs (9) of s 7 arise for appropriate consideration. Where those factors arise the court must have due regard to them. In an extreme case they may be of such weight as to warrant a total denial of compensation.”

[108] These are observations with which I respectfully agree. In that case, the award was reduced on appeal by 50 per cent in circumstances where the victim produced a knife and threatened a group including the offender with whom he had been having an altercation. The offender then drew a folded knife from his pocket and attacked the victim, stabbing him several times in his upper body, slashing his right forearm and cutting a section from his right ear.

11. [11]
    The relevant factors here are that the complainant initiated the verbal argument, and was by all accounts a willing participant in the fight. An additional factor, of some importance I think, is that after the altercation began and the complainant had been knocked to the ground the respondent nevertheless persisted. It is the latter event which warranted the bringing of the charge and, as the respondent’s solicitor frankly and properly conceded, exposes him to a liability to pay compensation.

12. [12]
    Several not dissimilar instances were referred to by Atkinson J in Hohn (supra), at p 26.  Contribution in the cases her Honour mentioned ranged between 15%, and absolute refusal.  In Jones v Coolwell (2001) QSC 130 Helman J deducted 15% from a compensation award where the applicant punched the offender and demanded payment of a small drug debt.  The offender then stabbed the victim several times.  His Honour said that the respondent’s reaction was so disproportionate as to call for only a small adjustment.  In Buckland v Estate of Kennedy (2000) QSC 337 Ambrose J reduced by 50% the compensation awarded to a man who was stabbed in the abdomen by his de facto wife.  He had abused her over a long period of time which had led to a domestic violence order which was in force at the time of the offence.  On the evening of the stabbing he had struck her across the face in public view on two occasions, and had belittled and humiliated her to the point where she lost self control and stabbed him.

13. [13]
    This is a fight in which, the sentencing judge found, both parties were suffering a degree of intoxication. He accepted the respondent did not recall the worst part of his offending behaviour. In the context of a consensual fight between two intoxicated men it cannot be said the respondent’s reaction was disproportionate to the degree found in Jones (supra), but neither was the applicant’s conduct of such a serious, disturbing or prolonged nature as that in Buckland (supra).  Here the victim’s conduct, viewed within the whole matrix of facts relevant to this application warrants a reduction for contribution; and, consideration of the material  issues indicates that contribution should be 25%.  In reaching that figure I have placed considerable weight upon the inherent risks any person takes and, by clear inference accepts, in being a party to a consensual physical fight.

14. [14]
    The applicant did not seek medical treatment until the day after the fight and, the medical reports show, subsequently lost his left eye. The respondent sensibly accepts that this injury attracts an award equal to 70% of the Scheme maximum, ie $52,500.

15. [15]
    The applicant also suffered some bruising but on the evidence it appears to have been minor and should, I think, attract 1% or $750. There is a claim for a facial fracture. It is not mentioned in the applicant’s affidavit but the medical evidence notes a comminuted fracture of the orbital floor lateral margin, but with no significant displacement. The compensation table provides, at item 6, for a percentage of Scheme maximum between 8% and 14% for a minor facial fracture. In the absence of evidence of persisting physical problems or deficits, this injury falls within that range and, apparently, towards the lower end. An award of 10%, or $7,500 is appropriate.

16. [16]
    A claim is also made for mental or nervous shock, supported by a report from a psychologist. The applicant says that, not surprisingly, he initially found it hard to come to terms with the loss of his left eye and now has some difficulty with particular tasks and has lost enjoyment of reading, photography and bird watching. He is also more concerned about the risk of damage to his remaining, good eye. He alleges he has become cautious about venturing out in public, and exposing himself to the risk of another assault. He avoids hotels and becomes nervous around intoxicated public place. The presence of drunken persons causes him to experience flashbacks, and he alleges he suffers sleep disturbance.

17. [17]
    The psychologist finds the symptoms warrant a diagnosis of Post Traumatic Stress Disorder, which will leave the applicant with ongoing problems which might, however, be alleviated by at least five sessions of counselling.

18. [18]
    The fact the applicant has not, it appears, undergone this counselling indicates the disorder is not so intrusive as to lead him to seek professional assistance. The applicant’s personal history, set out in the psychologist’s report also suggests he has had a difficult life including, relevantly, a work incident involving significant physical injuries in 1983 after which he suffered “a lot of depression” and required mood stabilising of medication

19. [19]
    The applicant’s solicitor contends an award should fall within item 32 in Sch 1 of the Act, for mental or nervous shock (moderate) in the range 10%-20%. That seems to me to properly reflect the range for this compensable disability but in light of the absence of anything suggesting a compelling need for treatment, and the applicant’s previously troubled history I think the award should fall at the lower end of the range, ie at 10% or $7,500.

20. [20]
    Before contribution, then, the compensation is assessed at $68,250. A reduction of 25% leads to an award of $51,187.50.