McKay v Tatar[2006] QDC 178

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation pursuant to the Criminal Offence Victims Act 1995 (COVA) in respect of injuries suffered by him in an incident which occurred on 30 April 2002.  Although the applicant suffered significant injuries on 30 April 2002, including a ruptured spleen, fractured ribs with traumatic pneumothorax, and major head and facial injuries including subdural haematoma, facial, orbital and dental injuries^[1], the respondent pleaded guilty on 23 August 2004 to a single count of common assault, and was sentenced by Healy DCJ at the District Court, Southport on that date, to 60 hours’ community service, without a conviction being recorded.

FACTS:

2. [2]
   The respondent was originally charged on an indictment alleging one count of grievous bodily harm to which a nolle prosequi was presented on 23 August 2004.  The respondent then pleaded guilty to a new indictment alleging one count of common assault^[2].  The factual basis on which the respondent was sentenced was set out by the prosecutor, Ms Christensen, at page 3 of the sentencing submissions^[3], as follows:

“In respect of the facts … On the 30^th of April of 2002 police attended the address of 45 Tallebudgera Creek Road at West Burleigh.  They were called to attend in response to a call that a man had been assaulting the complainant, Julian McKay.  When the first police arrived the complainant was noted to have a large number of injuries and he was transported by ambulance.  Detectives arrived at around 1 am the following morning and they spoke with the accused. … [T]he accused lived in a unit next-door to the complainant’s unit and they were both known to each other. 

The accused admitted to police that he went to the unit.  The complainant said, in his words, bad manners (sic) to him and was full of bad manners towards him.  He states that he clipped him and he then realised that the complainant was injured and had blood all over him.  He stated to police that ‘I remember hitting him once, like, shut up and that’s it’ and that the complainant was on the couch when he back-handed him. … [T]hat action by the accused constitutes the particulars of the common assault charge.”

3. [3]
   Mr Cousins, who appeared on behalf of the respondent/accused at the sentence before Healy J on 23 August 2004 (and who also appears as friend of the Court to assist the respondent in these criminal compensation proceedings) stated^[4]:

“ … On those facts [a reference to the facts as outlined on sentence by     Ms Christensen and, in particular, the reference to blood] the complainant had already been assaulted and in a far more serious way on an earlier occasion and my client wishes to make it clear not by him.”

4. [4]
   Healy J, in very brief sentencing remarks^[5] made no specific reference to the factual basis on which the sentence proceeded other than to state, relevantly: “I think it appropriate, in the circumstances which have been placed before me, that I order that you perform unpaid community service for 60 hours”^[6].

5. [5]
   Mr Morrow, who appeared on behalf of the applicant at the criminal compensation hearing before me, sought to deal with this dramatic dichotomy between the injuries suffered by his client on 30 April 2002, and the basis on which the sentencing proceeded before Healy J on 23 August 2004, by cross-examining the respondent, Douglas Tartar, who also filed an affidavit in the criminal compensation proceedings before me^[7].

6. [6]
   The cross-examination of Mr Tartar by Mr Morrow established no more than that when impeded and/or insulted by the applicant^[8], the respondent “clipped” the applicant with a back-hander^[9].  The respondent assumed (but does not know) that he hit the applicant on his cheek^[10] which was wet at the time^[11].  Despite extensive cross-examination of the respondent, the respondent did not admit anything further (in terms of physical contact with the appellant) and did not accept that his (admitted) back-hander caused any injury to the applicant.  This was consistent with the respondent’s sworn evidence in his affidavit^[12].  In any event, as indicated above, the plea before his Honour Healy J proceeded on 23 August 2004 on the basis that the respondent committed the offence of common assault when he “back-handed” the applicant, who was already seriously injured and had blood all over him, which blood was not the result of the respondent’s assault^[13].

7. [7]
   It is clear, in my view, that this Court in considering a claim for criminal compensation must “take a view of the evidence consistent with that taken at sentencing^[14]”.  As Philippides J makes clear, “Although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with … 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”^[15].  In the case before me, of course, there was no trial, simply a sentence, and in my view it is not possible to take any view of the compensation application which is inconsistent with the factual basis on which the sentence proceeded.

8. [8]
   Accordingly, although the applicant in these proceedings has suffered serious and extensive injuries on the same date as the common assault inflicted on him by the respondent (30 April 2002) it is not possible, in my view, to causally link the respondent’s assault, as factually laid out by the prosecution and the defence in the sentence before Healy J on 23 August 2004^[16], with any of the extensive identified injuries suffered by the respondent.

9. [9]
   In the circumstances, reluctantly, I consider this Court has no alternative but to conclude that the applicant has failed to prove, on the balance of probabilities, that he suffered any of his injuries incurred on 30 April 2002 “because of the offence^[17]” for which the respondent was convicted.  Given my decision, however, the applicant may well have a basis to proceed with an application directly to the Department of Justice pursuant to COVA s 33.

CONCLUSION:

10. [10]
    Accordingly, no order for criminal compensation is made. The application is dismissed.