Hancock v Ketchup[2007] QDC 368

[2007] QDC 368

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 74 of 2007

TOWNSVILLE

DATE 14/05/2007

JUDGMENT

HIS HONOUR: This is an application for compensation under the Criminal Offence Victims Act by a police officer, Jason Mervyn Hancock. The respondent Lorelle Joyce Ketchup has not appeared today when called, although she was served at Palm Island on affidavit material before the Court.

It is the all too common scenario of a person being arrested or under arrest by police, spitting with their spittle coming in contact with the face of the victim. It is equally repellant whether the contact is with eyes, nose or mouth. The victim, in these days of heightened concern about communicable diseases, is immediately subjected to the protracted and, as was stated from the Bar table today, unpleasant testing regime which fortunately did not result in bad news for the applicant. Indeed, in my experience, it is very rarely bad news for the applicant, which is not to say that fears of the worst are not genuinely and reasonably held with sad consequences for the victims in all manner of ways including their sexual relations with their partners which are typically disrupted and sometimes for very long periods.

Reliance has been placed on a decision of my own in Mount Isa, Nikas v. Melville (2004) QDC 460. I expressed the view there that at least in Mount Isa something of a tariff had emerged from which it would be invidious for a Judge to depart. The award there was $15,000, consistent with the earlier decisions that I referred to. It may have seemed generous in relation to Judge Hoath's decision in Brisbane in Marshall v. McClure (2003) QDC 302 where the applicant and his fellow police officer Edwards each received $11,250. The coincidence of the awards suggests that Judge Hoath too was alert to the drawing of distinctions being invidious in contexts like the present.

Another case which was handed up for the applicant is Best v. Brown (2006) QDC 407, a decision of Judge Tutt, where the award was $7,500 in circumstances which seem closer to the present ones in that fortunately there was absent anything resembling the gloating and cruel comments by the offenders suggesting to police that they would become infected. In the matters where the awards were higher, there was also the presence of blood in the offender's spittle, which one would expect to heighten the victim's concern.

Although it is suggested that an award of $15,000 is appropriate, there are problems for Mr Hancock in the cautious report of Mr Walkley, psychologist, on the 30th of November 2006 which states as part of the conclusions:

"On the basis of my clinical examination of Mr Hancock supported by the psychometric evaluation which accompanied it, I formed the opinion that at the present time this man does not suffer from depression, nor does he suffer from a diagnosable case of post-traumatic stress disorder, nor is it likely that he did not formally qualify for a diagnosis of post-traumatic stress disorder following this event"‑‑‑‑‑

The last "not" may be an error.

The report goes on:

"It is likely that a differential diagnosis of an adjustment disorder with anxiety (DSM:IVTR:309.24) was viable and that this is typified by the emergence of difficulties similar to those reported by Mr Hancock. This disorder is the result of a stressor in one's life which is contributing to and maintaining the symptomatology. In this case this would have been through threat and risk of diseases associated with his experience. However, once the stressor or its consequences is terminated, which does appear to have been around February 2006 when his favourable medical results came to hand, the symptoms need to not persist for more than six months. As this is now some eight-nine months after this, this would not be a viable diagnosis. It is likely that this adjustment disorder was in place but what we are left with now are the residual consequences and the changes within both himself and his relationship and which are now self-maintaining. There appears to be some very clear symptoms including withdrawal from people around him including his wife and children and heightened levels of stress and anxiety particularly when thinking about or dealing with similar circumstances which arose during work."

Mr Hancock was a late recruit to the Police Service. This incident occurred about four years into his service. He has had the difficult experience of having to arrest the respondent again. She exhibits no remorse but rather seems to communicate satisfaction in her mind at the degradation which she intentionally inflicted on the applicant. It is understandable that he has a different attitude to his work in the police force (in which fortunately he is progressing very well) and particularly a changed attitude towards dealing with Aboriginal people. It is unfortunate that he is dissatisfied with the support that he has got within the service.

In my opinion, the distinctions from what I shall call the Mount Isa cases are important but nonetheless the consequences of the offence to Mr Hancock which have been all psychological are significant and, although they are dissipating, fortunately, the Court ought to respect that.

I order the respondent to pay the amount of $12,000 to the applicant as compensation under the Act.