Pagan v Priday[2009] QDC 431

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application by the applicant, Ryan Ian Pagan, seeking criminal compensation from the respondent, Matthew Allan Priday, arising out of an incident which occurred at Hillcrest, Queensland, on 12 March, 2006. 

The respondent pleaded guilty before me at the Beenleigh District Court, on 26 June, 2008, to a single count of common assault, and was fined $250, with no conviction recorded (Exhibit MM2, Sentencing Remarks, Affidavit of Mark Meikle, sworn 15 August, 2009). 

The prosecution entered a nolle prosequi in respect of a count of grievous bodily harm against the respondent relating to injuries suffered by the applicant out of the same incident.  (Exhibit MM2, Sentencing Submissions, Affidavit of Mark Meikle, sworn 15 August, 2009). 

FACTS

An altercation occurred at an 18th birthday party at Hillcrest.  The respondent and applicant were both present, and both were affected by alcohol, as were others. 

The applicant spoke to a Dale Thoroughgood, who perceived the applicant as "cutting in" on him as he was talking to a Ms Jana McKay.  There had been other conduct that night, on the part of the applicant, towards Mr Thoroughgood, which had caused some tension between them (Exhibit MM2, Sentencing Submissions, pp. 1-3, Affidavit of Mark Meikle, sworn 15 August, 2009).

The prosecutor then outlined the critical incident as follows:  "It's at this point that Mr Thoroughgood has thrown several punches in the area of the complainant's right eye.  Other members of the party then became involved in what was to be a melee.  At the commencement of, or during that melee, Mr Priday threw a single punch which connected with the complainant's right cheek. 

Mr Pagan's injuries are mostly significant fractures of his zygomatic bone area.  However, due to the involvement of the other people, it would be the Crown's submission that the majority of that involvement was on the part of Mr Thoroughgood and the fact that Mr Priday only threw a single punch, the Crown cannot contribute (sic) these injuries to the conduct of Mr Priday, and it's most likely, on the Crown's case, that the injuries were caused by Mr Thoroughgood's several punches to the right eye region.  No-one else was charged as a result of the violent conduct of that night. 

Mr Pagan has done a victim impact statement, which indicates that there is some residual impact, as a result of the conduct that night.  However, this statement relates mostly to his injures, as a result of the punches to the eye, which caused the broken zygomatic bone and right cheek bone, and it's the, as I said, the Crown's case that those injuries seem to have been caused by Mr Thoroughgood's actions.".  (Exhibit MM2, Sentencing Submissions, pp. 1-3, Affidavit of Mark Meikle, sworn 15 August, 2009).

During the course of my sentencing remarks, in respect of the respondent, I relevantly stated, "Now, the circumstances have been outlined by Ms Peddell and Mr Barry.  I don't intend to go back over them in any detail, other than to say this, that this was an altercation that occurred at a party.  Most people at the party were drunk, you [a reference to the respondent], it seems, were very drunk.  If I can put it this way, it wasn't your fight or your argument, but you contributed with a single punch, and although that caused serious injury (sic) to the complainant, Mr Pagan, the prosecution, very fairly in my view, accepts that you can't be held responsible for the serious injury that Mr Pagan suffered, although in effect, you accept responsibility for a single punch of Mr Pagan in the area of the face.".  (Exhibit MM2, Sentencing Remarks, p. 2, Affidavit of Mark Meikle, sworn 15 August, 2009). 

I stated further on, in the sentencing remarks:  "Now, you're lucky.  You've had legal representation who have very carefully worked through what seems to be a not particularly well investigated matter, and, as a result of that excellent representation and the negotiations that have taken place, it seems that you have pleaded guilty to an offence that is appropriate to the level of violence that you exhibited:  in other words, didn't leave any result, from your point of view.  As Mr Barry says, of course, Mr Pagan, of course, no doubt has his own sense of grievance, because he received a very serious injury, and ultimately you're not responsible for that.  Others might be - Mr Thoroughgood, in particular, but that's another day and another problem for someone else.".  (Exhibit MM2, Sentencing Remarks, p. 4, Affidavit of Mark Meikle, sworn 15 August, 2009). 

The applicant's victim impact statement (Exhibit RP3, Affidavit of Ryan Pagan, sworn 28 August, 2009) appears, at least inferentially, to attribute the serious injuries he suffered in the altercation, to the respondent (see paras 1 and 2, Exhibit RP3, affidavit of Ryan Pagan, sworn 28 August, 2009). 

THE LAW

The Criminal Offence Victims Act 1995 (COVA) was repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December, 2009. 

The respondent's conviction occurred, and this application was filed, before 1 December, 2009.  Section 20(2) of the Acts Interpretation Act 1954, together with VOCAA s. 152, preserve the applicant's rights pursuant to COVA. 

I refer to, and adopt, my exposition (in general terms) of the relevant law under COVA, as outlined in Paterson v Chand & Chand [2008] QDC 214 at paragraph 6. 

This application, however, raises a further critical issue.  In short, the applicant seeks to recover criminal compensation from the respondent for the applicant's extensive facial injuries, when the sentence proceeded on the basis that the respondent threw one punch, amounting to no more than a common assault, in circumstances where the prosecution submitted, and I, as sentencing judge, accepted, that the respondent was not responsible for the injuries in fact suffered by the applicant. 

Criminal compensation is entirely a creature of statute.  It is necessary, for an application to succeed, that it satisfy the legislative requirements of the compensation statute. 

As indicated above, it requires a conviction, on indictment, of a personal offence [COVA 5.1 (a)], an obligation satisfied here (the respondent was convicted of common assault against the applicant which a "personal offence"). 

The applicant is entitled then to apply "for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence."  (my emphasis) (COVA s. 24(2)). 

That particular formulation has been examined in a number of helpful appellate decisions. 

In Lewis v Williams [2005] QCA 314 Jerrard J A (relevantly) stated at paragraph 9:  "What is required is proof to the satisfaction of the judge making the order, pursuant to the standard of proof prescribed by s. 30 of [COVA], that the injury for which compensation is sought was suffered because of the commission of the personal offence of which the respondent had been convicted on indictment.". 

In the same case, Wilson J stated at paragraph 28: 

"(28) Counsel for the appellant relied on the decision in R v Bennett; ex parte Facer [2001] QCA 395; [2002] 2 Qd R 295 in support of the first submission. In that case criminal compensation had been awarded for injuries suffered in relation to the offence of grievous bodily harm. Self-defence had been raised at the criminal trial, but the jury had determined that issue against the defendants. In his sentencing remarks the trial judge had ruled out self-defence and said that the defendants were the initiators of the attack. At the hearing of the criminal compensation hearing the defendants sought to rely on material going to self-defence and on material going to contribution (as to which see s 25(7)). The primary judge disallowed the material going to self-defence because it was inconsistent with the jury’s verdict, and disallowed the evidence said to go to contribution because it was too remote to be relevant. The rulings were upheld on appeal. Philippides J, who delivered the leading judgment, adopted this passage from the judgment of Helman J in Re Rogers (13 November 1998; 6086 of 1997), a case decided on the former s 663B of the Criminal Code "

“The question then arises whether the applicant was guilty of ‘behaviour ... which directly or indirectly contributed to the injury suffered by [him]’ within the meaning of those words in s 663B(2). The applicant’s account of the incident which gave rise to the charge is more favourable to him than was the understanding of the facts on which I sentenced the respondent. Since, however, this application is ancillary to the proceedings before me on 11 April 1995 it is not open to me to proceed now on a view of the incident different from that which I took then: see Re Hondros [1973] W.A.R.1. In that case, Jackson CJ said at p 3 that, in considering an application for compensation after a trial, it seemed clear to him that he must act on his view of the testimony given at the trial because the relevant Act did not contemplate that an issue such as the one I am referring to should be relitigated on the compensation application. He referred to R v Bowen (1969) 90 WN (Pt. 1) (NSW) 82. The same principle applies in my view to a compensation application which follows the sentencing of an offender. I took the view on sentencing the respondent that the applicant had been behaving in a threatening way towards him and that as a consequence he was fearful of the applicant. In those circumstances it is clear that the applicant’s behaviour led to the commission of the offence ...”

Her Honour went on -

“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 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.”.

In SAY v AZ [2007] 2 Qd R 363, Holmes J A at paragraph 22 (p. 370) relevantly stated:  "The Court must have regard to the various limitations and procedural steps in s. 25 [of COVA] in arriving at the amount of compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable.  If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done.  In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.". 

In my view, the inescapable conclusion is that the respondent was sentenced for a single count of common assault, on the basis that he did not cause the serious facial injuries suffered by the applicant.  The applicant can, in my view, only recover compensation for that single non-injury causing blow inflicted by the respondent on the applicant and for which he was sentenced on his plea of guilty. 

COMPENSATION

The respondent's solicitor, Mr Howden, concedes that the applicant would be entitled, at best, to an award at the bottom of item 1 (bruising/laceration etc (minor/moderate) range, namely in the range of 1% - 3%.  In my view, that is an appropriate concession and accordingly, in the absence of any other material to assist me, I award 1% ($750) pursuant to item 1. 

I decline to order compensation as sought on behalf of the applicant under any other item, given my conclusion that any other injuries suffered by the applicant were not injuries suffered by reason of the offence, to which the respondent pleaded guilty. 

CONTRIBUTION

The applicant did not contribute in any way, direct or indirect, to his own injuries (COVA s. 25(7)). 

CONCLUSION

I order that the respondent, Matthew Allan Priday, pay the applicant, Ryan Ian Pagan, the sum of $750. 

FURTHER REMARKS

I accept that the applicant may well carry a sensitive grievance in respect of this outcome.  However, it is an outcome that I consider flows inexorably from the legislation and the cases I have cited.  The applicant may well have other potential remedies under COVA, VOCAA, or in civil law, but that is obviously a matter on which he will need to seek and consider appropriate legal advice.