McDonald v Marshall[2010] QDC 297

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr McDonald applies for compensation under the now repealed Criminal Offence Victims Act 1995 (the “COVA”) for injuries sustained when he was assaulted by the respondent Steven Marshall outside the Palmwoods Hotel on the evening of 31 August 2007.

2. [2]
   The matter has had a very unfortunate chequered history. Mr Marshall pleaded guilty to one count of assault occasioning bodily harm before me in this court on 1 December 2008. He also pleaded guilty to two other more serious offences committed at Hunchy on 5 December 2007. The sentence hearing was adjourned until 16 March 2009 to enable a pre-sentence report to be prepared to enable me to impose sentence on Mr Marshall on that day.

3. [3]
   The only reason I have briefly mentioned the history of the criminal proceedings is to demonstrate that paragraph 3 of Ms Parkes’ (solicitor for Mr McDonald) affidavit filed with the application on 2 September 2009 is misleading. I do not suggest that it is intentionally misleading, but it is yet another example of professional sloppiness that judges have frequently associated with these applications which thankfully we will no longer have to hear. A reading of my sentencing remarks on 16 March 2009 should have demonstrated to a lawyer that (a) Mr Marshall was convicted on 1 December 2009 and (b) the transcript of 16 March 2009 was completely unhelpful to understanding the factual basis on which the sentence proceeded.

4. [4]
   I have said many, many times that the police statement of the applicant is only relevant to the extent to which the facts relied upon at the time of sentence coincide with the facts set out in the statement. Although it is a case relating to the repealed Code scheme, R v Chong; ex parte Chong [2001] 2 Qd R 301 is authority for the proposition that the relevant facts for the purposes of an assessment under s 24 of the COVA are the facts relied upon at sentence.  The transcript of what was said on 1 December 2008 is not before me.  However, I can ascertain to some extent the factual basis for sentencing from my sentencing remarks at pages 1-2 where I said:

“It appeared that you had a view that he had committed sexual offences against his niece and quite unexpectedly you attacked him and punched him to the ground.  He suffered a number of injuries; swelling to both eyelids, soft tissue swelling; three lacerations to the peri-orbital region and one small laceration to the outer lower aspect of the left peri orbital region and he was tender around the face.  You obviously gave him a significant beating.”

5. [5]
   It also became apparent after the recent final hearing that the relevant Certificate of Conviction has not been obtained and filed by the applicant’s solicitor. This is a necessary prerequisite to the right to compensation under the COVA: s 24(1)(a). It will be necessary for the solicitor to obtain and file the Certificate of Conviction before judgment can take effect.

6. [6]
   The original application for compensation was filed on 2 September 2009 and came on for hearing before me on 23 October 2009 at which time Mr Spinda of Carew Lawyers appeared for Mr McDonald and Mr Marshall appeared in person.

7. [7]
   Mr McDonald claims compensation for both psychological and physical injuries.

8. [8]
   In relation to the psychological injury he relied upon a report dated 16 July 2009 of psychologist Cecilia Ann Bendall exhibited to an affidavit of the psychologist filed 2 September 2009. It was clear from that report that Mr McDonald who was born on 23 September 1961 had been under Ms Bendall’s care for many years. He had been referred to her in July 2007 by an organisation that managed funding for people who had been victims of abuse whilst under government care in Victoria.  She had seen him for 45 sessions of therapy, five of which preceded the assault.  Mr McDonald had been subjected to physical and emotional abuse by his father; had been abandoned by his parents at 11; and was then in care until he turned 16 and was further abused whilst in care.  As she said in her affidavit, she saw him in relation to these proceedings on 16 July 2009.

9. [9]
   In effect her diagnosis based on the diagnostic criteria from DSM–IV was that as a direct consequence of the assault Mr McDonald has suffered a significant exacerbation of pre-existing mental disorders namely post-traumatic stress disorder chronic and major depressive disorder.

10. [10]
    Although she refers in her report (at page 2) to a diagnosis of major depressive disorder, in October 2007 she opined that his symptoms were mild prior to the assault but “dramatically increased” after the assault.

11. [11]
    What Ms Bendall did not say in the later report is that she had reported earlier to another court for a different purpose. Exhibited to Mr McDonald’s affidavit filed on 9 September 2009 is a report from Ms Bendall dated 2 October 2007 which was obtained by other solicitors on behalf of Mr McDonald for the purposes of a sentence hearing in the Magistrates Court for driving whilst disqualified.  Mr McDonald has a lengthy criminal history mainly relating to drink driving and driving whilst disqualified offences and he has served many jail terms according to the psychologist and was then very fearful of being returned to prison.  The assault had occurred on 31 August 2007 and she had seen him for five sessions prior to that in relation to the other issues.

12. [12]
    She describes the assault in the earlier report under the heading “Psychological and Medical History (as detailed by Robert)” as:

“On 31 August 2007 Robert was attacked and robbed.  Knocked unconscious, he sustained lacerations, bruising, damage to teeth, and was diagnosed as having “possible fracture right eye socket and cheekbone.”

13. [13]
    In this part of the report and under “Personal History” she describes shocking abuse of the applicant as a child, and even more shocking abuse in “boys homes” after being abandoned at 11; included “being placed in a cell with a boy twice his size who raped him”. Under the heading “Recent Stressors” however the assault is not mentioned. Mr McDonald told her about an injury he had sustained in July 2007 and also expressed major concern over his partner’s failure to look after his possessions as recent stressors.

14. [14]
    Her diagnosis at page 5 of that report is that the “the symptoms described and endorsed by Robert meet diagnostic and statistical manual of mental disorders (DSM-IV-TR) criteria for those with post-traumatic stress disorder chronic (PTSD) further to childhood neglect and abuse. In addition his symptoms meet DSM-IV-TR criteria for major depressive disorder”.

15. [15]
    She said under the heading “Clinical Opinion” “Robert has chronic and untreated PTSD and major depression disorder. He sought and is attending therapy to aid him in the control and reduction of his symptomology”.

16. [16]
    The major differences in the opinions expressed by the psychologist as to the cause of his chronic untreated post-traumatic stress disorder and major depressive disorder caused me considerable concern which I expressed to Mr Spinda at the first hearing.

17. [17]
    As a result, the proceedings were adjourned until 11 June 2010 when Ms Bendall gave evidence in person and was cross-examined by Ms Mellifont as Amicus Cuirae for the Attorney-General.  A further report dated 10 June 2010 from the psychologist was tendered by Mr Kimmins who now appeared for Mr McDonald.  That report dealt with differences detected between the original treatment notes and a more recent copy of the same notes given to Mr Kimmins and was prepared at his request.  Ms Bendall says this occurred because of a problem with her computer setup.

18. [18]
    Ms Mellifont necessarily was restricted by her role in her approach to cross-examination of the psychologist as her role was not adverse to that of Mr McDonald as that concept is ordinarily understood.

19. [19]
    I did not find Ms Bendall’s explanation for the differences in the two reports to be particularly convincing. Her responses about the linking of symptoms reported to her by Mr McDonald which she linked with the diagnostic criteria set out in the DSM-IV was unconvincing to say the least. For example, in relation to her earlier report, she mentioned nightmares but was unable to say from her notes what the nightmares were about. Her responses to questions in cross-examination for example from pages 1-11 to 1-13 of the transcript can only be described as confusing, dissembling and on a number of occasions, unresponsive. To be fair to her, later in the cross-examination she did accept that the effect of the assault has an exacerbation of pre-existing mental disorders and in her later report this may have been over emphasised and under emphasised in her earlier report. This is not surprising given the appalling abuse this man suffered at the hands of others prior to the assault. It is also clear from the Nambour Clinic Family Medicine reports, records of the Nambour Hospital (which Ms Bendall had prior to her July 2009 report) that Mr McDonald had received anti-depressant medication and other pain medication about which Ms Bendall did not know and despite her suggestion that the reason he would not take medication for his severe depression was a fear of addiction.

20. [20]
    Despite my concerns about her evidence, I am prepared to accept that the assault did cause an exacerbation of a pre-existing chronic post-traumatic stress disorder and an exacerbation of a major depressive disorder, but I intend to make some adjustment to take into account the unsatisfactory nature of the expert evidence. In the absence of neurological evidence, I do not accept on the balance of probabilities that the headaches were caused by the assault. Ms Bendall accepted that after the assault he appeared to be seriously depressed and despite this she makes no link between it and the major depression diagnosis in her earlier report. I find her explanation for this both in evidence and more particularly in her further report dated 31 May 2010 quite disingenuous and I do not accept it. At no time does Mr McDonald appear to have sought help from the clinic or the hospital for depression whereas he has for post-traumatic stress disorder. In discounting the award for an exacerbation of the post-traumatic stress disorder, I also take into account that some of the symptoms he reported are due to non-compensible matters e.g. “His assailant has followed him since the court case, and approached Robert prior, with an offer of a ‘free hit’. Hypervigilance, and intrusive and unwanted thoughts and images and images became more pronounced after Robert was advised that his assailant was pleading “Not Guilty” and that Robert would be required to provide evidence to court”.

Discussion

21. [21]
    Both counsel correctly identify SAY v Z; ex parte Attorney-General [2006] QCA 462 at paragraphs [22] and [24] as setting out the principles to be applied when a court is dealing with mental or nervous shock injury which has a number of causes, only one of which is compensable under the COVA.  Clearly, the broad brush approach is called for in this case and doing the best I can, I assess Mr McDonald’s compensation for nervous shock under Item 32 towards the high end of the range in accordance with Dooley v Ward [2000] QCA 493 at 18 per cent of the Scheme maximum.

Facial fracture

22. [22]
    At the hearing on 23 October 2009, I expressed concerns as to whether or not Mr McDonald had suffered a facial fracture in the assault. My sentencing remarks did not refer to any facial fracture. Mr Marshall was convicted of assault occasioning bodily harm and not grievous bodily harm. Ultimately, Mr Kimmins relies upon a report of Dr Driver, a Registrar at Nambour Hospital who examined Mr McDonald when he reported at the Nambour Emergency Service after the assault.  Dr Driver expresses the opinion that Mr McDonald suffered a “likely undisplaced fracture of the lower right orbital floor wall”.  He clearly bases that statement on the CT Scan of Mr McDonald’s head and face which “as regards the face” is in these terms:

“Within the right maxillary sinus there is a dependent area of opacification that extends superiorally along the medial wall.  No definite facial bone fracture is demonstrated with (sic) this area of opacification within the sinus representing either mucous or a haemorrhage related to an undisplaced fracture.  The remainder of the paranasal sinuses appear normal with no other areas of possible fracture demonstrated.”

23. [23]
    Dr Driver’s preference for an undisplaced fracture rather than mucous is based on his clinical observations and the severity of the facial assaults as described to him. I am prepared to accept on the balance of probabilities that Mr McDonald did suffer an undisplaced fracture of the lower right orbital wall floor and I will allow him 8 per cent of the Scheme maximum under Item 6. He undoubtedly suffered severe bruising and facial cuts and I will award him 3 per cent under Item 2.

24. [24]
    Subject to the applicant filing a certificate of conviction I order the respondent to pay to the applicant the sum of $21,750. The applicant did not contribute either directly or indirectly to his injuries.