Boyd-Bush v Braden[2010] QDC 348

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 16 February 2009 in the Childrens Court of Queensland at Innisfail the respondent pleaded guilty to a charge that on or about 22 April 2007 at Innisfail he unlawfully did grievous bodily harm to the applicant.

2. [2]
   The respondent was sentenced on 8 April 2009 and although he committed the offence whilst a juvenile, because of the passage of time, was sentenced as an adult.

3. [3]
   The applicant now seeks an order for compensation for the extensive and devastating injuries he has suffered as a result of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”).

4. [4]
   As the whereabouts of the respondent are unknown, an order for substituted service was made on 8 June 2010 permitting service upon the respondent by way of newspaper advertisements in the Public Notices section of The Courier-Mail and the Townsville Bulletin.  Such advertisements were placed in the newspapers on 17 June 2010 and accordingly service is deemed to have been effected upon the respondent in accordance with the order.  Contact was made with the applicant’s solicitor by the respondent’s mother, however, when this matter came on for hearing in the District Court at Brisbane on 28 June 2010 there was no appearance by or on behalf of the respondent.

Jurisdiction

5. [5]
   There is a preliminary issue regarding jurisdiction to be determined in this matter. The respondent was convicted in the Childrens Court of Queensland, however, this application has been filed in the District Court. The Childrens Court of Queensland is a separate court to the District Court.

6. [6]
   Section 24 of the Act provides as follows:

“24. Court may make an order compensating someone injured by personal offence

3. (1)
   This section applies if someone (the convicted person)-

1. (a)
   is convicted on indictment of a personal offence; or

2. (b)
   is convicted on indictment and a personal offence is taken into account on sentence.

3. (2)
   The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.

3. (3)
   The court may make an order (a compensation order) for an amount to be paid by the convicted person to the applicant because of the injury.”

7. [7]
   The dictionary in Schedule 3 of the Act defines court as follows:

“for an application to a court before which a person has been convicted, includes a court of the same court level as that court.”

8. [8]
   The dictionary further provides that court of the same court level means:

3. “(a)
   as the Supreme Court – means the Supreme Court at any sittings anywhere; or

2. (b)
   as a District Court – means any District Court at any sittings anywhere.”

9. [9]
   The respondent was dealt with under the regime established by the Juvenile Justice Act 1992 (now renamed the Youth Justice Act) and s 256 of that Act provides:

“To remove any doubt, it is declared that the Victims of Crime Assistance Act 2009, and the repealed Criminal Offence Victims Act 1995 as it continues to apply under that Act, apply to an offence committed by a child.”

10. [10]
    The dictionary definitions under the Act clearly deal with locality. However, it is significant that there is no reference within the definitions to the Childrens Court of Queensland.

11. [11]
    Prima facie the Act requires that an application for compensation arising out of the conviction of a respondent in the Childrens Court of Queensland should be filed in the Childrens Court of Queensland.  The Act has now been repealed and the applicant is statutorily unable to file a new application under the Act in the Children’s Court of Queensland.  This means that the applicant will be unable to seek compensation under the Act and any compensation would then at best only be available to him pursuant to the Victims of Crime Assistance Act 2009.

12. [12]
    Martin SC DCJ in the decision of Laning v Cherry-Kelly (QDC) 3795/09 delivered on 20 August 2010, came to the view in paragraph 16 of that decision that it is reasonably open (given the ties between the District Court and the Children’s Court of Queensland; the legislative intent behind the Act; and the omission of any reference to the Children’s Court of Queensland in the definition section of the Act) to read the Act as conferring jurisdiction on both the District Court and the Childrens Court of Queensland to hear applications for compensation resulting from convictions in the Childrens Court of Queensland for indictable personal offences. This view is consistent with a benign interpretation of the Act given that it is remedial legislation^[1]. I come to the same view and am satisfied that the District Court has jurisdiction to hear this application.

Facts

13. [13]
    On Saturday 21 April 2007 the applicant was invited to, and attended a 17^th birthday party at a house in Innisfail. The respondent was not invited, but, along with two other uninvited friends, did attend the party.

14. [14]
    At about 1 am on Sunday, the respondent and his friends approached the applicant and began to verbally insult him about the way he was dressed (he was dressed as a “Goth” or “Emo”). The applicant ignored the insults.

15. [15]
    A short time later the applicant was waiting near the front of the house for one of his friends as they were to be picked up by her parents. Without provocation or warning, the respondent punched the applicant at least twice to the head. The applicant fell to the ground. Other youths intervened and stopped the respondent assaulting the applicant further. The applicant got himself up from the ground and took himself upstairs and into one of the bedrooms where he vomited. Over the next few hours the applicant continued to vomit and suffer from a headache. He was taken home to his parents’ at about 5 pm on the Sunday.

Injuries

16. [16]
    The applicant was born on 2 April 1991 and was 16 years of age at the time the offence was committed against him. The obvious injuries suffered by the applicant were cuts and a bruised and swollen lip. For some four days following the assault the applicant suffered headaches, nausea and pain.  On 26 April 2007 he was seen by a GP and a CAT scan was performed the following day but no abnormalities were apparently detected. 

17. [17]
    The applicant continued to be unwell and in the early hours of the morning on Thursday 3 May 2007 the applicant suffered a loss of consciousness and was unable to breath.  The applicant’s stepfather had to perform CPR on the applicant until the ambulance arrived.  The applicant was flown to the Townsville Base Hospital, where it was found that he had suffered a severe brain injury.  The applicant’s family was told that he would not survive.

18. [18]
    The applicant was found to have an aneurism and was flown to the Princess Alexandra Hospital in Brisbane where he underwent surgery.  On 8 June 2007 the applicant was moved to the Brain Injury Rehabilitation Unit and he was an inpatient there for five months.

19. [19]
    A statement by Dr Ronald Anthony Hazelton, the medical director of the Brain Injury Rehabilitation Unit at the Princess Alexandra Hospital, dated 7 January 2010 indicates that the applicant’s ruptured aneurism was operated on on 2 June 2007 with a further procedure being required on 1 October 2007.  On 6 June 2008 the aneurism was treated with open surgical clipping.

20. [20]
    In the Brain Injury Rehabilitation Unit the applicant underwent “a comprehensive neuro rehabilitation assessment and therapy program” and subsequently had outpatient therapy. When last reviewed on 5 June 2009 the applicant was still undergoing outpatient therapy and had tried some TAFE studies but could not complete these because of cognitive difficulties.  A previous detailed neuro psychometric assessment had revealed that the applicant “has persisting severely impaired immediate and delayed retrieval of learned information, which did not benefit from semantic cuing to assist with retrieval.  This severe memory deficit included verbal and nonverbal memory. There are also weaknesses of higher order executive skills, for example, disinhibition, planning, organisation monitoring and error correction, which were affected by a significant weakness in his ability to hold rules and procedures in memory.  This marked weakness in memory and new learning with executive dysfunction, affects his ability to undertake studies, undergo driver training and be competitive in the open workforce.”

21. [21]
    Dr Hazelton states that the applicant “has sustained a severe brain injury as a result of his Grade 5 subarachnoid haemorrhage with severe hydrocephalus.  This has resulted in a chronic organic brain injury affecting cognition and behaviour.”  Dr Hazelton notes that the applicant will require long-term ongoing supervision for him to remain living in the community.

22. [22]
    Dr Hazelton states that the applicant “has a permanent in-dwelling ventriculoperitoneal shunt and this will require regular reviews every 12 months.  He will be prone to shunt failure and infection and 12-monthly reviews by his neurosurgeon will be required.  [The applicant] also has an increased risk of seizure disorder and this will remain significant for the rest of his life.  Should he develop seizure disorder, then he will require long term anti-epileptic medication.”

23. [23]
    In an affidavit sworn on 26 January 2010 the applicant’s mother details the applicant’s difficulties with his short-term memory and frustration and difficulty coping with daily life.  The applicant was employed on a part-time basis in a store under a special scheme for people with disabilities, however this employment was recently terminated.  He was unable to complete a Certificate 3 in Information Technology at TAFE because of his difficulties.  The applicant requires constant care and supervision when at home.

24. [24]
    In an affidavit sworn on 25 May 2010 the applicant himself speaks of his fear of further injury and social difficulties as a result of his disability.  He becomes frustrated with his siblings and has difficulty sleeping.  He states “other than my obvious memory difficulties, the restrictions on my ability to interact with people remains the part that I hate most about what has happened to me.”

25. [25]
    On 13 April 2010 the applicant was examined by Dr Karen Chau, a consultant psychiatrist.  In her report dated 21 April 2010, Dr Chau details the extensive and ongoing restrictions the applicant endures in his daily life and functioning as a result of his injuries.  Dr Chau concludes that the applicant “was a 19 year old man who described having symptoms of generalised anxiety disorder, social phobia and obsessive compulsive disorder as a result of an assault and subsequent ruptured cerebral aneurism.  He appeared to have ongoing cognitive symptoms, which affected his functioning.  His pre-morbid personality and coping style may have predisposed him to these conditions.”

26. [26]
    Dr Chau recommends that the applicant start on anti-depressant medication and that cognitive behaviour therapy could be useful but with his cognitive impairment this may be difficult.

Assessment

27. [27]
    It is clear from the facts that there was no behaviour whatsoever on the part of the applicant which contributed to his injuries.

28. [28]
    The applicant has clearly suffered devastating and permanent brain injury with consequent adverse effects upon his daily functioning as a result of the commission of the offence. He is entitled to compensation in accordance with the compensation table, which is Schedule 1 to the Act, as follows:

Item 1 – bruising/laceration etc (moderate) 3%$2,250

Item 11 – brain damage (severe) 100%$75,000

Item 32 – mental or nervous shock (moderate) 20%$15,000

Total$92,250

29. [29]
    Although the applicant has suffered such severe injuries as to warrant payment of compensation over and above the scheme maximum of $75,000, s 25 of the Act limits a compensation order to a total amount of not more than the scheme maximum.  In those circumstances, the applicant is entitled to compensation equal to the scheme maximum of $75,000. 

30. [30]
    I order that the respondent pay to the applicant the sum of $75,000 by way of criminal compensation. I direct that the compensation be paid to the Public Trustee of Queensland, whose receipt therefore shall be sufficient discharge to the respondent. I direct that from such funds the Public Trustee pay to the solicitors for the applicant the costs and outlays incurred in the making of this application to be assessed on an indemnity basis and I further direct that the Public Trustee of Queensland hold the balance sum in trust for the maintenance, education, rehabilitation, medical treatment and counselling and otherwise for the benefit of the applicant.