Saunders v Hindley[2010] QDC 9

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application under the Criminal Offence Victims Act 1995 (“the Act”). The respondent was convicted by a jury on 2 October 2009 of unlawful wounding, the offence having been committed on 5 January 2008 on the applicant. The respondent was tried jointly with his brother, who was also convicted; I was told that no application under the Act had been, or would be, made by the applicant against the brother. The respondent was sentenced to a term of imprisonment.

2. [2]
   The circumstances of the offending were set out in my sentencing remarks.^[1]After noting that the applicant was living across the road from the respondent, who was then in a de facto relationship with the former de facto of the applicant, by whom she had had four children, and noting that there had been some previous difficulties between the parties, I continued:

“On the 5^th of January 2008 I accept that the complainant had been making a bit of a nuisance of himself and was being disagreeable earlier in the day and earlier in the evening. The two of you had been drinking at a barbeque and probably about half past nine or around that time the complainant and his de facto came over to the front gate, the fence of your property, and an altercation occurred and there was a good deal of abuse shouted backwards and forwards across the fence. The complainant’s de facto then pushed the gate, as a result of which [the respondent and his] de facto … fell off or jumped off the gate. The gate then opened. … I accept the gate opened outwards and it follows that it opened as a result of something done by somebody inside the gate, and I find that the chain that was securing the gate fell on the outside of the gate on the footpath. I do not accept that the complainant came into the premises. I find that he was outside and that the respondent then came outside to him. I am not persuaded that at that stage [the respondent] was armed with a knife, and on balance, I am prepared to find in your favour that the complainant picked up the chain that had been securing the gate and began to strike [the respondent] with it before he obtained the knife. He then called out to [his brother] to obtain the knife, and [the brother] went and got a knife and gave it to him expecting that he would use it as a weapon against the complainant. At least from the time when the knife was produced the complainant was retreating back across the road and before he had gone to the other side I find that he was stabbed and injured. In spite of that he continued to retreat and [the respondent] pursued with the knife and stabbed him again. When the complainant got to his front path he picked up, or was given, a golf club, and struck [the respondent] with the club which caused you to break off the attack at that point, although you subsequently came back at a time when the complainant and his family had gone inside and struck the door. I do not accept that serious wound was suffered only after the complainant was attacking you with the golf club. I find that the serious wound had already been suffered by the complainant prior to the time when he picked up, or was given, or used the golf club, and that you desisted from attacking him with the knife only because of the use of the golf club on you, but even then you came back again later. … I accept that the complainant had started the altercation, had come over and started the shouting match over the fence, and that there was, in a practical sense, some element of provocation, and that these features reduce the criminality involved. Nevertheless, the use of a knife is a serious matter, particularly when it involves stabbing more than once. The complainant suffered two wounds, one of which may perhaps be a double wound. One of the wounds was deep enough to justify some exploratory surgery but did not involve any significant internal injuries. It appears that the wounds were cleaned and sutured and he made an uneventful recovery.”

3. [3]
   The effect of what was found for the purpose of sentence on an application under the Act was determined by the Court of Appeal in Facer v Bennett [2002] 2 Qd R 295. Philippides J, with whom the other members of the court agreed, said at [18]:

“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.”

4. [4]
   It follows in my opinion that it is not open in these proceedings for the applicant, or for that matter the respondent, to seek to persuade me to take a view of the facts and circumstances surrounding the offence in respect of which I have made findings for the purpose of sentence which is different from the findings then made. Of course, to the extent that matters not so found already are relevant to the determination of the application, additional evidence is admissible, with a view to introducing new issues or amplifying the evidence already available, but that is as far as it goes.

5. [5]
   It also follows from that decision that the evidence led at the criminal trial can be taken into account when determining the application for compensation, in addition to any evidence specifically put before the court on the compensation application, although again it would not be open to the judge on the compensation application to take a view of the facts which was inconsistent with the jury’s verdict, or the view of the facts taken for the purpose of sentence. The proposition that evidence given at the trial can be taken into account in connection with the compensation application has the support of the comment of Holmes J, as her Honour then was, with whom the president agreed and Williams JA agreed generally, in Zaicov v Jones [2001] QCA 442 at [21], where her Honour said in relation to an assessment of the extent of contribution by the judge who heard the application:

“His Honour had the distinct advantage of hearing all of the evidence upon trial and was in a far better position than this court … in arriving at an appropriate assessment.”

6. [6]
   Counsel for the respondent made extensive submissions in relation to evidence at trial, some of which was I think essentially consistent with findings that I made, though not all of it. At one point it was submitted that a point on which I had made a finding had not been resolved by the evidence at the trial. As well, submissions were made about the behaviour of the applicant earlier in the day, a matter that I did not address in detail in sentencing, and submissions were made in relation to the credibility of the applicant. The matters occurring earlier in the day I did not think were of great importance for the purpose of sentencing, and I will deal with their significance in relation to contribution later.

7. [7]
   The applicant was not cross-examined in the course of this application, but was cross-examined in relation to credibility at the trial. The view of the facts I took on sentence to some extent was inconsistent with the evidence of the applicant, and to that extent an adverse finding as to his credibility has already been made. However, insofar as there were particular things said in evidence in his affidavit by the applicant, the applicant not having been cross-examined on the affidavit I do not think it will be open for me properly to reject evidence in the affidavit except to the extent where that was not consistent with findings I had already made for the purpose of sentence. Evidence of that nature is not rejected on the basis of credibility but rather rejected on the basis that it is strictly inadmissible in accordance with the principle in Facer (supra).

The effects of the offence

8. [8]
   The applicant was bleeding quite profusely as a result of his wounds, no doubt particularly the more serious wound. He was taken by ambulance to the Caboolture hospital; the report of the hospital^[2]dated 2 December 2009 records that the applicant had two episodes of hypotension, that is excessively low blood pressure, one in the ambulance and one at the hospital. This was managed with intravenous fluids. A CT scan showed internal bleeding but no other intra-abdominal pathology. On 6 January 2008 he underwent a diagnostic laparoscopy. The left lower quadrant wound had penetrated the peritoneum and there was a loss of blood including into the body. The left upper quadrant wound had not penetrated the peritoneum, just the rectus sheath. There were no other internal injuries. The injuries were repaired. He had an uneventful recovery and was discharged on 10 January 2008.

9. [9]
   The report said he did not attend for a review on 23 January, but a letter of 21 February 2008 indicates that he was reviewed at the hospital when the wounds were found to be well healed. There was a complaint of altered sensation down the front of the left thigh and pain like electric shocks travelling in the area. The doctor explained the nature of neuropathic pain and said that it would take up to 18 months to determine the full extent of recovery.

10. [10]
    The applicant in his affidavit said that he currently suffers from sharp pain on a daily basis around the stab wound, and from numbness in the left thigh. Presumably the latter injury is now permanent since more than 18 months have passed since the date of the injury. There is, however, no other medical evidence dealing with the physical injuries, in particular identifying the extent and significance of any continuing difficulties arising from the wounds, or exploring the possibility of further treatment for any such difficulties.

11. [11]
    The report of Dr Byth, which is in evidence and is referred to below, sets out more detailed complaints about the physical consequences of the stab wounds. The difficulty with that evidence is that it has not been verified either directly or indirectly by the affidavit of the applicant, and, Dr Byth being a psychiatrist, was not directly relevant to the assessment of the question of whether the applicant was suffering from psychiatric injury. There was some reference made to the continuing physical symptoms, which Dr Byth assumed the applicant had suffered on the basis of what he was told, in relation to the likely persistence of the psychiatric condition. I do not regard Dr Byth’s report as evidence about the physical consequences of the injuries; that would be outside his speciality. The position therefore is that the only matters shown by the evidence in relation to the continuing physical effects of the injury are those in paragraphs 27 and 28 of the applicant’s affidavit^[3]about which the applicant was not cross-examined and which I accept. The difficulty is that there is no indication of the source of the daily sharp pain, or of the extent of the numbness in the left thigh; if there is simply a small patch of numbness in the thigh, which might well occur if there was some nerve damage suffered as a result of the stab wound, that in itself is of no particular significance.^[4]

12. [12]
    The applicant also complains of psychological consequences of the injury: he says he has become more angry and aggressive since the assault which has adversely affected personal relationships, he no longer likes to go out of the house at night and has become a very nervous person, does not go walking in the neighbourhood, subsequently moved house, and is considering moving interstate in order to get further away from the respondent.

Medical evidence

13. [13]
    The applicant was seen for the purposes of a report by a psychiatrist, Dr Byth, on 1 June 2009. He reported a fear of death at the time of the stabbing, difficulty with sleeping associated with dreams reliving the incident, and daydreaming about the incident, and a desire to avoid further contact with the respondent and his brother, or friends. He said that he had lost interest in things and become very anxious, was suffering difficulties with concentration and memory. Dr Byth diagnosed post-traumatic stress disorder which he said was of mild to moderate severity, and which was related to the assault. He referred to various pre-existing psychiatric conditions, including a diagnosis of pre-existing substance abuse disorder, and possible dependent personality disorder; he thought there were insufficient features to diagnose anti-social personality disorder. He recommended appropriate specialist psychiatric treatment which he thought would produce some improvement, although it was unlikely to produce full remission. He also suggested low doses of tranquiliser and anti-depressants. He made a PIRS assessment of 7%; that purports to be a system for the objective assessment of the impairment arising from psychiatric injury. I regard it as thoroughly unsatisfactory and will not use it except when required to by legislation eg the Civil Liability Act. That is not the situation here. In a supplementary report dated 27 November 2009 Dr Byth confirmed the assessment of the injury as of minor severity.

14. [14]
    For the respondent it was submitted that some aspects of the complaints made to Dr Byth should be disregarded, on the basis that the respondent’s evidence was unreliable and that these matters had been fabricated. Apart from the difficulty associated with the fact that the applicant was not cross-examined about this matter, it does not seem to me that one complaint is really inconsistent with what was said in his affidavit, as alleged. The proposition that the applicant is now more angry and aggressive than was the case before the assault is not inconsistent with the notion that he had problems with anger and aggression before the assault, about which there was some evidence at the trial particularly in the course of his cross-examination.^[5]  Insofar as he expressed concern to Dr Byth about further attacks from the respondent or his brother, although the respondent has been in custody since he was sentenced the interview with Dr Byth took place well before the trial, at which time there may well have been some continuing concern about further attacks as reported to Dr Byth in other incidents involving the respondent, at least until the time when the applicant moved away from that particular street.

Assessment

15. [15]
    Counsel for the applicant advanced the application on the basis that he had suffered the injuries in Items 26 (stab wounds – severe), 27 (bodily scarring – minor/ moderate) and 32 (mental or nervous shock – moderate) in the schedule to the Act. Consistently with my approach on sentence I find that the applicant really suffered two stab wounds, only one of which penetrated the peritoneum, and produced significant, indeed serious, loss of blood. It appears, however, that the wounds have otherwise healed and as I have said, there is a paucity of evidence about continuing physical consequences of those injuries.

16. [16]
    There were two sets of photographs purporting to show the scarring put in evidence. One set of six photographs^[6]are blurry and of very little use, barely showing any scarring at all. A better set of photographs was exhibited to the affidavit of Coughlan filed 21 January 2010, but these show only minor scarring, a scar perhaps two inches long in the vicinity of the applicant’s left hip, which looks somewhat irregular, and two slightly raised small scars near a tattoo on his stomach. There is also a mark between two letters of the tattoo which is somewhat longer, but seems quite faint. The first photograph shows other marks or possibly scars on the stomach which appear more prominent than either of the scarring there visible. Overall, my impression is that the scarring in terms of appearance is quite minor.

17. [17]
    Overall the respondent submitted that the applicant’s conditions were not as severe as was submitted by counsel for the applicant. The respondent also made submissions in relation to the extent to which the applicant had contributed to the injuries. Although there were two or three stab wounds, only one penetrated the peritoneum, and none of them caused any damage to any of the internal organs. The main significance of the stab wounds at the time was that they caused extensive bleeding, including some bleeding into the abdominal cavity, which was a matter of some concern but which was treated at the time. In other respects the recovery was said to be uneventful, and the wound was said subsequently to have healed well.

18. [18]
    On the whole, I would not regard this as an example of a severe stab wound. Because it involved more than one wound and because the peritoneum was penetrated, and because of the significance of bleeding at the time, I consider that it falls into Item 25, moderate stab wounds, but falls towards the lower end of the range for that injury and I will allow 10% under Item 25. In making that assessment, I am taking into account the apparently relatively minor scarring which was left by the wounds. That involves the proposition that there is no good evidence of any significant adverse physical consequences from the wounds.

19. [19]
    I am not prepared to make a separate order under Item 27 in respect of bodily scarring. The proposition that it is unnecessary to make a separate assessment for scarring when that inevitably follows from some other physical injury was supported by the decisions of the Court of Appeal in MR v Webb [2001] QCA 113, Zaicov v Jones [2001] QCA 442 at 25, and Wren v Gaulai [2008] QCA 148 at 28. As I indicated earlier, visually in the present case the scarring is quite minor, and there is no proper evidence of any significant adverse consequences of it. In Zaicov, one of the appellants suffered a gunshot wound as a result of which he was left with a surgical scar from the junction of the ribs down to the navel, about half an inch wide, something which would have been visually very much worse than the scarring on the present applicant; Holmes J (as her Honour then was) approved the omission of a separate assessment in respect of the scar, though noting that some allowance could have been made “although for my part I would have allowed no more than a percentage at the low end of the minor/moderate range.”  The low end of the range for Item 27 is 2%.

20. [20]
    The applicant relied on two recent decisions of this court: Geritz v Geritz [2008] QDC 309 and Goodwin v Whittaker [2009] QDC 167. In the former case, an assessment of 30% under Item 26 was made, where the applicant suffered puncture wounds to the right arm, abdomen and left chest, including a puncture to his lungs; one of the wounds produced internal bleeding between the lungs and the chest wall. The injury suffered in that case seems to me to be more serious, given that it involved a puncture of the lung, and internal bleeding near the lung can be more serious than in the lower abdomen. In any case, the assessment strikes me as excessive.

21. [21]
    In the latter case, there were some lacerations and abrasions, and a stab wound to the abdomen exposing the iliac crest but not penetrating the peritoneum. This was said to have left the applicant, a female whose age was not stated, with scarring, about which she was self-conscious. The applicant’s stab wound was assessed under Item 25 at 16%, and a further 10% was allowed under Item 27 for the scarring. This is an unusual example of a case where a separate allowance was made for scarring; I did not see that scarring, but it strikes me as inconsistent with the approach of Holmes J in Zaicov (supra), and generally to be an excessive assessment. There are a large number of these decisions produced by the District Court, and they are by no means all consistent; that may have been one of the reasons why the Act has now been repealed.

22. [22]
    With regard to the mental or nervous shock, I accept that the applicant has suffered mental or nervous shock, but in the light of the report from Dr Byth I do not consider that this can be placed in Item 32, moderate injury; it appropriately falls in Item 31. There should have been some improvement in the condition as a result of the jailing of the respondent, if the applicant moves interstate, or if the course of treatment recommended by Dr Byth is followed. In all the circumstances I will allow 6% under Item 31.

Contribution

23. [23]
    I have already set out the relevant extract from my sentencing remarks. It is apparent from those findings that the applicant was the aggressor on this occasion. He was being disagreeable and aggressive earlier in the day, and at night he went over to the respondent’s premises wanting an argument, indeed for practical purposes wanting a fight. There was some evidence during the trial that he had been calling on the respondent to come out and fight. I accept that the respondent did come out after the gate was broken, but that then he was first attacked by the applicant, who had armed himself with the chain that had previously been securing the gate, and it was the use of this weapon which led to the respondent calling for his brother to get him a knife, with which the injuries were inflicted on the applicant.

24. [24]
    It was submitted on behalf of the respondent that nothing would have happened had the applicant not gone across the road late at night to confront the respondent, and that if he had not picked up the chain there would have been no more than a fist fight man to man on the street, and these injuries would not have been suffered, and I think there is some force in those submissions. On the other hand, there was certainly some degree of aggression shown by the respondent, particularly once he armed himself with a knife.

25. [25]
    In Zaicov (supra) the applicants had each been shot by the respondent, who was subsequently convicted of doing grievous bodily harm, being acquitted of attempted murder. The trial judge, who also heard the application for compensation, took the view that the jury’s verdict was consistent with an acceptance that the respondent was acting in self defence in response to threats of death or serious injury made by the appellants and on that basis he assessed compensation at 50%, an assessment with which the Court of Appeal did not interfere.

26. [26]
    In MBA v AAD [2008] QCA 187, a 50% reduction occurred in circumstances where the respondent had attacked the applicant in her own home and struck her on the head with a vase causing an injury. Contribution of 50% was because this had occurred in a context where the applicant had deliberately misled the respondent about the whereabouts of her 15-year-old daughter, who was in fact staying at the applicant’s house with the applicant’s 17-year-old son, something of which the respondent disapproved. The Court of Appeal did not interfere with the reduction.

27. [27]
    I have also considered the decision of the Court of Appeal in Hohn v King [2004] QCA 254, including the comments on various earlier decisions referred to or noted in the judgments, particularly the judgment of Atkinson J which is ultimately a dissenting judgment.

28. [28]
    It was submitted for the applicant that compensation should be assessed taking into account the applicant’s belief that the respondent was armed with a knife at the time he came out of the yard, notwithstanding my finding. The applicant said^[7]that he never actually saw the knife in the course of the fight, and it did occur at night and may well have been dark, but it is I think somewhat surprising that the applicant would have been unable to detect the difference between someone holding a knife and someone not holding a knife. In any case, I accept that it was as a result of the applicant’s activities in picking up the chain and repeatedly striking the respondent with it that the respondent came to be armed with the knife, and that led to the injuries. In all the circumstances, approaching the matter consistently with the way I approached it for the purpose of sentencing, I consider that the applicant’s conduct did directly or indirectly contribute to the injuries that he suffered, and did so to a substantial extent, and on that basis I reduce the compensation assessment in respect of each of the injuries by 50%. It follows that the total percentage to be applied to the scheme maximum is 8%, which produces an assessment of $6000.

29. [29]
    I therefore order the respondent to pay to the applicant $6000 compensation for the injuries suffered by him as a result of the offence of which the respondent was convicted on 2 October 2009. There is no power to make an order as to costs.