Whitfield v Richmond[2011] QDC 292

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by which the applicant seeks criminal compensation to be assessed for injuries he suffered by reason of personal offences committed upon him by the first respondent and second respondent.

2. [2]
   The personal offences committed by the first respondent and the second respondent upon the applicant were in relation to the first respondent, two counts of assault occasioning bodily harm in company and in relation to the second respondent, one count of assault occasioning bodily harm in company and one count of assault occasioning bodily harm (the offences).

3. [3]
   The first respondent also committed an offence of burglary which is not relevant to this application.

4. [4]
   The offences were committed on or about 12 October 2004 at Kumbia near Kingaroy. The first respondent and the second respondent pleaded guilty to committing these offences in the District Court at Kingaroy on 21 November 2005.

5. [5]
   The applicant was born on 28 April 1972 and was 32 years of age when these offences were committed upon him. He is now 39 years of age. The first respondent was born on 19 December 1977 and was almost 27 years of age when he committed these offences and he is now almost 34 years of age. The second respondent was born on 6 September 1980 and was 24 years of age when he committed these offences and he is now 31 years of age.

6. [6]
   The application is opposed. The first respondent represented himself upon the hearing of the application. The second respondent was represented by counsel on the hearing of the application.

7. [7]
   The application was filed on 29 October 2008. The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.  The Criminal Offence Victims Act 1995 provides a time limitation of three years from the date of conviction.  The application was commenced before the three years expired.  Further, s 167(2) of the Victims of Crime Assistance Act 2009 provides that where a person has applied to the court for an order requiring the payment of compensation under s 24 of the repealed Act and the application has not been finally decided before the commencement, the court must hear and decide the application under the repealed provision. 

8. [8]
   Therefore, I must proceed to hear and decide this application.

9. [9]
   However, the applicant in his submissions does point out that more than two years has elapsed since the last step was taken in these proceedings. Leave is sought to proceed.

10. [10]
    It is clear from the affidavit material that it has taken the applicant considerable time to obtain the evidence in support of his application. Further, no point was taken on the hearing of this application about any prejudice the first respondent and the second respondent may have suffered by the delay. The applicant states that he understands his solicitors filed the originating application to protect his interests because the time limit was expiring. He was also informed by his lawyer that it took a long time to obtain all the medical material relating to the claim. One of the specialists took a long time to provide an addendum report. He was also sick for one of the specialist appointments and the appointment had to be re-scheduled which caused some delay. He also moved premises which resulted in his lawyers being unable to contact him directly for a period of time. He also found it very difficult and distressing to make contact with his lawyer to give further instructions in this matter. He states whenever he was required to think about what happened and its effect, he felt re-traumatized. He did not want to deal with this matter as it was too upsetting. It was not until late last year that he felt he was able to continue with his claim for compensation and was able to provide his lawyer with instructions for this affidavit.

11. [11]
    Therefore, in the exercise of my discretion I order that the applicant have leave to proceed with the application.

12. [12]
    The facts presented by the prosecutor on sentencing were that the parties were known to each other. However, on 12 October 2004 there was a dispute between them. The dispute was over a pair of boots owned by the second respondent. The second respondent believed that the applicant was the person who had taken them. The second respondent arranged for the first respondent to accompany him to the applicant’s residence. The applicant had been drinking and he noticed that the respondents had also been drinking. All three retired to the loungeroom where there was some discussion about whether or not the applicant had stolen the second respondent’s work boots. The applicant denied stealing the second respondent’s boots. The prosecutor told the sentencing judge there were effectively three visits by the respondents to the applicant’s house. That was the first visit. The respondents left.

13. [13]
    The prosecutor said the respondents then returned at about midnight. There was more discussion between the three of them as to whether the applicant had in fact stolen these work boots. The applicant stated that he was intimidated and hoped there would be no physical violence between the three of them. The prosecutor said what then occurred could be described as an interrogation style assault by the first respondent on the applicant. The prosecutor told the sentencing judge that the first respondent commenced to slap the applicant with an open hand to the left side of his face. He was using his right hand. He would punctuate each slap with a statement of an accusation along the lines of either “you stole the boots, just tell us you stole the boots” or “you stole the boots, didn’t you?”. This continued for approximately five to ten slaps. The applicant denied the allegations and made no further attempt to defend himself. The applicant also stated that the second respondent would get up from the couch and approach him and also make similar accusations while he was being slapped by the first respondent and that was his involvement in that assault.

14. [14]
    The prosecutor also said the complainant felt a cut to his forehead and his eyes swelled shut. That was the left eye. He also felt some bruising to the right side of the face but it was unclear as to how that occurred. He also said the slaps were quite hard, his head would rock from side to side when it was slapped. This caused some minor cuts to the inside of his mouth. That was the assault on the second occasion.

15. [15]
    The prosecutor told the sentencing judge that the respondents eventually left the residence. The respondents then returned after 2 am. The first respondent obtained entry by breaking into the premises. The first respondent let the second respondent in to the premises. Again the subject was that the applicant had in fact stolen the shoes. The applicant was again in the chair. The first respondent put his knee into the applicant’s chest and put his hand on either side of his neck with his thumbs and started choking him. The applicant was concerned he was going to die from this choking and had some difficulty breathing. The second respondent stopped the first respondent from choking the applicant. The first respondent was pulled away by the second respondent. The applicant was stating that he was going to call the police. The applicant tried to get to a phone. The second respondent at one stage threw a bottle of beer against a wall and it shattered. The second respondent then approached the applicant and punched him once to the right side of the face and that caused a lump to rise on the applicant’s right cheek or just below his right eye, the cheek bone. After that punch both respondents then left the applicant’s dwelling.

16. [16]
    The prosecutor also told the sentencing judge regarding the applicant’s injuries:

“The injuries as described by the complainant from the assault are these:  they are bruising around both his eyes; a cut to his forehead that bled down his face and that cut was just above his right eye; there was ruptured blood vessels in his left eye and there was blood in his mouth from small cuts as a result of the slapping to the face.  There was also the lump to his right cheek just under his right eye.” 

17. [17]
    Later the prosecutor told the sentencing judge there were two things he should mention in relation to the victim impact statement: firstly, when it goes on under the heading “physical impact” the complainant says “felt the cornea being torn away from his eye”. The Crown does not rely on that component of it. Also on the second page under the heading “Before and After Comparison”, the complainant says “I now suffer from depression”. That depression was something he suffered from beforehand as well, but was certainly in the Crown’s submission, exacerbated and aggravated by this assault. They’re the only comments I was going to make in relation to that”.

18. [18]
    Further, the prosecutor told the sentencing judge “in relation to the injuries, there is one other aspect of the injuries as a result of this assault and that is the complainant was left blind in the left eye since this assault. There was a pre-existing condition in relation to the complainant’s left eye. Doctors indicate that three to four months prior to the assault, the complainant was showing symptoms of having a retina tear in that eye. That tear had not been observed at that stage but his symptoms were consistent with the retina being torn”.

19. [19]
    When counsel for the first respondent made submissions this exchange took place with the sentencing judge:

“In relation to the injuries, the Crown seem to be suggesting that referring to the injury to the eye, that at the same time suggesting they can’t establish any causal link, I’m not quite sure how to deal with that, whether your Honour wants me to deal with that issue. 

His Honour:  Well, if there were established the causal link, that would be a more serious matter. 

Mr Shepherd:  Yes

His Honour:  I think all they can say is, as I understand by what the Crown has said before, he had eye problems.  His eye problems are now worse than they were before.  It doesn’t seem that they can say it’s sheeted home to the assault. 

Mr Shepherd:  Yes

His Honour:  That would be it, would it?

Mr Spinaze:  Yes, your Honour, that’s right.

His Honour:  Yes.

Mr Shepherd yes.

His Honour :  So - - - -

Mr Shepherd:  Well, if those circumstances - - -

His Honour:  He’s a man with an injury prone to that problem and he was assaulted, but they can’t say there’s this cause – a causal link.

Mr Shepherd:  I won’t take that any further then, your Honour.  I think that’s reasonably self explanatory.

20. [20]
    For these offences the first respondent was sentenced to imprisonment for a period of 18 months to be suspended after serving a period of four months with an operational period of two years. The second respondent was sentenced to nine months imprisonment wholly suspended for an operational period of 12 months.

21. [21]
    The applicant claims he should be compensated under the following headings:-

22. [22]
    At the hearing of the application it was submitted on behalf of the applicant that if I did not accept that the applicant’s loss of sight of the left eye was caused by the offences that I would at least compensate the applicant for an exacerbation for his left eye problems.

23. [23]
    The applicant’s evidence is that he did have a black spot that had appeared in his left eye prior to the offences. Although he was in a car accident sometime early in 2003 in which the right side of his head hit the side of the car he did not suffer any problems with his eyes or eyesight as a result of that accident. However he refers to a time approximately one and a half months before the offences when he was driving his car with the first respondent. He states his car got stuck on the side of the road and he was trying to flag down a passing motorist for assistance. The first respondent was not happy with him doing that for some reason and grabbed his hair and slammed his head into the bonnet of the car. He started punching his face and hit his left eye in the process. A motorist who was passing by stopped his car and came to his assistance. He knew this person. He never reported the matter to the police because the first respondent and he were friends and it was out of character for him to assault him. In the days after this incident he noticed a small black spot appear in his left eye. He made an appointment with Mr Tan an optometrist to investigate the matter. When he attended Mr Tan the applicant noticed a dark spot in his left eye which seemed to have doubled in size over the preceding week. He did not tell Mr Tan about the assault because he did not think it was relevant at the time. Mr Tan referred the applicant to doctors at Kingaroy for further follow up but he was unable to make the appointment. Then the offences occurred. After the offences he went back to Mr Tan because he had vision loss in his left eye. Mr Tan told him that he suspected that he may have sustained a detached retina and referred him for urgent assessment to Dr Seawright an ophthalmologist at Toowoomba. He saw Dr Seawright on 14 October 2004. Dr Seawright referred him urgently to the Princess Alexandra Hospital for surgery.  The applicant saw other doctors.  He had an operation on 22 October 2004 for repair of the left retinal detachment.  The surgery was unsuccessful and he has almost no vision in his left eye since the offences.  He can only see hand movements in his left eye now.

24. [24]
    The position adopted by the prosecution at sentencing would seem to stem from a report by Dr Seawright dated 2 December 2004 to the investigating police officers. In this report Dr Seawright states:

“I cannot comment as to whether the retinal detachment was a direct result of the alleged assault or was pre-existent, as he had some symptoms which pre-date the alleged assault.”

25. [25]
    Section 25(7) of the Act provides:-

“In deciding whether an amount, or what amount should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

26. [26]
    In R v Bennett Ex-Parte Facer [2002] 2 Qd R 295 at paragraph 18 Philippides J  said:-

“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 Act15 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.”

27. [27]
    Dr Vandeleur, ophthalmic surgeon saw the applicant on 19 March 2008. In his opinion there is a very severe loss of visual acuity in the left eye and also a restriction of the peripheral visual field of the left eye. In his opinion the loss of visual acuity and the loss of visual field are the result of scarring in the macular area of the retina and in other areas of the retina caused by trauma received in the assault on 11 October 2004. Dr Vandeleur states that the small dot that the applicant saw in his vision prior to the assault was a vitreous opacity. In Dr Vandeleur’s opinion that pre-existing pathology has not had any effect on the visual impairment caused by the assault received on 11 October 2004. The severe loss of vision in his left eye is totally the result of the assault injury received on 11 October 2004. In his opinion the visual impairment of the left eye is permanent. There is no treatment that can be applied to the pathology in the left eye that will restore or improve the visual efficiency of his left eye.

28. [28]
    In my opinion this evidence from Dr Vandeleur is not consistent with the approach taken to the applicant’s injury at the time of sentencing. It is correct to say that at one stage the prosecutor said the Crown case was that the first respondent’s actions exacerbated a pre-existing problem. However in my opinion when counsel for the first respondent made submissions the sentencing judge accepted that the position was that the prosecution could not prove a causal link between the loss of vision in the left eye and the actions of the first respondent. In my opinion the prosecutor accepted that conclusion by the sentencing judge. In my opinion it must be accepted the sentencing judge left the matter on the basis that the causal link could not be established.

29. [29]
    Therefore in my opinion the applicant cannot be compensated in this application for his eye injury.

30. [30]
    Further I do not accept that the second respondent can on the facts put forward on sentencing be held responsible for any eye injury.

31. [31]
    The applicant has been examined by Dr Ohlirch a consultant neurologist on 1 July 2008. Dr Ohlrich concluded that the applicant sustained a serious assault by the respondents.  The details of the assault would indicate that the head injury which he sustained was mild from the neurological perspective.  He did not sustain any brain damage from this assault.  He also states the applicant has suffered from headaches since the time of the assault.  However these headaches are not due to any physical injury.  There are probably a number of factors involved in the causation of the headaches.  The headaches are probably mainly muscle contraction headaches.  He considers that the headaches probably relate to factors not connected with the assault, for example, stress.  He states it is quite likely that the headaches also relate to his psychiatric problems which seem to have resulted from the assault.  He also did not consider the applicant’s memory problems to be related to any physical injury from the assault.

32. [32]
    In view of Dr Ohlirch’s opinion that any head injury was mild and the headaches caused by other factors I consider compensating the applicant under item 1 or item 2 of the Schedule to be more appropriate. I am satisfied he suffered bruising and abrasions by reason of the offences. I allow the applicant compensation under item 2 at 3% being a sum of $2,250.

33. [33]
    The applicant states that he has suffered from headaches since the assault. He moved out of the house where the assault occurred and moved in with his parents because he was too scared to live on his own. Since the assault he is afraid to go out in public. He goes out rarely now. He leaves the shopping to his mother and only goes out occasionally to withdraw money from the bank. He prefers to stay at home because he worries about who he might run into. He has trouble trusting people since the incident and only really trusts his mother now. He only has a couple of friends he keeps in contact with. He’s extremely security conscious since the incident. When he saw the first respondent some months ago he had bad memories of the incident flooding back to him. He finds it difficult to travel by train because he cannot stand being around crowds of people. He gets agitated. He is constantly on edge since the assault and is very jumpy. He feels anxious a lot of the time. Although he has worked in the past he is currently caring for his mother who is in ill health. He needs sleeping tablets to sleep. He has nightmares. He has flashbacks of the assault regularly. He has been taking medication since the assault. He has been put on Zoloft for depression. He states he had been prescribed antidepressants many years before the assault after his relationship with his wife broke down. He does not recall whether he was taking any antidepressants at the time of the assault. He has panic attacks when he is around a lot of people. He was fairly outgoing before the incident. Socially he does not go out at all now. He has had a complete change of personality since the incident and is now completely withdrawn. He now drinks more than he did before the assault. He found it very difficult and distressing to make contact with his lawyer to give instructions in the matter. He has feared retribution from the respondents about proceeding with this application.

34. [34]
    The applicant also states he had been prescribed antidepressants many years before the assault after his relationship with his wife broke down. He does not recall whether he was taking antidepressants at the time of the assault incident.

35. [35]
    The applicant has been examined by Dr McGuire a psychiatrist who saw the applicant on 19 March 2008. Dr McGuire concluded that the applicant suffers from post traumatic stress disorder to a moderate degree.

36. [36]
    In the further report from Dr McGuire dated 28 January 2010 she deals with some evidence given on oath by the applicant at the committal proceedings that he was on Zoloft at the time of the offence. Dr McGuire telephoned the applicant on 27 January 2010 regarding this matter. The applicant told her that he first was diagnosed with depression at some stage in the 1990’s. His symptoms at that stage were apathy and a sense of loss after having broken up with his girlfriend. He believes that he suffered the condition for several months. He was put on an antidepressant. He cannot remember the name of the drug but said he got better. He never had any admission to hospital. The applicant told Dr McGuire that he was unsure whether he was on Zoloft at the time of the offence. He was not seeing a doctor and was unclear in his history about whether or not he was on Zoloft. He stated that after the incident he went to a general practitioner with his injury and he was prescribed anti-depressants. He is still on them. Dr McGuire states there is confusion about whether or not the applicant was on Zoloft at the time of the attack but his account indicates that all his present symptoms are attributable to the attack. Dr McGuire confirms a diagnosis of moderate post traumatic stress disorder. The symptoms being anxiety, sleep disturbance, nightmares, exaggerated starter reflex, panic attacks, security fears and avoidant behaviour. The applicant stated he cannot trust anybody and is judgmental and irritable in his relations with others.

37. [37]
    On the basis that the applicant said at the committal proceedings he was on Zoloft in my opinion it must be accepted he was on Zoloft. The prosecutor told the sentencing judge the applicant said “I now suffer from depression” and the applicant suffered from depression before hand.

38. [38]
    I find the applicant has suffered a moderate post traumatic stress disorder because of the offences. I am satisfied the applicant has suffered mental or nervous shock within the meaning of the Act because of the offences. However, I find some of his symptoms have been due to depression. That was the position at least at the time of sentencing. At the time of Dr McGuire’s reports the applicant’s symptoms were entirely due to the post traumatic stress disorder.

39. [39]
    Therefore, I assess the applicant’s compensation at 20% under item 32 mental or nervous shook less 3% for symptoms that relate to his depression.

40. [40]
    Therefore the total of his compensation I assess at $15,000.

41. [41]
    I am satisfied the applicant did not do anything to directly or indirectly contribute to his injuries.

42. [42]
    In passing sentence the sentencing judge noted the difference in participation of the respondents. In my opinion the second respondent’s involvement was at a significantly lower level than that of the first respondent.

43. [43]
    In my opinion having regard to the limited extent of the direct involvement of the second respondent his apportionment of the injuries to the complainant could at most be assessed at 10%. This accords with the perception of the applicant himself regarding the very different levels of physical involvement between the offenders. Even the applicant told Dr McGuire that the first respondent was responsible for 90% of his problems and attributed most of his psychological symptoms to him.

44. [44]
    Therefore I apportion liability for the compensation to the first respondent 90% and to the second respondent 10%.

45. [45]
    I order the first respondent to pay the applicant the sum of $13,500. I order the second respondent to pay the applicant the sum of $1,500.

46. [46]
    I cannot make any orders as to costs.