Lee Cheu v Ned[2005] QSC 34

SUPREME COURT OF QUEENSLAND

[1] Joseph Lee Cheu makes this application under the (now repealed) section 663B of the Criminal Code 1899 (Qld) for criminal compensation for injuries he sustained on 11 September 1993.  The application is made out of time but the delay is explained by the applicant’s lack of knowledge of his right to claim.

[2] The respondent has been duly served with this application and the supporting material but has not appeared to make any submissions on the question of compensation.  That being the case, the applicant should have leave to proceed.  Chong v Chong [1999] QCA 314.

[3] On 29 April 1994, the respondent Jum Ned pleaded guilty to the offence of wounding with intent to cause grievous bodily harm, and was sentenced before Mackenzie J in the Supreme Court at Cairns.  He received a sentence of 4 years imprisonment, wholly suspended.

[4] At the time of the offence the applicant was 31 years of age.  He had known the respondent for 6 years.  Late in the night of 11 September 1993, the applicant was sitting outside his house in Pormpuraaw, when the respondent shot him with a rifle.  A bullet hit him in the right shoulder.  He was taken to a local clinic where his wounds were stabilised, then flown to Cairns Base Hospital where he was operated on.  The bullet remains in the soft tissue area of the applicant’s right chest.

[5] Since the incident the applicant says he has experienced numbness in his right arm, particularly in his elbow and fingers, and feels a constant dull throbbing pain through his right arm.  He also reports psychological symptoms such as problems sleeping and nightmares.  He says he has had to move from his home because it reminded him of the incident, and generally feels frustrated and angry that the incident happened to him.

[6] In a report dated 13 November 2003, Dr Keith Lethlean, neurologist, states the applicant is permanently impaired in that he suffers numbness in his little and ring fingers of his dominant right hand, together with discomfort and weakness in his hand and forearm.  Dr Keith Lethlean suggests the impairment can be attributed to the respondent’s assault, but cannot be attributed to the bullet’s remaining lodged in his chest.  Dr Keith Lethlean gives a positive prognosis for stability.

[7] In a report dated 22 January 2003, Ms. Christine Richardson, psychologist, prepared a psychological assessment of the applicant.  She says the applicant suffers psychological distress and is reporting mild to moderate symptomology associated with post traumatic stress disorder. She reports the applicant suffers a host of symptoms, including:

· Nightmares;

· Intrusive memories about the incident and flashbacks;

· High anxiety and nervousness;

· Feelings of hopelessness;

· Feeling afraid he may be injured again or die;

· Being startled or frightened by sudden noises;

· Feeling sad much of the time.

[8] The delay between the injury and the psychological assessment and the absence of any reliable evidence about other possible stressors in the applicant’s life makes the relationship between the incident and all of the present complaints less than satisfactory.  Further, I am not satisfied that after such a delay the applicant will benefit from the treatment required.  Nor in any event has he indicated that he would expend money seeking the treatment recommended by the psychologist which had a total cost of $1,500.

Assessment of Compensation

[9] The applicant seeks compensation for both mental or nervous shock and the physical injuries he has suffered.  The criminal compensation scheme applicable to injuries sustained as a result of the commission of a criminal offence prior to 18 December 1995 is governed by Chapter 65A of the Code.  

[10] Compensation under Chapter 65A is assessed on the same basis as an award of damages for personal injury in civil cases, and economic loss is recoverable.  The prescribed upper limit is relevantly specified by s 663A and s 663AA of the Code to be:

(a)where an injury suffered by reason of the offence is the same or substantially the same as an injury specified in the table set forth in s 14(1)(C) of the Workers Compensation Act 1916, the amount specified for that injury in the table: see s 663AA(2) of the Code;

(b)where it is not the same or substantially the same, the amount specified in s 14(1)(C)(a) of the Workers' Compensation Act 1916, as varied: see s 663A(b) of the Code;

(c)where there are more injuries than one, the amount specified in s 14(1)(C)(a) of the Workers' Compensation  Act 1916 as varied: s 663AA(3) of the Code; and

(d)in the case of mental or nervous shock it is $20,000: see s 663AA(1) of the Code.

[11] The references to s 14(1)(C) of the Workers Compensation Act 1916-1983 are to be read as s 167 of the (now repealed) WorkCover Queensland Act 1996 and Schedule 2 of the WorkCover Queensland Regulation 1997: see Whyte v Robinson [2000] QCA 99, 28/03/00; Ryan J in R v Hurle; ex Parte Anderson (1991) 2 Qld Rep 682.

[12] While some items of Schedule 2 of the WorkCover Queensland Regulation 1997 deal with elements of the applicant’s injury (such as those concerning numbness of the fingers) there is no item that is substantially the same as the applicant’s injury in its entirety: that is, numbness which affects several fingers and areas of his forearm and upper arm.  Dr Keith Lethlean opines that expressed as a percentage of permanent impairment of the applicant’s right arm at and below the elbow, in relation to a most extreme case, the applicant’s injuries warrant a rating of 5%.  Schedule 2 allows a maximum compensation of $108,000 for the loss of an arm below the elbow. 

[13] An assessment of $5,400 in compensation should be made to reflect the physical injuries suffered.

[14] Regarding his mental or nervous shock, the prescribed maximum the applicant can be awarded under s 663AA(1) of the Criminal Code is $20 000.  Having regard to the mild to moderate nature of the applicant’s psychiatric illness as a result of the attack and the uncertainty about its true impact, an assessment of $2,600 compensation is appropriate.

[15] Section 663B(2) requires that in making an order for compensation, I must take into account whether the behaviour of the applicant directly or indirectly contributed to the injury he suffered.  Thus it is necessary to examine the circumstances surrounding the offence.  At trial it was common to both parties that immediately prior to the commission of the offence the applicant entered the respondent’s home and assaulted him in his bed.  The assault left the respondent with deep lacerations on his chin requiring stitches.  It was not the first time the applicant had assaulted the respondent.  Bearing in mind the respondent was then 66 years of age and frail, his capacity to protect himself against these assaults was limited.

[16] In R v Bennett, ex parte Facer [2001] QCA 395, Philippides J observed “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.”  I note that in sentencing the respondent, Mackenzie J took into account the applicant’s assault on the respondent prior to the offence.  It was a factor in the award of a non-custodial sentence. 

[17] In this case, I find that the applicant did contribute to his injuries.  It is necessary to take that into account in assessing the compensation payable.  In all the circumstances I would reduce the applicant’s entitlement by 50%.  This results in an award of $4,000.

[18] Orders:

(1)   That the respondent Jum Ned pay the applicant Joseph Christopher Lee Cheu $4,000 by way of criminal compensation.

(2)The respondent pay the applicant's costs of and incidental to the application to be assessed on the standard basis.