Cox v Goodwin [2009] QDC 348

DISTRICT COURT OF QUEENSLAND CITATION: Cox v Goodwin [2009] QDC 348 PARTIES: MICHAEL JAMES COX (Applicant) v KERRIE ANN GOODWIN (Respondent) FILE NO/S: D363/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Southport DELIVERED ON: 12 November 2009 DELIVERED AT: Southport HEARING DATE: 2 November 2009 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $2700 by way of compensation pursuant to section 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the respondent in the District Court at Southport on 21 April 2008 CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – UNLAWFUL WOUNDING – physical injuries and mental or nervous shock – whether behaviour of the applicant directly or indirectly contributed to his injuries COUNSEL: J C Hall for the applicant No appearance by or for the respondent SOLICITORS: McCowans solicitors for the applicant No appearance by or for the respondent -- 1 of 8 -- 2 Introduction [1] The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondent on 30 May 2002. [2] On 21 April 2008 in the District Court at Southport the respondent pleaded guilty to unlawful wounding. The respondent pleaded to the charge on the morning of the first day of trial after an eye witness came forward and made a statement that day. [3] She was sentenced to 12 months imprisonment, wholly suspended for an operational period of 18 months. She had served 86 days in pre-sentence custody. [4] On 21 July 2009 the applicant’s solicitor contacted the respondent’s mother to obtain address for service on the respondent. Sealed copies of the service documents were provided to a process server to be served on the respondent at her last known address in Alice Springs. The process server attempted service on the respondent on 29 July 2009. He spoke to the respondent’s mother. The process server was told to attend the next morning. He did so and was advised by the respondent’s mother that the respondent was not contactable. The process server left a sealed envelope with the material enclosed attached to the front door of the house. On 30 July 2009 the process server again attended the house. The envelope had been removed and there was no sign of the respondent. The process server returned to the house another 5 times but the respondent was not there. [5] On 15 September 2009 the District Court at Southport ordered that a notice be placed in an Alice Springs newspaper addressed to the attention of the respondent stating the time, date, and place of hearing. [6] An advertisement was placed in the Centralian Advocate on 25 September 2009 notifying the respondent of the hearing date. [7] There was no appearance by or for the respondent at the hearing of the application. Circumstances of the offence [8] The statement of the eye witness provided on the morning of the trial was relied upon as the factual basis for sentence.1 Those facts were agreed upon by both counsel for the crown and defence. Therefore the application must be determined on the basis of those facts.2 [9] The respondent was 38 years old at the time of offence. She and the applicant had been in a de facto relationship for a number of years. They had a long 1 Statement of Edith Denise Johnson, exhibit 3 at sentence, District Court Southport 21 April 2008. 2 R v Bennett, ex parte Facer [2002] 2 Qd R 295 at 300 at para [18], Riddle v Coffey (2002) 133 A Crim R 220 at 221 at para [3]. -- 2 of 8 -- 3 history of drug use. On 30 May 2002 an argument between them escalated into a physical attack on the respondent by the applicant. The applicant grabbed the respondent by her hair, and started dragging her towards the front door. Once out the front door the applicant, still holding the respondent by the hair, reached down and picked up a block of wood approximately the size of a brick. [10] The respondent managed to escape the applicant’s grasp and began running away. The applicant threw the block of wood at her, narrowly missing her head. [11] The respondent obtained a screwdriver from a caravan in the garden and ran back towards the front door. The applicant began running towards his car in the driveway, passing by the respondent. As he passed her, she lunged at him with the screwdriver stabbing him in the back. Physical injuries [12] The applicant attended the Mermaid Central Medical Clinic on 31 May 2002. He was examined by Dr Lamorna Osborne. [13] In her report dated 31 May 20023, Dr Osborne said that the applicant sustained a 1 centimetre by 1 centimetre laceration, with a 7 centimetre penetration up to the fifth rib, the screwdriver having glanced off a rib. At sentence there was some uncertainty as to the depth of the injury. Another doctor called at the committal hearing was unable to say how Dr Osborne arrived at the depth of the wound. [14] The applicant was examined by Dr Ross Jackson on 12 June 2002. Dr Jackson states in a report dated 9 February 20054 that the applicant attended upon him for a prescription of antidepressant medication. The wound was inspected, cleaned and redressed. He stated that upon review on 4 July 2002, the wound was well healed. Mental or nervous shock [15] The applicant was examined by Dr Tayne Garforth, Psychiatrist on 12 March 2009, nearly 7 years after the offence. [16] The applicant’s account to Dr Garforth differs significantly to the facts accepted at sentence. He indicated that the altercation was initiated by the respondent becoming aggressive whilst drinking with friends. He stated that he entered the room to see what was going on to find the respondent with a 5kg bar bell lunging at the guests. He stated that he attempted to calm her down. As he did this she turned on him, striking him with the bar bell, connecting with his elbow, when he raised his arm to protect himself. As he turned to leave the house, the respondent stabbed him in the back with a screwdriver. The 3 Exhibit MJC3 to the affidavit of the applicant filed 22 July 2009. 4 Exhibit MJC3 to the affidavit of the applicant filed 22 July 2009. -- 3 of 8 -- 4 applicant gave a similar account to police in his statement dated 2 November 2004.5 [17] In R v Bennett, ex parte Facer6 Philippides J said: “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.”7 [18] Therefore, the applicant’s account to Dr Garforth and the police must be disregarded for present purposes. Pre-existing conditions. [19] The applicant told Dr Garforth that he had been a regular user of cannabis from the age of 12. He later began using speed which became his drug of choice when he was between 19 and 30 years of age. Dr Garforth states that the applicant began a methadone program at Healthwise Medical Centre, Tweed Heads, under the care of Dr Paul Balin in 2001. [20] Dr Garforth contacted Dr Balin who reported that the applicant presented in 2001 with severe heroin dependency and mild paranoid symptoms. [21] The applicant has continued to consult with Dr Balin over the past 8 years. However, no report from Dr Balin was provided to the court in this application. [22] Dr Garforth reviewed the clinical notes of Mermaid Central Medical Clinic and states: “Mr Cox presented just one month prior to the index incident with erratic sleep, thoughts of paranoia and low mood and subsequently commenced antidepressant medication, Endep. It was also noted in the medical notes from Mermaid Central Medical Clinic that Mr Cox suffered from “family stresses” and had been taking Largactil for a number of years possibly for schizophrenia, manic depressive psychosis or hypomania.”8 [23] Dr Garforth sought clarification of the psychiatric history from Dr Balin. He reiterated that the applicant’s paranoid symptoms were most likely the result of chronic drug use. [24] Dr Garforth further states that: “Assessment results obtained from clinical interview, psychological testing and the review of collateral information indicate that Mr Cox 5 Exhibit MJC1 to affidavit of the applicant filed 22 July 2009. 6 [2002] 2 Qd R 295. 7 R v Bennett, ex parte Facer [2002] 2 Qd R 295 at 300 at para [18]. 8 Exhibit 1 to affidavit of Dr Garforth filed 22 July 2009 at para [4.4]. -- 4 of 8 -- 5 has suffered specific psychological consequences following the index incident with a range of significant emotional and behavioural symptoms. Since the index incident, he has not at any time returned to his former subjective level of functioning. He has continued to display various emotional and behavioural symptoms and these symptoms meet the criteria for the following DSM-IV-TR Diagnosis (See Appendix III): Posttraumatic Stress Disorder (PTSD) - Severe (severity) - Chronic (duration longer than 3 months) - Without Delayed Onset (symptoms began less than 6 months after the event) Although there is also evidence of clinical depression, paranoia and hypervigilant behaviours these are considered to be pre-existing conditions and do not warrant a separate diagnosis for the current purpose.”9 Post offence symptoms. [25] Dr Garforth diagnosed the applicant with Posttraumatic Stress Disorder. The report described the symptoms as including, intense fear, extremely severe anxiety and stress, thoughts and images of the event, distressing dreams about the event and emotional distress when reminded of the event. [26] Dr Garforth said: “However, there is significant medical evidence that indicates pre- existing psychological conditions of at least depression and chronic paranoia to (sic) which have been exacerbated by the experience of trauma and not a direct result of the incident that occurred on the 31st of May 2002.”10 [27] Dr Garforth states that the applicant suffers from severe chronic posttraumatic stress disorder and exacerbation of pre-existing psychological conditions including depression and paranoia. The applicant does not elaborate on his injuries in his affidavit. Relevant principles [28] The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s22(3)). 9 Exhibit 1 to affidavit of Dr Garforth filed 22 July 2009 at para [7.1] 10 Exhibit 1 to affidavit of Dr Garforth filed 22 July 2009 at para [7.3] -- 5 of 8 -- 6 [29] The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. The amount of compensation cannot exceed the scheme maximum (s25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s25(8)). [30] If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s25(3)).11 [31] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.12 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained: “But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation able has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”13 [32] I have considered whether s19(2)(a) disentitles the applicant from an award of compensation, particularly in view of the reasoning of Chesterman J in Hohn v King14. Section 19(2) provides: “The part does not allow anyone to apply to a court or to the State for the payment of an amount for— (a) injury caused to the applicant by an offence to which the applicant was a party;” [33] In Hohn v King15 Chesterman J expressed the view that: “[45] If A should attack the person or property of B who retaliates and uses excessive force thereby inflicting injury on A which is not excused or authorised by the Code, A will have been injured by the commission of a personal offence. He would not be entitled to compensation because 11 See Wren v Gaulai [2008] QCA 148 12 [2001] 2 Qd R 436. 13 R v Ward ex-parte Dooley [2001] 2 Qd R 436 at 438 at para [5]. 14 [2004] 2 Qd R 508 at 519 at para [45] 15 [2004] 2 Qd R 508 -- 6 of 8 -- 7 his injuries would have occurred as a result of participation in the offence against B.”16 [34] However, Williams J rejected a wide construction of s19(2)(a) concluding that the applicant’s own behaviour, even if it constitutes criminal conduct should be considered under s25(7) which permits a reduction in the award of compensation.17 [35] Atkinson J concluded that it would be inappropriate for the court to decide the issue in the absence of full argument.18 However Her Honour was of the view that it was “only in the most unusual case” that a victim would be refused compensation entirely.19 [36] An illustration of an applicant being refused compensation because of his own behaviour is Re Jackson,20 a case decided under the compensation regime established by s633B Criminal Code. The case was discussed by all members of the Court in Hohn v King.21 [37] The cases analysed by Atkinson J in Hohn v King22 illustrate the variety of factual circumstances that may lead to a reduction in the award of compensation. Assessment [38] Mr Hall submits that an award of 10% of the scheme maximum is appropriate for the stab wound under item 24 in the Compensation Table. He submits that 30% is appropriate for item 33, Mental or nervous shock (severe). [39] The stab wound described in the medical reports is relatively minor. The sutured wound is depicted in photographs exhibited to the applicant’s affidavit.23 The range for a minor stab wound in item 24 is 6% to 10%. [40] Bearing in mind the requirement to scale the injury according to seriousness, I would assess the injury under item 24 stab wound (minor) at 6% of the scheme maximum. ($4,500) [41] The assessment of the appropriate award for mental or nervous shock is complicated by the fact that Dr Garforth’s opinion is expressed in reliance upon the applicant’s account of the event. That is not the basis upon which the application for compensation is to be assessed. As the factual foundation for the psychologist’s opinion is not the basis upon which the application is to be decided the opinion is virtually valueless.24 16 Hohn v King [2004] 2 Qd R 508 at 519 at para [45] 17 Hohn v King [2004] 2 Qd R 508 at 513-514 at para [14] 18 Hohn v King [2004] 2 Qd R 508 at 524 at para [71] 19 Hohn v King [2004] 2 Qd R 508 at 532 at para [106] 20 [1998] QSC 204 21 [2004] 2 Qd R 508 at 533-534 at para [109]-[114] 22 [2004] 2 Qd R 508 23 Exhibit MJC 2 affidavit of Michael James Cox 22 July 2009 24 R v Ping [2006 2 Qd R 69 at 79 at para [41]-[46]. -- 7 of 8 -- 8 [42] Upon the facts outlined at paragraphs [9]-[11] it is difficult to see that the applicant would have suffered a severe psychological reaction. He was the aggressor. He violently attacked the respondent. [43] The psychologist’s opinion is arrived at in reliance on the applicant’s account. It depends largely on the history given by the applicant. His account of the event is not the basis upon which the application must be determined. His self reporting to the psychologist of the adverse consequences of the stabbing given nearly 7 years after the event requires careful scrutiny before a conclusion can be reached that he suffered mental or nervous shock. I am not persuaded on the evidence that the applicant has suffered mental or nervous shock as a result of the offence. His mental state is most likely the result of his pre-existing conditions. Contribution [44] Section 26(7) 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.” [45] The Court of Appeal considered the provision in Hohn v King.25 Atkinson J set out a number of factors that may be relevant when assessing contribution by the applicant. These included whether or not the victim was committing an offence at the time of his or her injury, whether the victim offered violence to the offender or another before, during or after the offence, whether the victim was armed or used a weapon and any differences in size, strength and power between the victim and the offender. [46] It was noted at sentence the applicant had taken a range of drugs on the day of the offence.26 His attack on the respondent was violent. He was forceful, pulling her out the doorway by her hair and throwing a block of wood, narrowly missing her head. [47] Mr Hall for the applicant accepted that a 30% reduction for contribution was appropriate. In my view, a reduction of 40% is appropriate. This leads to a total award of $2700 Order [48] I order that the respondent pay to the applicant the amount of $2700 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries suffered sustained as a result of the offence of unlawful wounding which led to the conviction of the respondent in the District Court at Southport on 21 April 2008 25 [2004] 2 Qd R 508. 26 Transcript District Court Southport 21 April 2008, p11 Line 4. -- 8 of 8 --