Dowdall v Purcell [2009] QDC 123

DISTRICT COURT OF QUEENSLAND CITATION: Dowdall v Purcell [2009] QDC 123 PARTIES: SHANE NEVILLE DOWDALL (Applicant) v LAWRENCE KEITH PURCELL (Respondent) FILE NO/S: 14 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 15 May 2009 DELIVERED AT: Cairns HEARING DATE: 1 May 2009 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant $27,000 by way of compensation. CATCHWORDS: Criminal compensation – Psychological injuries – physical injuries. Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 COUNSEL: SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). [2] The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 9 July 2007, namely assault occasioning bodily harm in company. Facts [3] The applicant was violently bashed by the respondent on 28 June 2006 in Lily Street, Innisfail (“the incident”). He was drinking with another off duty police -- 1 of 4 -- 2 officer who was very intoxicated. The other off duty police officer racially vilified other patrons at the Crown Hotel shortly beforehand. It is clear from the transcript of the sentencing hearing on 16 July 2007 that this other police officer behaved in a provocative, aggressive manner that was completely inappropriate for a serving police officer. However, I accept that, despite being in his company on the evening in question and approaching the group which included the respondent immediately prior to the incident, the applicant, as was submitted by the Crown Prosecutor “has really just been in the wrong place at the wrong time, in the wrong company”. Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • Two lacerations to his right cheek which were sutured resulting in facial scarring; • Lacerations to both lips; • Bruising to his left cheek and eye; • Abrasions to his left elbow and right toes; • Multiple grazes and abrasions over his torso; • A broken nose which required surgery to correct; • Psychological sequelae. The relevant law [5] COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.” [6] Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov1 Homes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” [7] Relevantly the Compensation Table prescribes: Item 2: Bruising/laceration etc (severe) 3% - 5% Item 4: Fractured nose (displacement/surgery) 8% - 20% 1 [2002] 2 QdR 303 at 310 -- 2 of 4 -- 3 Item 27: Facial disfigurement or bodily scarring (minor/moderate) 2% - 10% Item 33: Mental or nervous shock (severe) 20% - 34% [8] Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.2 If an injury is not specifically listed in the Compensation Table the court must decide the amount of compensation by comparing the injury or injuries under injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.3 The Assessment [9] A report of Dr O’Shea from the Innisfail District Hospital dated 18 August 2006 confirms the physical injuries suffered by the applicant other than the injury sustained to his nose. This is the subject of a report of Dr Jumeau, Ear Nose and Throat Surgeon dated 8 November 2006 which records that the applicant was suffering from a nasal obstruction consistent with being caused by injuries sustained in the incident. Photographs of the injuries and the resultant scarring have also been exhibited to material before me. Dr Richardson, psychologist in a report dated 17 October 2008, records that the applicant has suffered significant psychological sequelae as a consequence of the incident leading to him requiring fortnightly treatment from a psychiatrist and being on sick leave from the Queensland Police Service since August 2007. Surprisingly, I have not been provided with a report from the applicant’s treating psychiatrist and the allegations concerning his employment status are not independently verified in the material before me. Dr Richardson nonetheless concludes that the applicant is suffering from a Post Traumatic Stress Disorder in the moderate to severe range and a Major Depressive Disorder, specified as being moderate to severe. [10] I am satisfied that the applicant did not contribute to the injuries suffered by him, despite being in the company of the fellow off duty police officer whose conduct appears to have provoked or at least inflamed the events which resulted in the incident and despite the applicant punching the respondent in an endeavour to defend himself. [11] Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows: Item 2: 4% $ 3,000.00 Item 4: 8% $ 6,000.00 2 s 25 (8) referring to s 22 (4) 3 s 25 (6) -- 3 of 4 -- 4 Item 27: 4% $ 3,000.00 Item 33: 20% $15,000.00 $27,000.00 Order [12] I order that the respondent pay the applicant the sum of $27,000. -- 4 of 4 --