Balekian v Mitchell [2008] QDC 122

DISTRICT COURT OF QUEENSLAND CITATION: Balekian v Mitchell [2008] QDC 122 PARTIES: JOSEPH BALEKIAN Applicant V MELISSA MARIE MITCHELL Respondent FILE NO/S: BD646/08 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 6 June 2008 DELIVERED AT: Brisbane HEARING DATE: 26 May 2008 JUDGE: Tutt DCJ ORDER: 1. The respondent Melissa Marie Mitchell pays to the applicant the sum of $5,250.00 for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 4 October 2006. CATCHWORDS: CRIMINAL COMPENSATION – assault occasioning bodily harm – where applicant was twice punched in the face – where applicant sustained physical injuries namely lacerations and bruising to the face – where applicant suffered “mental or nervous shock” – whether the index assault “materially contributed” to the applicant’s “post- traumatic stress disorder” – where other significant contributing factors to applicant’s “post-traumatic stress disorder”. Criminal Code Act 1899 (Qld) Criminal Offence Victims Act 1995 ss 24, 31 Ferguson v Kazakoff [2000] QSC 156 LMW v Nicholls (2004) QDC 118 -- 1 of 8 -- 2 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 Stannard v Lane [2000] QSC 86; SC No 2263 of 2000, 18 April 2000 SOLICITORS: Mr S Seth of Seth Solicitors for the applicant No appearance by or on behalf of the respondent Introduction: [1] The applicant, Joseph Balekian, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injuries he sustained arising out of the criminal conduct of the respondent, Melissa Marie Mitchell, who was convicted by this court at Beenleigh on 4 October 2006 for the offence of unlawful assault causing bodily harm to the applicant on 23 January 2005 at Kingston in the State of Queensland. [2] In accordance with the order for substituted service made by this court on 18 April 2008 the applicant’s solicitors served the respondent by way of causing an advertisement in the Public Notices section of The Courier Mail newspaper on 5, 6 and 7 May 2008. Despite that publication, there was no appearance by or on behalf of the respondent at the hearing of the application on 26 May 2008 and the hearing proceeded in the respondent’s absence. [3] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) the affidavit with exhibits of the applicant, sworn 14 March 2008 and filed in this court on 19 March 2008; -- 2 of 8 -- 3 (b) the affidavit with exhibits of Samet Seth, solicitor, sworn 13 March 2008 and filed in this court on 19 March 2008; (c) the affidavit with exhibits of Barbara McGuire, psychiatrist, sworn 17 March 2008 and filed in this court on 19 March 2008. The Facts: [4] The applicant alleges that on 23 January 2005 he was confronted by the applicant and two other persons a male and female, the male person being known to him. After allowing the three persons to enter his premises he was assaulted by the applicant by being punched in the head on two occasions. The first occasion the punch connected to the left side of his face on his “top lip” and on the second occasion the punch connected to his “right cheek”.1 [5] During the course of this confrontation the applicant alleged that the male person “pulled out a knife” and attempted to rob him. The three persons then left the applicant’s premises.2 [6] A charge against the male person involved in the altercation was ultimately not prosecuted as there was information in police records that upon investigation the Queensland Police Service considered that there had not been “…a robbery of any sort …” and the only charge which was ultimately proceeded with was the offence against the respondent to this application to which she pleaded guilty and was convicted. 1 Applicant’s affidavit filed 19 March 2008, Exhibit “A” paragraphs [25]-[27]. 2 Ibid paragraphs [29]-[32]. -- 3 of 8 -- 4 Applicant’s Injuries (physical): [7] The applicant claims compensation for both physical and psychological injuries allegedly suffered by him arising out of the respondent’s criminal conduct. The applicant’s physical injuries are lacerations and bruising to the face. Mental or Nervous Shock: [8] The applicant also claims compensation for alleged psychological injury as a result of the index assault in that he claims that “The offences have had a severe effect on my life. Since the incident, I am extremely careful and keep my doors locked, especially at night and I am suspicious of any noise outside casing [sic] me to look outside. I still have nightmares and I feel depressed about what has happened to me.” 3 [9] In support of the applicant’s alleged psychological injury, the applicant was examined by Dr Barbara McGuire, psychiatrist, “for a period of 1 hour on the 4.02.08”.4 [10] Dr McGuire’s account of the index assault and general altercation as contained in her report, no doubt on instructions from the applicant, does not reconcile with the facts as presented to the court. It is accepted that there were language difficulties at the time of the altercation and these difficulties seem to have continued during Dr McGuire’s interview as evidenced by her comment: “At interview he presented with dysphasia. He was irritable on occasions, emotionally labile and appeared to demonstrate limited comprehension of the procedure. His mood was depressed.”5 3 Ibid paragraph [11]. 4 Affidavit of Dr Barbara McGuire filed 19 March 2008, Exhibit “A” - Dr McGuire’s report of 8 February 2008 p 1. -- 4 of 8 -- 5 It is noted also that the applicant “…suffered a cerebrovascular accident in March 2007 which resulted in a right hemiparesis, double vision, difficulty with speaking.”6 This occurred two years post-incident. [11] Ultimately Dr McGuire has diagnosed the applicant as suffering “…posttraumatic stress disorder to a severe degree. This has been compounded by his stroke.” 7 It is to be noted also that Dr McGuire has stated that “of the two offenders the incident with the man was much worse than what the female did. He stated he was much more terrified of the male.” 8 [12] It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is an “…injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156 at [15], [17] and [21] respectively. [13] In this application we are dealing only with the index assault by the respondent and its consequences, not with the conduct of any putative accomplice to the respondent against whom no conviction was obtained. 5 Ibid p 3. 6 Ibid p 2. 7 Ibid p 3. 8 Ibid p 4. -- 5 of 8 -- 6 Causation: [14] The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Criminal Code 1899 (Qld) (“the Code”) and under the Act which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 9 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants where other factors are relevant to and impact upon the causation of the alleged injuries. [15] Further to this, her Honour’s comments at paragraph [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely: “The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.” 9 This case involved sexual offending but the principles decided are relevant generally. -- 6 of 8 -- 7 Findings on Categories of Injuries: [16] On the basis of the evidence before me and the submissions made, I find that the applicant is entitled to an award of compensation against the respondent for the physical injuries he suffered at the hands of the respondent referred to in paragraph [7] above. However in respect of the applicant’s alleged psychological injury arising out of the index assault, I find that the index assault of which the respondent was convicted, contributed to this injury to a small degree only, and that the extent to which the applicant’s current post-traumatic stress disorder is related to the altercation which occurred on 23 January 2005 is predominantly referable to the actions of the male person referred to in the incident and not the applicant. In addition there are other factors contributing to the applicant’s current condition which are totally unrelated to the index assault and/or altercation.10 [17] On the basis of the evidence before me and the submissions made I therefore find that the applicant’s injuries fall under the following categories of injury contained in the compensation table in Schedule 1 of the Act, namely: (a) Item 1 – “bruising/laceration (minor/moderate)… 1%-3%”. I assess the applicant’s compensation in respect of this item caused by the respondent in the sum of $1,500.00 representing 2% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court. (b) Item 31 – “mental or nervous shock (minor)… 2%-10%”. I assess the applicant’s compensation in respect of this item in the sum of $3,750.00 10 See Affidavit of Dr Barbara McGuire filed 19 March 2008, Exhibit “A” - Dr McGuire’s report of 8 February 2008 at p 3 that the applicant’s post traumatic stress disorder “… has been compounded by his stroke”. -- 7 of 8 -- 8 representing 5% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the evidence contained in Dr McGuire’s report, being Exhibit “A” to her affidavit filed 19 March 2008. [18] I find further that the applicant did not in any way contribute to his injuries and I therefore order that the respondent pays to the applicant the sum of $5,250.00 by way of compensation for the injuries sustained by the applicant as a result of the index assault. [19] In accordance with s 31 of the Act I make no order as to costs. -- 8 of 8 --