Farnden v Miller [2003] QSC 364

SUPREME COURT OF QUEENSLAND CITATION: Farnden v Miller [2003] QSC 364 PARTIES: STUART LEWIS FARNDEN (Applicant) v MARK GARY MILLER (Respondent) FILE NO/S: S. 636 of 2003 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 30 October 2003 DELIVERED AT: Townsville HEARING DATE: 24 October 2003 JUDGES: Cullinane J ORDER: Compensation in the sum of $16,875 is awarded. CATCHWORDS: CRIMINAL LAW – OTHER GENERAL MATTERS – where respondent convicted of inflicting grievous bodily harm upon applicant with intent to do so – where trial judge found applicant contributed to his own injuries – whether any compensation payable by respondent should be reduced to reflect applicant’s contribution Criminal Offence Victims Act 1995 (Qld), s 25(7) R v Bennett: ex parte Facer (2002) 2 Qd R 295, followed Ferguson v Kazakiff [2000] QSC 156, followed COUNSEL: A.W. Collins for the Applicant There was no appearance for the Respondent SOLICITORS: Giudes and Elliott for the Applicant There was no appearance for the Respondent -- 1 of 6 -- 2 [1] This is an application for compensation under the Criminal Offence Victims Act 1995, as amended, by Stuart Lewis Farnden. The respondent was not represented at the hearing and there is an affidavit from the Public Trustee to the effect that the respondent was informed of the application and did not wish to take any part in it. There is a letter from him to that effect exhibited to the affidavit of Peter Daniel, a legal officer of the Public Trustee. [2] The applicant was born on 1 January 1955. [3] The respondent was convicted by a jury on 20 June 2002 of having inflicted grievous bodily harm upon the applicant with intent to do so. The indictment included a count of attempted murder but the jury was unable to agree upon that and convicted him of the alternative offence. [4] The applicant and the respondent both lived in the same area and became friendly through drinking at the same hotels. The applicant says that the respondent used to confide in him about his private affairs and told him about his anger problem and the trouble he had controlling it. [5] The applicant is an invalid pensioner who lived with two other people in a house at South Townsville to which the respondent would frequently come. [6] On the afternoon of 19 February 2002 the respondent came to the house while the applicant and another of the persons who lived there were present. The applicant was getting ready to leave and when the respondent came, he entered the house apparently without knocking and the applicant told him to knock first, to which the respondent said that he had. The respondent, according to the applicant, said he wanted to have a yarn and the applicant told him he was about to leave, to which the respondent said, “You’re no better than the others. You won’t talk to me either.” [7] It was the applicant’s evidence that whilst he was in the shower the respondent told him that he was going to leave. However when the applicant left the shower he saw the respondent standing in the kitchen and he (the applicant) went to the bedroom to dress. He was leaning over to pick up his jeans which were on the bed and suddenly felt something sharp enter the left side of his rib cage. He turned around and saw the respondent standing there with a knife in his right hand. He says he recognised it as his own bread knife which was some 25cm long and with a serrated edge. He says he threw himself at the respondent to try to get in close to him and stop his knife arm and at the same time the respondent continuously tried to stab him. He felt some more sharp jabs to his body and called out to the respondent to stop. The applicant head butted the respondent and got away from him and ran into the lounge room and saw the respondent run out of the house. [8] On the applicant’s account he was subject to a sustained stabbing without any justification of any kind or any provocation by him. The attack was unexpected and inexplicable. [9] On the other hand, the respondent gave an account at the trial in which he says that it was the applicant who had possession of the knife and who commenced to attack him with it. There had been a conversation, according to the respondent, in which -- 2 of 6 -- 3 the applicant accused the respondent of bashing a friend. He says that the applicant appeared to be angry and ran at him holding a knife in his hand and attempted to stab him. He said that he managed to get the knife off the applicant and in the course of doing so cut his right hand in the webbing between the thumb and index finger. He was found to have this cut when he was examined. The respondent acknowledged that he stabbed the applicant a number of times although he claimed to have little recollection of it. [10] The applicant in cross-examination agreed that on his account there would have been no occasion for the respondent’s hand to have come in contact with the blade of the knife. [11] In sentencing the respondent I had to form a view of the evidence consistent with the jury’s verdict for the purposes of a sentence. I regarded the evidence as providing little in the way of assistance in forming any impression as to which of the two accounts was the correct one. On the respondent’s own account the jury could have rejected his claim that he was acting in self-defence as he inflicted a substantial number of knife wounds after the applicant had been disarmed and after any occasion to defend himself had ceased. Moreover, given the significant number of stabbing wounds, I am satisfied the jury could have concluded that his actions went beyond any arguable use of force in self-defence. The respondent was a stronger and younger man than the applicant. The respondent in evidence agreed that there was no match between them physically. [12] I thought that the evidence of the injury to the respondent’s hand was the most helpful indication from the evidence of what had occurred, although I thought the resolution of the issue was one of considerable difficulty, there being little in the way of evidence of any cogency pointing one way or the other. The applicant has at all times denied that he attacked the respondent first. [13] I was left with the strong impression that the whole truth had not emerged from the accounts given. [14] It was the respondent’s evidence that he was able to get the knife off the applicant before the applicant had inflicted any injury to him. [15] The respondent having been sentenced upon this basis, it would plainly be inappropriate to deal with the issue of compensation on any more favourable basis to him. See R v Bennett: ex parte Facer (2002) 2 Qd R 295 where Phillipides J (with whom other members of the Court agreed) said at p. 300:- “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.” -- 3 of 6 -- 4 [16] The question of compensation then raises for consideration the provisions of s. 25(7) of the Criminal Offence Victims Act which provides as follows: “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.” [17] On the findings which I made upon sentence it is obvious that the applicant must be regarded as having substantially contributed to his injuries. [18] The applicant sustained some seven stab wounds. [19] According to a report of the doctor who treated the applicant upon his admission, he had wounds: (a) in the supersternal notch; (b) to the mid-clavicular lines of the left chest; (c) to the left anterior axillary fold; (d) in the left lower chest (two wounds) in approximately the mid axillary lines. One of these had omentum penetrating through it to the outside and the other communicated into the plural cavity; (e) in the posterior back around the level of the 11th or 12th rib in the mid- clavicular line; (f) overlying the left hip. [20] He had a large retro-peritoneal haematoma around the right kidney which was explored but no major injury was found. He underwent a laparatomy at which the omentum penetrating through the left plural cavity in the skin was found. This was reduced and resected. [21] There were no respiratory haemo-dynamic or neurological implications of the injuries. [22] The applicant must be regarded as extremely fortunate to have avoided more serious injury. [23] According to a report of a plastic surgeon, Dr. Tassan, he has some scarring to the left mid-lateral chest approximately 5cm x 1.5cm which is pale, flat and mature. There is a 24cm long vertical upper abdominal mid-line scar which is pale and mature and there are two smaller scars about 1cm to 1.5cm in size on the left chest and left anterior axillary fold which are narrow, pale and not readily visible. The most significant scar is the abdominal scar and the scar on the left lateral chest. The scars are not symptomatic and it would seem the applicant is not particularly concerned by them. No further treatment is necessary. Dr. Tassan assesses the scarring as involving a 5% impairment according to the tables to which he refers. -- 4 of 6 -- 5 [24] Mr. Zomiatsis, a psychologist, has provided a report. I am satisfied that when he was attacked, the applicant was fearful for his life. [25] He now suffers from significant levels of anxious arousal, depression, intrusive experiences, and defensive avoidance. [26] He has recurrent distressing dreams and recollections. He sometimes feels as if the traumatic events were reoccurring. He has psychological distress at exposure to cues that symbolise or resemble the traumatic event. [27] He appears to have lost his trust in other people and suffers from a substantial degree of anxiety. [28] He says that he occasionally feels short of breath and continues to have aches in his stomach and side but the pain does not persist. [29] Mr. Zomiatsis thinks that the applicant suffers from post-traumatic stress disorder which is a direct result of the attack upon him on 19 February 2002. He is impatient and becomes easily irritated. [30] Mr. Zomiatsis’s view is that his condition falls within the description of severe mental or nervous shock. It appears that the possibility of treatment assisting the applicant is somewhat problematical because the applicant appears to be somewhat resistant to the need to undergo personal changes. This would according to Mr. Zomiatsis, suggest that any treatment would be challenging with a difficult treatment process and the probability of reversals. He suggests a number of areas to which treatment might be directed but I would infer from the report that the prospects of improvement should be regarded as somewhat qualified. [31] I think that the psychological consequences of the attack upon him do fall within the description of severe mental or nervous shock and I allow in respect of this the sum of $18,750, reflecting 25% of the scheme’s maximum. The applicant contends for an assessment of compensation under two other heads, namely stab wounds (severe) under Item 26 and bodily scarring (minor/moderate) under Item 27. [32] I think that the proper approach in a case of this kind is that suggested by Thomas JA (when sitting as a single Judge in Ferguson v Kazakiff (2000) QSC 156). His Honour was addressing s. 26 of the Act which provides as follows: “When single or multiple compensation orders may be made (1) The purpose of this section is to ensure that, for applications, harm that substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more than 1 injury or be caused by more than 1 incident. [33] He said at paragraph 25: “Now whilst a nervous shock should in this case be treated as a separate state of injury, I do not think that the same conclusion should be reached in relation to the stab wounds and such scarring as has resulted from them. In my view the appropriate assessment should be under Item 24 taking into account the fact that the wounds produced some scarring.” -- 5 of 6 -- 6 [34] These remarks are applicable to the present case. [35] I think that the appropriate assessment, given the number of stab wounds but taking into account the fact that they did not, fortunately for the applicant, result in any damage to vital organs, is to award compensation towards the bottom of the range under Item 25 which relates to stab wounds (severe) and to take into account the scarring which has resulted. I assess compensation in respect of these matters in the sum of $15,000 reflecting 20% of the scheme maximum. [36] The total compensation then is $33,750. [37] As I have said this is a case in which the applicant must bear a substantial reduction in the compensation to be awarded because of his contribution to his injuries by his having, on the findings that were made, directly contributed to his injury. The initiation of the attack by him resulted in the respondent’s taking the knife from him and inflicting some seven stab wounds. [38] It is not a case in my view in which the applicant should be denied compensation (notwithstanding his initiating role) for the severe and sustained attack made upon him and the consequences of it. [39] I think that the justice of the case is met by a reduction of the applicant’s entitlement to compensation by one-half. [40] The result will be an award of compensation in the sum of $16,875. [41] I order the respondent to pay to the applicant by way of criminal compensation the sum of $16,875. -- 6 of 6 --