Cleland v Major [2002] QDC 195

DISTRICT COURT OF QUEENSLAND CITATION: Cleland v Major [2002] QDC 195 PARTIES: Jessu Allan CLELAND – Applicant AND Fiona MAJOR – Respondent FILE NO/S: 129/01 DIVISION: District Court PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court at Townsville DELIVERED ON: 26 June 2002 DELIVERED AT: Townsville HEARING DATES: 30 May and 3 June 2002 JUDGE: CF Wall QC DCJ ORDER: Respondent pay compensation to the applicant of $3,000 Respondent pay applicant’s cost of adjournment Applicant’s solicitors repay cost of adjournment to applicant CATCHWORDS: CASES JUDICIALLY CONSIDERED: CRIMINAL LAW – COMPENSATION – application for criminal compensation – grievous bodily harm with intent – ss 24(3) and 25(7) Criminal Offence Victims Act – conduct of applicant contributing to injury – applicant’s compensation reduced by 80% COSTS – ADJOURNMENT – wh s31 Criminal Offence Victims Act precludes order for costs of adjournment LEGAL PRACTIONERS –QUALIFICATIONS AND ADMISSION – SOLICITORS – wh interstate solicitor not admitted in Queensland can be solicitor on the record with address for service in Queensland. Buckland v Estate of Kennedy (2000) QSC 337 Re Hondros (1973) WAR 1 South Australia v Nguyen (1991) 57 SASR 252 South Australia v Abdul-Ghani (1997) 93 A Crim R 259 Parker v The Queen (1964) 111 CLR 665 Stannard v Lane (2000) QSC 086 Zalcove and McKenna v Jones (2001) QSC 44 -- 1 of 32 -- 2 Elders Trustee and Executor Company Ltd. v Estate of Howard (1996) 111 NTR 25 Maggbury Pty Ltd & Anor v Hatele Australia Pty Ltd & Anor (2001) QSC 078 STATUTES JUDICALLY CONSIDERED: COUNSEL: Criminal Offence Victims Act ss24(3), 25(7) s31 Uniform Civil Procedrue Rules r17, 31, 32(2), 708, 714, 987(2), 993 Queensland Law Sociaty Act ss 38, 39 Mr P. Brown for the applicant Mr T. Betts for the respondent SOLICITORS: Legal Aid Queensland for the applicant Guides & Elliott as Town Agents for Collaery & Colquohoun for the repondent. -- 2 of 32 -- State Reporting Bureau Transcript of Proceedings 1 4 th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. DISTRICT COURT CIVIL JURISDICTION JUDGE C F WALL QC No D129 of 2001 JESSU ALLAN CLELAND Applicant and FIONA MAJOR Respondent TOWNSVILLE ..DATE 26/06/2002 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 28 June, 2002 -- 3 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 2 1 10 20 30 40 50 60 HIS HONOUR: This is an application for compensation under the Criminal Offence Victims Act. The applicant was born on the 27th of October 1968 and was injured on the 25th of October 1999, when the respondent stabbed him in the groin intending to sever his penis and testicles. The offence occurred at Townsville at a gym where the applicant was exercising. In the District Court at Townsville on the 17th of April 2000 the respondent pleaded guilty to unlawfully doing grievous bodily harm to the applicant with intent to do so. Judge Pack sentenced her to imprisonment for six years, with a recommendation for parole after serving 18 months. She has been released on parole and vigorously defended this application. She was born on the 22nd of March 1973. In sentencing the respondent Judge Pack said: "You remain a young woman who places a high value on morality. It seems to me that the full circumstances which include the loss of your virginity, the apparent lack of compassion from remarks made to you at a time when you believed that you were suffering from a sexually transmitted disease as a consequence of your relationship, in conjunction with your perception of the level of morality of the complainant in the context of infidelity all played a part in the commission of this offence. But taking the law into your own hands is something, of course, which the Court cannot approve or countenance in any respect. In particular, as it should appear to you at this point in time from the medical evidence that is placed before me, your belief that you were suffering from a sexually transmitted disease which would have been a permanent problem, not only for your health, but perhaps for other in the context of your future relationships, although playing heavily upon your mind, was something which upon the material placed before me is now known not to be in touch with reality." -- 4 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 3 1 10 20 30 40 50 60 "The complainant now has recourse to sleeping tablets and antidepressant medication. He has a lifelong memory of the event as a consequence of significant scarring. That was, in itself, significant to him as a body builder and model. He has a fear, which seems to be unrealistic on the material before me, for his personal safety. You purchased this knife with the intention of committing the offence. You had intention to cause permanent injury in the way that has been described. There was preplanning which has been explained to me. There was an apparent lack of remorse which is perhaps explained by your rigidity and stubbornness, but it is nonetheless something which apparently has not altered even as a consequence of information given to you with respect to the medical reports. There were, as I say, however, multiple causes for the commission of this offence and those circumstances explain, but cannot excuse your conduct on this occasion. The complainant, of course, was totally defenceless at the time of the commission of this premeditated attack upon him. He had multiple lacerations which required sutures." Simply put, the respondent at the time she committed the offence and at sentencing, believed that the applicant had given her genital warts. At the time of sentencing that fact had not been established, but I am satisfied that it now has been proven to be the case. I find that the following are the relevant facts and circumstances relating to the application: (1) Where there is a conflict between their evidence I believe the respondent and not the applicant. I thought the applicant was evasive, obtuse, inconsistent and disingenuous. I also find that he lied about the clothing worn by the respondent when he first went to her house, the number of times they had intercourse, -- 5 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 4 1 10 20 30 40 50 60 questions asked of him by the respondent before she agreed to intercourse and as to whether he knew he could transmit HPV if warts were not showing. (2) Before she met and had intercourse with the applicant the respondent was a virgin. (3) Since the age of about 15 years the respondent has suffered from an obsessive-compulsive personality disorder and as a result is a perfectionist, with self- imposed high standards of performance and appearance. She is excessively conscientious, scrupulous and inflexible about matters of morality, ethics, values. She is also fairly rigid and stubborn. She is obsessive and fanatical in her attitude towards her health and fitness and the state of her body. She is meticulous about her health and in effect treated her body as a temple. To her, the contraction of Human Papilloma Virus (HPV), the external manifestation of which is genital warts, had a devastating effect. (4) Before she was aware that she had contracted HPV and after her relationship with the applicant ended she learned that when he had been seeing her he also had another girlfriend. He had previously said to her that there was no other woman in his life and as to this he lied to the respondent. -- 6 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 5 1 10 20 30 40 50 60 (5) Unprotected intercourse took place between the applicant and the respondent. (6) The applicant knew the respondent was a virgin. (7) The applicant suffered from HPV and knew that he suffered from HPV. He also knew that it could be passed on through intercourse, regardless of whether warts were apparent at the time. He did not care if he transmitted the virus to the applicant and he took no precautions to ensure that he did not transmit it to her. (8) Before she had intercourse with the applicant the respondent was saving herself for the right man and curiously she thought that man was the applicant. (9) The respondent told the applicant that she would not sleep with him if he was married or had a girlfriend. She was quite obsessive in relation to infidelity. She told him she was saving herself for a "special man". (10) According to her counsel at sentencing she stabbed the applicant for three reasons: (a) She believed he had transmitted HPV to her; (b) He lied to her when he said he had no sexually transmissible diseases; and -- 7 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 6 1 10 20 30 40 50 60 (c) He lied to her about not having another girlfriend at the time. The first two of these reasons were the main reasons. Without the first I find that the third would probably not have caused the respondent to stab the applicant. In relation to her motive for stabbing the applicant the respondent said as follows in her evidence: "MR BROWN: So, the motive for the attack was purely what you had in your mind as to what had happened to you?-- Yes, that's correct. Also, he's done this to a lot of woman. Oh, so it's your job to punish for other people, is it?-- No, it's not. It's not. If it hadn't involved me----- Well, you just said so?-- Well, if he hadn't done anything to me and I knew what I know now, it wouldn't be any of my business, but, yes, it was personal. HIS HONOUR: That's the giving you the genital warts?-- Also, I was very shocked to discover that he had a girlfriend. He lied point blank in here the other day, on Thursday. His actual affidavit, including the report from Dr John Rogers, indicates his girlfriend, Nicky Santo. I actually spoke to her a few months before the attack, probably about - or a few weeks before the attack, yeah. When I spoke to her, she told me he'd said that - she had heard of my name and she had asked him who I was and he said I was just a Chinese girl that was in love with him. I felt very humiliated. Not only did he have a girlfriend, he was lying to her about me." "But it was still you were seeking retribution for yourself and others?-- Mainly for myself. I can't believe he's been getting away with what he has and keeping his job." "It wasn't until I learnt that he slept with so many different women, that I went and got some tests done..." "HIS HONOUR: Miss Major, am I correct in concluding from what you say that you attacked the applicant for a combination of reasons: one, the genital warts -- 8 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 7 1 10 20 30 40 50 60 and, two, the fact that he had a girlfriend, Nicky Santo, about whom you felt very humiliated - not only did he have a girlfriend, but he had lied to her about you?-- Yeah. But your main reason was the transmission to you of genital warts?-- It was a combination of things. I felt very violated. I went through a stage where I couldn't look at myself in the mirror. I had stopped showering. I had stopped brushing my hair. I had stopped looking after myself. My marks at TAFE started going downhill. The teacher agreed to give me an extension. She said I was a profile student, but I couldn't handle the exams and things any more. I just - yeah, I- I was losing function. I was missing classes. Sometimes I would forget that they were on. Other times I would sit there in class and I would fall asleep because I couldn't sleep during the nights." 11. When the respondent confronted the applicant about believing that she had contracted HPV from him he was dismissive, callous and contemptuous of her. He said, "I'll give you 50 cents and you can tell someone who cares." He said this to her on more than one occasion. He gave her the impression that she was dirty and unclean. On all occasions that she approached him the applicant endeavoured to take no notice of her. He said he had had a "gutful of her" and just wanted her to leave him alone. 12. The respondent's belief that she had contracted HPV crushed everything she had saved herself for. Not only had she lost her virginity to someone else's boyfriend but she had chronic fears about passing it on to either her children or a sexual partner she may have had at some time in the future. -- 9 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 8 1 10 20 30 40 50 60 13. She suffered an immense loss of self esteem and felt that her body was no longer in a physically healthy state, which concerned and upset her. This was accompanied by an increasing rise in her anger level directed towards the applicant. Mr Zemaitis, a psychologist who examined her prior to sentencing, reported as follows: "Fiona's reaction to the knowledge that her body had been invaded with an STD, a genital warts virus, was one of shock, anger, depression and low - and loss of self-esteem. Considering her earlier described obsessive compulsive personality disorder, these reactions are understandable and perhaps would be described as being magnified considering her psychological condition." 14. When she stabbed the applicant her intention was to direct a blow to the area from whence her infection had come. 15. In June 2000 whilst in prison sections of two small punch biopsies taken from the respondent were examined by a pathologist who reported as follows: "Histopathology Report, Biopsy No: TN00P2973, Specimen Type: Perineum tissue, Clinical Notes: Possible HPV. Macroscopic: Labelled 'Two small punch biopsies' - the specimen consists of two tiny punch biopsies both measuring 2mm in maximum diameter. One block. (gam). Microscopic: Sections show fragments lined by stratified squamous epithelium. A lack of maturation is seen with koilocytic atypia and dyskeratosis present within the superficial layers. There is no evidence of dysplasia or of malignancy. (ah) Diagnosis: Perineum, punch biopsy - HPV-like effects." -- 10 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 9 1 10 20 30 40 50 60 Dr Pearse examined the respondent on the 27th of July 1999. In the region between the anus and the vagina she observed two wart-like lesions. A pap smear was normal. Dr Pearse seems to say in her report, Exhibit 4, that the wart-like lesions were sexually transmitted from the applicant. In her report dated the 17th of April 2000, Exhibit 6, Dr Lyndel Cahill said, "Usually the only laboratory test that can confirm the presence of the wart virus is a pap smear or a biopsy." The impression I get from reading Exhibit A to the respondent's affidavit, filed on the 23rd of July 2001, is that a biopsy is likely to be the more reliable indicator of HPV than a pap smear. 16. HPV is also called the wart virus or sexually transmitted genital warts. According to Dr P E James: "HIS HONOUR: And is it a treatable condition?-- It's treatable, but it's very difficult to treat. It's hard to eradicate. It tends to lie dormant. It tends to recur and people can be asymptomatic but still spread it. Yes, and how is it spread?-- Genital warts are spread by sexual intercourse. All right, and-----?-- Or intimate contact. And if it's transferred to a sexual partner-----?-- Yes. -----will it assume the same proportions with that new person?-- Yes, that's - that's right. As I said, it can lie dormant. It can be hard - it's very hard to eradicate. It's recurrent. It can - it can then be spread to any new partner, and with women -- 11 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 10 1 10 20 30 40 50 60 there's an association with cervical cancer or precancerous cervical changes. Yes. I mean, if a condom is worn, will that-----?-- Yes. -----will that prevent the transfer of the virus?-- If the condom's worn throughout contact, then, yes, it will." "HIS HONOUR: And are there any external manifestations of the virus?-- Well, you get a wart- like lesion on the shaft or head of the penis. All right. And - and if someone presents with that lesion-----?-- Yes. -----where - would only laboratory tests required to determine what it is?-- Not normally. Normally we'd just treat it - make a clinical diagnosis and treat it. Yes. And yes, all right, thank you. MR BETTS: Thank you, Doctor. Would you agree that it would be good practice, commonsense and indeed normal for somebody presenting with an infection for their general practitioner to tell them to - to wear condoms-----?-- Yes." "HIS HONOUR: Is that at all times when sexual intercourse takes place even during the dormant period?-- Ah, yes. That would be normal practice." "HIS HONOUR: Is another name for HPV, genital warts?-- Yes." "HIS HONOUR: Doctor, if the man has genital warts and has unprotected sexual intercourse with a woman, is it inevitable that there will be a transfer?-- No. No, the transfer rates - it's hard to be sure what it is, but it's probably relatively low, that's in a sort of order of perhaps 10 per cent but again I couldn't be absolutely confident that those numbers are right but it's not a - not guaranteed that you've transmitted but it's certainly possible. If - if you are - if there's a external manifestation of the - the virus is the possibility of transfer greater-----?-- Yes. -----than - than in the dormant state?-- Yes, that's correct." "MR BETTS: Would you also agree, Doctor, that a biopsy of the perineum area or perineum tissue in a woman would be one way of testing whether they have the - the illness?-- Yes, that's correct." -- 12 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 11 1 10 20 30 40 50 60 "You don't have this document, Doctor, but if I put to you that it was two tiny punch biopsies of perineum tissue but not a wart as such?-- Right. Now, what would be HPV like effects, to use that term, 'HPV like effects'; how would you interpret that in a pathology report taken from those specimens?-- This is the punch biopsy? Yes?-- It means the pathologist thinks that HPV change and are present in the tissues but hasn't actually identified wart virus. Okay. So, it's - it's perhaps a little vague but what you say is that it's consistent with HPV?-- It's consistent with it but not definitive." "Doctor, HPV is transmitted by sexual contact, that's one way it can be transmitted?-- Yes. What are some other ways it can be transmitted?-- Well, wart - genital warts basically are transmitted by intimate contact including sexual contact. Other warts on other parts of the body are spread just by casual contact. It would be unusual perhaps not impossible but - but very - terribly unlikely to catch genital warts any way other than by sexual or close intimate contact of a sexual nature. Would you agree, Doctor, that if a - if a virgin who - if a - I'll withdraw that. If a person presented to you who'd had one sex partner in their life?-- Yes. -----with HPV-----?-- Yes. Let's assume a person presented to you in that situation?-- Yep. The only reasonable conclusion would be they'd acquired it from that sex partner wouldn't it?-- Yes." 17. The applicant admittedly has HPV and I am satisfied that it was transmitted by him to the respondent. I am reinforced in this conclusion by the contents of Exhibit A to the respondent's affidavit, which I have already referred to, coupled with the submissions of Mr -- 13 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 12 1 10 20 30 40 50 60 Betts, who appeared for the respondent, in relation to it which I find to be persuasive. The fact that Nicole Santo, according to the applicant, has apparently been tested and does not have HPV is not inconsistent with the evidence of Dr James. Even though there is no medical or histopathological evidence updating the position since Exhibit 3 I find it more probable than not that the respondent still has HPV and that she is likely to permanently have it notwithstanding what is said in Exhibit A to her affidavit about treatment. I do however allow that there is a possibility that treatment may cure her of HPV. 18. At the gym immediately before he was stabbed the applicant said to the respondent, apparently in reference to her slight Asian appearance, "You ought to be put back on the boat and sent back." She was insulted by this. 19. Medical advice to the respondent is that she can pass HPV to a sex partner even if she is not showing any signs of the virus. 20. The respondent purchased the knife she used to stab the applicant two hours before she attacked him. At the time she stabbed him he was lying on a bench. She said she made sure that "he was in a vulnerable position and -- 14 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 13 1 10 20 30 40 50 60 wouldn't be able to fight back." At the time, he was not a physical threat to her. 21. As a result of contracting HPV the respondent may be at risk of developing genital or cervical cancer, but it is impossible to put it any higher than this. It is also possible, but I think unlikely, that she could become free of the disease. Turning now to the injuries suffered by the applicant. Before he was injured the applicant was suffering from a pre-existing depressive illness. He was suffering from reactive depression. He was a police Aboriginal liaison officer. Dr James said: "Mr Cleland was having a reactive depression. He felt that he was being victimised by the police force and certain segments of Aboriginal and Torres Strait Islander community and he was suffering from a reactive depression to that with feelings of anger and frustration and rejection." Dr James had been treating him for the condition since about December 1998. According to Dr James the applicant's current emotional, psychiatric or psychological problems as referred to in his report, Exhibit E to the affidavit of Clare Crabb filed on the 26th of April 2001, are multifactorial in terms of causes and are due to: -- 15 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 14 1 10 20 30 40 50 60 - Ongoing problems at work which commenced before he was injured and have continued since; - His estrangement from the Aboriginal community since being injured but not due to his injury; - Post-traumatic stress disorder related to his injury and an exacerbation of his depressive illness as a result of the injury and his other ongoing problems, including subsequent criminal charges laid against him. Dr James said that in September 1999 the applicant was clearly suffering from a significant depressive illness. On the 3rd of August 1999 he was exhibiting symptoms of a major depressive disorder. Exhibit E is incorrect in its description of the applicant prior to being injured. The change in his personality in fact occurred prior to injury. Dr James agreed that prior to being injured the applicant had significant pre- existing mental problems. He had a pre-existing depressive illness which has been exacerbated by the offence and his other subsequent problems, some of which predated the offence. Dr James said: "MR BETTS: Now it's a very difficult exercise, Doctor, but are you able to, in percentage terms or such other clear terms as you can indicate, try to apportion the causes of his - his problems? HIS HONOUR: His current problems. MR BETTS: His current problems. Sorry, your Honour?-- His current problems? I think the - the majority of it is due to his ongoing conflict with his -- 16 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 15 1 10 20 30 40 50 60 employers and the charges that he is facing. He's been - he's deteriorated since he suffered those charges, but he did have a substantial degree of depression following his grievous bodily harm and I think that that was much more severe than his pre-existing depressive illness. That doesn't give you percentage terms. I mean, I would be loathed to give you percentage terms, but probably a third, a third, a third would probably be a - you know, as reasonable as I could say, but, again, I'm in - I'm a bit reluctant to go down that path." "He never really has returned to his pre-morbid personality, but he was clearly suffering a depressive illness prior to the grievous bodily harm, but he's - that certainly was worse afterwards and has never resiled. He's obviously had other things that have exacerbated it since then." Dr John Rogers, a psychiatrist, examined the applicant on the 16th of November 2000. His report is Exhibit D to Miss Crabb's affidavit. He has not seen the applicant since then. Dr James has been the applicant's doctor for a number of years and where there is a conflict between the opinions of him and Dr Rogers I prefer those of Dr James, notwithstanding that Dr Rogers is a specialist and Dr James a general practitioner. Dr Rogers said in evidence: "MR BETTS: Now, it's the case isn't it that one of the other symptoms that you see with post-traumatic stress disorder is depression?-- Yes. I have a special interest in post-traumatic stress disorder and most, if not all, patients who have significant post-traumatic stress disorder also have major depression. One arising from the other." Dr Rogers considers the offence caused a very significant exacerbation of the applicant's pre-existing depressive illness and also caused post-traumatic stress disorder. Post- offence events of the nature already referred to would also -- 17 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 16 1 10 20 30 40 50 60 impact on his current mental state. They could have significantly exacerbated pre-existing symptoms as well as symptoms caused by the assault. Dr Rogers said: "HIS HONOUR: Doctor, you said that these other events that Mr Betts has referred to could have exacerbated his depressive illness?-- Yes. Could they also have exacerbated the post-traumatic stress disorder which you say emanates from the stabbing?-- Yes. That's - I don't think I've got my view over this. When I talk about vulnerability, you see, I think it makes the - the condition which I believe has arisen, the - the post- traumatic disorder with significant depression associated. It makes him more vulnerable. So if - if you take the question of an event occurring and - to a person, you have to take him as you find him in a sense. He's already in this vulnerable state. Yes, but, Doctor, you say that before he was stabbed he had - he was exhibiting symptoms of depressive illness?-- Yes. Those symptoms were exacerbated by the stabbing?-- Yes. The stabbing in itself caused post-traumatic stress disorder?-- Yes. And that post traumatic stress disorder itself could be exacerbated by these-----?-- Yes. -----other events which have occurred in his life after the stabbing?-- Yes. It significantly exacerbates the condition of post-traumatic stress disorder, subsequent events and as I was trying to explain earlier in the case where people have new events, they are that much more sensitive to and they suffer more - more greatly, even though it's triggered off by - by a new event. Yes, thank you?-- So it's - but it's the concept of pre- existing vulnerability." "MR BETTS: Thank you, your Honour. Doctor, we've heard evidence a little earlier today from Dr James, the applicant's general practitioner-----?-- Yes. -----and he says on the 8th of October 2001 that the applicant came to see him. He was extremely upset. Much, much worse than he had observed. Certainly - or to put it another way, a real spike in his symptoms at that time?-- Yes. -- 18 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 17 1 10 20 30 40 50 60 And that he felt that the charges had a significant impact upon him. Now, would you agree - I know that's not your opinion, but would you agree that a general practitioner observing this man over a lengthy period of time, knowing his history and seeing him on a regular basis would perhaps, and no criticism of you, but perhaps be in a better position to judge the overall cumulative effect of these events upon him?-- Well certainly general practitioners have a unique position in - in knowing a patient over time and knowing how events are affecting them, whether it's in a - a formal mental state aspect or, really, just in the general sense, so I - I wouldn't want to make any comments one way or the other as far as that's concerned. I think the problem that we have here is we have a man who at the one and the same time is suffering from what I'm calling a post-traumatic stress disorder relating to the assault. We now know that he also had a pre-existing depression. I think that and the other events that went on make him more vulnerable to the - the severity of the post-traumatic stress disorder. We now - then have new events of a very significant kind which are likely to exacerbate both the original post-traumatic stress disorder component as well as the major depression, and that the problem is that it's impossible for me to say because there is such a big overlap in the symptoms, that one relates to one or the other. All I can say is that they are matters of significance and likely to - to be involved." "I will stick with, you know, my view that I still believe that the - the stabbing assault on him has been a very significant factor both in the - the initiation of the PTSD and that he was vulnerable by reason of these early events to suffer more severely, and I would see that the new events as adding insult to injury, if you like, to the original injury which I'm taking to be for the moment the - the stabbing incident. HIS HONOUR: Yes?-- But I don't want to get caught up in thirds or quarters or halves. I just think it's a significant - very significant factor. Well, Doctor, just to confirm then, to be absolutely clear, you only saw this man on the one occasion in November 2000. You've not seen him since to observe the effects of these other matters-----?-- I agree, and that's - that's why the - you know, the view of his usual general practitioner has to be listened to with - with respect. On the other hand, I now have access to a lot more information and I did have a very significant amount of information even when I saw him, but as far as clinical contact is concerned, obviously relatively short." "HIS HONOUR: Well I think the doctor said - correct me if I'm wrong, Doctor - that having the pre-existing depressive illness made him more vulnerable-----?-- Yes. -----to developing post-traumatic stress disorder as-----?-- Yes. -- 19 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 18 1 10 20 30 40 50 60 -----a result of the stabbing?-- Yes, that's my view. As I say, I have a difficulty with - with trying to put proportions or figures, but I do think in - now that I am aware that rather than detracting from the significance of - of the stabbing, it adds to the significance in a sense that he is more likely to suffer from the stabbing. I don't know if I'm making myself plain." The opinions expressed in the reports of each of Dr James and Dr Rogers, Exhibits E and D respectively, are somewhat misleading by not referring to the applicant's pre-existing problems and in their attribution of all of his current problems to the offence and they must be read subject to the evidence which each gave. I find that the offence and consequent injury has caused an exacerbation of the applicant's pre-existing depressive illness and has itself caused post-traumatic stress disorder, but that other events in the applicant's life since his injury are also impacting on his ongoing depressive illness and the post-traumatic stress disorder. I find that about one-third of his current mental condition and problems are due to the offence and that at least his post-traumatic stress disorder is likely to persist indefinitely at its current level, or with ongoing treatment at a slightly reduced level. His depressive illness is more likely to resolve in whole or substantially once the other stressors in his life are no longer impacting on him. If they continue to impact on him the prognosis is more pessimistic. -- 20 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 19 1 10 20 30 40 50 60 His mental injury attributable to the offence does amount to mental or nervous shock of a minor nature within item 31 of the compensation table in schedule 1 of the Act and the percentage of the scheme maximum which I think is applicable to it is eight per cent. I do not think it is correct to assess his compensation at one-third of the maximum percentage for severe mental or nervous shock allowable in item 33 because that is reserved for the most serious cases of such injury and his current condition as a whole does not, in my view, fall into that category. His other injury is the wounds and scarring associated with the stabbing. Details are referred to in the report and statement of Dr Von Papen exhibited to Miss Crabb's affidavit and I need not repeat them here. The applicant appears to have made a relatively uneventful recovery and his wounds have healed. The applicant has been left with significant and disfiguring surgical scarring, but it is hidden by his clothes. It would, however, be embarrassing for him in certain circumstances and it has impacted adversely on his prospects of pursuing modelling work. As I understand the position he had not, prior to being injured, done any modelling but hoped in the future to do some. The scars are shown in the photographs Exhibit B to his affidavit. In his affidavit filed on the 26th of April 2001 the applicant does not mention any residual disability or incapacity as a result of the stab wounds. All he says is, "As a result of -- 21 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 20 1 10 20 30 40 50 60 the injuries sustained by me I now have permanent scarring on the lower part of my body." In his victim impact statement tendered on sentencing he said he spent two weeks in hospital and that his wounds had healed well, though they were tender to touch and occasionally he felt sore in the muscles around the wounds. In these circumstances the remarks of Mr Justice Ambrose in Buckland v. Estate of Kennedy (2000), Q.S.C. 337 paragraphs 35 and 36 are apposite: "(35) The problem I have with categorising the stab wound as a severe one is that there is no persuasive evidence that it has left the applicant with any residual disability or incapacity. From the evidence placed before me I infer that indeed he was lucky to make a remarkable recovery from this wound. While in one sense perhaps it might be described as a "severe" wound because of the potential it had to cause a lasting serious injury, it is the object of the legislation in my view to have the court assess the severity of a stab wound at the time the order is made and not at the time the wound was inflicted. While undoubtedly it would be correct to describe the wound as a serious one at the time it was inflicted because of its potential to cause death or perhaps serious permanent disability, in my view it would not be correct to categorise it as a severe stab wound at the present time if the evidence does not disclose that it has caused a significant permanent disability. (36) There is no evidence led in this case to suggest that that has been a consequence of the stab wound. As far as the evidence stands the appellant was disabled for about 4 months. He suffered the experience of having complicated surgery and was kept in hospital for 9 days. He did not return for outpatient treatment and indeed seems not to have required any or any significant medical treatment which extended beyond a couple of months after the stabbing." Mr Justice Ambrose there categorised the stab wound as falling within item 25 of the compensation table in schedule 1 of the -- 22 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 21 1 10 20 30 40 50 60 Act. In my opinion the stab wounds and associated bodily scarring are within the minor (item 24) and moderate (item 27) categories respectively but one must be careful not to double up in assessing compensation for what, in effect, is a single state of injury. I consider an appropriate assessment of compensation combining items 26 and 27 would be 12 per cent. Total compensation to which the applicant may be entitled therefore amounts to 20 per cent of the scheme maximum. The scheme maximum is $75,000. Twenty per cent of $75,000 is $15,000. The respondent submits, relying on sections 24(3) and 25(7) of the Criminal Offence Victims Act, that no order for compensation should be made at all or alternatively that the compensation the applicant would otherwise be entitled to should be reduced "having regard to everything relevant, for example, any behaviour of the applicant that directly or indirectly contributed" to his injuries. There is clearly a discretion to award no compensation at all and this was accepted by Mr Brown, who appeared for the applicant. By way of comparison with the situation in other jurisdictions under comparable legislation see, for example, re Hondros (1973), W.A.R. 1 at 4, South Australia v. Nguyen (1991) 57 SASR 252 and South Australia v. Abdul-Ghani (1997) 93 A.Crim.R. 259. -- 23 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 22 1 10 20 30 40 50 60 In comparative terms the applicant has been left with mental or nervous shock which may be but is not necessarily permanent and scarring, which is permanent, and the respondent has been left with HPV, which is probably permanent. The transmission to her of HPV by the applicant caused her to stab him. Had she not contracted HPV the other factors operating on her mind at the time would probably not have been sufficient to provoke such a reaction in her. That reaction was due in part to her pre-existing personality disorder. As a result of reacting as she did the respondent has a conviction and has served part of the prison sentence imposed on her. In these circumstances and as a result of these and the other facts and circumstances I have referred to, should the respondent have to pay the applicant anything by way of compensation or, if she should, should that compensation be reduced? Is the respondent at fault? Is she to blame in a real, practical, commonsense way? Who is responsible for what occurred? Should responsibility be shared? Should it be attributed entirely to the applicant or entirely to the respondent? Some 15 months or so elapsed between the contraction of HPV and the stabbing, but during that time the respondent was, to use her words, "losing function" as a result of what had happened to her, what she learned about the applicant and the way he handled her complaints to him. She was progressively and inexorably being driven to the brink. -- 24 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 23 1 10 20 30 40 50 60 In a Parker v. the Queen (1964), 111 C.L.R. 665 sense the respondent was clearly acting under extreme provocation brought about by the overall conduct of the applicant over a fairly long time, commencing with his lies and transmission to her of HPV and concluding with his ongoing contemptuous and dismissive attitude towards her. His conduct effectively caused her to lose self-control. She was, in a Parker sense, "tormented beyond endurance". The applicant openly and contemptuously dismissed her "grief and anguish". Admittedly, there appears to have been a degree of planning of at least two hours by the respondent before she stabbed the applicant, but that in my view is, in reality, subsumed by the totality of the events in which she found herself enmeshed. I concede that the respondent has a somewhat fragile and vulnerable personality, but on the other hand the applicant must take her as she is. He was aware, I find, of her concerns and lied to her. Balancing the various factors I have mentioned, I consider the applicant to have been the substantial but not the sole cause of his misfortune, notwithstanding the absence of any aggressive behaviour on his part at the time he was stabbed. What he did to the respondent and how he behaved towards her was causative of how she in turn behaved. His conduct had an ascertainable bearing on the occurrence of his injuries. If proximity and remoteness are relevant considerations, and I concede they could be depending on the circumstances, the -- 25 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 24 1 10 20 30 40 50 60 applicant's conduct here was, I find, sufficiently proximate to his injury and not so remote as to have ceased to be a cause of his injury. In my view it could not be said that the applicant's behaviour was so removed in point of time or relationship to his injury that logically it had no bearing upon it. The fact of the matter is that at the time she stabbed the applicant what he had done to her and how he was treating her was still playing very much, if not entirely, on her mind; it was determining her behaviour and was the prime factor motivating her course of conduct. The applicant's conduct generally towards the respondent far outweighs the absence of any provoking conduct on his part at or immediately preceding his stabbing. In all of the circumstances I consider the applicant's compensation should be reduced by 80 per cent, having regard to everything relevant, including the behaviour of the applicant that directly and indirectly contributed to his injury. This application was listed for hearing on Monday the 27th of May 2002 and it was intended that the applicant and Drs James and Rogers be available for cross-examination. Due to an oversight at least on the part of the respondent's Canberra solicitor, but not the respondent herself, notice requiring the witnesses for cross-examination was not given in accordance with Rule 439(2) of the Uniform Civil Procedure Rules and they were not available on the 27th of May. The application was adjourned then until Thursday the 30th of May -- 26 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 25 1 10 20 30 40 50 60 when the hearing commenced and cross-examination of the witnesses took place. The applicant applied for costs thrown away by the adjournment and I heard argument on that application at the conclusion of the substantive application. Section 31 of the Criminal Offence Victims Act provides: "No cost orders on application: A court is unable to make an order for the payment of costs of an application for a compensation or repayment order." Mr Betts submitted that section 31 precludes any order for costs even of an adjournment. I cannot agree. In Stannard v. Lane (2000), Q.S.C. 086 Mr Justice Williams left open the question whether despite the wording of section 31 there may be circumstances where some order for costs could be made in favour of a party. In Zaicov and McKenna v. Jones (2001), Q.S.C. 44 the Court of Appeal held that an order for the costs of an appeal in the case of an application under the Criminal Offence Victims Act is not "an order for the payment of costs of an application for a compensation or repayment order". An order granting an adjournment is an interlocutory order in the proceeding and in my view a condition of such an adjournment can be, and often is, that the party responsible pay the other's costs associated with the adjournment. See -- 27 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 26 1 10 20 30 40 50 60 Rule 32 of the Uniform Civil Procedure Rules, in particular subrule (2). If it were otherwise in cases such as the present the potential for abuse would be increased; adjournments could be sought and obtained without penalty and that would not, in all cases, be fair. In my view section 31 is no impediment to making an order for costs relating to an adjournment of a criminal compensation application. In the present case the adjournment was brought about by fault or negligence on the part of the respondent's Canberra solicitor, and not the respondent herself, and it is those solicitors who should pay. Sufficient grounds have been established to make an order under Rule 708 of the Uniform Civil Procedure Rules. Rule 708 provides: "Solicitor's delay or neglect: The court or registrar may order a solicitor to repay to the solicitor's client all or part of any costs ordered to be paid by the client to another party if the party incurred the costs because of delay, misconduct or negligence of the solicitor." The present case is complicated by the fact that the respondent's solicitor is a Canberra solicitor not admitted to practise in Queensland. These proceedings commenced when the respondent was a prisoner and she was initially represented by the Official Solicitor to the Public Trustee. -- 28 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 27 1 10 20 30 40 50 60 On the 16th of October 2001 a notice of change of solicitor was filed in accordance with Rule 987(2) of the Uniform Civil Procedure Rules. This notice was to the effect that "Collaery and Colquhoun now act for the respondent in the place of the Public Trustee of Queensland".. Collaery and Colquhoun's business address is stated as 30 Bougainville Street, Manuka, ACT. The respondent's address for service is stated as care of Giudes and Elliott Solicitors, Denham Street, Townsville. At the bottom of the notice of change of solicitor the following is stated: "Collaery & Colquhoun 30 Bougainville Street, MANUKA ACT 2603 By their town agents: GIUDES & ELLIOTT Solicitors & Notary 60-62 Denham Street Townsville Q 4810 DX 41423 Townsville Tel: (07) 4772 3655/Fax: (07) 4721 2426" This is not required by form 93, which is the relevant form. Rule 987(2) requires that the notice state the same details required by Rule 17(b). Those details include: "(iii) the address of the solicitors place of business; (iv) if the address specified under subparagraph (iii) is not a Queensland address - an address for service in Queensland." Rule 17 appears to contemplate an interstate solicitor acting for a party in a Queensland Court with the only requirement -- 29 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 28 1 10 20 30 40 50 60 being that the solicitor have an address for service in Queensland. That cannot be correct. It an offence to act or practise as a solicitor in Queensland without a practising certificate, see sections 38 and 39 Queensland Law Society Act. A solicitor cannot obtain a practising certificate unless the solicitor is first admitted to practise in Queensland. I am told that no member of Collaery and Colquhoun has been admitted to practise in Queensland. Were it otherwise, "schemes of local regulation of the members of the legal profession common to all parts of Australia would be set at nought". (Mr Justice Gallop, Elders Trustee and Executor Company Limited v. Estate of Howard (1996), 111 N.T.R. 25 at 30.) Curiously there is no rule in the Uniform Civil Procedure Rules providing for the appointment of town agents. Rule 993 contains provisions relating to the withdrawal from the record of a town agent of a principal solicitor. In the present case, notwithstanding their description on the Notice of Change of Solicitor, Giudes and Elliott are in one sense only an address for service of the Canberra firm. Rule 993 assumes the existence of a rule dealing with the appointment of town agents but there is not such a rule, nor is there any rule prescribing the role of a town agent. Rule 714 refers to "a solicitor practising in Queensland and acting as agent for a party's solicitor" in the context of costs and does not really assist in the present case. -- 30 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 29 1 10 20 30 40 50 60 I think that Giudes and Elliott must be treated as the solicitor for the respondent in these proceedings. During argument Mr Betts seemed to accept that this should be so. See Elders Trustee and Executor Co Ltd v. Estate of Howard (1996), 111 N.T.R. 25 at 31 per Gallop J. In the same case Kearney J said at page 38: "When a Territory solicitor acts for a party to litigation in Territory courts under instructions from that party's interstate solicitors, who are not entitled to practise in the Territory, he is not acting in that litigation as the interstate solicitor's agent in the sense that they are the 'principal solicitors' and he is their 'town agent'. In these circumstances the Territory solicitor on the record is the solicitor responsible for the Territory litigation, as a professional legal agent for the interstate client. In such a case there is a contractual relationship between the client and the Territory solicitor, the instructions being transmitted by the interstate solicitors (not entitled to practise in the Territory) as the client's agent for that purpose." These remarks were applied by Justice Wilson in Maggbury Proprietary Limited and Another v. Hafele Australia Proprietary Limited and Another (2001), Q.S.C. 078 para 14. See also the remarks of Kearney J in Young and TIO, unreported, Supreme Court, N.T., 14 December 1993, set out at page 33 of the Elders case. In the circumstances of this case the misconduct of the respondent's Canberra solicitor must be visited upon her Queensland solicitors, Giudes and Elliott. I make the following orders: -- 31 of 32 -- 26062002 T01/DKG M/T TSVDC1/2002 (Wall DCJ) JUDGMENT 30 1 10 20 30 40 50 60 (1) That the respondent pay compensation to the applicant of $3,000. (2) That the respondent pay the applicant's costs thrown away by the adjournment of the proceedings on the 27th of May 2002, the amount of those costs being agreed at $542.67. (3) That Giudes and Elliott repay to the respondent all of the costs the respondent has been ordered to pay in respect of adjournment of the proceedings on the 27th of May 2002. In relation to the third order, I express the view that Collaery and Colquhoun should either pay those costs or reimburse Giudes and Elliott. In conclusion I would like to express my appreciation to counsel for the assistance they provided on the application. ... ---- -- 32 of 32 --