Bushell v Ryder & Anor [2001] QDC 328

DISTRICT COURT OF QUEENSLAND CITATION: Bushell v. Ryder and Anor [2001] QDC 328 PARTIES: DALE RAYMOND BUSHELL Applicant and WILLIAM JOHN ROBERT RYDER First Respondent and CAROL ELIZABETH JACK Second Respondent FILE NO: D 3401 of 2001 PROCEEDING: Application for criminal compensation DELIVERED ON: 14 December 2001 DELIVERED AT: Brisbane HEARING DATE: 9 October 2001 JUDGE: Judge Brabazon Q.C. ORDER: Application dismissed CATCHWORDS: CRIMINAL LAW – COMPENSATION – offenders convicted of burglary and attempted robbery whilst armed – whether applicant can recover when not named in the indictment – whether the injury was caused by a “personal offence” committed against the applicant – Criminal Offence Victims Act definition “personal offence” - Criminal Offence Victims Act definition “victim” – whether applicant can recover for “mental or nervous shock” Facer v. Bennett (2001) QCA 395, Judgment 24 July 2001; R v Callaghan and Fleming ex parte Power 1986 1 Qd.R 457; R v Moors ex parte Alex 1994 2 Qd.R 315; Summers v. Dougherty and Doyle (2000) QSC 365; Judgment 19 October 2000. COUNSEL: Mr B Charrington for the applicant Mr A Rafter for the respondent SOLICITORS: Trilby Misso & Company for the applicant Peter Wallace & Company for the respondent -- 1 of 11 -- 2 [1] This is an application for criminal compensation according to the provisions of the Criminal Offence Victims Act 1995. [2] On 29 August 2000, in the District Court at Brisbane, Mr W.J.R. Ryder was found guilty of one charge of burglary, and one charge of attempted robbery while armed in company. The offences took place on 1 November 1999. They took place at the residence of Mr Maddox, the victim named in the Certificate of Indictment Details. The reference to “armed in company” refers to Mr Ryder’s co-accused, Ms C.E. Jack. She was convicted of the same offences. [3] Miss Jack has not been served with any application for criminal compensation. Mr Ryder has been served and the Public Trustee consents to his defending this proceeding. Mr Rafter of counsel appears on his behalf. The applicant is Mr D.R. Bushell. He was not named in the indictment. To understand his connection with the offence, it is helpful to turn to the sentencing remarks. [4] Ryder and Ms Jack were in a domestic relationship. She was a user of illegal drugs at the time. It is likely that her supplier was Maddox. Strong feelings arose between the pair of them on one hand and Maddox, on the other. There had been arguments with Maddox, though not inside his house. On 1 November last year they decided to go to his residence, as part of the on-going dispute. Ms Jack entered the house first. There were a number of people there, in addition to Maddox. There were three other men, including Mr Bushell. There were at least two young women present and children. Ms Jack entered the house and began arguing loudly with Maddox. After some time Ryder also entered the house, armed with a sawn-off shot-gun. Most of it was covered by a towel, but the muzzle protruded. A scuffle -- 2 of 11 -- 3 took place between Ryder and Maddox. The shot-gun went off. Fortunately, it was pointed downwards. The pellets went into the floor. Any efforts to re-load were unsuccessful, and no further shots were fired. The weapon was dropped and the pair left the house. Maddox suffered a few bruises. Ryder was sentenced to three years imprisonment. [5] The sentencing remarks included this passage:- “I must also keep in mind, apart from these personal things that I have mentioned, that to the people in the house this must have been a frightening occasion. The gun went off while being held by you. They, no doubt, were very disturbed about it. To be in someone’s house with the intention to commit a crime while carrying a weapon is a serious matter indeed.” [6] It is necessary to look at the evidence, to see what connection Mr Bushell had with the commission of the two offences. That is a permissible approach. Such an approach was recently considered by the Queensland Court of Appeal in Facer v. Bennett (2001) QCA 395, judgment 24 July 2001. As it was there explained, in reasons adopted by the whole court:- “In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury’s verdict in a 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 that the evidence for sentencing purposes, providing 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 an unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s.25(7) of the Criminal Offence Victims Act to the issue of contribution. Thus although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.” -- 3 of 11 -- 4 [7] Mr Bushell supplied a statement to police, gave evidence at the committal proceedings, gave evidence at the trial, gave a history to a clinical psychologist, Mr Stoker, for the purpose of this application, swore an affidavit in these proceedings, and then swore a further affidavit dealing with an additional recollection. [8] He has always asserted that he was sitting in the lounge room with some of the other people. Ms Jack then entered through the kitchen, and spoke to Maddox in that room. She had an argument with him. A few minutes passed and then Mr Bushell noticed Ryder standing in the doorway between the kitchen and lounge room. He noticed that he was holding the sawn-off shot-gun, which was largely wrapped in a towel. It was pointing downwards. Ryder was wearing thick rubber gloves. [9] Maddox approached Ryder. There was an argument between them. They moved into the kitchen area. Maddox asked one of the young women to call the police. Mr Bushell heard what sounded like the noises of a fight coming from the kitchen. He heard a gun-shot. The young woman screamed. He grabbed both young women by their arms and quickly escorted them out through the front door onto the footpath. He went to a neighbouring unit and asked somebody to call the police. Mr Bushell spoke to the receptionist, and gave brief details of the firing of the shot-gun. He returned to the footpath, and then saw the two offenders driving away in a four- wheel drive vehicle. He returned to the house and saw some shot-gun shells in a plastic bag, which had been discarded. He went up towards the backdoor of the house. Maddox told him that they had gone, and that he could come in. He entered the house and saw the shot-gun mark on the lino in front of the refrigerator. He saw the gun lying just inside the doorway, on the floor of the kitchen. Shortly afterwards, two police officers arrived, with hand-guns drawn. -- 4 of 11 -- 5 [10] In all of his accounts about events, apart from his most recent affidavit, Mr Bushell did not say that the shot-gun was pointed towards himself. He always described it as being pointed downwards by Ryder. In his last affidavit he added the following additional information:- “I was sitting on the lounge when I initially became aware of (Mr Ryder). He was standing at the doorway between the kitchen and lounge room. He was holding the gun out in front of his body, pointing downwards. The gun was wrapped in a towel. Mr Ryder then began arguing with Mr Maddox. As Mr Ryder argued with Mr Maddox, he raised the gun and held it across his body. This meant that the gun was pointed directly at me and remained pointed directly at me for a short period of time. Mr Ryder then moved into the kitchen with Mr Maddox.” [11] Mr Rafter objected to the reception of that new evidence. He cross-examined Mr Bushell. Mr Bushell asserted that he had never been directly asked about that position of the shot-gun before. The further evidence may be accepted, as it will make no difference to the result – Ryder’s actions were directed towards Maddox, and any pointing of the gun at Mr Bushell was accidental. [12] It is necessary to turn to the provisions of the Act. They should be set out in full – Who is a victim under the declaration 5. A “victim” is a person who has suffered harm from a violation of the state’s criminal laws – (a) because a crime is committed that involves violence committed against the person in a direct way… . Scheme for compensation for injury, death and expenses from indictable offence 19.(1) This part establishes a scheme for payment of compensation to a person (“the applicant”) – (a) for injuries suffered by the applicant caused by a personal offence committed against the applicant … .. Meaning of “injury” -- 5 of 11 -- 6 20. “Injury” is bodily injury, mental and nervous shock, pregnancy or injury specified in the compensation table or prescribed under a regulation. Meaning of “personal offence” 21. A “personal offence” is an indictable offence committed against the person of someone. Court may make an order compensating someone injured by personal offence. 24.(1) This section applies if someone (the “convicted person”) – (a) is convicted on indictment of a personal offence; or (b) is convicted on indictment and a personal offence is taken into account on sentence. (2) The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injuries suffered by the applicant because of the offence. (3) The court may make an order (a “compensation order”) for an amount to be paid by the convicted person to the applicant because of the injury. Application proceeding is civil and strict evidence rules need not apply. 31(1) A proceeding on an application to a court for a compensation or repayment order is a civil proceeding (2) Without limiting subsection (1) issues of fact on the application must be decided on the balance of probabilities. [13] It is submitted that Mr Bushell suffered a mental and nervous shock, because of the actions of Ryder. If that is assumed to be correct, then Mr Bushell must establish that such an injury was caused by a personal offence committed against him. The court can make an order for compensation in two different circumstances:- a. The personal offence in the indictment was an offence against Mr Bushell, or -- 6 of 11 -- 7 b. Ryder was convicted on indictment, and a personal offence against Mr Bushell was taken into account on sentence. [14] The first possibility does not arise as Mr Bushell was not named in the indictment. It is necessary to identify the personal offence that was committed against the person of Mr Bushell. There has to be a causal connection between the nervous shock and the personal offence against Mr Bushell – see s.24(2) and (3). [15] There was no attempt to rob Mr Bushell. The violence was not directed towards him. [16] It is necessary to identify what personal offence was committed against him, and was taken into account on sentence. Mention was made at the hearing of assault. An assault does not only involve actual physical violence:- “A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, … . or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose, is said to assault that other person, and the act is called an “assault”.” (emphasis added.) [17] There was no evidence that Ryder attempted or threatened to apply force of any kind to the person of Mr Bushell. His efforts were directed solely towards Maddox. There was no assault on Mr Bushell. [18] Mention was also made of the offence of going armed so as to cause fear:- “Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of a misdemeanour, and is liable to imprisonment for two years.” (Code s.69). -- 7 of 11 -- 8 [19] Maddox did go armed in public, without lawful occasion. He was armed in such a manner as to cause fear to Mr Bushell. It is not surprising that Mr Bushell’s statement to police made no mention of fear. That was not the purpose of the statement. However, he told the psychologist that he reacted to the sound of the shooting by becoming hysterical. He then gathered up the women and children and got them out of the house. He said to the psychologist that he became frightened when the gun was passed around the jury, during the court hearing. It should be accepted that he was frightened at the time. Such was the effect of the sentencing remarks, quoted above. [20] However, did that amount to a personal offence against Mr Bushell? In my opinion, it did not. First, such offence is not traditionally classified as an offence against the person, but rather as an offence against public order. Secondly, the definition of “victim” is significant. There has to be a crime involving violence, committed against the person in a direct way. Violence extends beyond actual physical contact. However, the violence must be directed against the applicant for compensation. While an offence against s.69 of the Code has been committed, it is not a personal offence. [21] It can be seen that there are now considerable differences between the former Criminal Code provisions allowing criminal compensation, as in the repealed s.663B(1). The reasoning in R v Callaghan Fleming ex parte Power 1986 1 Qd.R 457, and in R v Moors ex parte Alex 1994 2 Qd.R 315 has to be cautiously applied to applications under this Act. In the first case, the nearby bank teller was himself the victim of an assault as the robber threatened him with a pistol. He would recover under this Act. In the second case, the injured person was a passenger in a -- 8 of 11 -- 9 car at which shots were fired, killing another passenger. The attacker was convicted of manslaughter. The majority held that the wounded man could not recover compensation, as the offence of manslaughter did not involve him, and because he had not been assaulted. [22] The present Act was applied in Summers v Dougherty and Doyle (2000 QSC 365, judgment 19 October 2000). There, all members of a family, including the children, were assaulted during a home invasion. The children applied for compensation. They were not mentioned in the indictment. But, “violence was specifically offered to the three applicants personally in the course of the offenders carrying out the robbery. In the context of s.24(2) and bearing in mind the remedial nature of the legislation their entitlement to apply for compensation is not excluded by reason only that they are not named in the indictment … ”. [23] There, it was clear that the children were assaulted, so that personal offences were committed against them. As s.24(1)(b) makes clear, the applicant does not have to be a person mentioned in the indictment. See also a seminar paper, “Compensation for Victims of Crime in Queensland” by Mr Peter Richards, barrister. (Department of Justice library.) [24] It follows that the application must be dismissed. In accordance with the usual practice, it is desirable to assess the compensation that would have been awarded, had the application been successful. [25] His counsel submitted that the appropriate assessment would be an award of $10,000. That is 13.3% of the scheme maximum of $75,000. The Act allows compensation for mental and nervous shock, in the minor, moderate or serious -- 9 of 11 -- 10 category from 2-10%, 10-20%, and 20-34% respectively. An award of $10,000 would place this injury slightly below the middle of the moderate category. [26] At the time of this offence, Mr Bushell was acting as an informal bodyguard for Maddox. Mr Bushell was also interested in boxing, and had fought in the ring. Maddox was his trainer. However, it seems that his personality was more fragile than one might have assumed from those activities. [27] Mr Stoker found him to be a 26-year-old man of normal verbal and performance intelligence. He had the personality structure of the neurotic introvert. His sensitive pre-morbid personality structure made him extremely prone to emotional decompensation when exposed to significant psycho-stressors. [28] Because of this incident, he lost confidence, became more distrustful, felt insecure in his domestic relationship, suffered weekly flashbacks, was fearful of further trauma, fearful of retribution, rarely went out, became more introverted, had regular nightmares, was less motivated, had increased headaches, and had paranoid ideation. He suffered mood fluctuations. [29] It seems that his headaches, which were long-standing, increased from weekly to three or four times per week. [30] Mr Stoker diagnosed chronic post-traumatic stress disorder. That has disrupted his life in the way set out above. In effect, Mr Stoker is of the opinion that he has a moderate degree of psychological pain and suffering. He will benefit from cognitive behavioural therapy. There is a recommendation that he be referred to a -- 10 of 11 -- 11 psychiatrist for the prescription of anti-depressant medication. Mr Stoker believes that he is suffering severe depression and anxiety with some paranoid features. [31] The psychologist believes that his prognosis is fair. He believes that with therapy, medication and the passage of time, his stress disorder will remit. However, his genetically pre-morbid personality structure may tend to make that more difficult. Even if therapy is successful, he will probably have a permanent partial psychological disability in the order of 14-16%. If not successful, it will be 28-30% permanent partial psychological disability. [32] That report, which should be accepted, supports the submission that an award of $10,000 would be appropriate. It is well settled that a diagnosis of post traumatic stress disorder is sufficient to qualify as mental or nervous shock. [33] The application is dismissed. -- 11 of 11 --