Asquith, Re [1999] QSC 88

. ( IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Mr Justice Derrington [Re John Victor Asquith] Application No. 5585 of 1996 IN THE MATTER of The Queen v Patricia Margaret Byers - and- IN THE MATTER of the Criminal Code - and- IN THE MATTER of an application by JOHN VICTOR ASQUITH for Criminal Compensation in accordance with Section 663B of the Criminal Cost of Queensland REASONS FOR JUDGMENT - DERRINGTON J Judgment delivered on 23 April 1999 l~ ) On the night of 12 - 13 April 1993 , Mrs Byers shot her de facto husband, Mr Asquith, in the forehead while he was sleeping, intending to murder him. It was not, as Mrs Byers calls it, \, an accident, and Mr Asquith's euphemistic reference to it by that description does not assist her. ! I 12 She did not succeed in killing him because the bullet shattered on his skull, and while some of the fragments entered his brain, they were removed and appear to have left no significant injury save for what is specifically described below. The remaining fragments ricochetted out through the skin of his right forehead leaving a second wound over a depressed fracture of the skull. At the time, Mr Asquith did not realise that he had been shot, and he sat up, asking what had happened; but soon after that he fell back through weakness and says that he struck his head -- 1 of 11 -- 3 4 2 on something, which is probably correct. He rose again soon after and provided aid to Mrs Byers, who was lying on the upper deck, and radioed for help. He did not realise the cause or extent of his injuries at any time during this period, nor did there appear to be anything severely traumatic at the time. Except for his knowledge that he had received a head injury, but one that permitted him to remain mobile, and that it was the result of an unknown attack, the event caused him limited trauma. Rejecting at the time the police theory that Mrs Byers had attempted to murder him, he returned to work but not to live with her after he was discharged from his rehabilitation treatment and they continued to conduct their joint take-away food business for about ten weeks, apparently without difficulty, until he says he found that she was trying to drug him. He then accepted the police theory, broke off his relationship with her, dissolved the partnership with considerable legal turbulence, closed the business and then sold it. This dissolution of the partnership has led to a rancorous trial between them in the District Court. Since terminating the partnership he has done little work and has lived on a Disability Support pension. He spent over five weeks in hospital and a further two weeks of rehabilitation. By the time he was discharged from the rehabilitation unit at the hospital, it was felt that he had made a very good recovery with minimal, if any, disabilities, but with some minor personality changes against a background of intact intellectual and memory functioning. It was expected that he would fully recover after a period of months. On further examination in July 1993, it was found that he was functioning well and working. There was no apparent symptom of brain injury or frontal lobe disability. This was consistent with an examination in the neurological department on 30 June 1993 when there were no complaints apart from some scalp soreness and hyperalgesia in the region of the repair. There was no complaint relevant to brain function, and precautionary anticonvulsant treatment was discontinued. • c (j C) -- 2 of 11 -- 5 6 ( i 7 ( 8 , 3 It is submitted by learned counsel on behalf ofMr Asquith that: "Dr. Landy comments that the long term sequelae of this injury can include problems of frontal lobe function including memory, disinhibition, lack of responsibility, lack of initiative, malaise and apathy, also epilepsy and infection." This is not correct. Dr Landy noted such a statement by Dr Bruce Hall, who did not provide evidence and whose qualifications were not disclosed. Significantly, apart from indicating the chance at that time of the development of epilepsy, Dr Landy did not suggest such future danger; and the fact that he referred to epilepsy shows that he addressed the matters that Dr Hall had raised. By the time of his investigation, he may have been in a better position to make this judgment. He referred to some impairment revealed by cognitive testing, which depended on purely subjective responses, as indicating that Mr Asquith appeared to lack initiative and had some degree of apathy; but he did not attribute any cause for these as might be expected if they related to brain injuries. Dr Hopkins noted that by 30 July 1993 on the last examination at the hospital, there were "no apparent brain injury sequelae" and "no evidence clinically of front lobe disability". "He was functioning well and working". This is all consistent with the other acceptable evidence that by implication these symptoms relate partly to a reactive disorder, but otherwise to his natural state. On 1 August 1995 he was said to have a 40 per cent chance of contracting epilepsy, but has had no attack to the present time. In the absence of further evidence, it cannot be assumed that any more than a small chance remains. He also complains of suffering from some dizziness and vertigo which in some quarters has been regarded as a consequence of this injury of some importance, but highly competent medical evidence dissociates it from this occurrence altogether. He also has quite a troublesome back condition that disables him from heavy work, and some stiffness and pains of his knees and elbows but they too are unrelated to this claim. In April 1994 he complained to Dr O'Brien of -- 3 of 11 -- 4 continual back pain, which seems to be distinct from neck pain since he described both distinctly to Mrs Coles. This and his leg and elbow condition may be related to his sporting past and the effects of age. All these matters would, together, have constituted a natural reduction of his earning capacity. Unfortunately, these negative factors and his natural inertia are not discussed in the expert reports on his loss of earning capacity, as they should have been. 9 His complaints' of headaches appeared at some time after he was discharged from hospital, for the follow-up notes in June and July 1993 by the rehabilitation and the neurosurgical departments of the hospital, report no relevant complaint, though scalp soreness is mentioned, and there were "no apparent brain injury sequelae". Again it should be noted that it was recorded o that he was functioning well and working. His headaches are first referred to in relation to his visit to Dr 0 'Brien on 9 April 1994 in association with complaints of distress and anxiety, and C; I '-~-- I they are probably due to psychological tension and are easily relieved. 10 He claims to have intermittent chronic residual neck pain. He was taken to hospital wearing a neck brace, but this was soon removed and although he said he complained of neck pain and received physiotherapy for it, there is no' report of complaints of it while he was in ohospital or during rehabilitation, or on any follow-up visits which extended to 30 July 1993. It is also relevant that until he was convinced of Mrs Byers' guilt, he returned to work in their take- away food business for about ten weeks. He now admits that it is a minor problem, but it does C) not prevent his playing golf up to twice a week and trying to paddle his sun-ski from time to time. In any case it is very doubtful whether, or to what extent, it was associated with Mrs Byers' attack on him: It consists of soft tissue and musculo-ligamentous injury and an unquantified (in time and degree) aggravation of degenerative pain (Dr Pentis), and so would not show up on x- rays. By 1995, any consequence of this incident had improved and was expected to continue to do so. It bears some similarity with his other back pain and stiffness of his knees and, as it has -- 4 of 11 -- 5 been seen, that is not alleged to be associated with this incident. Moveover, in addition to his sporting activities which may have predisposed him to a degenerative condition of these parts, he also had suffered serious traumatic injury to the musculature of his left shoulder at the age of eighteen. While he was subsequently able to resume heavy sporting exertion without difficulty, the possibility of postponed symptoms with the ordinary deterioration of age is not beyond reasonable consideration. The extent of any pennanent acceleration is not proved. Further, it is not demonstrated that his neck causes him any further disability affecting his earning capacity than that caused by his back, and it is likely that the natural development of his pre-incident condition of his neck and back would have found him as physically disabled as at present even if this affair had never occurred. ( \1 11 He complains of some embarrassment at the scar from the exit wound on his right upper forehead. This is associated with a notable depression from the fracture site beneath it. It is not ugly but it is noticeable and no doubt unwelcome as a spur to the curiosity of others. There is no significant scar at the site of the entry wound. i 12 His sexual difficulties are not really the result of the offence as such. They relate more ( to his manifest feelings of rejection and betrayal by Mrs Byers, for he was extraordinarily devoted to her sexually, which probably inspired his original denial of her guilt. It is also likely that this is superimposed upon a personality that was already wanting in his capacity for personal relationships, which may have made him more dependent on Mrs Byers' affection. This also accounts for his alleged present distrust of women, though it has not kepthim from living with another lady with whom he is apparently very happy. There is no doubt but that Mrs Byers' cold- blooded, planned act of horrifying cruelty must have distressed him deeply, the more so because of his loss of the enjoyment of their relationship and the trust he reposed in her which was betrayed. He has said that part of his hardest problem was reflecting on "being with Trish - the -- 5 of 11 -- 6 good parts or bad parts - comes back to haunt me". However his distress and its consequences do not come within the description of "injury" which the Code makes compensable; nor was it suffered "by reason of the offence". within the meaning of s.663B(1). In addition, this complaint appears to be overstated, and Dr Mulholland's general assessment of his difficulties would appear to be apposite in respect of this subject also. 13 Despite the qualifications to the extent and cause of his physical and other symptoms that have been explained above, it is correct that he developed a chronic post-traumatic stress disorder consisting of a mixed anxiety-depressive disorder as a result of this incident and associated matters. In May 1993 in hospital, it was noted that he had flat affect but no significant signs of clinical depression, and on review in July there was no suggestion of any problem. His first reported complaint to a medical practitioner as to such symptoms was in April 1994, by which time he was alienated from Mrs Byers and in serious conflict with her. He had another sexual . partner by that time, but, in addition to other symptoms, was having sexual problems because he associated it with Mrs Byers' betrayal ofhim in such circumstances. He was also "very anxious regarding further court proceedings," which probably has some significance. In addition to those symptoms already discussed, he complains of symptoms of anxiety, loss of concentration, depression and irritability, a loss of self-esteem, sleeping, and general mood state, all of which were present at that time. All .. of these' are new developments since the termination of his relationship with Mrs Byers, and appear to have been seriously aggravated because he has been enmeshed in protracted legal processes with her. They also seem to be associated with his emotional response to her betrayal, which has been a major factor. He has also expressed fear that Mrs Byers will engage someone to kill him, but this is not an established criminal act for which compensation is to be assessed, though he should be compensated for the underlying vulnerability . o C) o o -- 6 of 11 -- 14 7 The trauma that precipitated his disorder was limited and was not the "extremely severe" traumatic event that Dr Johns refers to. He was not aware of the shooting and associated antecedent events, and so suffered no terrifying trauma from that source; but the aftermath included his awareness of bleeding from the head and suffering some physical distress. It is reasonable to believe that all this is the subject of his flashbacks, and it would be artificial to believe that his later knowledge of the cause has not put his memory of it into a more disturbing light. There was also some stress caused by difficulties in arranging his rescue because at that time they were on Mrs Byers' boat which was moored in Moreton Bay, and it fell to him to make contact with the rescue service. This period is said to be the subject of recurring distressing dreams, but he was not unduly distressed at the time and showed no signs of reaction during the period to February 1995 while he was under observation by the hospital. 15 One of the problems of this matter is that Mr Asquith's condition is caused by a mixture 16 of the limited trauma which he suffered, his emotional feelings of betrayal, and his ongoing anxiety in relation to his fairly extensive litigation with Mrs Byers. Further, on the advice of his psycho-therapist, he has attended court on many occasions in relation to her trial and appeal on the relevant offence, and in relation to her later trial concerning an earlier murder as to which he was called as a witness. All of these attendances appear to have aggravated his condition and Dr Mulholland, a specialist psychiatrist called on his behalf on the present hearing, has wisely advised against their continuation. As his suffering was experienced as part of his medical treatment, it is compensable. About half of his psychological problems are due to the original shooting and the balance are due to associated matters that have occurred since that time. However at the moment his impairment is not great. In total it is only 5 per cent to 10 per cent In his report of3 February 1998, Dr Mulholland says: -- 7 of 11 -- 17 18 8 "It is noted that this man has not been in paid employment since 1993. I do not think that there is any convincing reason for his not being in paid employment except for the first few months or so after the shooting. I note that Dr Johns may [sic] has expressed a different view, however I am not convinced from a psychiatric aspect, that Mr Asquith is totally incapacitated for any fonn of work as from 1993. This man is only a relatively young man of 57 years of age and is, in my view, psychologically and physically capable of perfonning a wide range of work if the inclination so directed him." With respect, this is plainly correct, and where there is any conflict with Dr Johns, Dr Mulholland should clearly be preferred because of his reliance upon the more credible evidence and his more acceptable reasoning. However, it is reasonable to accept that the worst stresses of his litigious battles with Mrs Byers temporarily agitated his condition to the state 0 where he could not have worked, as Mr Johns confinns, and he should be allowed something for the lost opportunity to find work at these times. However, the expert evidence that because of 0 his condition he would probably never be fit for employment again is clearly wrong and is far to uncritical of and sympathetic to his complaints. While Mrs Byers' conduct was disgraceful and abhorrent and she deserves no sympathy, this is not an occasion of punishment of her but of compensating the victim on the same level as in a civil suit for damages for personal injury. However while Mr Asquith suffered serious (J personal injury, that fortunately has largely resolved, and his psychological injury has been real and aggravated by other factors. But it must be said that to some serious extent he has also (J exaggerated his problems and his claim has been overstated. He says that, except for some desultory work managing a motel for a friend and a small regular cleaning job in recent times, he has been unable to obtain paying work. He has made no serious attempt at retraining and may have set up his residence in an area where employment, particularly for one of his age and limited training, is sparse. He acknowledged that he has applied for many jobs since the adjournment of this hearing on 27 June 1997, but has been totally unsuccessful. This is consistent with the -- 8 of 11 -- ( 19 , ~. 9 fact that was plain at the first hearing, that he was fit to work as Dr Mulholland says, and he was probably fit for some time before that during intervals between his court attendances. He says that he was unsuccessful in his applications for jobs because of age and that may be a material factor which would have applied in any case throughout the relevant period; but his disinclination to work and to seek it with reasonable vigour has probably also been a major inhibiting factor. No doubt with the support of a pension he was content to enjoy the benefit of favourable expert opinions which uncritically accepted his complaints ~lly, but it is also reasonable to accept that his disturbance from his experience in this offence was further agitated and magnified by the stress of litigation against and attendances in court concerning Mrs Byers. For the latter he should be compensated, but it is difficult to accept that he has been disabled from working for such a long period. This is all consistent with his history, which strongly suggests that his prospects of re- employment in his further occupation as an insurance agent were never particularly good. His net earnings from it were generally poor and he was disillusioned with it. It seems that his applications for work since the adjournment of this hearing on 27 June 1997, have not borne any fruit in the insurance field, which probably reflects his general standing in that business. Before he joined Mrs Byers in their business, he had moved through many insurance jobs with different employers, mostly for relatively short periods, finally setting up his own insurance agency business. Its success may be gauged by his leaving it to buy into the partnership business with Mrs Byers. He had abandoned it well before his injuries in favour of unskilled work that could have largely been perfonned by a junior under Mrs Byers' control, and his earnings in that business were only $200.00 per week gross. He did not disclose this for tax purposes. At the time of the shooting, being no longer in a family situation, he had no dependents or other obligations that required him to commit himself to serious work. This may help to explain his -- 9 of 11 -- 20 10 forsaking his normal occupation for a business that produced such a low return to him. There has been no reason for his attitude to change, except that he is probably desirous of restoring his small capital base that he took into his business partnership with Mrs Byers and which has probably suffered as the result of their conflict and litigation. There is a likelihood that, had this crime never taken place, his partnership with Mrs Byers would probably have dissolved in the course of time, and he would have found it difficult to fmd employment, even if he were so inclined. However, it is reasonable to allow to him a sum of $1 0,000.00 for the whole of his net economic loss, for the lost opportunities during the months when Dr Mulholland suggests that his psychiatric illness would have disabled him and during some period of exacerbation caused by the stress of litigation when he was probably disabled. Another $1,500.00 economic loss should be attributed to the period when he was physically disabled immediately after the shooting. 21 He was fifth-three years old at the time of the offence and is now fifty-nine years. His 22 physical injuries were no doubt painful at the time, but he recovered quickly and well. His scar is noticeable, but he is not convincing as to any serious embarrassment. While the effects of his stress disorder would have interfered with his working for only a limited period, in a diminished degree it has continued to affect him mildly and to interfere with his enjoyment oflife, even to the present. However, as he has not been working for any extended hours, he has had little aggravation of his symptoms from that cause. Now that its exacerbation through his conflict with Mrs Byers has virtually passed, they "should pose only a relatively minor inconvenience to his life" (Dr Mulholland), and should improve. He manages to play golf once or twice a week, to fish and to paddle his surf-ski on sheltered waters from time to time. Although he denies the capacity to use his surf-ski satisfactorily, he has been on the water on a .. n C) -- 10 of 11 -- 11 number of occasions. He did one surf-ski up and has bought one, but it is not certain whether they are the same. ! 23 For his pain suffering and loss of amenities, he should be awarded $15,000.00 of which ( $8,000.00 is attributable to all his physical injuries, including scarring. SUMMARY Loss of earning capacity Pain suffering and loss of amenities TOTAL $11,500.00 $15,000.00 $26,500.00 Unfortunately Mrs Byers was self-represented. She was not very effective and she led no evidence, so it has been necessary to study the evidence closely in order to test MrAsquith's case. However, where the evidence stands uncontradicted and without reason to disregard it, it has been accepted. Where Mr Asquith's evidence was unsatisfactory and did not discharge his onus of proof, ithas been disregarded or suitably reduced in its efficacy. I order the respondent to pay to the applicant by way of compensation pursuant to s.663B of the Criminal Code the sum of Twenty-six thousand five hundred dollars ($26,500.00). -- 11 of 11 --