Barnes v Millwood & Bonney

[2000] QDC 437

[2000] QDC 437

IN THE DISTRICT COURT

HELD AT CAIRNS	Application No. 40 of 2000
BEFORE HER HONOUR JUDGE BRADLEY
28 JULY, 2000.
BETWEEN:	RODNEY JOHN BARNES

Applicant

AND:  LANCE MICHAEL MILLWOOD
MARK CHRISTOPHER BONNEY

Respondents

REASONS FOR JUDGMENT

1. On 27 July, 1998 the respondents were found guilty of the following offences:-

1.	That on 27th day of February, 1997 at Cairns in the State of Queensland they unlawfully detained Rodney John Barnes in a room against his will.
2.	That on 27th day of February, 1997 at Cairns in the State of Queensland they unlawfully did grievous bodily harm to Rodney John Barnes.

1. The respondents were sentenced by His Honour Judge Daly, the trial judge, on 31 July,

   1998 and were each ordered to be imprisoned for three years on the first count and six years

   on the second count.

2. Pursuant to s.24 of the Criminal Offence Victims Act the applicant now seeks an order

   that the respondents pay compensation for the injuries suffered by him as a result of the

   offences.

3. Both respondents have been served with the application and the supporting material and

   the respondent Bonney appeared in person at the hearing of this application. The respondent

   Millwood however has not filed any material in response to the application and neither did he appear or be represented at the hearing.

4. The respondent Bonney subpoened four doctors who have treated the applicant however

   at the hearing, only two, Dr. Rodney Catton and Dr. Keith Mervyn Muir gave evidence and

   were cross-examined by the respondent Bonney. The other two doctors were not relevant to

   the application. Whilst the respondent Bonney was not contesting the applicant’s right to

   compensation he was concerned that he should be ordered only to pay compensation in relation

   to injuries actually incurred as a result of the offences committed by him against the applicant.

   This concern appears to have arisen largely because of a statement by Dr. Richard Thomas,

   Registrar of the Emergency Department at Cairns Base Hospital in which he stated that, upon

   examining the applicant on 27 February, 1997, amongst other injuries the applicant, “had an

   isolated comminuted compound fracture of his [r] ulna, consistent with a direct blow to the

   forearm”. All other reports and the applicant’s own affidavits refer to a fracture of the left

   ulna.

5. It appears that the confusion may arise as a result of an x-ray taken of the applicant’s arm

   on 27 February, 1997 at the Cairns Base Hospital which indicates that the fractured ulna was

   on the right.

6. All of the evidence produced on behalf of the applicant indicates that the fracture was

   to his left arm and it appears most probable that the original x-ray was wrongly labelled. I find

   that the applicant did receive a fracture to his left ulna as a result of the offences committed

   by the respondents.

7. The respondents and two other people, another male and a female, were known to the

   applicant prior to February, 1997 and there appears to have been some dispute between the

   respondents and the applicant over property belonging to both the applicant and the respondent

   Bonney. On the day of the offence the applicant was induced to attend at the respondents’ residence. As soon as he went inside the residence the applicant was attacked by all four

   people, including the two respondents. The respondent Millwood hit the applicant with an iron

   bar and the respondent Bonney punched and kicked him in the face. In an attempt to escape

   or get help the applicant rushed at a glass sliding window which smashed, following that the

   respondents “hog tied” the applicant and beat him with a rubber hose on his head and neck.

   The respondents continually made threats to kill the applicant and the applicant believed at the

   time that he was going to die. At one stage the respondent Bonney left the residence but the

   respondent Millwood continued with the beating.

8. Eventually, when the respondent Bonney returned the respondents decided to call the

   police and tell the police that they had caught the applicant breaking into their home.

   Eventually when the police arrived the applicant was cut loose and attended to by ambulance

   officers and finally taken to the Cairns Base Hospital. The applicant’s ordeal lasted for almost

   an hour.

9. As a result of the attack the applicant states that he has sustained the following injuries:-

· Fracture of left ulnar;

· Fracture of left shoulder;

· Fracture of right tenth rib;

· Back and neck injuries;

· Numerous small lacerations to the face, including a split upper lip and a split right ear;

· Several small lacerations around the eye, nose and forehead;

· Tender swelling on the posterior scalp;

· Numerous welts and bruises over the torso and upper limbs;

· Round puncture wound to left thigh, due to being hit and impaled with a pipe;

· False teeth smashed;

· Emotional shock.

1. As a result of the attack the applicant states that he now has the following scarring:-

· A round mark on his left thigh where the metal bar was speared into his leg;

· A two inch scar down the middle of his forehead incurred when he was kicked;

· A scar on his left upper lip where his teeth went through his lip, approx. 1 cm in length;

· A scar on his right upper lip of 1 cm in length;

· A 1 cm scar across the bridge of his nose;

· Small scars around both eyes;

· A 1 inch long scar across his neck from the rope;

· A 1 inch long scar on his left shoulder.

1. The applicant’s false teeth were smashed in the attack and a new set of upper false teeth

   is needed.

2. Since the attack the applicant states that he continues to suffer –

· Constant back pain which is aggravated if he walks for more than an hour;

· Sore left shoulder and left arm;

· Loss of full strength in his left hand;

· Constant neck pain;

· Aching left leg;

· Loss of mental ability.

1. In support of the application I have before me the following:-

1. Statement of Dr. Richard Thomas, Registrar Emergency Department, Cairns Base

Hospital dated 27 June, 1997.

2.       Report of Dr. Rodney Catton dated 4 April, 2000.

3.       Report of psychological assessment of Jane Butler, psychologist, undated.

4.       Report of Dr. Keith Muir, Director Integrated Mental Health Program, Cairns

Health Service District dated 4 October, 1999.

1. The applicant’s complaints of physical injury incurred as a result of the attack accords

   with the medical evidence, however, with respect to his psychiatric and psychological

   complaints, the applicant had been treated by the Cairns Integrated Mental Health Program in

   1996 prior to the attack and at that time was suffering from personal problems and alcohol

   abuse. After the attack he was prescribed medication for sedation and when seen by Dr. Muir

   on 27 May, 1998, Dr. Muir noted that “he does complain of periodical disorientation and

   memory loss, short term, but clinically did not at the time of examination reveal any significant

   deficits in his memory function on clinical examination.” Dr. Muir was of the opinion that

   alcohol abuse continued to be a considerable problem for the applicant. The applicant was at

   that time taking anti-depressants and an anti-psychotic medication, however Dr. Muir

   recommended that he cease taking the anti-psychotic medication and when Dr. Muir saw him

   again on the 1st July, 1998 the applicant seemed to be more alert since ceasing that medication.

2. In July and August 1998 the applicant underwent psychological testing which resulted

   in Ms. Butler’s report. Ms. Butler reported that the applicant had been diagnosed by other

   medical practitioners as suffering from Post Traumatic Stress Disorder and depression

   following the attack. Testing indicated that the applicant’s cognitive ability and specifically his

   memory functions are below average compared to others of a similar age. It was difficult to

   determine if his cognitive ability had substantially declined since his being assaulted as no

   previous psychometric evaluations had been performed. However, it was Ms. Butler’s opinion

   that the results would “suggest that pre-morbidly he was functioning at a higher level. Such

   a decline in cognitive ability and memory functioning is consistent with the possibility of organic impairment sustained from the head injury and the subsequent of Post Traumatic Stress

   Disorder and Depression. Additionally, Mr. Barnes’ previous history of alcohol abuse and

   depressive symptomatology may also have contributed to his decline in cognitive functions.”

3. However, in his report Dr. Muir notes that –

“The computerised tomography head scan did not suggest any significant injury. may have led to a decline in his function.”

1. Accordingly, whilst the evidence before me does suggest that the applicant has suffered

   mental or nervous shock, namely Post Traumatic Stress Disorder and Depression as a result

   of the attack I cannot be convinced that all of his current symptoms, in particular his decline

   in memory function and cognitive ability can be wholly attributed to the attack. In my view,

   the applicant has suffered moderate mental or nervous shock as a result of the offences

   committed by the respondents.

2. In accordance with the compensation table in Schedule 1 to the Criminal Offence

   Victims Act I assess the applicant’s compensation as follows:-

1.	Item 2 Bruising/laceration etc. (severe)	4%	$ 3,000.00
2.	Item 5 Loss or damage of teeth	3%	$ 2,250.00
3.	Item 13 Fracture/loss of use of shoulder	10%	$ 7,500.00
4.	Item 16 Fracture/loss of use of arm/wrist
(displaced and immobilised)	15%	$11,250.00
5.	Item 21 Neck/back/chest injury (minor)
(fracture of right 10th rib)	5%	$ 3,750.00
6.	Item 27 Facial disfigurement or bodily scarring
(minor/moderate)	7%	$ 5,250.00

7.	Item 32 Mental or nervous shock (moderate) 15%	$11,250.00
Total	$44,250.00

20 I have had regard to everything relevant, including the matters raised by the respondent
Bonney and find that there is no behaviour on the part of the applicant that directly or

indirectly contributed to his injuries.

1. In sentencing the two respondents His Honour Judge Daly said that “in the

   circumstances, I regard you as equal in culpability,” and accordingly it is appropriate that each

   of the respondents be jointly liable for the compensation payable to the applicant.

2. I order that the respondents do pay to the applicant the sum of $44,250 by way of

   criminal compensation.