Grahame v Dean

[2001] QSC 420

SUPREME COURT OF QUEENSLAND

CITATION:              Grahame v Dean [2001] QSC 420

PARTIES:                 PETER IAN GRAHAME

(applicant)

v

WADE ANDREW DEAN

(respondent)

FILE NO/S:              SC No 555 of 2001

DIVISION:               Supreme Court at Townsville PROCEEDING:  Application for Criminal Compensation ORIGINATING

COURT:  Supreme  Court at Townsville

DELIVERED ON:    9 November 2001

DELIVERED AT:     Townsville

HEARING DATE:           2 November 2001

JUDGE:  Cullinane J

ORDER:  Applicant awarded compensation in the sum of $31,496

CATCHWORDS: CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – DISPOSAL OF PRISONERS’ PROPERTY AND ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where respondent convicted of doing grievous bodily harm with intent to do grievous bodily harm to applicant – where applicant suffered gunshot wounds to the stomach and associated internal injuries, a gunshot wound to the arm and psychological sequela – whether the applicant’s compensation should be reduced under s 25(7) Criminal Offence Victims Act  1995

(Qld)

Criminal Offence Victims Act 1995 (Qld) s 25(7) and s 30(3) COUNSEL: G Lynham for the applicant

The respondent appeared on his own behalf

SOLICITORS:          Savage & Stout for the applicant

The respondent appeared on his own behalf

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[1]     CULLINANE J: The applicant seeks compensation in respect of injuries sustained by him on the 11th January 2000.

[2]     The respondent is the stepson of the applicant and was convicted of doing grievous bodily harm, with intent to do grievous bodily harm on 11th January 2000.  He was sentenced  to  imprisonment  for  eight  years.    This  application  arises  out  of  the circumstances of that offence.

[3]     On the evening of that day, the respondent went to the home of the applicant and his wife  (the respondent’s mother).  There were other persons present at the time.

[4]     A  statement  of  the  applicant  which  was  provided  to  the  police  and  which  is exhibited to his affidavit outlines his account of what occurred.

[5]     I will return a little later to the history of the relationship between the applicant and the respondent generally.  It appears that the respondent had not been residing with the applicant and Mrs Grahame for some six months or so prior to the 7th January

2000 and, in fact, the applicant had not seen the respondent during this time.  The respondent, according to the applicant, turned up on that night with two others and there was an argument about money which the applicant alleged the respondent had stolen.  The respondent denied stealing money.  There was also an argument over a ring which belonged to one of the other persons present and some allegation was made by this person that the applicant had the ring.

[6]     According to the applicant he received a telephone call from the respondent the following night.  In this telephone call the respondent accused the applicant of having given information to the police about the respondent and some associates.

[7]     In the exchanges of  7th January 2000 and the telephone call, there was a good deal of abuse exchanged in which the applicant fully participated.  On the night of 11th January the respondent came to the applicant’s home.  The applicant became aware of his presence and went outside onto the verandah and saw the respondent standing in  the  front  yard  holding  a  rifle.    The  respondent,  according  to  the  applicant, brought the rifle up and pointed it in the applicant’s direction while telling his (the respondent’s) mother who was present to get out of the way.  The applicant went inside as a result of a request by his wife.  He says that he could hear the respondent and his mother speaking in the front yard and he went back out to see what was going on and as he stepped onto the verandah, he heard a gun discharge and felt bits of shrapnel in his right hand and wrist. He turned to go back inside and heard another shot or two shots. He recalls being struck in the stomach on the left side and collapsing on the floor in the lounge room.

[8]     The applicant was born on 12th June 1949.  He suffered serious internal injuries as a result  of  being  struck  in  the  stomach.  He  underwent  emergency  surgery  at Townsville hospital the same evening. This was in the nature of a laparotomy and the insertion of an indwelling catheter. It was found that there had been a laceration of the spleen, a transverse colon laceration, a right renal artery and vein laceration and laceration of the interior vena cavae with retro peritoneal haematoma.

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[9]     He  also  underwent  a  right  nephrectomy  and  splenectomy.  A  colostomy  was performed.  The applicant now uses a stomal bag.

[10]     Following the surgery the applicant developed renal failure requiring dialysis.  He discharged himself from hospital on 28th January 2000.

[11]     I do not have any medical evidence apart from that of the medical practitioners who treated the applicant at the time and a report of a psychologist.

[12]     This is of some significance because the applicant makes complaints of difficulties associated with walking, bending and lifting.  He complains of back pain and sciatica.  Some of these matters are challenged by the respondent.

[13]     Except to the extent that a psychological report suggests that there are some somatic features of the applicant’s condition I do not have any evidence which would support the claims that he makes that he has ongoing organic problems related to the internal injuries which he sustained.

[14]     Not surprisingly the applicant has serious ongoing psychological consequences of the accident.

[15]     According to the report of Mr Zemaitis,  the applicant suffers from post traumatic stress disorder, the primary symptoms of which are anxiety, depression, anger and irritability,  intrusive  experiences  and  defensive  avoidance.    He  requires  some psychiatric treatment according to this report.

[16]     The results of psychological testing are set out at some length in the report.  The applicant is emotionally labile manifesting fairly rapid and extreme mood swings and he experiences episodes of what is described as poorly controlled anger.  The psychologist notes from his discussions with the applicant, that there is a significant degree of suspicion and hostility in his relations with others.  The applicant claims to suffer from a discomforting level of anxiety and tension.  His personality is described as having a number of anti social features. There has been some suicidal ideation.

[17]     The applicant says that he has some disfiguring scarring including scarring on his forearm from the projectile which was discharged first.

[18]     Although the medical evidence on the applicant’s physical injuries is limited to the observations at the time of his admission and to his treatment and I do not have any evidence as to his present condition in this regard or any future consequences of those injuries, I have no difficulty in accepting that the injuries sustained at the time must fall within the severe category of gunshot wounds for which the schedule provides.  He has, as I have indicated, lost a kidney and wears a colostomy bag.  He has a number of other injuries and I accept that there are probably some ongoing sequela from these injuries. However I am not prepared to accept the complaints which are made about an inability to walk any distance or to bend or to lift anything other than a minor weight of some two kilograms in the absence of some evidence linking these to the injuries sustained at the time of the commission of the offence. Similarly the complaints about back pain and sciatica are not on the material before

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me, shown to be the sequela of this incident.  As I have said, the respondent challenges the complaints about back pain alleging that the applicant has suffered from this for many years.

[19]     I  assess  compensation  in  respect  of  the  gunshot  wounds  to  the  stomach  and associated internal injuries as being in the severe category and allow  $22,500 compensation under this heading (30 per cent).  It is accepted that the gunshot wound to the arm falls into the minor category.  I have very little evidence about this injury. I assess compensation in the sum of $2,250 (3 per cent).

[20]     It seems to me also that the psychological sequela falls into the category of severe

(item 33) and I would assess that as being in the order of 30 per cent resulting in an assessment of $22,500.

[21]     The total compensation is $47,250.

[22] The respondent alleges that the applicant’s compensation should be reduced under s25(7) of the Criminal Offence Victims Act 1995. This provides as follows:

“ In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the Applicant that directly or indirectly contributed to the injury".

[23]     The  claim  that  the  compensation  should  be  reduced  because  of  behaviour contributing to the injury is based upon a long history of mistreatment by the applicant of the respondent.  In addition the respondent relies upon mistreatment by the applicant of the applicant’s wife shortly before the commission of the offence. He also relates a long history of mistreatment of her by the applicant.

[24]     This history of mistreatment is referred to in some detail in the material prepared for pre-sentence reports in the criminal proceedings.

[25]     According to Professor James, a psychiatrist, the respondent now suffers from many  of  the  symptoms  of  post  traumatic  stress  disorder  resulting  from  his mistreatment by the applicant over his developmental years.

[26]     The mistreatment took the form of ongoing violence inflicted by the applicant.

[27]     Amongst  the  material  which  I  have  is  documentation  from  the  Department  of Childrens Services. These relate particularly to a period in late 1987 and early 1998. There is evidence of an assault upon the respondent by the applicant on an occasion when police were present, which resulted in a conviction of the applicant for assault occasioning bodily harm and an application to have the respondent committed to care  and  protection.    (It  should  be  added  that  according  to  the  record,  the respondent’s  mother  on  this  occasion  also  assaulted  him).    Ultimately  the respondent was not committed to care and protection but he spent some months in the custody of the department before returning home.  It appears that the respondent had been involved in misconduct involving the commission of offences against property in the company of others.

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[28]     I have no difficulty accepting that the respondent was throughout much of his life whilst living with the applicant and his (the respondent’s) mother, subjected to violence  by  the  applicant  and  that  this  has  resulted  in  the  difficulties  which Professor James relates.  I have no difficulty accepting that the respondent’s mother also has been frequently subjected to violence by the applicant, frequently in the respondent’s presence.  It is related in some of the material that on a number of occasions he and his mother left the home as a result of this mistreatment.  The applicant’s assaults upon the respondent’s mother were a source of distress to the respondent.

[29] The real issue is whether there is any link between the applicant’s conduct and the events of the 11th January 2000 which can be regarded as amounting to contribution of the kind countenanced by s 25(7).

[30]     I should add that in some respects the account which the respondent gave to the Community   Correctional   Officer   who   prepared   the   pre-sentence   report   is inconsistent with the verdict of the jury.  The offence on which he was convicted involves an intention to inflict grievous bodily harm.

[31]     The respondent had been living away from home for some time as at 11th January

2000.  He says that when he came back to Townsville after being away, he was told by a friend that his mother had been assaulted by the applicant and had run away as a result.  The account that is given in the reports is that he went to the house where the  offence  was  committed  because  of  this.    I  should  add  that  there  is  some evidence that a neighbour heard the respondent shortly before the shots were fired call out to his mother that he loved her.

[32]     The respondent says that he took a gun to the home because he would not otherwise have been able to get the applicant to listen to him whilst in other parts of the material it is suggested that he took the gun to show the applicant that he no longer feared him.

[33]     On the other hand, the applicant’s account as given to the police at the time does not refer to anything being said by the respondent about any assault by the applicant upon his wife.  I have already referred to his account of events some four days earlier and the telephone call from the respondent.  This account is of abusive language being exchanged between the persons involved with threats being made against the applicant.  The applicant alleges that in the telephone conversation and again on the night of 11th January, the respondent claimed that the applicant had given him up to the police.

[34]     It can I think be safely assumed that anything which occurred between the applicant and  the  respondent  must  in  some  way  or  other  have  been  influenced  by  the respondent’s mistreatment by the applicant over a long period, but the sub-section in my view requires a more tangible relationship between the injuries sustained by the applicant for compensation and the alleged contributing behaviour.  Nonetheless the use of the words “direct or indirect” suggests that a broad and common sense approach rather than a technical and narrow approach is required.

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[35]     The respondent appeared unrepresented and is currently in prison.  He has not provided  any  direct  evidence  of  the  alleged  assault  by  the  applicant  upon  his mother.  It is unrealistic to expect that this might come from his mother who still, it seems on the material, lives with the applicant. On the other hand I do not have any evidence from the person who the respondent says told him.

[36]     The court is not bound by the rules of evidence on applications of this kind. Section

30(3) of the Act provides:

“On an application, the court may receive information in any form the court considers appropriate."

[37]     Whilst the evidence on the subject of the assault which the respondent alleges the applicant had committed upon his mother is unsatisfactory, the applicant has not sought to deny any of the allegations of the various reports of mistreatment by the applicant of the respondent or the respondent’s mother or of the assault which the respondent  says  he  was  informed  of  by  a  friend.    From  what  counsel  said  in argument a conscious decision was made by the applicant to take this course.

[38]     I am prepared to conclude that there had been assault on the respondent’s mother by the applicant which led to the respondent going to the house where the offence occurred.  I am not prepared to accept however that this was the only reason for his going there.

[39]     Given the background of the applicant’s mistreatment of the respondent and his mother, I think it is appropriate to conclude that the applicant’s conduct overall including the assault which I have found was one of the causes of the respondent’s going to the home on the night of the offence I think it is appropriate to conclude that the applicant’s conduct contributed to his injuries.  In the circumstances, I think it would be appropriate to reduce the compensation by one third.

[40]     I award the applicant compensation in the sum of $31,496.