Heffron v McCarthy

[2005] QDC 9

[2005] QDC 009

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3231 of 2004

JAYMIE-LEE HEFFRON	Applicant
and
BEN JESSE MCCARTHY	Respondent

BRISBANE

..DATE 27/01/2005

ORDER

CATCHWORDS: Criminal Offence Victims Act 1995 - application criminal compensation - Attorney-General represented - need to separate out psychological impact of the respondent's offence (assault occasioning bodily harm upon his pregnant partner) from those of multiple unchanged acts of violence against her - threats to kill the applicant taken into consideration.

HIS HONOUR: The Court is grateful to counsel for their assistance which permits this application for compensation under the Criminal Offence Victims Act 1995 to be resolved without the necessity to trouble psychiatrist, Dr McGuire, to be cross-examined, notwithstanding she has made herself available today.

Also, the applicant, Ms Heffron, need not be subjected to cross-examination by Mr Fenton.  At the request of the Court, he appears representing the Attorney-General to provide a means of testing the applicant's claim.

The matter was first in Court on the 16th November last year, when Ms Muirhead, then appearing for the applicant, sought an adjournment so that she could consider the written submissions Mr Fenton had prepared.

Mr McCarthy, the respondent, somewhat unexpectedly turned up on that day, but he has not turned up on the adjourned date, today.  Although the reality is that if any compensation order is ever to be satisfied, that will happen from State funds, as a matter of form, the order is made against the respondent and Mr Fenton made it clear that the Attorney was in no position to consent to an award in a way which would bind the respondent.

The difficulty which led to the Attorney's participation is that the assault occasioning bodily harm which represents the sole conviction suffered by the respondent was but one incident in a series of scores of incidents when he was violent towards her in their relationship.  Those incidents seem to have occurred in roughly equal numbers, both before the one resulting in a conviction and after it.

The extent to which Mr McCarthy might bear moral responsibility for his unacceptable behaviour is made mysterious by the mental difficulties from which he has suffered.

The incident in question was the result of his anger at the applicant when she locked the key inside the car on a shopping trip.  She was some months pregnant to Mr McCarthy at the time.  They had to return to his family home by taxi when others were present, including his mother, it seems, he hit the applicant twice, one on each side of her head.  On at least one side she suffered a red mark.  The mother strongly took Ms Heffron's side at the time.  It seems that, since, she has taken her son's part.

The incident included threats of bringing about the applicant's death. 

Mr Fenton has resiled from that part of his written submission which suggested that the Court ought not to take those threats into account in assessing compensation on the basis that it was something which could have been separately charged but was not.

Mr Fenton now accepts that in this claim, the bulk of which is attributable to "mental or nervous shock", it is open to the Court to regard the threats as part of the incident and relevant to the compensation amount to be assessed.

The Court is still faced with the problem of separating out the consequences of the offence charged, understood in the expanded way I have explained, from the consequences of the sustained course of violent conduct for which the respondent was responsible, albeit not for purposes of the Act this morning.  Mr Farr accepted the Attorney's approach that the "separating out" exercise might indicate an award about the mid-point of Item 31, before addition of a component to reflect the threats.

The psychiatrist, Dr McGuire, in her initial report, had not really separated out the consequences for the applicant of the incident of 28th October 1999.  She was asked to do so for the assistance of the Court in a letter that Legal Aid (Queensland) wrote to her on the 19th April 2004 and  responded by "firming up" her position, so to speak, although it was still only in terms of it being a possibility that this single incident was substantially responsible for the psychiatric-psychological condition of the applicant - which there is no need to canvass in detail.  There has been no challenge to Dr McGuire's or the applicant's evidence about it.

In my view, in the circumstances, the Court has to take a commonsense approach which tells me that the cumulative effect of the multiple acts of violence of the respondent must have been significant. 

I think Mr Fenton's approach has been about right, but I propose in the end to allow seven per cent under Item 31 of the Schedule in the Act rather than six per cent, which would have been the mid point suggested by Mr Fenton.  That is consistent with the concession that he made today, although I do not think that he made any concession in respect of the appropriate percentage.  He raised no difficulty in allowing one per cent under Item 1 for the minor observable injury the applicant suffered.

The consequence is that Mr McCarthy will be ordered to pay compensation of $6000 to the applicant.

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