John Bell v Zhang; Todd Bell v Zhang

[2011] QDC 300

DISTRICT COURT OF QUEENSLAND

CITATION:

John Bell v Zhang; Todd Bell v Zhang [2011] QDC 300

PARTIES:

(1)      JOHN GRAHAM BELL
         (Applicant)

          v

         LEI ZHANG
         (Respondent)

And

(2)     TODD BELL
         (Applicant)

         v

         LEI ZHANG
         (Respondent)

FILE NO/S:

(1)     283/2010
(2)     284/2010

DIVISION:

Civil jurisdiction

PROCEEDING:

Applications for Criminal Compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

30 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

14 October 2011

JUDGE:

Griffin SC, DCJ

ORDER:

(1)  The respondent, Lei Zhang, pay to the applicant, John Graham Bell, the sum of $15,500.00 by way of compensation pursuant to the provisions of COVA.  

(2)  The respondent, Lei Zhang, pay to the applicant, Todd Bell, the sum of $11,000.00 by way of compensation pursuant to the provisions of COVA.

CATCHWORDS:

Criminal Offence Victims Act 1995 (Qld)
Victims of Crime Assistance Act 2009 (Qld)

COUNSEL:

F Muirhead (Solicitor) for the Applicants. 

P Smith for the Respondent. 

SOLICITORS:

Legal Aid Queensland for the Applicants.

Fisher Dore for the Respondent. 

Introduction

1. Both applicants apply for compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (COVA).  The respondent was dealt with in respect of both applicants on 28 August 2008 for an offence which occurred on 9 November 2007.  Although COVA has been repealed and replaced by the Victims of Crime Assistance Act 2009 transitional provisions apply COVA to these proceedings and I am satisfied that Act applies in respect of both applicants.

1. With respect to John Graham Bell, the respondent pleaded guilty to one count of burglary with violence whilst armed and one count of assault occasioning bodily harm.  The respondent was sentenced by me to a period of imprisonment for three years sith relevant declarations of pre-sentence custody and an order for release on parole fixed on 28 October 2008.

1. With respect to Todd Bell, the respondent pleaded guilty to one count of wounding and was sentenced to imprisonment for a period of three years. Periods of pre-sentence custody were declared and an order for release on parole was made. Both applications were filed in this court on 27 January 2010 and pursuant to Rule 389 of the Uniform Civil Procedure Rules the applicant was given one months notice in accordance with that rule.

1. I am therefore satisfied that the proceedings have been both appropriately taken and are suitably within time taking into account the period of delay.

The offences

1. The defendant had been in the company of others and was involved in harassing behaviour and suggesting violence might happen as I said in the sentencing remarks “to someone who was really known to two of your co-offenders, Code and Barron.”  Both of those co-offenders were dealt with in the Magistrates Court and were not charged with an offence that involved the carrying of a weapon.

1. The respondent carried a weapon, a knife and it was used on both applicants.

1. John Bell was 45 years of age at the time of the offence. Todd Bell was 17 years of age at the time of the offence.  The respondent was 20 years of age at the time of the offence.

1. The offences against the applicant were committed by the respondent and two other persons, Code and Barron although as I have said neither used a weapon.

1. Although it is relevant to consider the fact that others were involved in the commission of offensive behaviour[1] nonetheless in my view the behaviour of the respondent in the commission of the offences in respect of both applicants should be regarded as substantial, even though I recognize on the facts (as it is accepted by the applicant) that both Code and Barron were nonetheless involved in violent behaviour towards both applicants. 

   [1]See s 26 COVA

1. The offences occurred in the applicants’ home.  I am satisfied that the injuries suffered by both applicants, particularly should mental or nervous shock be properly made out, that the respondent should be regarded as substantially responsible for the payment of compensation.  This view is entirely consistent with the provisions of sections 24 and 26 of COVA. 

COMPENSABLE INJURIES

1. The applicant John Bell received injuries which included grazes to the chin and lower lip area, scratches to his chest and neck area and pain to the stomach where he had been punched and kicked.

1. Furthermore the applicant John Bell was stabbed in the right side of the back in the area of the right shoulder to which he deposes caused “severe pain”.

1. The  applicant Todd Bell suffered a stab wound to the left upper chest region and in affidavit material describes the wound as physically affecting his work as a sheet metal worker together with, as a result of that wound, pain in the area of the wound when required to lift and move items.

1. Both applicants claim compensation on the basis of mental and nervous shock.  Dr Barbara McGuire examined each applicant separately and prepared reports for legal advisers.  Each report is dated 9 August 2010.  In respect of each applicant Dr McGuire diagnoses at various levels post-traumatic stress disorder.

1. The circumstances of the offence demonstrate that the respondent entered the home of the applicants with a group of other people.  It is not easy nor is it realistic to attempt to differentiate amongst the various and separate behaviours of the participants in this criminal conduct.  In relation to the injuries sustained by each applicant particularly the mental and nervous shock component it is appropriate I conclude for the respondent in each case to be held substantially responsible for the injuries suffered by each applicant because of the circumstances of his involvement in the commission of the relevant offences. 

1. In relation to John Bell, Dr McGuire states that the applicant exhibits that disorder which is exemplified by nightmares, flashbacks, avoidant behaviour, security fears, irritability, hypervigilance and exaggerated started reflex.  Dr McGuire is of the opinion that for some months after the offence the applicant exhibited the condition to a severe degree but it has now settled to a level which she considers to be moderate. 

1. In relation to Todd Bell, Dr McGuire examined the applicant and prepared a report dated 9 August 2010.  In her report Dr McGuire concludes that the applicant exhibited post-traumatic stress disorder for a period of some months following the incident but the disorder is now resolving.  Dr McGuire bases the diagnosis on the applicant’s symptoms including nightmares, flashbacks, avoidant behaviour, hypervigilance, weariness and irritability.  Dr McGuire has concluded that although Todd Bell has some residual symptoms he can no longer be diagnosed with post-traumatic stress disorder but in the past, for a number of months, suffered that disorder to a moderate degree.

Respondent’s submissions

1. The respondent was represented by counsel and although it has been accepted that an award for compensation may be made in each case, the submission is made that what is sought by each applicant is “too high”. 

1. The respondent makes the following submissions based upon the evidence and upon inferences to be drawn from the evidence.  It is helpful to note those submissions which may be summarized as follows,

1. In relation to John Bell the Respondent points to the following material:-

(a)The Applicant referred to eight men entering into his house and stabbing son; [2]

[2]Affidavit of John Bell EX JGB2 PA Hospital Record at page 2

(b)The Applicant was superficially cut to the right shoulder and had “few” scratches to the face; [3]

[3]Ibid at page 2

(c)He had chest pain for five to ten minutes;

(d)Aside from a superficial injury to the right shoulder, there were nil other obvious physical injuries; [4]

[4]Ibid at page 4

(e)The Ambulance Report notes a small knife wound to the right shoulder; [5]

[5]Ibid at Page 8

(f)PA Hospital Report notes that there was a “superficial abrasion to right posterior shoulder area - one centimetre”; [6]

[6]Affidavit of John Bell EX JGB-03 at page 12

(g)The Respondent does not know why the Applicant resigned from his job the very day of the attack. [7] No explanation has been given as to this;

[7]Affidavit of John Bell EX JGB 07 Victim Impact statement at Page 26.7

(h)Indeed, in the Psychological Report at page 2 he notes that he lost his job shortly afterwards which is inconsistent with having to leave his job the day after; [8]

[8]Affidavit of John Bell EX JGB 10 at Page 35.3

(i)The Psychiatrist in this case only says that the symptoms were to a severe degree for some months after the incident and as at August 2010 (over twelve months ago) they were moderate. [9]

[9]Ibid at page 36.7

1. The respondent makes similar submissions based upon the evidence before this court and upon inferences submitted properly to be drawn from the evidence in relation to the injuries of Todd Bell.  In particular, the Respondent points to the following material:-

(a)The PA Hospital report notes the injury as “superficial injury with no deep muscle, vascular or other pathology”; [10]

[10]Affidavit of Todd Bell EX TB01 page 9.9

(b)There was no pneumothorax or evidence of acute bone injury; [11]

[11]Ibid at page 11

(c)The CT confirms the above; [12]

[12]Ibid at page 12

(d)The ambulance report noted that there was a 1 x 2 cm wound no exit wound, punched in torso but no other injury. No loss of consciousness very minimal bleeding.[13]  This appears to be inconsistent with the allegation in the hospital notes that he was punched multiple times to chest/face; [14]

[13]Ibid at page 15

[14]Ibid at page 25.5  and police statement para 28 at page 50

(e)Also his description of the 18cm knife going all the way in seems exaggerated; [15]

[15]Ibid at page 25.3

(f)One can understand how the author of the notes says “unusually well”; [16]

[16]Ibid at page 25.6

(g)Other notes reveal denial of external blood loss [17], nil active bleeding [18], and gross motor left arm intact;[19]

(h)There was no difficulty moving the arm; [20]

(i)There was no claim of other injuries; [21]

(j)On discharge the Applicant said he had nil concerns of being attacked again; [22]

(k)As to the Victim Impact Statement, there appears to be no up to date medical evidence supporting the contentions he made in June 2008; [23]  

(l)The psychiatrist’s report says that he could not go to sleep for some time and when he did there would be nightmares. This went on for a few months; [24]

(m)Ultimately the psychiatrist believes there was a post traumatic stress disorder for some months and although there are some residual symptoms, he can no longer be diagnosed with this condition; [25] 

(n)Indeed the condition lasted to a moderate degree for a matter of months; [26]

(o)Apparently his symptoms had been exacerbated when his car was recently vandalised. [27]

[17]Ibid at page 30.4

[18]Ibid at page 30.8

[19]Ibid at page 30.9

[20]Ibid at page 31.8

[21]Ibid at page 31.9

[22]Ibid at page 34

[23]See Affidavit of Todd Bell EX TB06 page 56

[24]Affidavit of Todd Bell at page 64.5

[25]Ibid at page 65.5

[26]Ibid at page 65.5

[27]Ibid at page 65.9. The date of the report is 9.8.10 (over a year ago).

1. It is relevant, of course, to consider these submissions in respect of both applicants made on behalf of the respondent.  Those submissions are relevant and I take them into account in the overall discretionary assessment of compensation.  I note however that the respondent did not apply to nor in fact did seek to cross-examine either applicant in the relevant proceedings.

1. It is common ground in relation to the applicant John Bell that the following items may be the subject of compensation: 

(a)        Item 1             –         Bruising and Laceration

(b)        Item 24           –         Stab Wound (Minor)

(c)        Item 32           –         Mental or Nervous Shock (Moderate)             

1. In relation to John Graham Bell I make the following awards:

Item 1               –         Bruising and Laceration         

Item 24             –         Stab Wound   

Item 32             –         Mental or Nervous Shock      

1. In relation to Todd Bell I make the following awards:

$11,000.00

 

Item 24   –         Stab Wound  

$15,500.00

 

 

Item 32   –         Mental or Nervous Shock      

(On the basis that the condition has largely resolved although there are some residual symptoms, I regard this applicant on the borderline of minor/moderate impairment.

1. The parties have agreed by consent on these figures.

1. I therefore make the following orders by consent.

1. I order the respondent, Lei Zhang, pay to the applicant, John Graham Bell, the sum of $15,500.00 by way of compensation pursuant to the provisions of COVA.  

1. I order the respondent, Lei Zhang, pay to the applicant, Todd Bell, the sum of $11,000.00 by way of compensation pursuant to the provisions of COVA.