Joseph v Deen

[2010] QDC 198

DISTRICT COURT OF QUEENSLAND

CITATION:

Joseph v Deen [2010] QDC 198

PARTIES:

REUBEN JAMES JOSEPH
(Applicant)
v
CHRISTOPHER JAMES DEEN
(Respondent)

FILE NO/S:

125 of 2009

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

17 May 2010

DELIVERED AT:

Cairns

HEARING DATE:

7 May 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $22,500.00.

CATCHWORDS:

Criminal compensation – physical injuries – psychological injuries

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] QdR 303 at 310

COUNSEL:

SOLICITORS:

Legal Aid Queensland for the applicant
No appearance for the respondent

1. This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

1. The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 2 August 2006, namely assault occasioning bodily harm.

Facts

1. On the evening of 12 November 2004 the respondent punched the applicant without warning in the left side of his jaw as he was walking with friends in Port Douglas (“the incident”).

Injuries

1. The applicant suffered the following injuries as a consequence of the incident:

·a broken jaw;

·psychological sequelae

The relevant law

1. COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation”.

1. Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of the COVA. In R v Jones ex parte Zaicov[1] Holmes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed.  Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

[1][2002] 2 QdR 303 at 310

1. Relevantly, the Compensation Table prescribes:

·Item 8 Facial fracture (severe) …  20% - 30%

·Item 32 Mental or nervous shock (moderate) …       10% - 20%

1. Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”. Furthermore, the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.[2]  If an injury is not specifically listed in the Compensation Table the court must decide the amount of compensation by comparing the injury or injuries to injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.[3]

   [2]s 25(8) referring to s 22(4)

   [3]s 25(6)

The assessment

1. A statement from Dr Hughes of the Cairns Base Hospital dated 31 March 2005 records that as a consequence of the incident the applicant suffered two fractures to his mandible which required reduction and plating under general anaesthetic.  From a perusal of his affidavit the applicant appears to have made a good recovery from his physical injuries.  I have been provided with a report from Dr Richardson, psychologist dated 23 August 2009 in which she expresses the view that the applicant is suffering from a Post Traumatic Stress Disorder “in the moderate range” attributable to the incident.

1. I am satisfied that the applicant did not contribute to the injury.

1. Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows:-

·     Item 8 – 20%  $15,000.00

·     Item 32 – 10%  $  7,500.00

$22,500.00

Order

1. I order that the respondent pay the applicant the sum of $22,500.00.