Kowearpta v Pamtoonda
[2007] QSC 254
•13 April 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Kowearpta v Pamtoonda [2007] QSC 254
PARTIES:
JOHN GRAHAM KOWEARPTA
(Applicant)
v
PATRICK LAURENCE PAMTOONDA
(Respondent)FILE NO/S:
67 of 2007
DIVISION:
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
DELIVERED ON:
13 April 2007
DELIVERED AT:
Cairns
HEARING DATE:
2 March 2007
JUDGE:
Jones J
ORDER:
Application is dismissed
CATCHWORDS:
COUNSEL:
SOLICITORS:
Ms L Pearce ILS Qld Limited for the applicant
The applicant seeks a compensation order against the respondent pursuant to the provisions of s 663B of the Criminal Code of Queensland (“the Code’).
The respondent does not appear to oppose the application which is founded upon his conviction on 6 April 1992 on the charge of attempting unlawfully to kill the applicant. The incident occurred on 4 December 1991.
The applicant was born on 8 January 1972 and is now 35 years of age. At the time of the incident he was 19 years old.
Background facts
At about 7.00 pm on the night of 4 December 1991 the applicant went to the home of his aunt at the Aurukun Aboriginal settlement. Whilst he was there in the presence of his girlfriend and other relatives the respondent came towards him with a knife. The applicant attempted to run away from the respondent but ultimately went into a bedroom and closed the door. The respondent however kicked the door down and then attacked the applicant with the knife, attempting to stab him. He escaped without being struck by the knife and the respondent was duly apprehended by others present.
The applicant makes the claim for compensation based on emotional pain and suffering that he experienced as a consequence of this incident. To this end he relies upon the opinion of Mr Ian Ritchie, psychiatrist, who first interviewed the applicant at the Lotus Glen Correctional Centre on 21 August 2006, almost 15 years later. Mr Ritchie furnished a report of that examination dated 29 August 2006. The applicant was at the time of the examination an inmate at lotus glen but there is no detail as to the charge for which he was imprisoned, nor the duration of his term of imprisonment.
The applicant’s background includes the fact that he committed juvenile offences and had periods of time in detention at Westbrook Training Centre and Petford Training Farm. His only employment appears to have been on the CDEP schemes run by the Aurukun Council. He has had three or four de facto relationships and has fathered two daughters and a son. He sustained no physical injury as a result of this incident. The only injury he is reported to have suffered is a fracture to his right arm consequent of someone hitting him with an iron bar. He admits to engaging in binge drinking on pay days and to smoking marijuana.
The fight in respect of which compensation is now sought was not an isolated one. The report of Mr Ritchie includes the following history:-
“19. Mr Kowearpta said we (he and the perpetrator) used to fight each other when drunk. He added that the perpetrator’s attempted assault was because Mr Kowearpta’s then girlfriend was the perpetrator’s ex-girlfriend.
20. He alleged he and the perpetrator had fought the night before the index incident and that, “he had a bread knife. He scraped me at the back of the neck”. He said he wasn’t frightened by this gesture as he knew the perpetrator couldn’t cause much damage with a bread knife.
21. Mr Kowearpta said that he felt “a lot scared. Immediately after the incident”, adding “(it) took a while to calm down”. He notably reported having been able to sleep later that night.
22. He said he met the perpetrator at Lotus Glen Correctional Centre and that he was “a bit scared at first”, but “me and him had a fight in here (Lotus Glen) over the same thing and I win it. No more frightened after that”.
23. Mr Kowearpta added later that he thought the perpetrator’s actions on the night of the index incident were the result of sorcery; “Black magic caused him to kill my cousin-brother”.
24. Overall, it appeared Mr Kowearpta was initially frightened by the perpetrator’s behaviour but quickly recovered his composure and alter exacted “payback” and attributed the cause to sorcery, thus exonerating the perpetrator.”
In summary Mr Ritchie stated as follows:-
“27. Mr Kowearpta’s account of the index incident revealed pre-existing animosity between the perpetrator and himself, and he reported being frightened by the perpetrator’s actions during the index incident. He report having been able to exact “payback” on the perpetrator which resulted in his loss of any difficulties with the incident. He also ascribed the perpetrator’s behaviour to sorcery. He didn’t report experiencing any posttraumatic symptoms following the incident.”
As a consequence there has been no diagnosis of any psychiatric/psychological disorder.
In summary, Mr Ritchie’s opinions can be stated as follows:-
1. There is no diagnosis of any psychiatric/psychological disorder.
2. The symptom suffered by the applicant was that he retained some residual fear of the perpetrator but lost this after the incident with the perpetrator at Lotus Glen Correctional Centre.
3. The applicant had no pre-existing psychiatric/psychological problems.
4. The impact of the incident on the applicant’s life is negligible.
5. He has no need for further treatment.
Section 663B(1C)(2) of the Code gives a general discretion to the Court in deciding whether an amount, and if so, what amount should be ordered to be paid for an injury. Having regard to the purposes for which the Criminal Code was enacted I regard this claim as frivolous bordering upon an abuse of the process. The incident arose out of some personal animosity between the applicant and the respondent which manifested itself by engaging in consensual fighting, particularly when they were drunk. There is scant detail of the circumstances which led to the respondent taking up a knife against the applicant on this occasion but in all events it seems to be part of the fighting process in which they consensually engaged. The larger background of disputation between them is evidence by the fact that consensual fighting continued well after this particular incident. Of greater significance is that the applicant has suffered no injury of consequence, such as would justify the expense of making a claim in the form in which it is presented to the Court.
I dismiss the application.
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