Miller v Neumann

[2007] QSC 253

SUPREME COURT OF QUEENSLAND

CITATION:	Miller v Neumann [2007] QSC 253
PARTIES:	PETER WILLIAM MILLER (Applicant) v MARK ANTHONY NEUMANN (Respondent)
FILE NO/S:	58 of 2007
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Supreme Court, Cairns
DELIVERED ON:	13 April 2007
DELIVERED AT:	Cairns
HEARING DATE:	2 March 2007
JUDGE:	Jones J
ORDER:	That the respondent pay the applicant the sum of $15,000.
CATCHWORDS:
COUNSEL:	Mr J Sheridan for the applicant No appearance for the respondent
SOLICITORS:	Shine Lawyers for the applicant No appearance for the respondent

1. The applicant seeks a compensation order against the respondent pursuant to the provisions of the Criminal Offence Victims Act 1995 (COVA).

1. The respondent does not appear to oppose the application which is founded upon his conviction on 22 June 2005 of offences of attempted robbery with personal violence and attempted murder.  It was during the course of the commission of the attempted armed robbery offence that he caused injury to the applicant.

Background facts

1. The applicant was born on 6 August 1950 and was thus 52 years old at the time of the incident and is 56 years now.

1. On 19 October 2002 the applicant went to a shopping centre where he purchased some goods.  He was in the process of driving out of the shopping centre car park when the respondent drove up to his car and blocked his way.  The respondent then approached the applicant’s car carrying a .22 calibre rifle which he aimed at the head of the applicant.  The respondent demanded that the applicant give up his car in a loud and aggressive manner whilst pointing the rifle at his head.  Before the applicant could leave his car another vehicle drove up behind.  When the respondent saw this he returned to his own vehicle and drove off.

1. The applicant was shaken by these events.  He went at once to the Cairns 24 hour Medical Centre.  He was prescribed Valium and referred to counselling.  His condition worsened the following day when he heard that the respondent after leaving him had attempted to kill a two year old girl with a bayonet. 

1. Since this incident the applicant has continued to need medical treatment and counselling.  He has also sought solace by consuming alcohol which has had other adverse effects.  The applicant continues to experience flashback memories of the incident and of the respondent.  He has feelings of grief in relation to the two year old girl, he has had some suicidal thoughts and has suffered a stress related heart attack.  His marriage has broken down probably as a consequence of excessive alcohol consumption and it has now been dissolved.  Since the incident his son has also had a serious head injury as a result of an attack upon him and this too has added to the stresses experienced by the applicant.

Assessment of injury

1. The applicant has been in the constant care of his General Practitioner who has continued to prescribe medication for him.  The medical opinion relied upon for the purpose of this application is that of Professor Basil James, psychiatrist, who has furnished a report dated 25 August 2006.  At the time of his examination Professor James found that the applicant was markedly depressed, that he judged his intelligence to be in the average range and found no evidence of memory or other cognitive impairment.  He diagnosed the applicant as suffering from a Post Traumatic Stress Disorder of moderate severity which had become chronic.  He found also that he had a Major Depressive Disorder which in part was attributed to the injury to his son and no doubt other like factors such as the breakdown of his marriage.  In the end result Professor James assessed the applicant now as at 40% of the global assessment of functioning scale as compared with his presumed pre-incident functioning of about 75%.  Reference to this scale shows the scope of the change as the applicant having moved from having no more than slight impairment in social, occupational functioning to now having major impairment in several areas such as work, family relations, judgment, thinking and mood.  Professor James opines that the applicant is quite severely incapacitated and is in urgent need of further psychiatric treatment.  Not all of the applicant’s present situation is however due to the incident. 

1. Making the appropriate considerations for these circumstances and the effect on the applicant which is directly attributable to the incident, I have taken the view that the assessment injury should be in accordance with Item 32 – mental or nervous shock (moderate). I would assess the allowance at the upper end of the scale - 20% of the scheme maximum - $15,000.

Order

1. I order that the respondent pay the applicant the sum of $15,000.