R v Beaton; Ex Parte

[1997] QSC 176

IN THE SUPREME COURT

OF QUEENSLAND

No.  3928 of 1997

[R v Beaton; ex parte Smee]

IN THE MATTER OF:  THE QUEEN v ROBERT BEATON

AND:

IN THE MATTER OF: SECTION 663B OF “THE CRIMINAL CODE” 1899

AND:

IN THE MATTER OF:  AN APPLICATION FOR COMPENSATION BY KENNETH JOHN SMEE

REASONS FOR JUDGMENT - W C LEE J

DELIVERED:           1 October 1997

CATCHWORDS:     CRIMINAL COMPENSATION - More than one injury - Only one compensable - Meaning of “prescribed amount” in s.663A of Criminal Code - Nervous shock - Bodily injury

COUNSEL:Mr A.  Rafter for the applicant

No appearance for the respondent

SOLICITORS:          Bruce S.Dulley, as town agent for Walker Pender Ipswich, for the applicant

No appearance for the respondent

HEARING DATE:    8 September 1997

JUDGMENT  - W.C. LEE J

Judgment delivered 1 October 1997

This is an application for criminal compensation pursuant to s.663B of the Criminal Code of Queensland. 

The respondent, who was served but did not appear, is currently serving a period of imprisonment of 10 years for the attempted murder of the applicant.   The Public Trustee was also notified by letter dated 13 May 1997 and replied by letter dated 15 May 1997 indicating that the Public Trustee had relinquished control of the respondent’s estate on 12 September 1996.

The respondent was convicted of attempted murder of the applicant on 21 May 1996 after a trial conducted before me in Toowoomba.  I am for that reason conversant with the facts of the case.

The applicant and respondent were near neighbours on acreage blocks on Main Greenswamp Road, Churchable.  They had known each other for some three to four months before the attempted murder and there were some indications of friendship on both sides.  Smee had recently sold a number of pieces of machinery to the respondent. 

On the evening of Sunday 9 April 1995, the respondent drove over to the applicant’s home, and they each drank some beer.  The applicant said at trial that the respondent then produced a receipt indicating that the applicant had paid for the machinery, which he asked the applicant to sign.  The applicant said he refused to do so as no such payment had been made.  Further unrelated conversation ensued. 

The Crown case, which obviously was substantially accepted by the jury, was that both men went outside and returned, a number of times.  The applicant said that eventually the respondent made to leave and the applicant went with him to his car.  The respondent sat in the driver’s seat of his car and the applicant had his hand on the driver’s door as he farewelled him.  The respondent pulled a sawn off shotgun wrapped in cloth from beneath his seat, unwrapped it, and without warning pointed it at the applicant in the chest area, and said “cop this, you cunt”.  He then immediately discharged the rifle at the applicant, striking him in the lower abdomen region and also in the region of his right groin.  The applicant had desperately attempted to deflect the barrel downwards to some extent.

The medical evidence at the trial indicated that without treatment, the wound, which was quite deep, was life-threatening.  It was initially about 20 centimetres in diameter before treatment.  The applicant said he felt he would die.  He had consumed a considerable quantity of alcohol on the day of the shooting and had smoked some marihuana.

The applicant said he ran back to his house, followed by the respondent.  There were apparently other shots fired, which caused a wound to the applicant’s shoulder.  He received other injuries from a blow to the head but the respondent was acquitted of any other charges which embraced subsequent injuries.  In approaching this assessment, care is necessary in examining medical and other evidence, to ensure that any consequences to the applicant which may be attributable to injuries other than to his abdomen are not compensated, as counsel for the applicant conceded:  R v Tiltman; ex parte Dawe (Motion 324 of 1995, 22 June 1995, Lee J unreported).

The respondent then drove away, and the applicant trekked through several kilometres of bushland to reach a neighbour’s house, whence he was taken to the Ipswich General Hospital.  The applicant remained in the hospital until 4 May 1995, i.e. about one month, where he received treatment including a laparectomy, skin grafts, and regular dressings.  He endured fairly severe pain in the acute stages.  He said he contracted golden staph in hospital.  He was subsequently reviewed as an outpatient.  He experienced difficulty in sleeping for 14 months or so after the shooting.  The wounds to his shoulder and head injuries which were inflicted inside the house were also treated.  As indicated, any consequence from those injuries gives no right to compensation.

In an affidavit sworn on 18 April 1997, the applicant, who was born on 8 April 1958, and is currently aged 39 years, states that as a result of the injury received on 9 April 1995 he has subsequently had continuous pain in his abdominal region, walks with a limp and has suffered embarrassing and unsightly scarring which will be permanent.  The applicant also states that his right thigh is often numb.  He said he can run, squat, and negotiate stairs but does have difficulty walking long distances.  At the request of the applicant’s counsel, I inspected the damaged area of his abdomen and upper thigh during this hearing.

The applicant also deposed to significant psychological problems as a result of the injuries.  He states that he is now very suspicious of people, and is afraid to go out alone.  He experiences anger about the incident and is generally short tempered and intolerant.  He has on occasion been violent to those around him.  His relationship with his girlfriend suffered to the extent that they separated, although they have now reconciled.  The applicant also states that he suffers from nightmares about the incident and is fearful about his safety when the respondent is released from prison. 

A report dated 25 March 1997 from Dr Hugh Bartholomeusz, a cosmetic surgeon, was exhibited in the application.  He saw the applicant on 17 March 1997.  Dr Bartholomeusz described the scar to the applicant’s abdomen as “12 x 8 centimetre split skin graft on the right side of his lower abdomen.  This exhibits a marked contour depression and hypertrophic unstable edges.”  He described the scarring as “extremely cosmetically unsightly [which] will remain so permanently”.

Dr Pentis, orthopaedic surgeon, saw the applicant on 6 August 1996.  His report dated 21 August 1996 stated that the injury to the applicant’s abdomen has resulted in “sensory disturbance in this region and a cosmetic deformity”.  He stated that the loss of efficient function of the leg on that side is in the order of 5 to 7½%. 

A letter dated 18 March 1997 from Prof. Christopher Tennant, head of academic psychiatry at Royal North Shore Hospital, described the applicant as suffering from post traumatic stress disorder (PTSD) and also a major depression.  Prof. Tennant, who saw the applicant in April 1996, stated that the PTSD was caused by the gunshot attack, but also stated that in his opinion, whilst the gunshot injury to some extent precipitated his depressive illness, the applicant’s long-standing history of alcohol abuse may have been a contributing factor to its onset.  Prof. Tennant prescribed Zoloft 50 milligrams. 

A report from clinical psychiatrist Dr Donald Grant dated 8 August 1996 was also exhibited.  He saw the appellant on 6 August 1996 at Wickham Terrace and had seen a report by Dr T.R. Mulhearn, Director of Surgery at the Ipswich Hospital and who had treated the applicant whilst he was a patient there.  Dr Grant stated that the “major sequelae of the assault are psychological and emotional rather than physical.  Mr Smee describes having become very suspicious of other people and ‘paranoid’ since the assault ... Mr Smee describes episodes of intense anger and dyscontrol ... He describes regular  nightmares”.

Dr Grant stated that as a result of the assault the applicant was now suffering from PTSD, from which it was unlikely that he would fully recover, although it would improve, and was improving.  He said that this condition had resulted in a significant disturbance of social and interpersonal function in the appellant.  Dr Grant also stated that the applicant’s antisocial traits and history of substance abuse and disturbed childhood may have predisposed him to PTSD.  He had seen a psychiatrist when aged about 20 years because of problems with his temper.  Also about 10 years before this incident he developed problems with alcohol and was admitted to a hospital and continued to attend a psychiatrist and Alcoholics Anonymous.  He was accustomed to smoking marijuana and had done so for about 20 years.  It is clear that there was some predisposition to post-traumatic stress disorder and depression.

As a result of the attack for which the respondent was convicted, the appellant has suffered deep abdominal scarring, limping, pain, some reduced function in his right leg, and post-traumatic stress disorder.  The incident has probably contributed also to some extent to his depressive illness.  The applicant has suffered two relevant injuries from this episode, one of a physical kind and one involving a recognised psychiatric illness or illnesses.

PTSD is nervous shock and as such is defined as an “injury” pursuant to s.663A.  It is clear from the authorities in any event that psychiatric injury is a “bodily injury” within the meaning of the section, see West v.  Morrison (Appeal No 266 of 1995, Court of Appeal, 6 September 1996 unreported) per Macrossan CJ at 4; FAI v. Curtin (Appeal No 2078 of 1996, Court of Appeal, 8 August 1997, unreported) per Lee J;  R v. Ireland [1997] 3 WLR 534 per Steyn LJ at 544.

This application is governed by ch. 65A of the Criminal Code because the injuries suffered were inflicted before the Criminal Offence Victims Act 1995 came into effect (see s.46 of the Criminal Offence Victims Act 1995). Section 663B(1) of the Code provides that where a person is convicted of an indictable offence against another, the Court may order that person to pay to the victim, a sum of compensation not exceeding the “prescribed amount”.

Particular prescribed amounts are defined in ss.663AA.  Section 663AA(3) states that where more than one injury is suffered, as is the case here, the prescribed amount is that specified in s.14(1)(C)(A) of the Workers Compensation Act 1916, as varied from time to time. It was submitted that by virtue of s.14H of the Acts Interpretation Act 1954 the relevant provision is now s.167 of the Work Cover Queensland Act 1996.  That section provides a maximum limit of $103,100 for injuries sustained in one event, whether it be one injury or multiple.  However, at the time the injuries were actually sustained, the relevant provision was s.154 of the Workers Compensation Act 1990, which provides a maximum of $100,000.  This is the upper limited to which I am, therefore, restricted.

Section 663AA(1) of the Code provides that the prescribed amount for nervous shock is $20,000.

It is clear from the decision of Mackenzie J in the case of R v. Farrell ex parte Farrell and Lyons (unreported, delivered 13 July 1992) that in awarding compensation for several injuries, the Court may award a maximum of $20,000 for that component relating to nervous shock, although the total award may be higher, because of the other injuries suffered, as long as the total award does not exceed the “prescribed amount”.  The total amount will be limited to the amount specified in s.663AA(3).

In this case, by far the most serious permanent injury is the PTSD.  To the extent that the gunshot wound may have contributed to his depressive illness, this is not of much significance in the case, having regard to the limitation imposed on damages for “nervous shock”.  If this were an ordinary case for damages it would have been appropriate to make a substantial award to take into account the applicant’s pain, suffering and loss of amenities, as a result of the PTSD and depressive illness and to a lesser extent because of the injury to the abdomen, even making due allowance for his predisposition to PTSD and a depressive illness.  There is no evidence that the appellant’s earning capacity was affected by the incident.  He remains the licensee of a public hotel and employs staff.  In ordinary circumstances therefore, I would have awarded damages considerably in excess of $20,000 for pain, suffering and loss of amenities relating to his psychiatric disability which is attributed to the gunshot wound to his abdomen, even allowing for the predisposition described by the medical evidence.

However, I am limited by the application of s.663AA(1) which provides a maximum award of $20,000 for nervous shock.  I consider that the residual damage caused by the physical injury is compensable by an award of $35,000.  The physical injury was a serious one and the applicant did not contribute in any way to it which would justify the reduction of the award.

I therefore award the applicant the sum of $55,000 pursuant to s.663B of the Criminal Code in compensation for his injuries suffered as a result of the shooting incident on 9 April 1995.

I order that the respondent, Robert Beaton, pay to the applicant, Kenneth John Smee, the sum of $55,000 by way of compensation for the injuries which he inflicted on the applicant and in relation to which he was convicted on 21 May 1996 of one count of attempted murder.  The respondent is to pay the applicant’s costs of and incidental to the application, including reserved costs, to be taxed.