Russell v In the estate of Wayne Leslie Hallett (deceased)

[2012] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:

Russell v In the estate of Wayne Leslie Hallett (deceased) [2012] QDC 217

PARTIES:

CRAIG GORDON RUSSELL
(applicant)

v
IN THE ESTATE OF WAYNE LESLIE HALLETT (DECEASED)
(respondent)

FILE NO/S:

D31/09

DIVISION:

Application jurisdiction

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

10 August 2012

DELIVERED AT:

Ipswich

HEARING DATE:

2 August 2012

JUDGE:

Bradley DCJ

ORDER:

The respondent pay criminal compensation to the applicant in the sum of $45 000.00.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE - CRIMINAL INJURIES COMPENSATION – where respondent pleaded guilty to doing grievous bodily harm to the applicant – whether applicant entitled to compensation for sustaining a severe facial fracture – whether applicant entitled to compensation for sustaining a fractured skull with moderate brain damage – whether applicant entitled to compensation for moderate mental or nervous shock – whether compensation should be reduced because of applicant’s behaviour

Criminal Offence Victims Act 1995 (Qld) s 24

COUNSEL:

S Malcolmson for the applicant
Respondent did not appear

SOLICITORS:

Reardon & Associates for the applicant
Respondent did not appear

HER HONOUR:  All right, good morning.  I'll give my decision first of all in a criminal compensation matter of Russell and Hallett.  Is anyone here for that matter?

MR MILLWATER:  Yes.

HER HONOUR:  Yes, thank you, just announce your appearance. 

MR MILLWATER:  Good morning, your Honour.  For the record, my name is Millwater, M‑I‑L‑L‑W‑A‑T‑E‑R, I'm a solicitor with McNamara and Associates.  I appear on behalf of the applicant - on behalf - sorry, as town agent for Reardon and Associates.

HER HONOUR:  Okay.  Thank you.  You can take a seat.

MR MILLWATER:  Thank you, your Honour.

HER HONOUR:  This is the matter of the application of Craig Gordon Russell against the estate of Wayne Lesley Hallett.  On the 20th of February 2006 in the District Court at Ipswich, Wayne Lesley Hallet was convicted on his own plea of guilty of doing grievous bodily harm to the applicant.  The offence was committed in Rockhampton on the 10th of October 1999.

The applicant has made an application pursuant to section 24 of the now repealed Criminal Offence Victims Act 1995. The application was filed on the 16th of February 2009 and was, therefore, filed within time.

Subsequent to the filing of the application and prior to service of the material upon Wayne Lesley Hallett, Wayne Lesley Hallett died.  The application has, therefore, been continued against his estate.

On the 26th of April 2012, an order was made for substituted service on the respondent and that has been complied with.  There was no appearance by or on behalf of the respondent at the hearing.

I was not the sentencing Judge and I have not been provided with a transcript of the submissions that were made on sentence, however, it appears likely from the sentencing Judge's remarks that the facts up on which Wayne Lesley Hallet was sentenced were essentially in accordance with the applicant's statement to police.

On the 10th of October 1999 which was a Sunday, the applicant had been at the races with friends before going to two hotels.  He had been drinking from around midday and at some stage during the night he and his friends went to a nightclub.  Wayne Lesley Hallet was the manager of the nightclub. 

The applicant was misbehaving and can remember throwing ice at one of his friends.  Wayne Hallet asked him to leave.  The applicant was reluctant to do so.  The applicant was standing at the bar when Hallett kicked the applicant in the face.  It's clear the applicant was drunk and uncooperative but Hallett was sober. 

The sentencing Judge said that there was no suggestion that Hallett was in any way in danger from the applicant and described the offence as a “gratuitous act of violence”.

In the circumstances, therefore, despite the applicant's behaviour I am satisfied that the force used by Hallett against the applicant was grossly excessive and there was no behaviour on the part of the applicant that contributed to his injuries such that his compensation should in any way be reduced.

As a result of the offence the applicant's jaw was broken in two places on either side of his face.  He was forced to undergo surgery and on the 13th of October 1999, the fracture was reduced and fixed with bone plates and screws.

In an affidavit sworn on the 19th of October 2010, the applicant states that he was unable to eat solid foods for approximately three weeks after the surgery.  The injury and the surgery resulted in the left side of his face being swollen.  The metal plate that was inserted into his jaw remains there and will never be removed and he continues to experience a tingling numb sensation on the area of his left jaw.  He also suffers from toothaches and headaches.

Regarding the psychological consequences of the offence upon him, the applicant states in his affidavit, "As a result of the assault, I initially felt that I couldn't go out anywhere socially, particularly to places where large numbers of people congregate.  I especially couldn't bring myself to go to the pub.  It was a long time before I felt I could attend social functions.  When I felt I could go out, I would always make sure that I was in a group or at least with my girlfriend.  I am now much more cautious in social situations. 

I was a shy person prior to the assault but have noticed that my shyness has increased as a result of the assault against me.”

The applicant has been interviewed and assessed by Dr Alan Keen, a consultant clinical psychologist.  In his report dated the 24th of March 2009, Dr Keen refers to the involuntary movement of the applicant's head and frequent headaches suffered by the applicant following the incident. 

Dr Keen endeavoured to examine the applicant's cognitive capacity as well his mood and affect.  The applicant told Dr Keen that he had experienced the following symptoms following the assault; "Poor memory, he has been significantly forgetful.  Poor concentration, his concentration has been poor.  Depression, on a daily basis for more of the day than not he's been sad and depressed.  Anxiety, on a daily basis for more of the day than not he's been anxious and worried, he also easily becomes nervous.  Irritability, on a daily basis for more of the day than not he's been agitated and irritable and has been finding it difficult to sit still.  Fatigue, he frequently feels exhausted.  Poor self esteem, he has been frequently feeling worthless.  Avoidance, since the incident that is the subject of this report, he's been finding it difficult to go to public places such as shopping centres and crowded venues".

It is Dr Keen's opinion that the applicant's current level of IQ "Was measured to be at the borderline level.  Considering the test results, it appears to me that his pre-morbid IQ, (IQ in the past) was at the high average level.  Therefore, it is likely that the decline in his IQ is an acquired condition.  The only factor that was brought to my attention that could be associated with the decline in his intellectual capacity is the incident of the assault that is the subject of your referral and this report".

It is Dr Keen's opinion that, "Mr Russell's intellectual capacity is about the borderline level in comparison to his intellectual capacity.  His adaptive functioning is about the average level.  The level of his language skills and the findings of his pre-morbid IQ suggest that this client's IQ in the past was within the average level.  Mr Russell reported and I noted signs of depression in this client.  On the basis of my assessment and his narration of his condition, it appears that he has been experiencing symptoms of depressed mood which appear to be consistent with formal diagnosis of Dysthymic Disorder (DSM-IV, 300.4) together with symptoms of a specific phobia (DSM-IV, 300.4)". 

Dr Keen in his report recommends specific medical and psychological treatment to assist the applicant with respect to his condition. 

Tragically, the assault on the applicant has resulted in significant and permanent physical and mental trauma to him.  He will experience lifelong adverse consequences as a result of the injuries suffered by him at the hands of Hallett.

I agree with the submissions made on behalf of the applicant, that he is entitled to compensation for a severe facial fracture, a head injury including brain damage and mental or nervous shock.  This should be assessed in accordance with the compensation table which is schedule 1 to the Act as follows:  Item 8, 25 per cent.  Item 10, 20 per cent.  Item 32, 15 per cent.  A total of 60 per cent of the scheme maximum allowed under the Act, that is, $45,000 and I order that the respondent pay to the applicant the sum of $45,000 by way of criminal compensation.

Anything else you're seeking, Mr Millwater?

MR MILLWATER:  No, thank you, your Honour.

HER HONOUR:  All right.  Thank you, you're excused.

MR MILLWATER:  Thank you, your Honour.

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