Whyte v Taylor

[2012] QDC 152

DISTRICT COURT OF QUEENSLAND

CITATION:

Whyte v Taylor [2012] QDC 152

PARTIES:

ROBERT DUNCAN WHYTE
(applicant)
v
SAMANTHA JOYCE TAYLOR
(respondent)

FILE NO/S:

D28/10

DIVISION:

Application jurisdiction

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

12 June 2012

DELIVERED AT:

Ipswich

HEARING DATE:

5 June 2012

JUDGE:

Bradley DCJ

ORDER:

The respondent pay criminal compensation to the applicant in the sum of $7,500.00.

CATCHWORDS:

CRIMINAL COMPENSATION – serious assault on a police officer – where respondent spat mixture of blood and saliva at applicant’s face – whether applicant entitled to compensation for  minor mental nervous shock – whether applicant entitled to compensation for bruising and laceration caused by the various blood tests

Criminal Offence Victims Act 1995 (Qld) s 24

COUNSEL:

L Willson for the applicant

Respondent appeared in person

SOLICITORS:

Shine Lawyers for the applicant

Respondent appeared in person

HER HONOUR:  This is an application for criminal compensation by Robert Duncan Whyte against Samantha Joyce Taylor.  These are my reasons for my decision.

On the 29th of May 2009 in the District Court at Ipswich the respondent pleaded guilty to assaulting the applicant, a police officer, whilst he was acting in the execution of his duty.  The offence was committed in Ipswich on the 18th of October 2008. 

The applicant now seeks an order for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (the Act). The application was filed on the 22nd of January 2010 and therefore despite the repeal of the Act it can be dealt with. The respondent appeared in person but was not legally represented at the hearing of this matter on the 5th of June 2012.

The facts placed before the sentencing Judge, which was not myself, were that police officers, including the applicant, were contacted to attend a disturbance at Players Night Club in Ipswich.  At approximately 3.50 a.m. the respondent was observed to be in a fight in the street near the night club with another female.  She was arrested and transported to the Ipswich Police Station.

It was noted that she had, in fact, suffered some cuts to her face, apparently from the fight, and she was bleeding.  When police arrived at the police station with the respondent she became abusive towards the police, swearing at them and using abusive language.  She was then escorted inside the watch house and became even more aggressive.  She began hitting walls and windows within the watch house. 

She turned and faced the applicant in a threatening manner and continued to yell abuse.  As a result of this behaviour it was decided that she should be placed in a padded cell.  The respondent was accompanied to the cell by the applicant and another police officer.

After the applicant and the other police officer released their grip on the respondent she began to move back out of the cell.  At that time she grabbed the applicant's shirt and a struggled ensued. 

The respondent then fell to the ground, ripping the applicant's shirt.  She was further restrained whilst continuing to yell abuse.  The respondent was then pinned by the hands to the ground so that she'd not be able to strike at either of the officers.

While on the ground she then spat a mixture of blood and saliva at the applicant, hitting him in the face just below the left eye.  More police then entered the cell and came to the assistance of the applicant and the other police officer.

Those facts were not contested by the respondent during the sentencing proceedings although it was submitted that she felt
she was not being treated justly by being arrested when the other woman involved in the fight was not.  Even if the respondent had some justification for feeling aggrieved because of that fact, that is no excuse for the assault that she inflicted upon the applicant.

I am satisfied on the material before me that there was no behaviour whatsoever on the part of the applicant which contributed to his injuries. 

The applicant immediately after being spat upon washed his face using soap and antibacterial scrub and washed up and down his arms.  He attended the Ipswich General Hospital later that morning for a blood test.

On the 30th of October 2008 he received advice that the test was negative but that he would need to be re-tested in another three months.  On the 15th of January 2009 he submitted to a second blood test. 

In a victim impact statement which was dated the 2nd of April 2009 the applicant recounts his response to the assault.  As a result of being spat at in the face and the concern regarding the contracting of a communicable disease the applicant underwent restrictions until he was given the all-clear following the two blood tests.

Those restrictions on his behaviour adversely affected his relationship with his partner and his family and caused him to feel anger and anxiety.  As a result, his sleep, his mood, and his social interactions, as well as his behaviour at work were all adversely affected.

On the 9th of December 2009 the applicant was interviewed and assessed by Dr Gary Larder, a consultant psychiatrist, and in a report dated the 19th of January 2010 Dr Larder states that the applicant:  "Endured a psychologically traumatic experience in the course of his work which has triggered a prolonged process of altered relationships (in both his work and personal life) over which he has no control.  The challenge for him is to live with the doubt and uncertainty of whether or not he has contracted a potentially fatal and or incurable serious disease.  I do not believe Mr Whyte is depressed to the extent that the diagnosis is major depression.  Mr Whyte's experience of the incident on the 18th of October 2008 does not warrant the use of the A1 or and A2 criteria for post traumatic stress disorder as outlined in the DSM-IV.  I do not believe that the four DSM-IV features for post traumatic stress disorder is evident in this case.

…

In my opinion, Mr Whyte has experienced significant levels of subjective distress and functional impairment arising from emotional, behavioural, and psychological symptoms greater than a normal grief or bereavement reaction to the incident on the 18th of October 2008."

In a supplementary report dated the 1st of March 2012 Dr Larder confirms that diagnosis.  Dr Larder recommends that the applicant see his GP regularly for general preventative care and for a treatment plan to receive supportive psychotherapy to address psycho-education, monitor alcohol use, couple sessions, and mood and anxiety monitoring.

The respondent did not challenge the applicant's evidence or Dr Larder's diagnosis, but submitted at the hearing that the evidence supports an award for compensation for only minor mental or nervous shock pursuant to the compensation table which is schedule 1 to the Act.

The applicant claims compensation for minor mental nervous shock of 10 per cent of the scheduled maximum and also claims an amount of compensation for bruising and laceration caused by the various blood tests which it was necessary for him to submit to in order to ascertain whether he had contracted any communicable disease.

There is no evidence before me of any such injury and I am not satisfied that the needle required for the taking of blood on the two occasions in the ordinary course would cause a "laceration". 

The applicant is entitled to compensation for mental and nervous shock and given his psychological response to the assault and the ongoing symptoms that he still suffers at such a length of time following the result I assess compensation at 10 per cent of the scheduled maximum;  that is $7500.

I order that the respondent pay to the applicant the sum of $7500 by way of criminal compensation. 

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