Re An Application Under the Criminal Injuries Compensation Act 1983 and Sharon Therese Cuthel [1996] ACTSC 9 (1 March 1996)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and SHARON THERESE CUTHEL
No. CIC 10 of 1994
Number of pages - 5
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T CONNOLLY

CATCHWORDS

Criminal Injuries Compensation - Assault Occasioning Grievous Bodily Harm - Fracture of the Zygomatic Complex - Domestic Violence - Provocative Words Uttered by Applicant.

Criminal Injuries Compensation Act 1983, s.15(1)

Davis v Johnson [1978] UKHL 1; (1979) AC 264

Re Cochrane (1846) 8 Dowl.630
R v Lister (1795) 93 ER 645.
Helmhout v The Queen [1980] FCA 118; (1980) 49 FLR 1

HEARING

CANBERRA, 23 February 1996
1:3:1996

Counsel for the Applicant: Mr G Lunney

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1.Compensation be awarded to the applicant in the sum of $15,741.00.

DECISION

MASTER T CONNOLLY This is an application pursuant to Section 10 of the Criminal Injuries Compensation Act 1983 for compensation by Sharon Therese Cuthel arising out of an assault on Ms Cuthel on 17 January 1993 by one Christopher Randall, a former defacto of Ms Cuthel and the father of her child. On 2 December 1993 Mr Randall was convicted before the Chief Justice of one count of recklessly inflicting grievous bodily harm and was placed on a 2 year, $2,000 good behaviour order, and was ordered to pay $2,000 in compensation to the applicant. As this application arises from an offence dealt with before the Supreme Court, it is properly before me, and was heard on 23 February 1996.

2. The facts in the matter and the medical reports are not in dispute. The applicant had been in a defacto relationship with Mr Randall since 1987, and in 1989 the applicant and Mr Randall had a son, Dylan. The relationship broke up in mid 1991. On 17 January 1993 the applicant and her son went to Mr Randall's mother's house in Wanniassa, arriving at about 1.30 pm. Mr Randall was not there, but arrived at about 2.15 pm, seemingly drunk. In her oral evidence the applicant described Mr Randall as "intoxicated and obnoxious". The applicant, her son and Mr Randall then visited a local tavern from 3 to 7 pm playing pool and, on the applicant's evidence, having about 6 drinks, in the applicant's case of cider. It was not put to the applicant that she was intoxicated at any stage.

3. On returning to Mr Randall's mother's house they played in the back yard for a while and at about 7.45 pm the telephone rang. The applicant picked it up, but there was no answer. The applicant then yelled to Mr Randall that "It was one of your tarts".

4. The applicant was cross examined as to this statement, and it was put to her that this was provocative. She conceded that the statement made Mr Randall angry, as indeed on the evidence it did.

5. Following the statement the applicant went back to the yard to collect her son's things, and was confronted by Mr Randall. She was struck 5 to 6 times about the face with his fists, and fell over into the wading pool.

6. She scrambled to her feet as he returned to the house, and she yelled "Yeah, that is all you know how to do. I'll go back to Hutch". "Hutch" is a male acquaintance of the applicant. Mr Randall ran towards the applicant, and hit her again, and also kicked her about the body.

7. The applicant was cross examined again on this statement, but Mr Holmes did not press the point of provocation here.

8. The applicant and her son then left the premises and rang her sister and her mother from a neighbour's house. She was taken by them to casualty at Woden Valley Hospital, where she was examined and police were called.

9. The medical evidence going to the applicant's injuries was before me in a series of reports and was not contradicted. The report from Dr Hodge of Woden Valley Hospital shows that the applicant presented to the Emergency Department with injuries to the face and chest.

"On examination in the Emergency Department she was noted to have
swelling on the left side of her face, particularly around the
left eye, bruising to the upper and lower lids of the left (sic)
eye, and tenderness (sic) over the left maxilla and left zygoma.
The pupil appeared normal with no evidence of haemorrhage. There
was noted to be some decreased sensation to the left cheek and
some blood inside the nose. Examination of the chest revealed no
obvious bruising but the patient was noted to be tender over the
costal margins. Examination was otherwise normal. Xrays were
performed and these showed a normal chest Xray, a comminuted but
undisplaced fracture of the nasal bone, and a depressed fracture
of the left zygoma with fractures of the zygomatic arch and
lateral and inferior orbital margins. The patient was admitted to
the ward and taken to theatre on 19/1/93 where an open reduction
and internal fixation of the left fractured zygoma was performed
with insertion of a plate and screws."

10. The operation was successful, but the presence of the plate caused the applicant ongoing distress. She had recurring pain about the plate site, repeated infections, and numbness, hotness and swelling. This continued for some time, and following medical advice she had the plate removed by Dr James under general anaesthetic at Woden Valley Hospital on 16 March 1995. This required a 1 to 2 day admission, but the surgery was uneventful and she recovered quickly. The scar site has healed well (although slight scarring is still visible and was shown to me in the hearing) and she no longer experiences infections, weeping and pain to the old plate site. She does experience the occasional minor headache although she acknowledges that this could be caused by anything. She still experiences occasional hotness at the site of the surgery, and sensitivity at the dentist.

Was this Assault Provoked?
11. Counsel for the Territory argued that I should take into account the words uttered by the applicant, which he argued were provocative, for the purposes of S.15(1) of the Act.

12. Section 15(1) provides:

"In determining -
(a) whether or not to make an order awarding compensation; or
(b) the amount of compensation to be awarded,
the court shall have regard to any behaviour, condition, attitude
or disposition of the applicant or the person who sustained the
relevant prescribed injury or prescribed property damage which
directly or indirectly contributed to that injury or damage, as
the case may be."

13. Counsel for the Territory acknowledged that he was unaware of any authority for the proposition that mere words would be relevant for the purposes of S.15(1).

14. It is an unfortunate truth of the human condition that things are often said that would be better left unsaid. But the law cannot allow a mere statement to be taken to in any way condone, excuse, or reduce the severity with which the law views an assault, particularly an assault occurring in circumstances commonly described as "domestic violence".

15. The Australian community, and the Parliament and Courts which serve that community, have come a long way in a comparatively short period of time in dealing with the subject of domestic violence.

16. Far from protecting women, the law has historically sanctioned violence on the part of a man in response to perceived infractions by a spouse. One need only recall the "rule of thumb" :

"By the old common law, a husband was allowed to beat his wife
with a stick no bigger than his thumb. He was able, Blackstone
says, to give his wife 'moderate correction' ".

Davis v Johnson [1978] UKHL 1; (1979) AC 264 at 271 per Lord Denning.

17. The common law once condoned "beating" as within the lawful rights of a husband. In Re Cochrane (1846) 8 Dowl 630 Coleridge J held that a husband has "by law power and dominion over his wife" entitling him to keep her by force "within the bounds of duty", and entitling him to beat her "but not in a cruel or violent manner". In R v Lister (1795) 93 ER 645 it is reported (at 646):

"Lord Kenyon CJ declared and all the rest agreed that where the
wife will make an undue use of her liberty either by squandering
any of her husband's estate or going into lurid company, it is
lawful for the husband in order to preserve his honour and
estate to lay such a wife under restraint."

18. The law has moved on, but it should be remembered that it was only in the 1970's that the common law rule that a husband could not at law rape his wife was abolished. Parliaments in the various Australian jurisdictions have now enacted special legislation to provide protection for victims of domestic violence, and to provide specialist services for survivors of such assaults, and reform in this area continues (Australian Law Reform Commission, Domestic Violence, Report No. 30, 1986, Equality Before the Law: Justice for Women, Report No. 69, 1994, Community Law Reform Committee of the ACT, Discussion Paper No 2, Domestic Violence, 1992, Report No 9, Domestic Violence 1995, J Scutt, Women and the Law, 1990).

19. Provocation as a defence to a criminal act is of limited application, and even in its limited application of reducing murder to manslaughter it is contentious (Helmhout v The Queen [1980] FCA 118; (1980) 49 FLR 1).

20. I am not persuaded that a case can be made out that conduct such as that of the applicant can be characterised as "provocation" such as to attract the operation of S.15 of the Act.

21. That is not to say that the conduct of an applicant can never be relevant. The legislature has indicated by S.15 that the applicant's conduct is a factor, and certainly if persons choose as their favoured Friday or Saturday night recreation fisticuffs on the footpaths of our city, during which they sustain injury (whether or not they also cause the same), this conduct may well exclude, or reduce, an award of compensation.

22. But mere words cannot have this effect in circumstances of domestic violence. To hold otherwise would be to reopen a view of women's rights to equal protection in our law which is best confined to the history books.

Quantum of Compensation
23. Counsel for the Territory referred me to four decisions involving fractures of the zygomatic complex with compensation ranging from $6,500 to $11,000 for pain and suffering. I take into account in this matter the fact that, while the first operation was successful in that the fracture has healed, the applicant, for a period of over two years, suffered ongoing difficulties with the plate which required further surgery under general anaesthetic to remove the plate. This procedure has been successful, and the applicant is now relieved of the discomfort, although she is left with some residual scarring.

24. Taking into account the uncontested medical evidence as to the effects of the injury, the period of time during which the applicant suffered discomfort between the first and the second operation, and the need for that further operation, I find that an appropriate award of compensation for pain and suffering is in the amount of $17,000. Taking into account the compensation ordered to be paid by this Court by the offender and already received by the applicant, this results in an award of $15,000, plus the expenses which are agreed at $741.00. I therefore make a final award for compensation of $15,741.00.