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  • Unreported Judgment

J v Hegarty

 

[2004] QSC 475

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

23 December 2004

DELIVERED AT:

Cairns

HEARING DATE:

18 October 2004

JUDGE:

Jones J

ORDER:

The respondent pay to the applicant compensation in the sum of $2,000 together with costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:

 

COUNSEL:

 

SOLICITORS:

Legal Aid Queensland for the Applicant
No appearance for the respondent

[1] The applicant seeks criminal compensation pursuant to s.663B(1) of the Criminal Code for injuries sustained by her as a result of the offence committed by the respondent on or about 16 January 1971.

[2] On 31 May 1971 the respondent Paul Hegarty was convicted of the offence of having unlawful carnal knowledge of a girl under 12 years of age in the Supreme Court at Townsville before His Honour Justice Kneipp.  The complainant was the applicant who was then 9 years of age.

[3] No appearance was made either by or on behalf of the respondent at the hearing of the application, although I accept the material provided which assures that the respondent has been personally served with the application.  

[4] This application is an action by virtue of s 5 of the Limitation of Actions Act 1974.  By virtue of s10(1)(d) the limitation period, is six years.  In the present case, the applicant’s cause of action was realised when the respondent was convicted in 1971 and thus her application filed approximately 32 years later is prima facie statute-barred.  The usual practice is for a respondent to lead the Limitation of Action Act but it is only invoked as a defence if the respondent takes the point (Chong v Chong CA No. 11658 of 1998).  The respondent has chosen not to appear or respond.  I am prepared to proceed on the basis that the application is uncontested.

[5] The applicant was born on 28 June 1961 and is now 43 years of age.

[6] On 16 January 1971 the applicant and the respondent were attending the same social function.  Later that night the applicant came to the home where the respondent was staying.  The applicant entered the house on the respondent’s invitation whereupon he had sexual intercourse with the applicant.  Although not an element of the offence, the sentencing remarks of Justice Kneipp indicate that he accepted the respondent’s version that the act was consensual.  However it is to be noted that in an affidavit provided by the applicant and sworn 13 May 2004 that “at no time did [I] consent to the actions of the respondent”.

[7] Dr. David Phillips examined the applicant a day after the offence occurred.  In his statement dated 4 April 2004 he details that during his examination of the applicant on the 17 January 1971 he noted that the applicant had a recently ruptured hymen, having probably occurred during the previous 48 hours and probably as a result of sexual intercourse.  He noted no evidence of bruising or abrasions. He noted also that the applicant had a sexual maturity “of around 13-14 years”. The applicant in her affidavit of the 13 May 2004 states that she had “extreme pain and discomfort in her vaginal area following the actions of the respondent.”

[8] On 23 June 2004 the applicant consulted Mr. Robert Zematis, a psychologist. Mr Zermatis opines that the applicant has suffered from adverse impacts as a result of this sexual offence including:

 A sense of violation

 Reduced self-worth or perception

 Post-traumatic stress disorder

 Adverse impact on lawful sexual relations

 Adverse impact on feelings

[9] Mr. Zematis in his report dated 24 June 2004 states that his clinical impression of the applicant is she has developed Post-Traumatic Stress Disorder that would be at the severe level.  This disorder has likely persisted for many years and would continue into the future.   Mr Zematis particularised that the Applicant’s depression had led to several attempts of suicide.

[10] Compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases but subject to the prescribed amount.  See R v Jones ex parte McClintock [1996] 1 QdR 524.   The present application involves an offence that was committed in 1971 and thus is subject to s 663B(1) of the Criminal Code Amendment Act.  This section provides that $2000 is the prescribed maximum amount of compensation which can be awarded by way of compensation for injures caused by offence committed prior to 1975.

[11] The issue of causation arises in this case because of the length of time that has passed between the offence being committed and the subsequent application.  Mr. Zermatis report details many intervening traumatic events that have occurred in the applicant’s life both prior and after the offence was committed.  He states at page 11 that it is “very difficult to categorically state that this incident (the offence) caused ... to suffer from a post-traumatic stress disorder”.  The test for causation for criminal made under the Code was described by Lee J in R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported).  His Honour held that the approach to causation in applications under the Code was similar to the approach in a tortious action in that if the offender’s conduct while committing the offence had materially contributed to the total damage, the respondent was liable to pay compensation in respect of the total damage unless the respondent could separate the effects of the compensable and non-compensable conduct on the applicant “with some reasonable measure of precision”. This approach was followed in the Court of Appeal in Steinback v Steinback [2001] QCA 12

[12] It is clear from the psychological report that it would be difficult to isolate the level of psychological damage the offence caused to the applicant.  I accept the findings in the Mr. Zermatis report that “there does appear reasonable evidence and information to indicate that she (the applicant) did suffer quite adverse impacts as a result of this sexual offence when she was aged only 9 years”.   As appears from the report of Dr Phillips this was the first occasion of sexual penetration.

[13] I accept that the respondent’s conduct has contributed materially to the total psychological damage of the applicant.  I am satisfied that under the current statutory regime the applicant’s injuries would attract a far greater award of damages however $2000 is the maximum to be awarded under the statute which governs this application.  The maximum amount should be awarded in this case having regard to the young age of the applicant at the time of the offence, and the serious psychological consequences which led to further instability throughout the applicant’s life.

[14] The comments in the sentencing remarks which indicate that Justice Kneipp accepted the respondent’s version of events that the applicant’s “encouraged” the act intercourse, must be seen in the context of his being obliged to accept the version most favourable to the accused.  I find that the applicant did not contribute to her injuries in any significant away.  Her sworn affidavit of 13 May 2004 deposed that she did not consent and further,  under the code a child of 9 year of age is considered incapable of consenting to sexual intercourse with an adult.

[15] I order that the respondent pay the applicant $2000 by way of compensation.

[16] I order the respondent pay the applicants her costs of and incidental to the application to be assessed on the standard basis.

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Editorial Notes

  • Published Case Name:

    J v Hegarty

  • Shortened Case Name:

    J v Hegarty

  • MNC:

    [2004] QSC 475

  • Court:

    QSC

  • Judge(s):

    Jones J

  • Date:

    23 Dec 2004

Litigation History

No Litigation History

Appeal Status

No Status