Chong v Chong[1999] QCA 314

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 11658 of 1998

Brisbane

BETWEEN:

KAREN LEIGH CHONG

(Applicant) Appellant

AND:

BRUCE ADRIAN CHONG

(Respondent) Respondent

de Jersey CJ

McMurdo P

Demack J

Judgment delivered 13 August 1999

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPLICATION FOR LEAVE TO APPEAL GRANTED.  APPEAL TO PROCEED IN THE ABSENCE OF ANY PERSON REPRESENTING THE ESTATE OF BRUCE ADRIAN CHONG DECEASED.

APPEAL ALLOWED.  ORDER BELOW SET ASIDE.

ORDER THAT BRUCE ADRIAN CHONG PAY TO KAREN LEIGH CHONG THE SUM OF $25, 000 BY WAY OF COMPENSATION FOR INJURIES SUFFERED BY HER BY REASON OF THE OFFENCE OF UNLAWFUL WOUNDING OF WHICH BRUCE ADRIAN CHONG WAS CONVICTED ON 14 FEBRUARY 1991.

CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGEMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - compensation for injuries sustained leading to conviction of unlawful wounding - nature of claim under Criminal Code s 663B - when right to claim arises - evidence considered inappropriate - date on which prescribed amount is ascertained - effect of victim resuming cohabitation with offender - death of offender before application filed - appeal to proceed in absence of person representing estate of offender.

Cooke v Gill (1873) LR 8 CP 107

R v Anell, Ex parte Anderson [1998] 2 QdR 174

R v Bartorelli and Hutton (1994) 15 Qld LawyerReps 57

Ronex Properties Ltd v John Laing Construction Ltd (1983) 1 QB 398

Sugden v Sugden (1957) P 120

Acts Interpretation Act 1954 s 14H(2)

Criminal Code ss 663A, 663AA, 663B, 663C

District Court Rules r 4

Limitation of Actions Act 1974 s 10(1)(d)

Succession Act 1981 s 66(1)

Supreme Court Rules O3 r 34

WorkCover Queensland Act 1996 s 167

WorkCover Queensland Regulation 1997 Sch 2

Counsel: Mr AJ Kimmins for the applicant/appellant

No appearance for the respondent

Solicitors: Tony Bailey Solicitors for the applicant/appellant

No appearance for the respondent

Hearing Date:  7 June 1999

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 11658 of 1998

Brisbane

Before de Jersey CJ

McMurdo P

Demack J

BETWEEN: 

KAREN LEIGH CHONG

(Applicant) Appellant

AND:

BRUCE ADRIAN CHONG

(Respondent) Respondent

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 13 August 1999

1. I have had the advantage of reading the reasons for judgment prepared by Demack J, with which I substantially agree. I wish to add some brief observations of my own.
2. The first issue is whether the appellant had a “cause of action”, against her late husband, which was subsisting as at his death on 10 January 1997, and therefore survived against his estate because of s 66(1) of the Succession Act 1981. Only in that case could the appellant have subsequently pursued her claim, as she did by her application filed 26 October 1998.
3. Adopting Brett J’s traditional formulation of what amounts to a “cause of action”, expressed in Cooke v Gill (1873) LR 8 CP 107, 116, that is, as comprehending “every fact which is material to be proved to entitle the plaintiff to succeed”, one would prima facie have thought that establishing her late husband’s conviction for having wounded her and her having suffered substantial injury in consequence, the appellant would thereby attain an “entitlement” to monetary compensation warranting the conclusion that she had a “cause of action” falling within that concept. The learned district court judge was however dissuaded from that conclusion by his view that the appellant was not “entitled” to succeed, because whether or not compensation was ordered depended so much on an exercise of the court’s discretion.
4. It is true that s 663B of the Criminal Code was cast in discretionary terms: “... the court ... may ... order ... compensation ...”. But the scope of the discretion to decline to order the payment of compensation was circumscribed. That emerges from s 663B(2), which provided, as relevant, that in determining whether or not to make an order, the court “shall” have regard to any behaviour of the person aggrieved “which directly or indirectly contributed to the injury”, and to other relevant circumstances, such as whether the applicant was a relative of the convicted person, or cohabited with him. None of those circumstances could, in the present case, have warranted the court’s denying the appellant compensation on discretionary grounds. (I return in a little more detail later to the question of cohabitation.) The appellant should therefore have been seen as having a “right” to compensation, and her claim should not have been characterised as falling into the category of “mere hopes or contingencies” which, on Denning LJ’s view in Sugden v Sugden [1957] P 120, 134, would exclude the existence of a cause of action.
5. I do therefore consider that the appellant had a cause of action which survived her late husband’s death. The next question is whether the application was properly constituted before the court, there having been no joinder of any person to represent the deceased’s estate. The learned judge was referred to O 3 r 34 of the Rules of the Supreme Court, which applied to these District Court proceedings because of r 4 of the District Court Rules. Order 3 r 34 provides, as applicable, that “[i]f in any cause or matter it appears to the Court or a Judge that any deceased person who was interested in the matter in question has no legal personal representative, the Court or Judge may proceed in the absence of any person representing the estate of the deceased person ...”. The judge held that the deceased was not “interested in the matter in question” because he had died before the proceedings were commenced.
6. In my opinion, however, because the cause of action survived against his estate, he must be taken to have had an interest which survived his death, rendering O 3 r 34 applicable. After his death, that cause of action could be pursued against his estate.
7. But it appears that the deceased left neither a will nor any estate of any substantial value. The purpose of joining a personal representative is to ensure that the estate’s material interest is protected. Here there was none. The obvious purpose of this application was to secure an ex gratia payment from the State of Queensland.
8. It was a case where proceeding in the absence of a personal representative was warranted, and the judge should, as necessary, have received the evidence establishing the lack of a will and the lack of any substantial estate which was ultimately placed before this court on appeal.
9. I agree with Demack J that the cause of action based on s 663B arose upon the conviction of the deceased, that is on 14 February 1991; and that because of s 10(1)(d) of the Limitation of Actions Act 1974, a limitation period of six years was applicable. It follows that the application was time barred.
10. The curious feature of the case, of course, was that there was no one to take that point, there being no representative for the deceased estate; and as I have said, there being no need for representation because there was no estate to protect. As pointed out in Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398, 404, time limitation provisions operate to “bar the remedy and not the right”, and operate only if distinctly relied upon. (See also Leicester Wholesale Fruit Market Ltd v Grundy [1990] 1 WLR 107, 114.) The learned judge should not have been dissuaded by this possibility - had he adverted to it - from ordering the payment of compensation.
11. If the Minister for Justice reports to the Governor in Council under the repealed s 663C(2), as part of the process leading to the making of an ex gratia payment to the appellant, he may or may not consider it appropriate to refer to this issue as a relevant “other matter” (s 663C(2)(e)). That is a matter entirely for the Minister, and I do not consider that this court need or should advert to that possibility in its order.
12. I agree with the reasons of Demack J leading to his proposed order for the payment of $25,000 compensation.
13. I also agree that a resumption of cohabitation, following the offence, by an applicant with the convicted person, could not ipso facto deny the applicant a right to compensation otherwise arising under s 663B. The object of the provision is to compensate victims of crime in respect of their injuries. It would be illogical, indeed arguably punitive, to exclude compensation for injuries simply because of a subsequent resumption of cohabitation.
14. I would grant leave to appeal, direct that the matter proceed in the absence of any person representing the estate of Bruce Adrian Chong deceased, allow the appeal and set aside the order refusing the appellant’s application, and order Bruce Adrian Chong to pay the appellant $25,000 by way of compensation for injuries suffered by the appellant by reason of the offence of unlawful wounding of which Bruce Adrian Chong was convicted on 14 February 1991.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 11658 of 1998

Brisbane

Before de Jersey CJ

McMurdo P

Demack J

BETWEEN:

KAREN LEIGH CHONG

(Applicant) Appellant

AND:

BRUCE ADRIAN CHONG

(Respondent) Respondent

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 13 August 1999

1. I have had the benefit of reading the reasons of both the Chief Justice and Demack J and am in general agreement with them.
2. For the reasons given by them, the appellant's claim for criminal compensation under s 663B Criminal Code constituted a cause of action which survived the death of the offender under s 66(1) Succession Act 1981.
3. Whilst the action is now time barred under s 10(1) Limitation of Actions Act 1974, the point has not been taken and is no bar to the appellant's application for criminal compensation; nor has it been necessary to address the issue as to whether an extension of the period of limitation could be obtained.
4. As the Chief Justice explains, this case is an appropriate one in which an order should be made under O3, r 34 of the Supreme Court Rules, applicable by way of Rule 4 District Court Rules, that the application for criminal compensation proceed in the absence of any person representing the estate of the offender.
5. I agree with the reasons given by Demack J that an order made under s 663B Criminal Code that the offender pay the appellant a sum not exceeding the "prescribed amount", refers to the "prescribed amount" defined in s 663A Criminal Code and is calculated at the time the order is made, here by reference to s 167 WorkCover Queensland Act 1996 and Schedule 2 WorkCover Queensland Regulation 1997.
6. The learned primary judge having found the application incompetent then dealt with it on its merits in case he be found wrong on appeal. He referred to s 663B(2) of the Criminal Code which provides:

"In determining whether or not to make an order under subsection(1) and in determining the amount of any order, the court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by the person, and to such other circumstances as it considers relevant (including whether the person aggrieved is or was a relative of the convicted person or was at the time of the commission of the offence, living with the convicted person as his wife or her husband or as a member of the convicted person's household) and to the other provisions of this Chapter."

He noted what he perceived as a difficulty in the application:

"Practice on applications such as the present establishes that a family relationship does not preclude success of applications, which commonly succeed, for example, where there has been sexual abuse of children by parents. This case is rather unusual, in that the parties resumed cohabitation. I think there may be a case for rejecting the present application, which may be seen as inviting judicial intervention in an inappropriate way between spouses whose relationship continues. If it were appropriate for one to compensate the other, one might expect that to be worked out between them. I do not accept the application should be received more favourably just because the making of it has been delayed until Mr Chong has died."

7. Psychiatrist Dr Ian Curtis who examined the appellant on 4 May 1997 and again on 1 August 1998 regarded the appellant as a victim of a -

"long-term cycle of domestic violence, which was perpetrated upon her by the husband.

...

They had been together for about 22 years and they had married after the first seven years. The last 15 years were bad, with cyclical continuing violence which got progressively worse until the shooting. After the shooting he was jailed for six months and released on parole. He was then caught drink driving and was sent back to jail for another six months. Following that, he was a bit more settled and they were together until he died, from his presumably chronic alcoholism.

Many of these women remain with or reunite with the perpetrators of domestic violence. This is counter-intuitive. People asked 'Why do they stay?' There are a number of explanations, aside from attachment to the family unit.

A 51 year old woman I examined had spent seven years with an abusive de facto husband. When I saw her, she had been blinded in her right eye when he kinghit her in the face. The sight in her left eye was poor. She could not read at examination. She said that she could not watch television. She thought she could find her way around well outside in daylight. Night vision was poor. She thought the left eye was failing. She was still in their Housing Commission type home. He was in jail and due out around Christmas 1998. She anticipated they would be together again. She had no capacity to arrange anything or imagine anything else.

Abused women often seem to know instinctively what the surveys have now confirmed: female domestic violence victims are most at risk of death during or immediately before vacating the matrimonial home".

The appellant was caught in the cycle of domestic violence referred to by Dr Curtis. The unequal relationship that exists between the victim and the perpetrator of domestic violence is hardly one where "If it were appropriate for one to compensate the other, one might expect that to be worked out between them". The circumstances here did not warrant rejection of the application for criminal compensation or moderation of the amount of compensation because the parties resumed co-habitation after the commission of the offence.

8. I agree with the reasons given by Demack J that it was necessary for the primary judge to recall the basis upon which the offender was sentenced in order to determine the application for criminal compensation and that this is best done by an applicant placing the transcript of counsel's submissions at sentence together with the judge's sentencing remarks before the judge hearing the criminal compensation application.
9. I also agree with the reasons given by Demack J that after taking into account the effect on the appellant of episodes of domestic violence perpetrated by the offender other than the episode which constituted the indictable offence of which he was convicted, a proper award in all the circumstances is $25,000.
10. I agree with the orders proposed by the Chief Justice.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 11658 of 1998

Brisbane

Before de Jersey CJ

McMurdo P

Demack J

BETWEEN:

KAREN LEIGH CHONG

(Applicant) Appellant

AND:

BRUCE ADRIAN CHONG

(Respondent) Respondent

REASONS FOR JUDGMENT - DEMACK J

Judgment delivered 13 August 1999

1. On 28 October 1998, Mrs Chong filed an application for compensation for injuries sustained by her in 1990 which led to the conviction of her husband, Bruce Chong (“Chong”), upon the charge of unlawful wounding. Chong died on 10 January 1997.
2. The learned District Court Judge who heard the application was also the Judge who sentenced Chong on 14 February 1991 following his plea of guilty. He dismissed the application apparently on the basis that the claim did not survive the death of Chong. He assessed compensation at $5,000. This is an application for leave to appeal from that decision. Mr A.J. Kimmins, who appeared for Mrs Chong, submitted the following issues justified the granting of leave:-

1. Is a claim under s 663B of the Criminal Code extinguished by the death of the person convicted of this offence?
2. Should the court dispense with the appointment of a person to represent the estate of the deceased?
3. Can the judge assessing the claim rely on material not contained in the sworn material filed to support the application?
4. What is the effect of a pre-existing psychiatric disorder?
5. At what date is the maximum that may be claimed determined?
6. What is the effect of the claimant’s resumption of cohabitation with the offender?
7. Is there available a specific and separate head of damages for loss of amenities of life as compared to nervous shock?

3. Section 663B was repealed as from 18 December 1995 and a substantially different scheme for the compensation of victims of crime was introduced in the Criminal Offence Victims Act 1995. There is merit in the observation of Thomas and Dowsett JJ in R v Hodgson, ex parte Chinn, Appeal No 4992 of 1997 – “It is arguable that further curial consideration of the repealed legislation is unlikely to be significant in the administration of justice”. Nonetheless some of the points raised by Mr Kimmins are significant.

The nature of the claim under s 663B

4. Chapter 65A, of which s 663B is a part, was introduced into the Criminal Code in 1969. Various amendments have occurred over the years, but the core of s 663B has remained constant. Those core provisions read:-

“Where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, may, in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum by way of compensation for injury suffered by him by reason of the offence of which the offender is convicted.”

5. The section was interpreted in a variety of ways by individual judges, but eventually some issues were determined on appeal. The award is not an additional punishment: R v Muckan [1975] Qd R 393. The assessment is to be based on common law principles of assessment of damages in tort for personal injuries, provided only that the amount assessed does not exceed the prescribed amount: R v Jones, ex parte McClintock [1996] 1 Qd R 524. The following observations by D.M. Campbell J in the former case (p 397) shed some light on the present case:-

“The problem is the word ‘other’ in the sub-section, where it reads ‘in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum not exceeding two thousand dollars by way of compensation.’ If the sub-section is to be read to give effect to that word, I think there is no alternative but to regard the order in this case as a sentence. But I have great difficulty in regarding an order for compensation in such a light. No time limit is fixed by s. 663B for making an application for compensation: it appears that the application may be made after a sentence has been passed. Looked upon as sentence, the order which was made was in the nature of an additional sentence. This cuts across the notion of a sentence as marking the end of a criminal trial. A judge has power to postpone passing a sentence, but it is well settled that he has no power to alter a sentence once the sitting during which the sentenced was imposed has ended: R. v Lewis [1931] Q.W.N. 41; R. v. Batcheler (1952) 36 Cr. App. R. 64 at p. 67; R. v. Nam [1968] S.A.S.R. 107. These and similar considerations lead me to conclude that the word ‘other’ found its way into s. 663B(1) per incuriam.”

6. While his Honour was dealing with the question whether the order was part of the sentence, what he has said points up the fact that the order for compensation may be made after the sentence has been passed. That means, according to the ordinary procedures followed in a criminal trial, that the order may be made after the trial is completed. It has become common for applications to be made well after the offender has been sentenced, for example, in R v Anell, ex parte Anderson [1998] 2 Qd R 174 the application was filed about two and a quarter years after the conviction, although D.M. Campbell J had said in Muckan that the application should be made promptly and delay may result in an order being refused (p 398).
7. When this concept of separating the claim for compensation from the criminal trial is considered in conjunction with the concept of assessing compensation on common law principles, it suggests that s 663B has created a statutory right which can be described as a cause of action. The facts that have to be proved are:-

1. conviction of offender on indictment
2. of an offence relating to a person
3. whereby injury was caused to victim.

8. The learned District Court judge referred to the words of Diplock LJ in Letang v Cooper [1965] 1 QB 232, 242 – “A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person”. However, he went on to consider the fact that the order for compensation was not made as of right but was in the court’s discretion. He then referred to part of the judgment of Denning LJ in Sugden v Sugden [1957] P 120, 134-35, and expressed the opinion that s. 663B did not create a cause of action until an application for exercise of the Court’s discretion had been made.
9. The decision in Sugden v Sugden concerned an order for the maintenance of two children. The Court held that the order connoted an obligation by a living man to make periodical payments during the joint lives of himself and the children and came to an end at his death. However, in the passage quoted from the judgment of Denning LJ, it is said, “I do not think that the fact that a cause of action is discretionary automatically takes it out of the Law Reform (Miscellaneous Provisions) Act (s 66(1) of the Succession Act 1981)”. In other words, if s 663B gives a victim a statutory right, albeit a discretionary one, that right survives against the estate of the offender. A careful reading of the decision appealed from suggests that that may be the view that the learned District Court judge came to. However, there was no representative against whom the claim would be made, so he declined to make an order.
10. With due respect to the learned District Court judge, the view that he appears to have reached is correct. Section 663B gives to a victim the right to apply to a court for compensation in respect of an injury caused by a person who has been convicted of an indictable offence relating to that injury. This is properly described as a cause of action which survives the death of the offender by virtue of s 66(1) of the Succession Act 1981.
11. That, however, is not the end of the matter. The application is also an action by virtue of s 5 of the Limitation of Actions Act 1974, being a proceeding in a court of law. By virtue of s 10(1)(d), the limitation period is six years. Section 10(1)(d) refers to “an action to recover a sum recoverable by virtue of an enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture”. The claim that the victim can make under s 663B is to recover a sum recoverable by virtue of an enactment. It is significant that under the Criminal Offence Victims Act 1995, an application to a court for a compensation order against a convicted person must be made within three years after the end of the convicted person’s trial (s 40(1)(a)). That Act also has a provision which allows for an extension of time in accordance with ss 30 and 31 of the Limitation of Actions Act (s 41). Even if a similar approach could be taken here, the reason for the delay is that Mrs Chong was unaware of any right to claim compensation. That would prevent ss 30 and 31 applying because ignorance of the law is not a basis for extending time.

When does the right to claim under s 663B arise?

12. Section 10 of the Limitation of Actions Act provides that the period of limitation starts to run from the time when the cause of action arose. This happens when all of the events necessary to constitute the cause of action have occurred. In a claim under s 663B that happens when the offender is convicted. In Anell, Lee J was concerned with the appropriate date for determining the maximum amount of compensation. Because s 663B provides that a person is entitled to compensation “for injury suffered ... by reason of the offence or offences”, he expressed the view that the right to compensation arises at the time the injuries are inflicted. With due respect, that ignores the need for a conviction “on indictment of any indictable offence relating to the person of any person”. The injury itself gives rise to no claim. Only after conviction for a particular class of indictable offences can an injured victim make a claim. In his reasons for judgment the learned District Court judge referred to two decisions in the District Court of Western Australia, MES v KG (1995) 12 SR (WA) 330 and PHO v KEG (1995) 14 SR (WA) 203. Both cases concerned the same offender who had died without being convicted. Under the Western Australian Criminal Injuries (Compensation Act) 1970, s 6A, the court may grant a certificate in circumstances where no person has been tried with the commission of the offence. Section 663B requires a conviction before a claim is made.
13. It follows that the cause of action arose when Chong was convicted on 14 February 1991. The application was filed on 28 October 1998, more than six years later. That means that the application is statute-barred.
14. The same result would be reached if the right to compensation under s 663B is treated as part of the criminal process and not as a cause of action. The Limitation of Actions Act does not apply to a prosecution by the Crown for an offence against any act or an action by the Crown for the recovery of a fee, tax, duty or other sum of money or interest on a fee, tax, duty or other sum of money (s 6(3)). A victim’s claim for compensation is none of those, so the Act would apply to erect a period of limitation. The appropriate characterisation of the claim would again be under s 10(1)(a) and all that has been said would apply.
15. The usual practice is for a defendant or respondent to plead the Limitation of Actions Act. In this application, there is no respondent. However, if an award is made and an application is made for an ex gratia payment, it will fall to the Attorney-General to report to the Governor in Council (s 663C). It would be appropriate then to leave the matter in the hands of the Attorney-General. If he wishes to take the point that the application is statute-barred he may do so when responding to Mrs Chong’s application under s 663C.

The evidence to be considered on a s 663B application?

16. The material filed in support of the application consisted of an affidavit sworn by Mrs Chong and an affidavit by her solicitor. The latter affidavit included as exhibits a medical report from a psychiatrist, the indictment and sentencing remarks and statements taken by the police in 1990, from Mrs Chong, two police officers and a doctor. In her statement in 1990, Mrs Chong said Chong fired at her twice with a shot gun from about 50 feet. The doctor said she had multiple pellet entry wounds, in the region of 70, dotted about her buttocks, thighs, calves and feet, all of which were oozing blood. The doctor said Mrs Chong did not say how many shots were fired. The doctor was unable to comment on how many shots would have been fired to cause the injuries.
17. The sentencing remarks included:-

“I am sympathetic to the proposition that you did not intend the serious outcome that happened to your wife when you discharged the shot gun only about 50 feet away from her.”

18. In her statement in 1990, Mrs Chong said that she fell over after being hit in the right leg by pellets from the first shot. After the second discharge of pellets hit her, she could not move. Chong came over to her and pointed the gun at her stomach, saying “I'll shoot you again, I'll blow your guts away”. She pushed the shotgun away saying, “Bruce, don't do it.”
19. In her affidavit in support of her application she said:

“On the 16th day of August, 1990 the Respondent who is now deceased tried persistently to murder me by discharging a shotgun at me. The bullets from the first shot hit me in the right leg so that I fell down and I could not get up. The second shot hit me in the left leg and in my buttocks. I was unable to move. I was completely powerless to move and I thought that I was going to die when he pointed the barrel of the shotgun to my stomach and threatened to shoot me again. I was very seriously injured. I was taken initially to the Mornington Island Hospital and I was thereafter taken to the Mt. Isa Base Hospital for further treatment. I was in great pain with multiple shotgun pellet entry wounds to my buttocks, thighs, calves and feet. I think that the reason that he did not kill me had more to do with fact that he ran out of ammunition rather than any decision not to kill me.”

20. A medical report obtained from the Mount Isa Base Hospital in September 1998 reads:

“I refer to your letter of 19 August 1998. This lady was admitted to the Mount Isa Hospital on 11 August 1990 after having been shot twice with a 12 gauge shot gun. On the first occasion she was 5 metres away and shot from behind, she was then shot again as she lay on the ground. On examination the patient had multiple entry wounds over her back, buttock, thighs and calves. X rays confirmed the appearance of lead pellets scattered over this distribution, but showed no evidence of bony injury. She was treated with intravenous antibiotics. It appears that some of the pellets lodged in her feet caused irritation, on 15 August 1990 an attempt was made to remove these under general anaesthetic, this was unsuccessful. Her wounds were dressed daily and gradually improved in appearance. On 20 August 1990 she was discharged home. She has not been seen since in relation to these injuries.”

21. In dealing with the application, the learned District Court judge referred to the notes he had made at the time of sentencing Chong. Mr Kimmins contended that this was impermissible as it was not evidence tendered on the hearing of the application. As has been indicated, the practice has developed of hearing applications under s 663B well after the conclusion of the offender's trial. However, the sum assessed is “by way of compensation for injury suffered by [the victim] by reason of the offence of which the offender is convicted.” Here the offender was convicted upon his plea of guilty to one count of unlawful wounding. The sentencing proceeded on the basis there was one discharge of the firearm. The words quoted above are from what has been called the core provision of s 663B. There have been amendments which have included multiple offences. However, the core concept remains unaltered. The compensation is in respect of the injury suffered by reason of the offence (or offences) of which the offender is convicted. It was not only proper but necessary for the Judge to recall the basis upon which Chong was sentenced. A preferable way of presenting that material would be through the tender of the transcript of the submissions on sentence.

The date on which the "prescribed amount" of compensation is ascertained.?

22. The learned District Court judge followed the decision of Lee J in Anell and held that the relevant date was the date when the injury was inflicted. The significance of the date arises from the provisions in s. 663A which tie the “prescribed amount” to s 14(1)(C)(a) of the Workers' Compensation Act 1916. This approach accepted the opinion of Lee J that the right to claim compensation arose when the injury was suffered. The opinion previously expressed does not accept this approach. Rather the right arises upon conviction of the offender.
23. Mr Kimmins referred to a New South Wales case and two South Australian cases to contend for a date well after the conviction. In R v Babic [1980] 2 NSWLR 743, Hunt J sought assistance from the Crown Advocate whose submissions were to the effect that the provisions of s 437 of the Criminal Injuries Compensation Act 1967 were directed to the date of the direction to pay and not to the date of the offence or of the conviction. A similar concession had been made by the Crown in another case. No such concession was sought in this case.
24. The first of the South Australian cases was In re Beni (1974) 9 SASR 253, a decision of Walters J. It concerned an application by a victim for a declaration under s 7 of the South Australian Criminal Injuries Compensation Act 1969-1972, a provision that allowed the court to make a declaration that a person is entitled to compensation for an injury caused by an unidentified assailant. The minimum amount certifiable had been increased after the date when the injury was inflicted. His Honour took the view that this was in the nature of a procedural amendment in that the maximum allowable was that applicable at the time when compensation was assessed. The burden of paying the compensation fell directly on the Treasurer of the State. The Attorney-General had been represented at the hearing .
25. The second South Australian decision is that of Mitchell J in Battista and Others v Cooper and Others (No 2) (1976) 15 SASR 163. The application under s 4 of the Criminal Injuries Compensation Act, 1969-1974 involved similar considerations to those arising under s 663B. Her Honour held (p 169):

“The finding of guilt is a sine qua non to an application under s 4(1) and, as the finding of guilt out of which these claims arise was not made until after the amendment, it seems clear that the amended figure of two thousand dollars must be applicable.

26. With respect, that must be correct. It does not establish that, if the application was made at a time when amending legislation increased the maximum from that payable when the offender was convicted, the larger sum would be appropriate. It simply confirms the opinion previously expressed that the right given to a victim by s 663B does not arise until the offender is convicted.
27. The Criminal Code Amendment Act 1984 introduced into s 663A a definition of “prescribed amount” so that in cases where the injury was suffered after the commencement of the Act, the amount was that “for the time being specified in s 14(1)(C)(a) of the Workers' Compensation Act 1916 as varied from time to time pursuant to s 14E of that Act”. It also introduced s 663AA which provided that for injuries the same or substantially the same as those in the table in s 14(1)(C)(b) the prescribed amount was the amount in that table. Any order made under s 663B would be in a sum not exceeding the prescribed amount. Four events are identified in s 663B:

1. the suffering of the injury;
2. the conviction;
3. the making of the application; and
4. the making of the order.

It is not until the latter event occurs that the court considers the amount of compensation. That “prescribed amount” sets the monetary limit upon its jurisdiction to make an order. Consequently, it is consistent with the scheme of Part LXVA that the “prescribed amount” is the amount provided by the legislation when the order is made. That is the prescribed amount as varied from time to time when the court’s power is exercised. In the words of McLauchlan QC DCJ in R v Bartorelli and Hutton (1994) 15 Qld LawyerReps 57 at 59:

“The entitlement of an applicant to compensation is purely statutory and the language of the legislation is not directly in terms of that entitlement but in terms of the power of the court to make an order. The occasion to which the legislation refers for the purpose of determining the prescribed amount appears to be the making of the order, rather than the suffering of the injury.”

28. It may be said that the definition of “prescribed amount” in s 663A supports the view that the appropriate time to determine the statutory amount is when the injury is inflicted. The definition includes – “(a) where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 - $5000”. However, that provision does no more than indicate when the ameliorating provisions of the 1984 amendments are to come into effect. Every change in the law must have a point of transition. The more significant provision is in the second part of the definition where the amount is determined by reference to “s 14(1)(C)(a) of the Workers’ Compensation Act 1916 as varied from time to time pursuant to s 14E of that Act”.
29. The Workers’ Compensation Act 1916 was repealed and replaced by the Workers’ Compensation Act 1990. It was accepted in R v Jones, ex parte McClintock that, following that repeal, the “prescribed amount” should be determined by reference to the latter Act. The Workers’ Compensation Act 1990 was repealed and replaced by the WorkCover Queensland Act 1996 which, relevantly, commenced on 1 February 1997. In R v Jones, ex parte McClintock, at p 528, Davies JA said:

“There is, in the Workers’ Compensation Act 1990, a table of specific amounts prescribed for each of a number of specific ‘injuries’: for example, loss of sight of one eye, loss of hearing and loss of an arm. There is also a maximum amount specified in that Act for all injuries suffered.

Section 663B of the Criminal Code then provides that the Court may, on the application of a person aggrieved by an offence committed on him or her, order the offender to pay to the aggrieved person a sum not exceeding the prescribed amount by way of compensation for injury suffered by reason of the offence. The prescribed amount is relevantly specified to be, where an injury is the same or substantially the same as an injury specified in the table set forth in s 14(1)(C) (now s 8.6) of the Workers’ Compensation Act, the amount specified for that injury in the table (s 663AA(2)); where it is not the same or substantially the same, the amount specified in s 14(1)(C)(a) (now s 8.31) as varied from time to time.”

30. Section 14(1)(C) of the Workers’ Compensation Act 1916 allowed the Governor in Council to add to the table in that section specified amounts for compensation respectively payable for additional injuries. That power was expressed in s 8.7 of the Workers’ Compensation Act 1990. The Workers’ Compensation Regulation 1992 introduced a far more detailed catalogue of injuries which took into account AMA guides. This approach was followed in the WorkCover Queensland Act. Consequently, although there is no table of injuries in the WorkCover Queensland Act which is comparable to s 14(1)(C), the same concept is found in the WorkCover Queensland Regulation 1997. The WorkCover Queensland Act contains a section which prescribes the maximum amount payable (s 167). Thus, it contains, in a statutory instrument made under it, a table of specific amounts prescribed for each of a number of specific injuries as well as a maximum amount for all injuries suffered.
31. Section 14H(2) of the Acts Interpretation Act 1954 provides:-

“(2) In an Act, a reference to a provision of a law (including the Act) includes a reference to the following -

1. (a)
   the provision as originally made, and as amended from time to time since it was originally made;

2. (b)
   if the provision has been omitted and remade (with or without modification and whether in the law or another law) since the reference was made - the provision as remade, and as amended from time to time since it was remade.”

As the reference in ss 663A and 663AA to s 14(1)(C) of the Workers’ Compensation Act 1916 is a reference to a provision of a law that has been omitted and remade in the Workcover Queensland Act, the reference in those sections is reference to s 167 of that Act and to schedule 2 of the WorkCover Queensland Regulation 1997. Consequently, when the order in this matter was made, the relevant prescribed amount was to be found in those provisions.

Assessment of Mrs Chong’s claim

32. The other issues raised by Mr Kimmins can best be dealt with in the course of assessing the claim. The first issue concerns what s 663AA(1) refers to as mental shock or nervous shock. In R v Morrison, ex parte West [1998] 2 Qd R 79, this Court, by a majority rejected the argument that a psychiatric illness was included in the definition of bodily harm so that an award could be made for the whole of the prescribed amount even though the applicant had suffered no physical injuries. Macrossan CJ expressed the opinion that in ss 663A and 663AA(1) “mental shock and nervous shock” should be construed as including the full range of psychiatric illnesses, so that the prescribed amount was $20,000 (s 663A). Davies JA expressed the opinion that “injury”, which was not “pregnancy”, “mental shock” or “nervous shock” was physical injury. Fitzgerald P referred to the many decisions which supported the opinion of Macrossan CJ, recognised the competing considerations were finely balanced but accepted the applicant’s arguments. While there is no agreed reasoning in the decision, the weight of authority supports the opinion of Macrossan CJ. That means that the maximum that can be awarded in respect of psychiatric illness is $20,000.
33. Section 663AA(3) recognised that there may be more than one injury caused by a particular incident for which an offender is convicted. Lee J, in Anell expressed the opinion (p 182) that “an injury for the purposes of Ch 65A of the Code is any reasonably discrete injury the consequence of an indictable offence”. That can be accepted as correct. It follows that there can be both an injury which consists of a psychiatric illness and an injury or injuries which are physical. If that is so, the total assessment cannot exceed the prescribed amount.
34. The learned District Court judge’s reasons included:-

“It is appropriate to begin by recording particulars of the offence, which happened on 16th August 1990, and the surrounding circumstances, as placed before the court on the sentence on 14th February 1991. Given the death of Mr Chong, I think it would be wrong to proceed on the basis of information conflicting with what the court was told on sentence. In some respects, the allegations against Mr Chong have been expanded significantly. The court was told that the complainant (who is 38 now) and her husband had been married for eight years and had six children together, that on the day in question he was at the canteen, presumably drinking. An argument took place there between the parties over his drinking and not coming home. Mrs Chong, who was said to be 'sparked up', said she was going to Normanton next day, meaning she was leaving Mr Chong. She did not go home that night. Next morning she went to the canteen to get some money from a Mr Roughsey for her airfare to Normanton. Mr Chong followed her 'with a long stick.' She saw Mr Chong walking towards their home, and somehow ended up speaking to him near the police station. She called out to him to get her clothes, he asked her to talk. Again, I was told 'she saw a stick or something in his hand.' She tried to run. He shot her in the leg. The Crown Prosecutor told me (as seems obvious) that it appears the prisoner had a shotgun and that he was 50 feet away from her when he fired. I was told he assisted her inside and helped arrange for an ambulance to come, crying, 'I love you, why'd I have to do it to you?'

The prosecutor reminded me Mr Chong admitted he had picked up a firearm in circumstances the prosecutor described as 'traumatic.' He said, according to my note, the 'background is a domestic dispute - he having taken drink.' Mr Chong's action was described as 'maybe impulsive, not premeditated, it being improbable (the case was one of) mere negligence.' Mr Chong appeared to have had a conviction for being in possession of a concealable firearm in October 1988. I was told he was the subject of a prohibition order under Firearms Legislation made on 28th September 1989 which prohibited him from holding or possessing any firearm for a very long period. The prosecutor correctly anticipated that Mr Wakefield, appearing for Mr Chong (who was about eight years older than the applicant) would inform me that the parties had reconciled, and were back together. The material read on the present application confirms that is so, and that the parties remained together until Mr Chong died. That is confirmed by the report of Dr Curtis, psychiatrist, who saw Mrs Chong for the first time at Mornington Island on 4th May 1997. The parties, according to the report, were together for seven years or so before they married. Dr Curtis describes the last 15 of their 22 years together as 'bad, with cyclical continuing violence which got progressively worse until the shooting.' This leads him to opine that 'there was undoubtedly pre-existing Generalised Anxiety Disorder ... due to a long-term cycle of domestic violence, which was perpetrated on her by the husband.' He says she has suffered 'a severe nervous shock reactive to a significant physical injury and assaultive incident. There have been long-term continuing sequelae with a secretion of shotgun pellets in her lower body and legs and development of a generalised anxiety disorder, which is now chronic as an outcome of the severe psychological trauma.' It is clear that after the reconciliation and before Dr Curtis came into the picture, numerous domestic violence orders were obtained against Mr Chong, which shows (as Mr Kimmins accepted) that there must have been continuing violence and threats of violence over the years. Dr Curtis says in para.4.1 of his report there is no doubt that Mrs Chong would have had some pre-existing anxiety disorder prior to the Post-Traumatic Disorder after the shooting, given a long-running domestic violence situation 'which was wearing her down and elevating her tension levels.' It seems to me inescapable that events after the shooting must have played their part in bringing about Mrs Chong's condition as observed by Dr Curtis. A further complication is that Dr Curtis takes the shooting accident as including a third "shot" when Mrs Chong was down on the ground unable to move after being shot in the legs and her husband came up very close to her pointing the gun at her again holding it at her head (according to Dr Curtis's report of what she told him), to her stomach according to her affidavit filed in support of the application. The suggestion is she was in fear of her life and may have been saved only because Mr Chong had run out of ammunition. There was no charge of any attempt or threat to kill and no mention of this dramatic detail on the sentence. I do not think I am entitled to take it into account as something for which compensation consequent upon a conviction can be ordered to be paid. Not only was there no mention of this aspect; on the sentence the case presented was of a single discharge of a firearm.

Dr Curtis describes the first cartridge as discharged (from 50 feet away) into Mrs Chong's legs, a second shot as missing her - 'but the pellets ricocheted around off the ground and sprayed dust and pellets into her buttocks and into her perinaeum.' The physical injuries the complainant suffered must have been alarming and the cause of great pain and discomfort, as she says. Only one of about 70 pellets was removed at the hospital, where Mrs Chong was for ten days; others have worked their way out; many remain. That would ordinarily be a compensable injury, and it would not be surprising that the injury would be accompanied by some nervous shock component. Dr Curtis' assessment, however, may well owe much to Mrs Chong's being put in fear of her life by an allegedly threatened further injury when Mr Chong came close up to her in what seems to me a separate incident which has not been charged. I am not prepared to accept the disorder Dr Curtis diagnosed as a consequence of the offence of which Mr Chong was convicted.

Assessment of compensation is a difficult exercise in these circumstances, but, applying the approach that the ordinary principles of assessment of damages in civil proceedings apply, as established by R v Jones, ex parte McClintock (1995) A.Crim.R.338, I assess compensation in the sum of $5,000.”

35. There was no cross-examination of Dr Curtis, so the rejection of his opinion was based on the judge’s opinion about the evidence. This opinion was clearly influenced by the fact that the evidence placed before him on the application was very different from that which he considered in imposing sentence. As has already been said the compensation is in respect of the injury suffered by reason of the offence of which the offender is convicted (para 27). Thus it was necessary to reject those parts of the material which suggested attempted murder. The conviction was for unlawful wounding.
36. However, it is clear enough from what was said on 14 February 1991 that Mrs Chong was wanting to leave her husband and that his response was to shoot her. His words, “I love you, why’d I have to do it to you” fit a common pattern in domestic violence. The offender, having seen the consequences of the violence visited on the victim, is filled with remorse. It fits the pattern of domestic violence which Dr Curtis described. However, even in such a violent relationship, being hit by pellets from a shot gun would be a traumatic event of greater intensity than the persistent abuse to which she was exposed. With due respect, there was no basis for rejecting Dr Curtis’ opinion that:-

“This has been a severe nervous shock reactive to a significant physical injury and assaultive incident. There have been long-term continuing sequelae with a sequestration of shotgun pellets in her lower body and legs and the development of a Generalised Anxiety Disorder, which is now chronic as an outcome of the severe psychological trauma.

There was undoubtedly pre-existing Generalised Anxiety Disorder as well due to a long-term cycle of domestic violence, which was perpetrated upon her by the husband.”

and that:-

“Abused women often seem to know instinctively what the surveys have now confirmed: female domestic violence victims are most at risk of death during or immediately before vacating the matrimonial home.”

37. The difficult question is to determine the extent to which the present symptoms were caused by previous and subsequent violence by Chong and by matters not mentioned when Chong was sentenced. This may best be approached by considering the present complaints Dr Curtis identified when he recorded Mrs Chong’s words in response to questions posed in DSM4 for Post-Traumatic Stress Disorder.

“B. The traumatic event is persistently re-experienced in one (or more) of the following ways:

1. (1)
   recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions.

Yes.  She said he still had an effect on her after he had gone.  When she sat and thought about it she just felt afraid.

2. recurrent distressing dreams of the event.  Note: In children, there may be frightening dreams without recognisable content.

Not admitted.

3. acting or feeling as if the traumatic event were recurring

Yes.  She said, 'when someone reminds me it just comes back over me'.

4. intense psychological distress at exposure to internal or external clues that symbolise or resemble an aspect of the traumatic event

She said, 'I see some guy holding a gun and I feel scared ... when I'm inside alone and people come to the door without knocking I jump'.

5. physiological reactivity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event.

Equivocal.

C. Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:

1. efforts to avoid thoughts, feelings or conversations associated with the trauma

She said 'I no longer talk about it... I never talked about it for quite a while'.

2. efforts to avoid activities, places, or people that arouse recollections of the trauma

Yes.

3. inability to recall an important aspects of the trauma

No.

4. markedly diminished interest or participation in significant activities

No.

5. feeling of detachment or estrangement from others

Yes.  The Field Officer said that she had been a nervous wreck since the shooting.  She had been through hell and she had gone into herself and clammed up, away from other people.

6. restricted range of affect (e.g., unable to have loving feelings)

Yes.   Note the Field Officer's comments.

7. sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span)

No.”

38. These attitudes are in response to the shooting. Dr Curtis formed the opinion that the Post-Traumatic Stress Disorder had become chronic and was now a Generalised Anxiety Disorder. It follows that the shooting was the main cause of the present disorder. If Dr Curtis’ unchallenged opinion, that abused women often seem to know instinctively that they are most at risk of death when vacating the matrimonial home, is accepted, it is consistent with the evidence to draw the conclusion that Mrs Chong remained in the violent relationship because Chong wounded her. Chong died on 11 January 1997. Dr Curtis first examined Mrs Chong on 4 May 1997 and reviewed her on 1 August 1998. Her feelings of fear of him remained more than 18 months after his death. The symptoms she presently has are restlessness or feeling keyed up or on edge, being easily fatigued, irritability, muscle tension and some sleep disturbance. However, there is no suggestion of nightmares. For these matters an amount of $12,000 would be appropriate, and $10,000 of that sum would be attributable to the shooting incident.
39. So far as the physical injury is concerned this involved some 70 pellets in the buttocks, thighs, calves and feet. Mrs Chong has said there are 200 pellets, but 70 is the number identified by the doctor who first examined her. She was admitted to the Mt Isa Base Hospital on 11 August 1990 and discharged on 20 August 1990. She suffered great pain and discomfort for many weeks after her discharge. She cared for her husband when he was not in gaol, as well as running a household that included eight children. She says she is now unable to stand for more than about 10 minutes because her feet and legs become very sore for any period longer than this. Dr Curtis says that “she has palpable pellets in the labia of her perineum which she said were uncomfortable”.
40. Mrs Chong is now aged 39 years. She has had nine years of pain and discomfort in her feet and legs and it seems likely this will continue indefinitely. While not significantly disabled she is restricted in day to day activities which involve standing for more than 10 minutes. There is nothing else said in her affidavit about her physical injury and its consequences. The assessment of $5,000 is not adequate to compensate her for this, although the award must be a modest one. An appropriate award for the physical injury is $15,000.
41. In the course of his reasons for judgment, the learned judge expressed the opinion that as the parties had resumed cohabitation, “there may be a case for rejecting the present application, which may be seen as inviting judicial intervention in an inappropriate way between spouses whose relationship continues”. With due respect, that opinion cannot be sustained. An injured party may pursue a claim under s 663B even if married to the offender. If the parties are still co-habitating, that may raise questions in some cases about the effect of the behaviour of the victim that needs to be considered by virtue of s 663B(2). However, that is not a reason in itself for rejecting an application.
42. Because the order made is made against Chong who is now deceased, and because it is now proved that he left no will or estate, it is proper to order under O 3 r 34, that this matter proceed in the absence of any person representing the estate.

Orders

1. That the applicant has leave to appeal.
2. That the appeal proceed in the absence of any person representing the estate of Bruce Adrian Chong deceased.
3. That the appeal be allowed and the order below be set aside.
4. That Bruce Adrian Chong pay to Karen Leigh Chong the sum of $25,000 by way of compensation for injury suffered by her by reason of the offence of unlawful wounding of which Bruce Adrian Chong was convicted on 14 February 1991.
5. That if the Attorney-General wishes to treat this application as statute-barred he may do so by rejecting Mrs Chong’s application under s 663C on that basis.