MAJ v KM[2000] QCA 410

SUPREME COURT OF QUEENSLAND

1. DAVIES JA:  This is an application for an extension of time within which to appeal and an application for leave to appeal against a judgment of the District Court on 17 April this year.  The application for leave was filed on 13 July two months out of time.  The explanation given for the delay is a difficulty in obtaining funds to finance the appeal.  The appeal in any event requires leave because it is from a judgment for $5,000.  It is convenient to defer consideration of the application for extension of time and the application for leave until consideration has been given to the issues which would arise in an appeal if leave were granted.

2. The applicant who is now 29 years of age was awarded $5,000 compensation against the respondent pursuant to Chapter 65A of the Criminal Code for psychiatric injury suffered in consequence of six acts of indecent dealing against her to which the respondent pleaded guilty on 10 November 1998.

3. The acts of indecent dealing occurred sometime between October and "a couple of months" after Christmas 1977 when the applicant was approximately seven years of age. The respondent was then 14 or 15 years of age. At that time both of the applicant's parents worked at night and the offences occurred on occasions on which the applicant and her siblings were staying at the home of the respondent's parents who were minding them whilst the applicant's parents were working.

4. As is often the case in matters of this kind the acts of indecent dealing involved gradually worsening conduct although they did not involve penetration of the applicant and did not involve actual violence other than that which was involved in the offences as I shall describe them briefly.

5. Count 1 involved the respondent pulling down his pants and asking the applicant to touch his penis. When she refused he grabbed her hand and placed it on his penis moving it up and down for a short period of time. In count 2 the applicant awoke at night to find the respondent with his hand down the front of her pants. He rubbed the area of her vagina underneath her underpants for a period of time. In count 3 she awoke to find the respondent again with his hand down the front of her pants rubbing her vagina. Count 4 was similar but involved in addition the respondent pulling down his own pants and masturbating himself. Count 5 involved the respondent pulling down the applicant's pants and his own pants, getting on top of the applicant, placing his erect penis between her legs and moving it up and down until he ejaculated. Count 6 involved similar conduct but, on this occasion, the respondent rubbed his penis in the vicinity of the applicant's anal area.

6. As appears from the applicant's statement given to police in 1997 conduct of this kind in fact occurred on every occasion on which the applicant stayed at the house of the respondent's parents which was, it seems, at least once a week.

7. Although the applicant did not consult a medical adviser until 16 September 1999, it may be accepted that she suffered a post traumatic stress disorder in consequence of the offences which I have described. The symptoms of this have been described both by the applicant in her affidavit and by Dr McVie whom she consulted. These involved feelings of helplessness and isolation, fear of physical assault and emotional retribution and subsequently difficulty in relationships, self-blame and a sense that she has not been accorded justice. According to the applicant's affidavit, symptoms of this first emerged during and after the commission of the offences.

8. There does not appear to be any doubt that, if compensation were assessed in accordance with the ordinary principles of assessment of damages in tort for personal injury, it would substantially exceed the award which the learned District Court judge made. However his Honour considered that he was obliged to limit the award to $5,000 because of the provisions of the Criminal Code relevant to this application.  No doubt had he felt able to award a larger sum in accordance with the ordinary principles of assessment of damages in tort he would have done so.

9. The learned District Court judge was of the view that there were two limitations upon the amount which he could award. The first of these was the limit of the prescribed amount, the maximum amount which could be awarded at the relevant time, which his Honour considered to be $5,000. The second was his conclusion that, because the offences arose out of one course of conduct or closely related courses of conduct he could not award separate amounts of $5,000 for each offence but was limited to awarding $5,000 for the totality of the injury arising from these offences. It is the correctness of his Honour's conclusion in each of these respects which the applicant would seek to contest if leave were granted.

10. In my opinion there is no doubt about the correctness of his Honour's conclusion on the first of these questions. Before 1 July 1984 s 663A of the Criminal Code defined prescribed amount to mean:

"(a)where the offence in connection with which the case arises is committed before the commencement of The Criminal Code and the Justices Act Amendment Act 1975, $2000;

2. in all other cases, $5,000."

11. By the amending act of 1 July 1984 the prescribed amount was redefined to mean:

"(a)where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 - $5,000;

2. in all other cases save those that are the subject of particular reference in s 663AA – the amount 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."

12. At all relevant times the definition of prescribed amount was in one or other of these forms. Mr Kimmins for the applicant contends that the Act in the form in which it was in consequence of the 1984 amendments is the legislation under which this application fell to be decided. That appears to be correct. It is plain that the injury which the applicant suffered occurred in 1977 during or shortly after the commission of the offences. The reasons of Chesterman J dealing with the applicant's supplementary submissions make this abundantly clear. Consequently pursuant to s 663A the prescribed amount is $5,000. Nothing said in Chong v Chong,^[1] casts any doubt on the correctness of that because, as the Chief Justice pointed out in HW v LO,^[2] that case was concerned only with para (b) of the definition which related to injuries suffered after the commencement of the amending Act of 1 July 1984.

13. The second question raises greater difficulty, not so much because of the apparent meaning of the relevant statutory provision, but rather because of the narrow ambit which has been given to it in a number of decisions of District Court judges. The relevant provision is s 663B of the Criminal Code in the form in which it was introduced by the amending act of 1 July 1984.  It relevantly provided:

"(1)Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted.

(1A)For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.

(1B)Injury suffered by a person aggrieved by reason of the commission by the person convicted of more than 1 indictable offence described in subsection (1) may, in respect of the person convicted, be the subject of 1 application only and 1 court order for the payment of a compensatory sum only.

(1C)An order made under subsection (1) shall not, for any purpose, be taken to be part of a sentence."

14. The question is whether the offences to which I have referred arose out of one course of conduct or closely related courses of conduct of the respondent. Factors relevant to the determination of that question appear to be the similar but escalating nature of the respondent's conduct; and the facts that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months. Giving s 663B its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent.  I agree with what Chesterman J has said about the applicant's supplementary submissions in this respect.  Consequently, in my opinion, the learned primary judge was correct.

15. There are however a number of decisions of the District Court which have reached a contrary conclusion on facts not dissimilar to those here. And there are decisions which go the other way. There are sound policy reasons for construing the phrases "one course of conduct" and "closely related courses of conduct" narrowly. The amount provided by the statute as the prescribed amount in many cases, including this one, is very much less than the amount which would be awarded on ordinary principles of assessment of damages for personal injury for tort and the prospect of recovery from the offender in most cases is poor. Consequently giving those phrases a narrow ambit will reduce the number of cases in which compensation is inadequate. But I do not think that that is a sufficient reason for giving words in a statute a meaning narrower than they can ordinarily bear. Nor should natural sympathy for the applicant sway the court from giving effect to the provisions of the statute.

16. It follows that, if an extension of time were granted and leave to appeal were granted any appeal would inevitably fail. In those circumstances I would refuse the application for an extension of time within which to apply for leave to appeal.

17. AMBROSE J:  I have had the advantage of reading the draft reasons for judgment of Davies JA and Chesterman J.

18. I agree that leave to appeal should be refused for the reasons they give.

19. I wish however to make some further observations. It is convenient to refer to the precise terms of s 663B of the Criminal Code repealed by s 45 of the Criminal Offence Victims Act 1995.  The order was made pursuant to s 663B.

20. That section read, inter alia –

"(1)Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than one indictable offence relating to the person of any person (whether in respect of one indictment or more than one indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted the Court on the application by or on behalf of the person aggrieved by the offence or offences may - - order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence or offences of which the offender is convicted.

For the purpose of determining whether courses of conduct are closely related regard shall be had in addition to any other relevant matter to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions one in relation to another.

Injury suffered by a person aggrieved by reason of the commission by the person convicted of more than one indictable offence as hereinbefore in this subsection described may in respect of the person convicted be the subject of one application only and one court order for the payment of a compensatory sum only.”

[Emphasis added]

It is clear that the legislation does not contemplate the offences of which a person is convicted as themselves exclusively constituting “a course of conduct.”  The legislative intent is that where more than one offence of which a person is convicted arise out of the one course of conduct which may often comprise the aggregation of many such offences whether or not leading to conviction there will be one order only for compensation not exceeding the prescribed amount and not an order made in respect of each offence of which a person is convicted.

21. The section talks of one or more indictable offences “arising out of the one course of conduct or closely related courses of conduct” and not of such offences considered alone constituting that course of conduct.

22. There is nothing on the face of the legislation in my view which would prevent a significant number of offences committed over a long period of time – years perhaps - coming within a category of offences “arising out of the one course of conduct”. If for example the same kind of sexual abuse of a child occurred on a frequent and regular basis as the opportunity arose from time to time and circumstances permitted, the commission of particularised offences of such sexual abuse over a period of years leading to a psychiatric disorder in my view might well permit characterisation of those offences as offences arising out of the one course of conduct. I find nothing in the section which would justify reading down the clearly expressed limitation by selecting an arbitrary time frame within which a “course of conduct” must be held to commence and terminate in disregard of the persistence and regularity of the conduct and the absence of any significant intervals in its occurrence.

23. In my judgment the offences in this case, for the reasons to which Davies JA and Chesterman J have adverted, come within the limitation imposed by s 663B.

24. Having regard to the arguments advanced on behalf of the applicant I observe merely that in my judgment had the same sort of conduct continued on a weekly basis over a period of years rather than over one of five months resulting in a number of the convictions for offences extending through that period of years, all such offences would clearly have arisen out of the one course of conduct or closely related courses of conduct. If there were long intervals of time during which no acts of abuse occurred with regularity – for whatever reason, be it lack of opportunity or voluntary restraint on the part of the offender – then obviously one would need to consider whether psychiatric injury resulted from only one course of conduct or closely related courses of conduct and this of course would involve considering, inter alia, the length of any intervals between acts of abuse.

25. Section 663B(1) requires that regard be had to “the times of the doing of the acts” only for the purpose of determining whether the offences of which a person is convicted arise out of closely related courses of conduct – not for the purpose of determining the ambit of one course of conduct.  Quite to the contrary the section makes it clear that regard must be had to the offences of which the person has been convicted to see whether they were committed during one course or closely related courses of conduct of the offender.  It is not uncommon upon the trial of persons for sexual abuse of young children for evidence sometimes described as evidence of “uncharged acts” to be led to establish background, guilty passion, explanation for absence of complaint, etc.  Upon trial upon a number of charges based on acts, the Crown may attempt to particularise them in time having regard to some event which a complainant or other Crown witnesses are able to associate with the acts the subject of the charges.  It is not uncommon for a complainant to assert that she or he was frequently and regularly abused sexually sometimes over a period of years.

26. The compensation ordered in this case was with respect to psychiatric injury resulting from offences committed by the respondent over a period of about five months during which time he regularly dealt with the appellant indecently. He was convicted of offences with respect to indecently dealing on only six of those occasions. His Honour observed –

“The circumstances were particularised as six charges, no doubt on the basis that these were the occasions which the applicant could identify.  However, I proceed as the sentencing judge would have proceeded on the basis that these were the six occasions.”

27. Upon sentence of the respondent it was submitted for the Crown –

“She can certainly remember those first two occasions but from then on she says that this type of thing happened on each occasion that she actually slept at the premises and she is very - - because of her age and the passage of time she is unable to particularise each separate incident.  What her memory is that it happened so often.”

28. In the course of the statement the applicant gave to a police officer on 8 January 1998 she observed, inter alia –

“Each time I would stay at the [respondent’s] house this type of thing would happen.  Each night KM would come into my bedroom and crouch down beside me and put his hand into my pants and rub me on the vagina.  I cannot recall specific times as it happened so regularly that it has just become a blur.  After it happened a number of times I couldn’t sleep so I would lie awake until KM came into the room and did it to me.  - - We were babysat by the [respondent’s family] at least three or four nights every week and KM would do this to me every time I stayed there.

This continued for about four months.  During this time it gradually got worse to the point where KM would sit on the bed etc - -“

29. After recalling some incidents her statement continues –

“I can’t remember any other times that KM did anything like this to me only that a lot of them are just a blur because it happened so often.  Although I realise now that I only stayed at their house for about one year when I was a child it felt like this was happening for years and years.”

30. There was no evidence placed before the judge upon which it would be possible to assess what part of the psychiatric injury suffered by the applicant was attributable to each of the six acts of indecent dealing. A further difficulty would arise on the approach for which the applicant contends, in determining not merely the extent to which each of those acts contributed to her injury but also the extent to which the “uncharged acts” contributed to that injury. S 663B does not permit compensation to be ordered in respect of injury suffered as a consequence of a course of conduct; compensation may only be ordered in respect of injury suffered by reason of the offences of which a person is convicted.

31. Those insoluble problems upon the evidence led before the assessing judge in my view need not be addressed having regard to the clear intent of s 663B(1) of the Code.

32. I agree that the application for leave to appeal should be refused because if granted the appeal must fail upon a proper application of s 663B(1).

33. CHESTERMAN J:  I agree that the application for an extension of time within which the applicant might seek leave to appeal should be refused for the reasons given by Davies JA. 

34. As his Honour explains the only point of substance is whether the offences committed by the respondent and which caused the applicant’s psychiatric injury arose out of “one course of conduct or closely related courses of conduct”. If they did section 663B(1B) of the Criminal Code prohibits the making of more than one order for compensation.

35. During the hearing it appeared clear beyond argument that the applicant’s injury had been suffered prior to 1 July 1984. The applicant delivered supplementary submissions consequent upon the delivery of judgment in HW v LO.  They reargue the point.  The injury is post traumatic stress disorder which has been diagnosed by Dr McVie.  It is submitted that symptoms of this disorder were not manifest until the applicant was 17, in 1987, when she suffered “a nervous breakdown and also anorexia nervosa”. 

36. This submission cannot be accepted. The applicant herself dates the onset of symptoms much earlier. In paragraph 3 of her affidavit in support of the application she said:

“I seek criminal injuries compensation for the effects on my life since 1 October 1977.”

In paragraphs 9 and 10 she said:

“9.At the time of the offences I used to cry a lot and wonder what I had done to deserve what the respondent was doing to me. I felt very angry and dirty because of what the respondent was doing to me.

10.During and after the offences I became very withdrawn as a child and did not have many friends at school.  I felt that I could not relate to anyone, even people who were my own age.”

In her victim impact statement the applicant said:

“Since the incident I have suffered from anxiety attacks.  They range from extreme depression, uncontrollable shaking and crying, hiding in my cupboard and unexplainable mood swings and eating disorders.”

Joan Campbell, a social worker who counselled the applicant subsequent to the respondent’s conviction and sentence in the District Court reported on 12 August 1999 that:

“(The applicant) stated eventually she did tell the mother of (the respondent).  She remembers the mother’s response as “she belted me . . . she told dad that I had been swearing and teasing her son.  Dad belted me.” 

After this (the applicant’s) belief was that no-one would ever believe her.  (The applicant) has continued to hold this belief since that time.  This has affected how she has responded in interactions with people in all areas of her life – school, work and relationships . . .”

The incident in which the applicant complained to Mrs K about the respondent’s  conduct occurred during the time that the respondent’s parents were babysitting her.  It was no later than 1978.  It is from that time that the applicant reported to Ms Campbell that she began to suffer the symptoms which Dr McVie has recently diagnosed. 

37. The injury for which, pursuant to s 663B of the Criminal Code the applicant seeks compensation is post-traumatic stress disorder.  This is a recognised psychiatric illness.  It is apparent that the condition has worsened over the years and was exacerbated by her appearance in court when the respondent was dealt with.  It is, however, clear from the material that the onset of the condition occurred at the time or very shortly after the time of the offences.  The sympathy one naturally feels for the applicant cannot alter the fact that her injury occurred prior to 1 July 1984. 

38. The decisions to which Davies JA has referred illustrate the fact that there will on occasions be difficulty in deciding whether offences giving rise to an applicant’s injuries, particularly psychiatric injuries, were committed in a course of conduct or closely related courses of conduct, or whether they were discrete. Giving the words, “course of conduct”, the meaning elucidated by the Chief Justice (with whom Muir J agreed) in HW v LO [2000] QCA 377 paras 7 and 8, there must be a succession or a series of acts which because of a sufficiently close inter-relation by reason of their nature, time, place or other circumstance display an identifiable overall pattern.  There should ordinarily be elements of continuity and regularity if there is to be found a “course of conduct”.

39. According to that understanding the offences committed by the respondent upon the applicant did constitute a course of conduct. There was, as Davies JA has pointed out, a close similarity in the acts of indecency committed by the respondent on each occasion. More important is that the acts occurred in the same place and in the same circumstances ie whenever the applicant and her sister were left at the respondent’s parents’ house to be cared for while the applicant’s parents were at work. Although the indictment alleged six offences the applicant’s evidence was that she was indecently dealt with much more frequently: once or twice a week on every or almost every occasion she was left at the respondent’s home. There was a clearly discernible pattern of conduct persisting for a period of about five months.

40. The supplementary written submissions argue that the offences did not arise out of a course of conduct. The submission describes the circumstances of each offence with particularity and then finds in the detail differences which are said to make each offence separate or discrete. For example it is said to be a relevant distinction between the offence the subject of count 1 and the other offences, that the former occurred in the respondent’s bedroom while the others were committed in the room in which the applicant slept.  In my opinion the question whether indictable offences in respect of which compensation is sought arise out of the one course of conduct or closely related courses of conduct is not to be answered by reference to the minutiae of the conduct which constituted the offences.  A broader inquiry into the matters which are discussed in HO v LO is called for.  It is most unlikely that acts constituting indecent dealing involving the same complainant and accused would be identical in their mode of commission.  If that were a requirement of “a course of conduct” it would hardly ever be satisfied.  There was here, as has been said, a marked similarity in the acts of indecency on the occasion of each offence.  That fact together with the other factors identified make this a case in which the offences arose out of the one course of conduct. 

41. The applicant’s (original) written submission sought support from a judgment of my own, R v Busch;  ex parte Callope (Application No 9834/97).  The passage relied upon reads:

“It is clearly impossible to attribute any particular measure of damage to any of the three offences to which the respondent pleaded guilty.  They cumulatively have the effect on her which is now apparent.  The legislation affixes $20,000.00 as the maximum which is to be allowed and clearly the applicant’s condition is such that an assessment of damages on ordinary principles would exceed that amount.  I think in the circumstances it is appropriate though somewhat arbitrary to assess compensation in respect of each of the three offences in the sum of $10,000.00.”

Callope also suffered psychiatric disturbance after having been subjected to acts of indecency.  The judgment from which the applicant seeks leave to appeal referred to a decision of the Supreme Court, which is probably Busch ex parte Callope, and noted that its reasons for judgment did not discuss whether the offences which caused the compensable injury constituted a course of conduct. 

42. I have reviewed the file which includes the written submissions made by Ms Callope’s solicitors, who are very experienced in this type of work.  The application was heard in chambers.  Busch was not represented.  The submissions made no reference to the restriction contained in s 663B(1B) and the point was not adverted to.  The decision thus offers no support for the proposition that incidents of indecent dealing committed over several months in the same place involving similar acts are necessarily distinct offences giving rise to separate claims for compensation. 

43. It should be understood that solicitors or counsel who represent claimants for criminal compensation where the application is unopposed have a duty to the court to bring to its attention all matters of fact or law relevant to the outcome, including those adverse to an applicant. An absence of opposition to the claim and the fact that compensation will ordinarily be paid from public money does not provide any justification for a departure from proper standards of professional conduct.