Moran v Broadbent[2004] QCA 401

SUPREME COURT OF QUEENSLAND

McPHERSON JA:  The applicant Shauna Moran seeks leave to appeal against the dismissal of her application for criminal compensation under section 663B of the Criminal Code.

On 13th November 1992, the respondent Ian Broadbent pleaded guilty to three counts of unlawful carnal knowledge of her.  The essential ground of appeal that the applicant seeks to argue before this Court is that the learned District Court Judge erred in law by dismissing her application, as it is submitted, on the basis that she consented to the offences committed against her.

At the time of the offences in 1990 and 1991, the applicant was between 14 and 15 years of age.  She is now 28 years old.  The respondent was in his early twenties at the time of the offences and was then approximately six and a‑half years older than she.

The respondent had previously gone out with the elder sister of the applicant.  After they broke up, he remained a trusted friend of the applicant's family and would often visit the applicant's brother.

The applicant developed an infatuation with the respondent and in June of 1990, he started to kiss her after they saw a movie together.  But she told him on that occasion that she only wanted to be friends.

The subject of the first count of unlawful carnal knowledge occurred on 31st July 1990 when the respondent visited the applicant's house.  After they had watched a movie together, the respondent led her into her elder sister's bedroom, undressed her, and they had sexual intercourse.

The subject of the second count occurred on 11th September 1990 when, after a school dance, the respondent picked the applicant up and drove her to Mount Coot‑tha where they had intercourse in the front seat of the car.

The third and final offence occurred in August 1991 when the applicant met the respondent at a shopping centre and invited her to visit him at his newly rented flat in Ipswich.  This she agreed to do and they had sexual intercourse at the flat, although at that time she knew he had a girlfriend.

It was not disputed that the applicant was very much a willing participant in all of the acts constituting the three counts of unlawful carnal knowledge.  The offences were reported, not by the applicant herself, but by her mother who had read about them in the applicant's diary.

The application for criminal compensation was not filed until 10th March 2004.  The learned District Court Judge below pointed out that the six-year limitation period for applications under section 663B of the Criminal Code, which was the legislation in force at the relevant time before the Criminal Offence Victims Act 1995 came into force, had therefore expired.  See Chong [2001] 2 QdR 301.

As, however, the respondent did not appear in the District Court to raise a limitation defence, the expiration of the limitation period cannot be relied on to defeat her claim.

Section 663B of the Code empowers a Court to order a convicted person to pay to a person agreed a sum not exceeding the prescribed amount as compensation for an injury suffered by reason of any offence of which the offender is convicted.  The term "injury" is defined to include mental and nervous shock.

The applicant relied on a report by psychiatrist Dr Barbara McGuire which expressed the view that she was and is now suffering from post-traumatic stress disorder following the respondent's unlawful carnal knowledge of her in 1990 and 1991.

In that report, Dr McGuire ascribes to the offences a litany of unfortunate events that the applicant has experienced in her life, including the divorce of her parents, a series of unsuccessful relationships from which she has two children, the disruption of her education and plans to become a lawyer, her addiction to drugs, and the necessity of her having to undertake employment as a stripper to support herself.  In reaching that conclusion, Dr McGuire relied on the applicant's view of her condition or its causes. 

The applicant sought compensation for her injury up to the prescribed statutory maximum for that type of injury, which, at the relevant time, was $20,000.  Section 663B(2) provides that:

"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."

Counsel for the applicant submits that, in this case, the learned Judge in the Court below erred in refusing to grant the application for compensation on the grounds that the applicant consented to the act that constituted the offences.

The original judgment below concludes with the statement that the application for compensation is dismissed, "for the reasons I have given."  On travelling back through the reasons, one finds that there were essentially two reasons given for the course which the learned Judge took.

The first was that the applicant's post traumatic stress disorder, which the Judge accepted as genuine, was in his Honour's opinion, not proved to have been caused by the respondent Broadbent's criminal conduct.  As to this, his Honour said:

"What I find difficult to accept, because I am not persuaded that Dr McGuire had the opportunity to go into the matter, is that 'there do not appear to be any contributing factors (otherwise) which have had an effect on her symptoms'."

He doubted whether the applicant's condition could, as he said, "really be linked to" the offending behaviour.

The statement about Dr McGuire's not having the opportunity to go into the matter, refers to the fact that her opinion was based on a single short interview with the applicant in which Dr McGuire accepted, evidently uncritically, the applicant's own analysis of her current condition and its cause.

As the primary tribunal of fact, his Honour was not bound to accept that conclusion, but was entitled to take the view of the material that he did.  The Court of Appeal is not, in fact, being asked to interfere with the Judge's finding to that effect, and I expect, would not be prepared to do so if an appeal were allowed to proceed.

The second reason why his Honour rejected the claim was his conclusion that there was conduct by the applicant considerably contributing to the offences.  By this, he meant that the applicant had eagerly embraced, and even actively encouraged, the acts of unlawful carnal knowledge engaged in by Broadbent.

The point of substance sought to be raised on the proposed appeal is stated to be whether a child complainant, in respect of sex offences committed on her by an adult, is disentitled  to compensation by reason of her consenting to those offences.

Plainly there is no such rule of law to that effect, and the Judge below did not act on any such rule.  Everything depends on the circumstances.

In any event, even if the Judge had adopted such an approach, this would not be an appropriate case in which to test the question because of his earlier, and as I see it, distinct finding, on the issue of causation of the applicant's condition, or "injury."

In all the circumstances, this is not a case in which leave to appeal should be granted.  It involves no readily identifiable question of law as distinct from, or apart from, fact, nor any question of principle capable of being clearly segregated from his Honour's findings which led to the rejection of the applicant's claim.  In my opinion, the application for leave to appeal should be refused.

DAVIES JA:  I agree.

FRYBERG J:  I agree, but I wish to add some comment on the nature of the process by which these applications are determined from the point of view of someone who must, from time to time, sit on such applications.  This case provides another example of the highly unsatisfactory nature of the process by which criminal compensation applications are brought. 

The proceedings below were ex parte, that is to say, although served upon the respondent, were unopposed.  Unless respondents are persons of substance this is invariably the position.  No appearance is made on behalf of the Crown, notwithstanding the fact that it is public monies which are the ultimate target of the application. 

It is frequently the case that the evidence put before the judge is highly selective.  That was the case in the present appeal.  As the judge noted, the Court had been denied access to the applicant's diary to which she confided details of the incidents.

Second, points of law available to the defendant are not taken because of the lack of appearance by the defendant.  In this case, the application would have been defeated by raising the Limitation of Actions Act.  The point was not taken because no-one was there to take it.

Third, there is no cross-examination or testing of the evidence.  In this case, there was evidence from a psychiatrist who was not cross-examined, and who accepted uncritically the applicant's version of events.  That version to the psychiatrist included assertions of a number of other acts of carnal knowledge which had not been the subject of charges, and which could not properly have been taken into account.

Court proceedings are essentially adversarial.  It is highly embarrassing for judges, at first instance, to have to proceed in the absence of a contradictor in cases where they perceive the inherent improbability of the case being made out before them.  There is, if the judge attempts to do a testing process himself, the real risk of the judge becoming partisan, and not proceeding in a proper way.

These sorts of proceedings, in my view, simply should not be brought before a Court.  I do not mean to suggest that there is anything wrong with providing criminal compensation.  What is not appropriate, is using the Courts as an administrative agency for dispensing social security.

McPHERSON JA:  The application for leave to appeal is dismissed.