PAJ v AAK[2010] QCA 78

SUPREME COURT OF QUEENSLAND

[1]  McMURDO P: The respondent, the applicant's former stepfather, was convicted after a trial of one count of maintaining an unlawful relationship of a sexual nature with the applicant, with the circumstances of aggravation that the applicant was under 12 years and that in the course of that relationship the respondent raped her; six counts of indecently dealing with the applicant with circumstances of aggravation; and two counts of raping her.  He was sentenced to seven years imprisonment on 31 October 2006 and his parole eligibility date was fixed at the half way point of that sentence, 30 April 2010.  His appeal against conviction was dismissed: R v AAA.[1] 

[2] The applicant subsequently applied for criminal compensation under the now repealed[2] Criminal Offence Victims Act 1995 (Qld) ("the Act").  The primary judge ordered that the respondent pay the applicant compensation of $22,500.  The applicant has applied for leave to appeal from that order under s 118(3) District Court of Queensland Act 1967 (Qld).  If granted leave to appeal, the applicant would contend that the primary judge "erred in having regard to material that had not been 'read' before him; … failed to act on and/or give proper effect to the evidence before him; … [and] erred in failing to make any award of compensation to the Applicant" under the now repealed[3] Criminal Offence Victims Regulation 1995 (Qld) ("the Regulation"), reg 1A.  She contends that her application should be granted, the appeal allowed, the order of the primary judge set aside, and that instead this Court order that the respondent pay her compensation of $75,000. 

[3] Prior to 8 February 2010, the respondent was served at his correctional centre with the bulk of the applicant's material in this application.  He responded by lodging a handwritten statement in which he disputed some of the information in the applicant's material.  He continued to protest his innocence of the offences of which he was convicted and claimed that the applicant is presently no more troubled than many other normal young women.  He asserted that he was the innocent victim of two greedy calculating people (the applicant and her mother).  He stated that he did not want to appear at the hearing of the application but asked this Court to take into account his written submissions.

[4] Counsel for the Queensland Attorney-General, Mr Mark Hinson SC, was given leave to appear to assist the Court as amicus curiae. 

[5] In determining this application for leave to appeal, it is common ground that it is necessary to consider the merits of the proposed appeal.

The application to adduce further evidence

[6] The applicant has also applied for leave to adduce brief further evidence from psychologist, Ms Jacqui Yoxall, expanding on her report concerning the applicant which was before the primary judge.  Ms Yoxall's affidavit containing that further evidence was faxed to the respondent's correctional centre two days before the present application was to be heard. 

[7] There is nothing before this Court to show whether the respondent actually received that material and, assuming he did, whether he wanted to respond to it.  Under the scheme of the Act, discussed more fully later in these reasons, any compensation order made against the respondent directly affects his substantive rights and may be enforced as a civil debt against him.[4]  The Act recognises the right of the respondent to be fully informed of an application for compensation.[5]  The applicant has not asked for an adjournment of her application to this Court in order to ascertain the respondent's position as to her application to adduce further evidence.  The further evidence was available at the time of the primary hearing.  In those circumstances, the interests of justice require the refusal of the application to adduce further evidence. 

The relevant provisions of the Act and Regulation

[8] An understanding of the scheme of the Act is at the heart of this application.  The Act states that victims should be treated with courtesy, compassion and respect[6] and given access to Queensland's justice system.[7]  The welfare of the victim is to be considered.[8]  The Act provides a scheme for compensation "for injury suffered by the applicant caused by a personal offence committed against the applicant".[9]  It is uncontentious that the indictable offences committed by the respondent against the applicant were personal offences under the Act.[10]  Section 20 relevantly defines the term "injury" as "… mental or nervous shock… or any injury specified in the compensation table or prescribed under a regulation".[11]  Compensation is intended to help an applicant and not to reflect the compensation to which an applicant may be entitled under the common law.[12] The compensation payable is limited to the scheme maximum[13] ($75,000).  The maximum amount of compensation able to be awarded under the Act is reserved for the most serious cases, and the amounts provided in other cases are intended to be scaled according to their seriousness.[14]  An application to a court for compensation is a civil proceeding.[15]  Issues of fact must be decided on the balance of probabilities[16] but the court may receive information in any form the court considers appropriate.[17]  A compensation order may be enforced as a judgment of the court in its civil jurisdiction.[18]  A person entitled to be paid an amount under a compensation order may apply to the State to pay all or part of that amount to the applicant.  The State may pay all or part of the amount requested.[19]

[9] The compensation table in sch 1 relevantly provided:

"InjuryPercentage of

scheme maximum

31Mental or nervous shock (minor) … 2%-10%

32Mental or nervous shock (moderate) …10%-20%

33Mental or nervous shock (severe) …20%-34%"

[10] The Regulation relevantly provided:

"Prescribed injury

1A. Prescribed injury

(1)  For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.

(2)  An adverse impact of a sexual offence includes the following –

(a)a sense of violation;

(b)reduced self worth or perception;

(c)post-traumatic stress disorder;

(d)disease;

(e)lost or reduced physical immunity;

(f)lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

(g)increased fear or increased feelings of insecurity;

(h)adverse effect of the reaction of others;

(i)adverse impact on lawful sexual relations;

(j)adverse impact on feelings;

(k)anything the court considers is an adverse impact of a sexual offence.

(3)  In this section –

sexual offence means a personal offence of a sexual nature."

The proceedings before the primary judge

[11]  To understand the applicant's proposed grounds of appeal, it is necessary to next set out something of the proceedings before the primary judge.

(a)The applicant's submissions

[12]  The proceedings came before the primary judge by way of an originating application which stated:

"On the hearing of the application the Applicant intends to rely on the following Affidavits:

1.  Affidavit of [the applicant] sworn 19/5/09;

2.  Affidavit of Benjamin Robert Ruback sworn 3/6/09."

[13]  Mr Ruback's affidavit exhibited the report of psychiatrist Dr Michael Epstein.  The applicant's affidavit of 19 May 2009 referred to Dr Epstein's report and diagnosis.

[14] At the hearing of the application on 14 August 2009, the applicant's barrister handed to the judge written submissions which included the statement:

"DOCUMENTS TO BE READ

(a) Originating Application filed the 9th day of June 2009;

(b) The Affidavit of the Applicant filed the 11th day of June 2009;

(c) The Affidavit of BENJAMIN ROBERT RUBACK filed the     day of August 2009; re: exhibits

(i) Indictment;

(ii) Applicant's Police Statement;

(iii) Statement of Arresting Officer;

(iv) Statement of Medical Practitioner;

(e)  The Affidavit of JACQUI YOXALL filed the 11th day of August 2009; re: psychologist report;

(f)  Affidavit of     filed the     day of 2009; re: service."

[15]  In his oral submissions, the applicant's counsel emphasised his reliance primarily on the affidavit of the psychologist, Ms Yoxall.  He formally read the originating application, the affidavit of Ms Yoxall filed on 11 August 2009, the affidavit of Mr Ruback filed on 11 August 2009, and the affidavit of the applicant filed on 12 August 2009.  He did not read Mr Ruback's affidavit of 3 June 2009 which referred to Dr Epstein's report, or the affidavit of the applicant sworn 19 May 2009 which also referred to Dr Epstein's report and diagnosis.  But nor did he clearly disavow reliance on that material which was referred to in the originating application[20] upon which he specifically relied.  He urged the judge to accept Ms Yoxall's report, to find that the applicant's nervous shock injury was severe, and to award the maximum relevant amount under sch 1 of the Act, namely 34 per cent of the Act's scheme maximum of $75,000.  He further urged the judge to find that the adverse impacts of the respondent's offending against the applicant additional to the s 20 injury warranted an award under reg 1A of the Regulation of 75 per cent of the scheme maximum.  In total, he submitted that the judge should give an award of $75,000, the scheme maximum.

(b)The respondent's submissions

[16]  The respondent appeared by way of video link from his correctional centre.  He made brief oral submissions, effectively maintaining his innocence in respect of the offences of which he was convicted and alleging that the applicant and her mother were guilty of fraud against him.

(c)Ms Yoxall's evidence

[17]  Ms Yoxall's report, exhibited to her affidavit, contained the following evidence.  On 21 July 2009, she examined the applicant and interviewed the applicant's mother.  She reviewed a bundle of relevant material, including prior medical history and records relating to the court proceedings.  She did not refer to Dr Epstein's report. 

[18] Under the heading "Current psychological functioning", Ms Yoxall referred to her clinical review of the applicant and noted the following clinical symptoms.  The applicant had episodes of acute anxiety; low motivation and energy; low self esteem; chronic worry and rumination; high emotional reactivity to perceived abandonment or rejection by others; emotional distress when faced with reminders of perpetrator (eg men with black beards, older men who look at her body, television shows depicting sexual abuse); anxiety with aspects of sexual intimacy; excessive self-consciousness about body shape.  The applicant seemed to be:

"a person with significant unhappiness, moodiness and tension. … Her self-esteem is quite low and she is likely to view herself as ineffectual and powerless to change the direction of her life.  The disruptions in her life have left her uncertain about her goals and priorities, and tense and pessimistic about what the future may hold.  She reports difficulties concentrating and making decisions, and the combination of hopelessness, agitation, confusion, and stress … may place her at increased risk for self-harm. 

[The applicant] indicated that she is experiencing a discomforting level of anxiety and tension … . She is likely to be plagued by worry to the degree that her ability to concentrate and attend are significantly compromised. Others are likely to comment about her overconcern regarding issues and events over which she has no control. Affectively, she feels a great deal of tension, has difficulty relaxing, and likely experiences fatigue as a result of high perceived stress. Overt physical signs of tension and stress, such as sweaty palms, trembling hands, complaints of irregular heartbeats, and shortness of breath are also reported. 

[The applicant] also reported a number of difficulties consistent with a significant depressive experience … . Although she does not appear to feel hopeless and her self-esteem seems largely intact, she does manifest affective and physiological signs of depression. She admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of sense of pleasure in things that were previously enjoyed. She is likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest, and a loss of appetite and or weight. …

[The applicant] indicated that she is experiencing specific fears or anxiety surrounding some situations … . … she is likely to display significant symptoms related to traumatic stress. She has likely experienced a disturbing traumatic event in the past – an event that continues to distress her and produce recurrent episodes of anxiety.

…

The self-concept of [the applicant] appears to involve a self-evaluation that has both positive and negative aspects. Her attitudes about herself may vary from states of pessimism and self-doubt to periods of relative self-confidence and self-satisfaction. Some fluctuation in self-esteem may be observed as a function of her current circumstances, although these fluctuations will not be extreme and are comparable to those experienced by most adults. During stressful times in particular, she is prone to be somewhat self-critical, uncertain, and indecisive."

[19]  Ms Yoxall conducted the traumatic stress inventory test which showed:

"sexual dissatisfaction, negative thoughts and feelings during sex, confusion regarding sexual issues, sexual problems in relationships and shame regarding sexual activities or responses."

[20]  Overall, the applicant's "results on psychometric testing … indicated … a range of symptoms commonly associated with post traumatic stress disorder and associated mood disturbance."  Ms Yoxall formed the clinical opinion that the applicant suffered from post-traumatic stress disorder and dysthymic disorder with "interpersonal, social and occupational limitations resultant of condition" and that this was a direct result of the respondent's offending.

[21]  Ms Yoxall concluded:

"The sexual assaults by [the respondent] have had a profound impact upon [the applicant].  On assessment, it is my clinical opinion that she has suffered posttraumatic stress disorder, and low grade chronic depression (dysthymic disorder) as a result of these sexual assaults.

[The applicant] presents as an articulate and intelligent young woman who is struggling to come to terms with the current and emerging impact of her stepfather's protracted sexual abuse of her. In such cases where the victim was so young at the time of the offending, that the abuse has ostensibly robbed her of a normal childhood and adolescence, it is very difficult to accurately measure the impact of such events upon her current functioning and to predict the impact of the trauma on her future functioning.

However in my opinion, it is reasonable to state that if not for the numerous assaults by [the respondent] between January 1998 and December 2001, [the applicant] would not have experienced the noted psychopathology in the last 8 years and would not live with the current level of psychological impairment that she does. It is my opinion that each of the incidents had a serious psychological impact upon her; and further, that [the applicant's] psychological impairment as cumulative in that each incident added to her already damaged state.

I have reviewed a copy of Ferguson v Kazakoff (2000) QSC 156 which provides descriptors of 'nervous shock'. In review of this document, I would consider that [the applicant] has suffered 'nervous shock' to a severe degree, as a result of the sexual assaults perpetrated upon her by [the respondent]. I form this opinion based on the adverse impact of these offences upon her psychological, interpersonal, and social functioning over a period of time.

In psychological terms, these sexual assaults resulted in the development of post traumatic stress disorder and dsysthymic mood disorder. Both conditions appear to have been ongoing for several years. Fundamental to her ongoing psychological distress is the devastating impact that [the respondent's] crimes have had on [the applicant's] development of a sense of self and identity; her understanding of relationships and intimacy; her belief in her capacity to judge the character of others and to protect herself; and her capacity to navigate and modulate her emotional experience and expression.

I understand that the Criminal Offence Victims Act Regulations identifies other impacts of a sexual assault. As a direct result of the sexual assaults perpetrated against [the applicant], she has suffered several adverse impacts.

a) [The applicant] has suffered a severe sense of violation which in turn has created substantial fears and feelings of insecurities. This impacts on most aspects of her daily living, in relation to her social, occupational and interpersonal interaction with other people. The sense of violation has damaged her trust in other people, caused her to feel suspicious, and constantly on guard. She has a profound sense of vulnerability which permeates all domains of her life. These fears have and will continue to impact upon her functioning in all aspects of work and personal life. [The applicant] relies heavily upon emotional detachment or even dissociation to cope with many interactions with others. With psychological treatment, [the applicant] may be able to resolve aspects of her sense of violation and moderate her fears. However it is likely that this impact will remain for a substantial period of time.

b) [The applicant] has suffered a severe reduction in self worth. She remains conflicted about her past relationship with her stepfather and the consequences of her disclosure of the sexual abuse to her mother. [The respondent's] offences against her have substantially undermined her adult sense of personal power and competence. With psychological treatment, [the applicant] may be able to increase her sense of self worth. However, it is likely that this impact will remain for a substantial period of time.

c) [The applicant] has suffered a severe and adverse impact on her capacity to participate in lawful sexual relations. She has struggled with substantial fears and insecurities regarding her functioning in intimate relationships. With psychological treatment, [the applicant] may be able to improve her capacity to participate in lawful sexual relations. However, it is likely that this impact will remain for a substantial period of time.

d) [The applicant] has suffered a severe and adverse impact upon her feelings. She lives between the extremes of emotional detachment and emotional distress. When reminded of any aspect of the sexual assaults she is likely to experience a range of symptoms including intrusive memories, acute physical and cognitive anxiety, depressed mood, anger, irritability and feelings of hopelessness. She continues to suffer episodes of dissociation where she feels disconnected from what is happening around her and unable to connect to her own feelings. These substantial changes to her feelings impact upon the quality of the relationships that she does have. With psychological treatment, [the applicant] may be able to address and resolve some of her depressive feelings. However, it is likely that this impact will remain, for a substantial period of time.

e) [The applicant] has suffered post traumatic stress disorder as a result of [the respondent's] offences committed against her. This disorder is detailed in the above report. With psychological treatment, [the applicant] may be able to address and resolve some of her symptoms. However, it is likely that this impact will remain, for a substantial period of time

f) [The applicant] has suffered an increased sense of insecurity as a result of [the respondent's] offences against her. This is evident in her personal relationships and low self esteem. With psychological treatment, [the applicant] may be able to address and resolve some of her fears and insecurities. However, it is likely that this impact will remain, for a substantial period of time

9. TREATMENT RECOMMENDATIONS

As is common for survivors of trauma, [the applicant] is hesitant to engage in psychological treatment for her symptoms for fear that any discussion or focus on her experience would escalate the intrusive symptoms that she already experiences. She is however willing to explore the possible benefits of therapy after she has completed the criminal compensation application process which she experiences as stressful. On assessment she demonstrates some insight into the impact of [the respondent's] sexual assaults upon her. She also demonstrates some insight into the fact that she may face many general life experiences that trigger psychological difficulties associated with the abuse (e.g. such as having her own children). She demonstrates insight to the fact that she will ultimately require substantial psychological treatment to address not only her PTSD, but also her mood disorder.

In addition, it is my opinion that [the applicant] requires psychological treatment to address the psychological difficulties that I have outlined in the body of the report. Without treatment the PTSD and mood disorder will generally become more severe and debilitating over time. Furthermore, [the applicant] presents with substantial risk of escalation of symptom severity in the event of significant or unexpected changes to her currently restricted life. Future attempts to explore friendships and intimate relationships will provide substantial challenges for [the applicant] as any relationship requires a degree of trust and emotional investment. As she gradually attempts to establish a satisfying personal life and relationships, it will be increasingly difficult for [the applicant] to rely solely upon dissociation and denial to cope with negative feelings or fears.

It would appear that [the applicant] is most likely to engage in psychological treatment. Interpersonal psychotherapy or cognitive behavioural therapy (involving exposure therapy) would be treatment of choice. It is difficult to estimate how an individual may response to treatment. However, I would consider that 20-30 sessions over a period of 12-18 months would reasonably be required in this matter. The current recommended APS rate for a 60-minute psychological consultation is $ 200.00. [The applicant's] general reliance upon avoidance as a coping mechanism would prove a substantial obstacle in any treatment attempted.

[The applicant's] prognosis for full recovery is guarded. The sexual abuse by [the respondent] interrupted and damaged her psychological and emotional development. She will most likely experience ongoing impact of this trauma in various aspects of her adult life.

The substantial trauma that she subsequently experienced at the hands of [the respondent], has produced what is likely to prove a level of permanent psychological impairment Psychological treatment can mediate, but is unlikely to completely resolve these consequences of childhood sexual abuse and rape. However, gains can be made in relation to the severity of both the PTSD and mood disorder so as to improve psychological functioning and overall quality of life."

The primary judge's reasons

[22] It is helpful to set out the learned primary judge's reasons at some length before discussing the proposed grounds of appeal:

"[4] … arrangements were made to have the respondent appear in the matter by video-link and that occurred. In what he said in the video-link up, he repeated and enlarged upon what he had said in his letter. He seemed to say that if the applicant was suffering any psychological symptoms, they would be due to guilt because of what she has falsely accused him of. He did not wish to question the psychologist, a Ms Yoxall whose report to the court is the basis for the injury said to be done to the applicant as a result of the offences of which the respondent has been convicted.

[5]  Counsel for the applicant provided an outline of submission[s] in which were listed the documents to be read on the hearing. One of those documents was the affidavit of the applicant filed on 11 June 2009. There is no affidavit of the applicant filed on 11 June 2009, however there is one filed on 9 June 2009.

[6]  Another document referred to in counsel's outline is an affidavit of Benjamin Robert Ruback filed August 2009 with exhibits being the indictment, applicant's police statement, statement of arresting officer and statement of medical practitioner.

[7]  There is an affidavit of Mr Ruback filed on. 11 August 2009 which contains as exhibits a copy of the indictment, a copy of the sentencing remarks of the sentencing Judge, a copy of the certificate of conviction and a copy of the judgment of the Court of Appeal in the respondent's unsuccessful appeal against conviction.

[8]  There is another affidavit of Mr Ruback file[d] on 9 June 2009 which does exhibit the indictment, the applicant's police statement, the statement of the arresting officer and the statement of a medical practitioner.

[9] In counsel's oral submissions he read the originating application file[d] on 9 June 2009, the affidavit of J.S. Yoxall filed 11 August 2009 and the affidavit of the applicant filed 12 August 2009.

[10]  The applicant was born on 20 February 1991. Over the four year period the offending occurred she was between 6 and 10 years of age. She was the stepdaughter of the respondent.

[11]  The offending included digital penetration of the applicant and one incident of penile penetration. The latter incident occurred in 2001 and was the last occasion any offending behaviour occurred.

[12]  There are two affidavits of the applicant on the file. One filed on 11 August 2009 and another filed 9 June 2009. In those the applicant details the effects the offending behaviour has had upon her. She deposed to the fact that she saw a psychiatrist, Dr Epstien on 31 March 2008 and a psychologist, a Ms Yoxall on 21 July 2009. Reports by each of those persons are annexed to affidavit material on the file. All of this material has been served upon the respondent and since he appeared unrepresented on this proceeding I am of the view I should consider it all, despite the fact that counsel for the applicant made no reference to the content of Dr Epstien's report.

[13]  Dr Epstien's report is an exhibit to the affidavit of Benjamin Robert Ruback, filed 9 June 2009.

[14]  Both reports appear to be thorough. Dr Epstien expressed the following opinion:

'The sexual abuse was at the more severe end of the spectrum. However the applicant was a resilient person and appeared to have coped very well with it. However she showed manifestations commonly seen in survivors of childhood sexual abuse including problems with trust, especially trust of older men, difficulty with sexual behaviour, increased concerns with regard to safety and security and appeared to be experiencing occasional flashbacks when having sexual activity.'

She had some features of mild post traumatic stress disorder, but did not meet the full criteria for that diagnosis. However she should be considered as having that disorder.

He thought that treatment may be of benefit when she begins having a regular sexual relationship in which the sexual abuse may become intrusive and disturbing. He considered she may also require assistance when she has children of her own and becomes fearful about them being sexually abused. She had a score of 61-70 on the global assessment of functioning scale in DSM IV-TR which indicated mild symptoms of some difficulty in social occupational or school functioning. Generally however she seemed to be functioning pretty well and had some meaningful interpersonal relationships. He considered her condition may have an effect on her ability to carry out day to day work duties and/or employment because of problems with anxiety and difficulty in dealing with older men.

[15]  Ms Yoxall's report which was based upon her interview and assessment of the applicant on 21 July 2009 appears to paint a more serious picture. She considered the psychological impact of the sexual offences extensive, permeating most, if not all aspects of her current functioning. In support of that opinion she set out in some detail in her report what the applicant told her about aspects of her life. She does not appear to have been referred to Dr Epstien's report. She considered her testing revealed a person with significant unhappiness, moodiness and tension, low self-esteem, difficulties concentrating, making decisions and a feeling of hopelessness, agitation, confusion and stress. The tests revealed sexual dissatisfaction, negative thoughts and feelings during sex, confusion regarding sexual issues, sexual problems in relationships and shame regarding sexual activities or responses. There were evident intrusive post traumatic reactions such as nightmares, flashbacks, or intrusive and upsetting memories. There was evidence of avoidance to cope with the stress and evidence of dissociative symptomatology. She expressed the opinion that the applicant was suffering a post  traumatic stress disorder and a dysthymic disorder. She considered the sexual assaults had had 'a profound impact upon' the applicant. She considered the offences had had a 'devastating impact-- on [the applicant's] development of a sense of self and identity; her understanding of relationships and intimacy; her belief in her capacity to judge the character of others and to protect herself; and her capacity to navigate and modulate her emotional experience and expression'.

[16]  Ms Yoxall also considered a number of the adverse impacts set out in section 1A(2) of the Criminal Offence Victims Regulation 1995 (Q1d) which she considered the applicant had suffered; a severe sense of violation, a severe reduction in self-worth, a severe and adverse impact on her capacity to participate in lawful sexual relations, a severe and adverse impact upon her feelings because she lives between the extremes of emotional detachment and emotional distress, and increased sense of insecurity. Ms Yoxall did not however, deal with the question whether any and which of these adverse impacts she has referred to, are a component of the post traumatic stress disorder which she diagnosed.

[17]  There is a considerable difference in emphasis between the reports of Dr Epstien and Ms Yoxall. Accepting as I must the convictions, the material before me establishes that the offending upon which the convictions are based, resulted in psychological injury to the applicant.

[18]  Doing the best I can on the evidence before me, I assess compensation under the Compensation. Table, Schedule 1 to the Act, at 30% of the scheme maximum. That amounts to $22,500.

[19]  I do not assess any separate amounts for adverse impacts under the regulation, I am not satisfied on the evidence that the impacts Ms Yoxall refers to are not part and parcel of the post traumatic stress disorder which she diagnosed.

[20]  I order [the respondent] pay to [the applicant] the sum of $22,500 by way of compensation for injury done to her, by reason of the respondent's conviction of the abovementioned offences on 31 October 2006."  [my emphasis]

Did the judge err in relying on Dr Epstein's evidence?

[23]  The applicant's counsel first contends that, as he did not rely on any affidavit containing or referring to Dr Epstein's opinion concerning the applicant at the hearing of the application, the judge erred in relying upon Dr Epstein's evidence. 

[24]  But as I have noted, the originating application, which the applicant's counsel read at the primary hearing, expressly stated an intention to rely on two affidavits which contained or referred to Dr Epstein's reports.[21]  That application and those affidavits were served on the respondent who was not legally represented.  Whilst counsel for the applicant did not specifically read those affidavits at the hearing of the application, neither did he inform the judge that he was not relying upon them. There is authority to support the judge's decision to rely on Dr Epstein's evidence.  In Muirfield Properties Pty Ltd v Erik Kolle & Assoc[22] Brooking J observed that:

"..an affidavit filed in an action or other proceeding is an affidavit available for use in it.  So in R. ex. rel. Onishenko v Nesdoly Gordon JA said, at p. 194: 'It seems to me that when a affidavit is filed it becomes a matter of record before the Court and could be used by any party.' Similarly in Chambers v Bryant 1843 L.J.Q.B. 139, … Williams J., in allowing a party to rely on an affidavit which he had earlier filed for a different but related purpose, observed: 'The affidavit is on the files of the Court, and may, therefore, be used.' "

[25] In any case, the Act gives the court determining an application for compensation wide powers to receive evidence in any form the court considers appropriate.[23]  The unrepresented respondent had been served with Dr Epstein's report and other material referring to it.  It was by no means clear that the applicant's counsel was not relying on that material.  In those circumstances, the judge was entitled to rely on Dr Epstein's report in determining the compensation application.  It follows that the primary judge did not err in having regard to Dr Epstein's report.  This first contention is not made out.

Did the judge fail to act on or give proper effect to the evidence?

[26]  The applicant's second contention is that the judge failed to give proper effect to the evidence.  Her counsel encouraged the primary judge to award his client the maximum award of $25,500 for mental and nervous shock (severe), 34 per cent of the scheme maximum.[24] The judge instead awarded the applicant $22,500 for mental or nervous shock (severe), 30 per cent of the scheme maximum.  This award, which was very close to the award requested (the maximum for severe mental and nervous shock), was not manifestly inadequate.  In any case, the difference of $3,000 between the two amounts does not suggest a basis for appellate intervention: Elford v FAI General Insurance Company Ltd.[25]  Indeed, the applicant's counsel accepted as much at the hearing of this application.  The real issue in this application is the applicant's third contention.  Her second contention, insofar as it is separated from her third contention, also fails.

Did the judge err in not awarding compensation under reg 1A of the Regulation?

[27]  The applicant's third and primary contention is that the judge erred in concluding that Ms Yoxall's evidence failed to establish that the adverse impacts on the applicant of the respondent's offending were not merely components of her post-traumatic stress disorder and low grade chronic depression (that is, the injury of mental and nervous shock (severe) under s 20 and sch 1 of the Act) but were adverse impacts of the offences (other than that s 20 injury) under reg 1A of the Regulation.[26] 

[28]  The clear terms of reg 1A(1) of the Regulation[27] provide that, to be compensable under the Act, the adverse impacts under reg 1A must be additional to the mental or nervous shock injury under s 20 of the Act.  The onus was on the applicant to establish her claim on the balance of probabilities.[28]  It is true that in the section of Ms Yoxall's report headed "Summary and Conclusions" she stated that as a direct result of the sexual assaults perpetrated by the respondent, the applicant suffered consequences, six of which were adverse impacts listed under reg 1A(2) of the Regulation.[29]  One of those adverse impacts was post-traumatic stress disorder[30]  which was both an adverse impact under reg 1A(2)(c) of the Regulation and an injury under s 20 and sch 1 of the Act.  The other five adverse impacts to which Ms Yoxall referred were adverse impacts under reg 1A(2)(a), (b), (g), (i) and (j) of the Regulation.  But the subject matter of the five adverse impacts were also referred to by Ms Yoxall in determining that the applicant suffered mental or nervous shock by way of post-traumatic stress disorder and low grade chronic depression, an injury under s 20 and sch 1 of the Act.[31]  And immediately before setting out these adverse impacts, Ms Yoxall referred to R v Kazakoff; ex parte Ferguson[32]which dealt, not with reg 1A(2) of the Regulation, but with the meaning of "mental or nervous shock" under s 20 of the Act.

[29]  It is not then surprising that Ms Yoxall's evidence left the judge in doubt as to whether the respondent's offending caused the applicant to suffer only post-traumatic stress disorder and low grade depression amounting to mental or nervous shock injury under s 20 and sch 1 of the Act, or the additional and discrete adverse impacts under reg 1A(2) of the Regulation.

[30]  The applicant's counsel contends that the judge should have indicated this concern about Ms Yoxall's opinion to him at the hearing.  Had the judge done so, counsel could have made submissions to persuade the judge to the contrary view, or asked for an adjournment to obtain further material of the kind he has unsuccessfully sought to lead in the application to this Court.  His contention is based on Jerrard JA's observations in AT v FG[33] where his Honour pointed out the peculiarity under the scheme whereby post-traumatic stress disorder can be both an injury under s 20 of the Act and an adverse impact under reg 1A of the Regulation, but to be an adverse impact under reg 1A, it must not be an injury under s 20.  His Honour noted:

"… Applicants for compensation who are diagnosed as suffering from post traumatic stress disorder, or from depression, or from an anxiety or other disorder, will benefit from having their legal representatives insist upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts. Courts hearing those applications should be astute to make enquiries about that point, to ensure an applicant is not being denied by oversight compensation for an injury."

[31]  I note that in AT v FG, Jerrard JA's obiter comments were not adopted by the other members of the court.  But in any case, I do not understand his Honour to be there suggesting that judges determining criminal compensation applications are required to take either an inquisitorial or a partisan role on behalf of an applicant, especially where the respondent, as here, is not legally represented. 

[32]  Ms Yoxall's evidence did not satisfy the judge that the adverse impacts she listed were separate from and not part of the applicant's post-traumatic stress disorder and low grade chronic depression (mental or nervous shock injury) which was compensable under s 20 and sch 1 of the Act.  That conclusion was well open on the evidence.  It followed that reg 1A(2) of the Regulation had no application.  The applicant's final contention must also fail.

Conclusion

[33]  As there are no prospects of the applicant succeeding in her proposed appeal, the application for leave to appeal must be refused.

ORDERS:

1.Application to adduce further evidence refused.

2.Application for leave to appeal refused. 

[34]  MUIR JA: I agree with the reasons of McMurdo P and with her proposed orders.

[35]  CHESTERMAN JA: I agree with the President.