Godwin & Punch, Re[1996] QDC 309

IN THE MATTER of the Criminal Code of Queensland

IN THE MATTER of Applications for Criminal Compensation by Susan Mary Godwin and Kerry Bernadette Punch

REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.

IN THE MATTER of the Criminal Code of Queensland

IN THE MATTER of Applications for Criminal Compensation by Susan Mary Godwin and Kerry Bernadette Punch

REASONS FOR JUDGMENT - D.C.J. BRABAZON Q.C.

Delivered the 13th day of December, 1996

Mrs Punch and Mrs Godwin make applications for criminal compensation against Leo Daniel Wright. It is convenient to deal with the applications together.

The Issues

The applications raise two issues. The first is whether or not the applicants suffered injury after 1 January 1969 - there is no right to criminal compensation for injury suffered before the commencement, on that date, of the scheme for the payment of such compensation. See The Criminal Amendment Act 1968 - No. 44 of 1968 - which introduced Chapter 65A into the Code.

The second issue is this - assuming that there is injury after 1 January 1969 then at what date should the amount of compensation be assessed? The applications are complicated by the length of time that has passed between the commission of the offences and Father Wright's conviction. The important events are these:

The Criminal Offence Victims Act contains a transitional provision in s.46. The Act does not apply to an injury suffered by anyone because of acts done before its commencement. Rather, Chapter 65A of the Code applies to such an injury, as if it had not been repealed. Therefore, it was common ground that the amount of compensation that could be given in these applications had to be resolved by reference to the provisions of Chapter 65A of the Code.

Chapter 65A

The starting point is to examine Chapter 65A as it stood after the time of conviction, in December 1995.

Section 663A makes a distinction between cases of “mental or nervous shock”, and other types of injury. Those cases are a species of injury, which is defined to mean bodily harm and includes pregnancy, mental shock and nervous shock. It is clear that both these applications rely on mental or nervous shock, there being no actual physical injury to the applicants. The applicants would therefore be entitled to, and limited to, the special amounts allowed for psychological or psychiatric injury. See the Court of Appeal in West v. Morrison (No. 266 of 1995, judgment 6/9/1996, unreported).

That characterisation of the injury is important. Physical injury is compensated in accordance with scales established under the Workers Compensation Act, but mental or nervous shock is the subject of a particular limit. Since 1984, the prescribed amount for that has been $20,000. However, the definition of prescribed amount goes on to say, that where injury was suffered before 1 July 1984, then the limit is $5,000.

Therefore, it appears that these applications carry a limit of $5,000 compensation. That is not $5.000 for each offence, but $5,000 for one course of conduct which consists of closely reflated offences. 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 makings of the admissions, one in relation to the other. In these cases, it was not contested, but that the courses of conduct were closely related. It follows that each applicant could make only one application for the payment of compensation.

The “course of conduct” amendment was introduced in 1984, because the earlier legislation allowed multiple awards for multiple offences causing injury to a victim. Before the 1984 Act, the interpretation put upon s.663B(1) allowed a court to award a sum up to the prescribed amount in respect of each offence of which an offender had been convicted. That was so, even where those offences had arisen out of the one course of conduct or closely related courses of conduct - see R v. Wraight and Dakon, ex parte Fullerton, 1980 Qd.R. 582; R v. Bridge and Madams, ex parte Larkin, 1989 1 Qd.R. 554 and Re Holt (Judge Helman, District Court, unreported, 124/93, judgment 13 August 1993).

Therefore, Chapter 65A as it now stands means that each applicant is entitled to maximum compensation of one amount of $5,000. It was common ground that the ordinary principles of the assessment of damages for personal injury should be applied, before the maximum limit is taken into account - see McClintock v. Jones 1995 Aust. Torts Reports 81-339.

Statutory Interpretation

However, neither side agreed that the above provisions of Chapter 65A applied to the assessment in this case. There was an issue about the application of the compensation provisions as they stood after the 1984 amendment. It was submitted that it is necessary to go back to the level of compensation allowed when these injuries were suffered. It was further submitted by the applicants that the 1984 restriction on compensation for multiple offences has no effect as it did not affect rights to compensation accrued at an earlier time.

To understand those submissions, it is necessary to outline the essential provisions of the legislation since the beginning of the compensation scheme:

Secondly, the prescribed amount for the purposes of mental shock or nervous shock became $20,000, after 1 July 1984. Thirdly, the restriction on compensation for multiple offences was introduced.

In my opinion, the issue about the appropriate amount can be answered shortly. While the 1969 and 1975 legislation had the effect of restricting compensation to $2,000 where the offence was committed, or the injury was suffered, before 1 July 1975, there is no such restriction in the 1984 definition. Indeed, the 1975 and 1984 definitions can be contrasted. The 1984 definition does not contain the temporal distinction inserted in 1975. There is no scope here for presumptions or the application of the interpretation provisions of the Acts Interpretation Act. Rather, it is a question of applying the plain meaning of the 1984 amendment, which is to increase the maximum amount of compensation for all those cases where injury was suffered before 1 July 1984.

In saying this, I realise that the result will be different, compared to the result reached by Judge Howell in Re Held (unreported, 3051/96, judgment 12/09/96). There, submissions had been made about the appropriate compensation for injury suffered before 1 July 1975. While not dealing with them in detail, his judgment proceeds on the assumption that injury caused by an offence committed before 1 July 1975 could not result in compensation of more than $2,000. In my opinion, the better view is to give effect to the natural meaning of the 1984 amendment.

In dealing with a somewhat similar problem in R v. Bartorelli and Hutton, 15 Queensland Lawyer 57, Judge McLauchlan held that, “In deciding the prescribed amount allowed from time to time under the changing scales of the Workers Compensation Act, for the purposes of s.663B “the prescribed amount” is the amount prescribed at the time that the order for compensation is made”. In my view, a similar approach should be taken here (except that in some cases the critical time may not be the time the order is made, but the time of conviction, or the making of the application).

The restriction on compensation for multiple offences presents another difficulty. Unlike the above definitions of “prescribed amount”, there is nothing literally expressed in the drafting to show whether or not the restrictions are meant to apply to those with injuries suffered before 1 July 1984. However, by referring to “prescribed amount”, in s.663B(1), it seems that the amendment is meant to apply to injuries suffered both before and after 1 July 1984.

It is necessary to consider what appears to be the only decision on the point. That is the judgment of Judge Helman (as he then was), in Re Holt, supra. There, between 1979 and 1983, the accused indecently dealt with the applicant on various occasions. The accused was not convicted until 1992. He held that the offences arose out of the one course of conduct, or closely related courses of conduct. All the injuries were inflicted before 1 July 1984. It was argued for the applicant that the 1984 restrictions should not affect her accrued rights to compensation. It was accepted that, before 1 July 1984, multiple offences resulted in multiple awards.

The learned judge decided the case on the application of s.20(1)(c) and (e) of the Acts Interpretation Act, which provided that:

He thought that the applicant had acquired a right to compensation for each of the offences, when she suffered the injuries. He distinguished between a mere hope or expectation of compensation, and an accrued right, though still inchoate or contingent. He relied upon the advice of the Privy Council in Free Lanka Insurance Co Ltd v. Ranasinghe 1964, AC 541 at 552, in deciding that the applicant's rights were, in truth, accrued rights. He also relied upon a decision of Fox J in J.R. Exports Pty. Ltd. v. Australian Trade Commission 1986, 71 ALR, 717, where that judge said, when discussing a similar provision of an interpretation act,

In my opinion, the conclusion in Re: Holt is not really open. When one looks at the facts in the Free Lanka case, it can be seen that what remained to be done was essentially an assessment of the damages that a driver had suffered in a motor vehicle accident. When that was done the court could make a decree about the right of that driver to damages. There, the amending legislation came into effect shortly before the court made its decree. The Privy Council held, nonetheless, that the injured driver had acquired a right against an insurance company, so that the amendment was ineffective in disturbing that right. Their Lordships said this:

In my opinion, in the Holt case, and in the present case, it is impossible to see that the applicants had any accrued rights on 1 July 1984. The compensation legislation requires that there be a conviction on indictment before any order can be made for the payment of compensation. At the time of injury, and often for long afterwards, it will be impossible to say if there is going to be a conviction. That was this case. Without a conviction, an applicant has nothing - except at the most, the “hope or expectation” that there may be a conviction one day. The conviction is not just a condition of the enforcement of a right, but of its very acquisition (see, likewise, Scrutton LJ in Hamilton Gell v. White, 1922, 2 KB, 422 at 430). Until the conviction, the prosecution might not proceed, or the accused might die, or disappear or be acquitted. Indeed, in these applications, there had not been a complaint to the police until long after 1 July 1984. There could not have been even a “hope or expectation” until that was done. See also the helpful discussion of similar issues in Pearce and Geddes, Statutory Interpretation in Australia, 3rd Ed., Butterworths 1988, at paras. 10.2 and 10.3.

Rather, the level of compensation will depend on the statutory provisions either at the time of conviction, or when the application for compensation is made, or when the order for compensation is made. Here, there is no need to choose between those possible dates - all produce the same result in this case. If a choice has to be made then assistance will be found in the recent Court of Appeal decision in Resort Management Services Ltd. v. Council of the Shire of Noosa (No. 40/1995, Judgment 12/11/1996, unreported).

It follows, therefore, that these applicants are entitled, at the most, to one award of $5,000 each.

The Date of the Offences

There remains the issue about the timing of these offences. In each case, there was a plea of guilty to offences committed “between 1st day of January 1968 and 31st day of December 1970.” Any injuries suffered before 1 January 1969 cannot be compensated. Any injury was taken to be suffered at the time of the offence, even though its consequences may continue. (See the decision to that effect by the Chief Justice in Re Beckett (Motion 120/90, judgment 29 October 1990 unreported - an authority mentioned during submissions). There was no argument to the contrary. I do not have to consider the effect of the recent decision in Re Power (Judge Noud, No. 2226 of 1996, judgment 28/11/96, unreported where it was found an offence in 1981 produced consequences after 1984, and that the proper compensation was not $5,000 but $20,000.

Compensation is ordered “for injuries suffered by reason of the offence of which the offender is convicted”. The applicants sought to lead some further evidence, to demonstrate that, on the balance of probabilities, all or some of these offences occurred after 1 January 1969. There was no objection taken to that course. In my opinion it was a permissible course. No effort was made to contradict the indictment or the conviction - rather, the evidence was directed to establishing when any injury was actually suffered.

Mrs Punch was born on 17 April 1958. She lived with her parents in Oceana Terrace, Manly, next to Father Wright's presbytery. At first she went to school at Loreto Convent at Coorparoo and then to St John Vianney School at Manly. It was during her time at the latter school, that she was indecently dealt with by Father Wright.

She recalled with certainty that she stayed at the school until she finished Grade 7 at the end of 1970. She says that she was then 12 years of age. Those assertions by her are consistent with her having started school in Grade 1 in 1964, the year in which she turned 6 years old.

However, she was uncertain when she started at the school. It was either in Grade 5 or 6, at the beginning of 1968 or 1969. In that case it was quite possible that these incidents occurred during 1968.

In her evidence, she relied on two factors which tended to show that the incidents occurred after the end of 1968. First, she and her family had gained confidence in Father Wright and that would have taken some time since their going to live next door to him at the beginning of 1968. Secondly, she believed that one offence, in the presbytery, took place during the year when Father Wright was discussing the introduction of sex education into Grade 7. She associated the incident with the sex education that he was trying to introduce at the time.

Those assertions have to be weighed against her original witness statement to the police, given on 29 March 1995. There, in discussing the various incidents that took place between her and Father Wright, she said that she could not recall how old she was or when it occurred.

Her sister, Mrs Godwin, also gave evidence. She was born on 5 August 1960. She had said in her statement to the police, on 15 March 1995, that she had moved with her family to the house near the presbytery in 1968, when she first attended St John Vianney School. She was then 7 years old, starting in Grade 3. She continued at that school until the end of Grade 7 in 1972. She was then 12 years old.

Her recollection is that the incidents with Father Wright happened while she was at St John Vianney's School - that is, from between the beginning of 1968 until the end of 1972. There is no evidence of any particular date or year, given in her statement to the police. In an affidavit filed in these proceedings, she said that the assaults took place between her eighth and tenth years - that is, between 1968 and 1970.

She also gave oral evidence. She said that any one of the incidents occurred between 1968 and 1970. She said there were more than the four incidents, and they were continuous while he was at that school, over that time. She could not recall the gap between the four incidents charged in this case. She does not recall which grade she was in at the time. She does not recall whether any of those incidents happened in either Grade 3, 4 or 5 at the school. She was only confident in saying that the four incidents had occurred between 1968 and 1970.

So far, it can be seen that Mrs. Punch has some reason for placing one offence after 1st January 1969, but that Mrs. Godwin has no reason to be certain.

In my view there is a short answer to those difficulties. There is no need to reach a firm view of the effect of above evidence. At the time of sentencing, Father Wright was represented by Mr. Macgroarty of counsel. He said, as part of the plea in mitigation, that, “my instructions are that counts 1-16 (which include these counts) all occurred in a period of approximately 12 months, from mid-1969 to mid-1970.....There is no real evidence to the contrary of that.” (Transcript p.25).

That admission is itself sufficient to establish that all these offences took place after 1 January 1969.

Compensation

Therefore, each applicant should receive $5,000. There is no doubt but that the consequences of Father Wright's conduct would entitle them, if there were no such limit, to much greater compensation.

It is the established practice to award costs, as in a civil action. Subject to any further submissions, I intend to order the defendant to pay the applicants' costs of and incidental to the applications, to be taxed.