Re an application of Clark[1997] QDC 119

IN THE MATTER OF S.663B OF THE CRIMINAL CODE (QUEENSLAND)

AND

IN THE MATTER OF AN APPLICATION OF ALLYSON JANE THERESA CLARK THAT LINCOLN ROGER CLARK PAY HER CRIMINAL COMPENSATION

REASONS FOR JUDGMENT - SENIOR JUDGE SKOIEN

Delivered the 28th day of May 1997

BETWEEN:

IN THE MATTER of s.663B of the Criminal Code (Queensland)

AND

IN THE MATTER of an application of ALLYSON JANE THERESA CLARK that LINCOLN ROGER CLARK pay her criminal compensation

REASONS FOR JUDGMENT - SKOIEN S.J.D.C.

Delivered the Twenty-eighth day of May 1997

This is an application for criminal compensation.

On 3 June 1988 the respondent was convicted on his own confession of seven counts of indecently dealing with the complainant, a girl under the age of fourteen years. All of the offences occurred during 1983 when the applicant was aged ten. The respondent was her grandfather. The offences involved his touching her genital region and her breasts and requiring her to handle his penis. The applicant kept these matters secret for some years and first disclosed them to her sister in 1987 when she was aged fourteen. She first made a complaint to the police in January 1988.

She suffered no physical injury whatsoever as a result of any of the offences. Her application relates to a psychiatric condition which has developed.

Because the injury in this case was suffered before 18 December 1995, Chapter 65A of the Criminal Code continues to apply to the application. See Criminal Offence Victims Act 1995, s.46. Relevant sections of the Criminal Code are:—

The Criminal Code Amendment Act 1984 commenced on 1 July 1984. See Government Gazette 30 June 1984, page 1475.

When the application came on before me for hearing an application was made by Mr. Plunkett of counsel on behalf of the Honourable the Attorney-General for the State of Queensland to appear as amicus curiae to make submissions to assist me on the relevant law to be applied and the maximum compensation that might be granted. No opposition was voiced to this by Mr. Murphy of counsel for the applicant and in any event I considered that it was a proper case in which to give leave. Indeed it must be said that there have been many occasions on which the Court, in assessing criminal compensation, could have benefited from submissions on behalf of a party other than the applicant.

Mr. Plunkett submitted that the effect of the definition of “prescribed amount” in s.663A was that the maximum amount which the applicant could recover was $5,000 in respect of any injury which she suffered. All of the acts of indecent dealing occurred before 1 July 1984. He conceded that a sum not exceeding that maximum amount could be assessed in respect of each of the seven convictions but no such argument was advanced by Mr. Murphy. The evidence would not have justified any such result. Her condition results from the overall criminal conduct of the respondent and it has not been suggested by any witness that any one act could be isolated as producing an identifiable injury.

The evidence placed before me consisted of an affidavit by the applicant and psychiatric reports, one by Dr. Middleton dated 3 June 1996, another by Professor McFarlane dated 28 August 1996 with a supplementary report by him dated 18 September 1996.

It is not necessary in the circumstances to descend into much detail on the factual aspects of the matter. Suffice it to say that the plaintiff's affidavit swears that initially her response to the criminal activities of the respondent were fear, embarrassment and shame. She also felt angry and humiliated as well as a sense of isolation in that her grandfather continued to be a loved member of the family whereas she felt somewhat rejected by her family, especially her father.

There is nothing before me to suggest that up to the time when she first made a statement to the police in 1988, she was suffering any psychiatric problems and indeed she said that initially she had simply tried to put the events to the back of her mind and simply not to think about them. She told the psychiatric staff at the Royal Brisbane Hospital that her problems originated in about August 1990. In her affidavit she places their onset in early 1988. The first of these was the condition of anorexia nervosa. Thereafter her psychiatric problems have continued and indeed worsened. In brief, she has had difficulty in settling into any form of career; her personal relationships are quite difficult and worrying to her; she has taken illegal drugs; she has had to rely quite inappropriately on her boyfriend for support; she is irritable and hypervigilant. While it is not easy to find a definite statement in Professor McFarlane's careful reports it is clear enough to me that he considers the sexual abuse to be the initiating cause of these continuing psychiatric problems. He describes her illness as a post-traumatic stress disorder which has led to her dysfunctional life. He recommends continuing psychological treatment and is guarded in his opinion on her long term prognosis.

Dr. Middleton saw the applicant frequently at the Royal Brisbane Hospital during 1991, then on isolated occasions in 1992, 1993, 194 and 1995, when she complained of such things as eating disorders, urinary problems and her health generally. She exhibited signs of depression and anxiety and had entertained suicidal thoughts. His report also records difficulties with her parents, problems with work and her inability to face life. At least in early 1991 she told him of sexual abuse by her grandfather. He spends some time in his report discussing the effects of childhood sexual abuse. It is clear to me that he also accepts that abuse as the predominant initial cause of the psychiatric condition.

There can be no doubt that the applicant's compensation, when assessed on the ordinary principles of the assessment of damages in tort (see McClintock v. Jones (1995) ( Aust. Torts Rep. 81-339) would be reflected in a very substantial sum and clearly well over $20,000.

The first question is when “the injury in connection with which (this) application is made was suffered”. See s. 663A. If it was before 1 July 1984 then I am bound to award her no more than $5,000.

The definition of “injury” in s.663A clearly relates the word to the suffering of some bodily harm, a term which expressly is extended to include mental shock and nervous shock. “Bodily harm” itself is defined by s.1 of the Code as “any bodily injury which interferes with bodily health or comfort”. Again the reference is to a form of suffering. It is not related to the act by which or from which injury was sustained. Generally speaking of course, when injury is suffered as a result of a physical act, it is suffered at the time the act is done. A physical blow generally causes injury then and there. I rather doubt that that is always the case and can imagine a situation in which a blow is delivered which may cause transient or even no injury yet may be the actual cause of a later supervening serious bodily infirmity. Whether that occurred would be a question of fact.

So it is in the case of psychological injury. Sexual abuse may produce no physical injury whatsoever nor anything which could properly be described as interference with bodily health or comfort (i.e. bodily harm). Yet later a psychiatric illness (mental shock or nervous shock) may develop and that would then qualify as both bodily harm and injury (ss.1, 663A). Whether that happens is a question of fact.

Thus the applicant first suffered an injury (that is, bodily harm encompassing and manifested in mental shock and nervous shock) when symptoms began to develop. On the facts before me this was not until about 1990 (or at the earliest 1988) that is, well after 1 July 1984.

Therefore the compensation which I am able to assess is not limited to the sum of $5,000.

Mr. Murphy then argued that the compensation ought not be limited to the sum of $20,000 set out in s.663AA(1). His argument ran along the lines that the condition which the applicant has suffered was something much more severe than, and quite distinct from, “mental shock or nervous shock”, that it was a recognisable psychiatric condition. He referred me to R. v. Knox ex parte Knox an unreported decision of His Honour Judge Pratt Q.C., (no. 23 of 1995 delivered on 17 January 1995).

I regret that I am unable to agree with His Honour on the point. It is the intention of the legislature which must be gathered and phrases such as “mental shock” or “nervous shock” have traditionally been the expressions used in the law to describe psychiatric reactions to trauma or similar events. I respectfully adopt the discussion on the point by Macrossan C.J. in West v. Morrison, (App. No. 266/1995 delivered on 16 September 1996). It is true that Fitzgerald P., after carefully considering that point and the cases in which other judges have held that “mental shock” or “nervous shock” simply means psychiatric or psychological illness, found himself in disagreement with the Chief Justice but, with respect. I am unable to see clearly the basis on which he disagreed. The third member of the Court, Davies J.A., did not expressly deal with the point but it seems to me to be implicit in his reasoning that he accepted that the terms “mental shock” and “nervous shock” encompassed a serious psychiatric illness or reaction.

I therefore assess the applicant's compensation in the sum of $20,000. I order the respondent to pay that sum to her forthwith together with the costs of and incidental to the application to be taxed.