Re the application for compensation by Schekoske
[1997] QDC 273
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Re the application for compensation by Schekoske[1997] QDC 273
Re the application for compensation by Schekoske[1997] QDC 273
DISTRICT COURT | Matter No 12 of 1997 |
CHAMBERS
JUDGE NASE
IN THE MATTER OF R v. RODNEY GRAYSON KUHN
and
IN THE MATTER OF THE APPLICATION FOR COMPENSATION BY DARRIAN LESLIE SCHEKOSKE
ROCKHAMPTON
DATE 17/10/97
JUDGMENT
BENCH: This is an application for criminal compensation by Darrian Leslie Schekoske (the applicant) for injuries suffered by him as a consequence of offences committed upon him by Rodney Grayson Kuhn (the respondent to the application).
On 12 July 1996 the respondent was convicted by a jury of two counts of indecently dealing with a boy under the age of 17 years, in each case with a circumstance of aggravation, and a further court of sodomy.
The applicant at the time of the offences was in Grade 1 at school and aged only five or six years. The offences were all committed between December 1972 and January 1974.
Mr A Grant appeared on behalf of the applicant. The respondent, who is presently serving a sentence of imprisonment for these offences, chose not to appear or be represented on the hearing of the application.
As the acts constituting the offences occurred before the commencement of the Criminal Offences Victims Act 1995, the application is to be considered under the repealed provisions of the Criminal Code (section 663B Code). The Criminal Code and Justices Act Amendment Act of 1975 confined the award for an offence which occurred before the commencement of the Amendment Act to $2,000. As each offence occurred before the commencement of the Amending Act, the monetary limitation of $2,000 applies to the present application. Mr A Grant submitted that although the award for each offence was limited to $2,000, the applicant was entitled to a separate award for each of the three offences. This view apparently represents the current view of members of this Court. (See the discussion by Noud DCJ in R v. Carroll Ex Parte Doram No 269 of 1995 at pp 3, 4).
In R v. Boughton Ex Parte Holt No 124 of 1993, the Chief Judge of District Courts (now Helman J) noted that prior to the commencement of the Amendment Act in 1984 the interpretation placed on section 663B (1) was that a Court could award a prescribed amount in respect of each of the number of offences of which an offender had been convicted, even where those offences had arisen out of the one course of conduct or closely related courses of conduct. The 1984 amendment limited an application to the prescribed amount where the offences were interrelated.
After a consideration of the relevant legislation, I am satisfied the applicant is entitled to a separate award of up to $2,000 for each of the three offences.
At the time section 663B(2) of the Code provided that a Court determining an application for compensation should have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered. The applicant at the time was in Grade 1 at school. As I said earlier, he was only five or six years of age. The offences demonstrated great cruelty and involved the use of force to commit sodomy on the applicant. Indeed, the use of force was common to all three offences.
I am satisfied in those circumstances that there was no conduct on the part of the applicant which directly or indirectly contributed to the injury he suffered and I do not believe the award of compensation should be reduced because of any conduct on the part of the applicant.
The approach to be adopted to an application for compensation under the repealed provisions of the Criminal Code is to assess compensation in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.
During the course of the hearing an affidavit by a Dr Venugopalan was placed before the Court. In part the report reads:
“Sexual abuse of this nature (at an early age and where the victim could not seek any help) is known to cause long standing adverse effects on a child's psychological and personality development, and other symptoms similar to Post Traumatic Stress Disorder.
Mr Schekoske's statement of the psychological and relationship difficulties he has attributed to the sexual abuse are broadly consistent with the long term psychological problems expected as a consequence of such abuse.
His history suggests that he experienced some symptoms of Post Traumatic Stress Disorder, like flashbacks and nightmares, frequently for several years. The frequency of these experiences have lessened in recent years. However, some of the avoidance behaviour persists. These include avoiding close contact with other men, his preference to work in isolation, and his discomfort in exposing his body to others. Hypervigilence (eg checking all door locks before he can sleep) is another persisting symptoms of Post Traumatic Stress Disorder.
In summary, it appears that the past sexual abuse has contributed to a major extent in causing Mr Schekoske's psychological problems as stated above.”
I accept the opinion evidence of Dr Venugopalan.
A preliminary question arises as to whether the psychological effects suffered by the applicant constitute a compensatable injury. Injury is defined to mean bodily harm and to include pregnancy and mental shock and nervous shock, (section 663A Criminal Code). The phrase “mental shock and nervous shock” commonly occurs in State legislative schemes for compensation for criminal injury.
The scope of the phrase has been considered by a number of Courts. Most recently it was considered by the Court of Appeal in West v. Morrison, unreported Court of Appeal, Queensland, Appeal No 266 of 1995. Although the members of the Court gave separate judgments, I think it fair to say that both Macrossan CJ and Fitzgerald P viewed the phrase as possessing a broad meaning. Observations of Wootten J in R v. Fraser 1975 2 New South Wales Law Reports 521 were quoted by both the Chief Justice and the President. I quote myself from Wootten J at pages 525 to 526:
“The words ‘bodily harm’... are themselves understood to include any hurt or injury calculated to interfere with the health or comfort of the victim. They have been specifically held to include an injury to the victim's state of mind: R v. Miller 1954 2 All England reports 529...The terms “mental shock and nervous shock” are not words of narrow technical meaning, they have long been used Interchangeably in the law of tort to include any mental or psychological disturbance.”
The President also quoted observations by Bray C J in Batista v. Cooper 1976 14 South Australian State Reports 225 at 227:
“There is a familiar distinction between mere sorrow and grief which cause emotional distress and no more and something which causes in addition some sort of physical, mental or psychological trauma with consequential effect on physical, mental or psychological health. This distinction may ultimately, with the development of science, turn out to be an unreal one. It may be found that all emotional distress produces some effect of physical or mental health. For the present, it is to be treated as a real distinction.”
Parker J in the Supreme Court of Western Australia discussed the question in the enigmatically named X v. Y, Western Australian Supreme Court 13/9/96, where it was said:
“To be compensatable under the Act psychological injury must consist of mental or nervous shock. In The Applicant v. Larkin 1976 Western Australia Reports 199 at 201, Wickham J held the word ‘shock’ was used in the Act to mean shock that resulted in physical or mental harm. In B v. Murray J (at 9) articulated the principle expressed by Wickham J in The Applicant v. Larkin as follows:
‘It has therefore been held that a distinction needs to be drawn between a mere emotional reaction and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury.’
It has been accepted that the words include, ‘distress, horror and disgust and other similar adverse mental reactions.’: M v. J at 11.
In The Applicant v. Larkin, Wickham J (at 201) also explained what is excluded from the definition of mental or nervous shock.
‘... fright, humiliation or anguish are therefore necessarily excluded, although that is not to say that such mental reactions might not be the cause of what otherwise aggravate a demonstrated physical condition or throw light on the possible intensity of duration of it.’
This approach is the generally accepted one: M v. J; B v. W 1989, 6 State Reports Western Australia 79.”
Park J continued:
“In this case although the clinical psychologist seen by the applicant did not put a precise label on the applicant's psychological condition, it is readily apparent from her reports that the applicant is indeed suffering from enduring psychological injury that can be characterised as mental or nervous shock. The applicant's poor self-image and suicidal tendencies can be viewed as symptomatic of the mental injuries she suffers from.”
In this case I am satisfied the applicant has suffered an enduring psychological injury as a consequence of the respondent's criminal conduct which amounts to mental or nervous shock within the relevant statutory definition.
As I am satisfied the appropriate award for the injury suffered by the applicant exceeds the maximum amount payable for each of the three offences ($6,000), the respondent will be ordered to pay $6,000 by way of compensation.
Since the section was amended in 1984, the ceiling on the compensation payable under the scheme has been very substantially increased. The amount at the time the Code provisions were repealed was $75,000. Over the same period of 40 time the basic legal and other costs of obtaining judgment have undoubtedly increased. In these circumstances the Government could properly consider whether it would be appropriate to pay the applicant's legal costs of obtaining judgment in this case if the respondent is unable to meet the judgment. In the circumstances, I recommend that consideration be given to reimbursing the applicant's legal costs of obtaining judgment.
It is ordered therefore:
- The respondent Rodney Grayson Kuhn be pay Darrian Leslie Schekoske the sum of $6,000 by way of compensation for the injuries suffered by him in respect of the offences of which the respondent to Rodney Grayson Kuhn on 12 July 1996.
- That the respondent Rodney Grayson Kuhn play the costs of and incidental to this application, such costs to be taxed.
- That the respondent Rodney Grayson Kuhn be orally examined before the Registrar of this Court at Rockhampton on a date to be determined by the Registrar as to whether any and what debts are owing to the said Rodney Grayson Kuhn and whether the said Rodney Grayson Kuhn has any and what other property for means of satisfying the order for compensation made herein, and that the said Rodney Grayson Kuhn attend such examination and produce any books, deeds, papers or writings relating to such debts which might be owing, and any property, assets, business in respect of which the said Rodney Grayson Kuhn may have an interest and any other liabilities owed by the said Rodney Grayson Kuhn.
- That the respondent Rodney Grayson Kuhn pay the costs of and incidental to this application, such costs to be taxed.