Re an application by Johanssen for criminal compensation
[1998] QDC 38
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- Re an application by Johanssen for criminal compensation[1998] QDC 38
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Re an application by Johanssen for criminal compensation[1998] QDC 38
Re an application by Johanssen for criminal compensation[1998] QDC 38
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Appn No 5232 of 1997 |
IN THE MATTER of an application by RUTH YVONNE JOHANSSEN for criminal compensation pursuant to S.663B of the Criminal Code (Queensland)
and
IN THE MATTER of S.663B of the Criminal Code (Queensland)
and
IN THE MATTER of THE QUEEN v. DARCY ROBERT BURKE
REASONS FOR JUDGMENT - B.J. BOULTON D.C.J.
Delivered the day of 20th March 1998
This is an application for criminal compensation by Ruth Yvonne Johanssen arising out of one count of rape and another of assault with intent to commit an unnatural offence both committed by the respondent upon her on 7 August 1995.
The complainant had met a group of Aboriginals in King George Square and had accompanied the prisoner to a hotel near the transit centre. Following some drinks the prisoner suggested they go to the park to smoke some cannabis. It was following this that the prisoner pushed her down and raped her. Following that he attempted to sodomise her.
A medical examination conducted early the next morning revealed a 1cm fresh laceration over the right scalp with local tenderness, a small 5mm laceration to the right eyebrow with swelling and tender abrasions to both knees. A genital examination revealed no injuries.
It is submitted on behalf of the applicant that she did not contribute either directly or indirectly to the injuries suffered by her. It may be thought that she was somewhat trusting in accompanying a complete stranger to a secluded place but I accept for the purposes of this application that she did not contribute to the offences that occurred.
The complainant was working as a graphics designer at Griffith University. She continued that work but said she was fearful of sexually transmitted diseases and consumed with fear and shame at what had occurred. She had great difficulty coming to terms with the rape. She describes in her affidavit extreme fear, anxiety, hyper vigilance and paranoia. She had difficulty sleeping. She was diagnosed with post traumatic stress syndrome.
I am provided with a report of the Northern Rivers Health Service over the hand of a Gai Harrison dated 12 May 1997 and a report of Dr Harvey Whiteford dated 13 July 1996. Dr Whiteford noted evidence of depressive and anxiety symptoms. He observed:
“However, Ms Johannsen also sustained significant psychological trauma in the form of post traumatic stress symptoms, with secondary depression. This had resulted in a marked deterioration in her psychosocial functioning and her having to move from Brisbane to another town. It has also resulted in a profound deterioration in her relationship with her partner, as well as adversely affecting her self-esteem and self-confidence.
...
Ms Johannsen has clearly been profoundly affected from a psychiatric perspective, as a result of the rape. The initial five month period of repression and avoidance has now been replaced by the emergence of quite disabling anxiety and depressive symptoms, which will require professional treatment.”
Mr Kimmins, who appears for the applicant, contends in his initial outline of submissions that the $20,000 limit referred to in section 663AA does not apply if a claim for mental or nervous shock is made in conjunction with other physical injuries.
He cites in support of this proposition a decision of de Jersey J in the application of Sarah Jane Harris No. 315 of 1995 unreported dated 18 September 1995. The applicant in that case had suffered a rape which the judge described as particularly horrific. She had been throttled and came within seconds of death. She had been diagnosed with an acute post traumatic stress disorder. Dr Chittenden a specialist psychiatrist described her as “one of the most severely affected people I have ever seen following a violent sexual assault.”
His Honour observed that for nervous shock there was absolutely no doubt that she should receive the maximum of $20,000 which he could award. He went on to say:
“... but in addition she should be compensated for physical pain and suffering and related loss of amenities of life. In her summary she has outlined the physical effects upon her, which though perhaps not permanent disabilities were particularly horrific at the time and undoubtedly subjected her to a lot of pain for quite a substantial period, but I think beyond that, the whole experience has diminished her enjoyment of life to an extraordinary degree and I suspect that diminution will in some form or other persist throughout her life.... There is a difference between that nervous shock, on the one hand and the loss of amenities of life, which she suffers because of this incident, on the other.”
His Honour went on to award “another $40,000 to cover both the physical injuries, the related pain and suffering there and the loss of amenities of life following from her exposure to this incident overall.”
Mr Kimmins referred to a decision of Judge Pratt QC in The Queen v. Ginger & Armstrong; Ex parte Francis No. 552 of 1998, a decision of Judge Newton in R v. Quarrell; Ex parte McGill No.23 of 1996 where awards of damages for pain and suffering and loss of amenities were made in addition to awards for nervous shock in reliance upon the decision of de Jersey J referred to above.
In R v. Ridsdale; Ex parte Dawson. Judge Shanahan on 1 May 1997 awarded compensation of $55,000 to a complainant who had been sodomised. She had suffered anal fissures. The Judge observed:
“I regard this as an injury. The upper limit of damages applies. The applicant is not confined to an award for $20,000 for nervous shock.”
I do not regard the reasonings of de Jersey J to be as unequivocal as Mr Kimmins would suggest. His Honour prefaced his award of further compensation by making reference to the complainant's physical injuries. At no stage did he say that the $20,000 was not applicable.
I do not have any difficulty with the notion that an applicant who suffers a number of injuries including nervous shock is entitled to compensation for the totality of those injuries. Obviously the total award might well exceed the $20,000 limit which is applicable only to nervous shock. The total award is then subject to the overall statutory limit. Mr Kimmins submits that once there are other injuries, however trivial, then the $20,000 ceiling on compensation for nervous shock simply does not apply at all. That seems to be the effect of what Judge Shanahan was saying in the above mentioned case of Dawson.
I can find no justification for the construction which is sought to be advanced by Mr Kimmins in the legislation itself. I have some difficulty in deriving such a construction from the reasons of de Jersey J to which I have referred above. De Jersey J quite clearly did not abandon the statutory limit. He awarded $20,000 under that head.
I must say that it seems an extraordinary submission that a rape victim who suffers serious psychiatric consequences is limited to the $20,000 maximum but a similar rape victim who suffers a minor cut to the finger is simply exempted from the $20,000 limit altogether.
A submission was made before Lee J in R v. Tiltman; Ex parte Dawe 324 of 1995 unrep. that one could distinguish between nervous shock and other distress. At page 10 of his unreported judgment his Honour disposes of that submission:
“In advancing a narrow construction of the phrase ‘mental shock or nervous shock’, counsel for the applicant sought to rely upon a distinction, apparently favoured by some judges of District Courts, between mere shock on the one hand and psychiatric illness on the other. The result of accepting such a proposition of course would be that the $20,000 prescribed by section 663AA(1) would not restrict the power of the Court to make an award exceeding that amount in the present case. With respect to those who hold that view, however, I cannot accept it.
...
Whatever the precise scope of the concept of mental or nervous shock it clearly, in my opinion, was intended to cover a case where the sole injury to the applicant is psychiatric in nature. This is such a case.”
As to the notion that pain and suffering and loss of amenities arising out of nervous shock can somehow be distinguished from nervous shock, he goes on to refer to the words of McPherson J in R v. Bridge & Madams; Ex parte Larkin [1989] 1 Qd R 554 at 556:
“So far as material here, the amount that a person may under section 663B(1) be ordered to pay by way of compensation is now a sum not exceeding ‘the prescribed amount’, which, ‘in the case of mental or nervous shock’, is fixed by section 663AA(1) at $20,000. I do not think that it can be doubted that, whether it represents compensation for pain, suffering and loss of amenities, or for loss of earnings or earning capacity, past or future, any sum that may be awarded to the applicant in the circumstances of the present case will constitute compensation for injury in the form of mental shock or nervous shock. In committing the offences the respondents inflicted no other form of bodily harm to or upon her. It is therefore solely on account of, or ‘for’, mental or nervous shock that the assessed sum may be ordered to be paid by way of compensation. It follows that for the purposes of this case the ‘prescribed amount’ is $20,000.”
Mr Kimmins submits that the abovementioned decision of McPherson J is distinguishable. In one respect it is because in the present case the applicant suffered the minor cuts and bruises that I have referred to above. Just why such injuries should change the whole complexion of the assessment continues to elude me. If one accepts the very clear reasoning of McPherson J and Lee J it would seem to follow that one can only award compensation for pain and suffering and loss of amenities (after the $20,000 limit for nervous shock has been awarded) if the pain and suffering and loss of amenities referred to are attributable to injuries other than nervous shock.
A similar view was expressed by Macrossan CJ, with whom Davies J A concurred as to the order, in West v. Morrison. Appeal No. 266 of 1995. That was a case where a girl's father had been convicted of two counts of incest and one of indecent dealing against his daughter. She suffered a psychiatric illness. The District Court Judge had found that he was limited in the terms of section 663AA(1) to $20,000. Macrossan CJ concluded:
“There would be no justification, in my view, for adopting the interpretation that psychiatric illness can be regarded as failing wholly or partly outside the scope of ‘mental shock and nervous shock’ but yet within the meaning of ‘bodily harm’ so that the section 663AA(1) limitation does not apply to it.”
In the present case I am satisfied that the applicant has suffered a serious post traumatic stress disorder which calls for the maximum award of compensation on the grounds of mental or nervous shock of $20,000. She suffered the physical pain and suffering associated with the commission of the offences themselves and the minor injuries referred to above. I allow $1,500 under this head which is exclusive of mental or nervous shock.
Mr Kimmins asks me to assess compensation only under the headings of nervous shock and pain, suffering and loss of amenities. He expressly does not seek a Griffiths v. Kerkemeyer sum or any special damages past or future.
The approach I have taken is similar to that taken by Lee J in R v. Beaton; Ex parte Smee No. 3928 of 1997 unrep. where his Honour concluded that if permitted he would have awarded damages considerably in excess of $20,000 for pain, suffering and loss of amenities relating to the complainant's psychiatric disability but then went on to say:
“However, I am limited by the application of section 663AA(1) which provides a maximum award of $20,000 for nervous shock. I consider that the residual damage caused by the physical injury is compensable by an award of $35,000.
...
I therefore award the applicant the sum of $55,000 pursuant to section 663B of the Criminal Code...”
I think that it is strongly arguable that this was also the approach taken by de Jersey J in the case of Harris but that his Honour's reasons have been misinterpreted to suggest that compensation for pain and suffering and loss of amenities arising out of nervous shock can somehow escape the $20,000 limit.
I order that the respondent Darcy Robert Burke pay to the applicant the sum of $21,500 by way of compensation for the offences committed on 7 August 1995 to which he pleaded guilty on 23 February 1996. I order that the respondent pay the applicant's costs of and incidental to the application to be taxed.