Steinback v Steinback[2000] QDC 312

DISTRICT COURT OF QUEENSLAND

[1]The applicant seeks compensation for injury she suffered by reason of a number of offences of a sexual nature committed by the respondent, her natural father. After a trial in 1995, the respondent was found guilty of two counts by a jury, and was sentenced by me, on 28 April 1995, to concurrent terms of imprisonment. He was convicted of counts 4 and 6 on a six count indictment presented in the Ipswich District Court on 11 July 1994. The charges were in the following terms:

 Count 4: That on a date unknown between the First day of January 1987 and

the Thirtieth day of September 1987 near Ingham or elsewhere in the State of Queensland (the respondent) unlawfully and indecently dealt with (the applicant) a girl under 16 (and who was then) a child under 14.

 Count 6: That on a date unknown between the First day of June 1989 and the

Thirty-First day of December 1989 at Bellbird Park in the State of Queensland (the respondent) attempted to have carnal knowledge of (the applicant) who was his daughter.

The jury acquitted the respondent of two counts of incest, the first alleged to be on or about 25 May 1981, and the second alleged to have been between 1 January 1987 and 30 September 1987. The other counts did not proceed to the jury for determination.

[2]The applicant was born on 9 February 1977 and the respondent is her natural father. Therefore, Count 4 was committed when she was 10 and Count 6 when she was 12.

[3]The applicant seeks compensation only in respect to a mental or nervous injury. Compensation is to be assessed in accordance with ordinary principles for the assessment of damages at common law: McClintock v Jones (1995) 79 A Crim R 238. The applicant relies on her own affidavit, a report of Shiela Sweett, a counsellor from the sexual Assault Service, and a report under the hand of Dr Greg Apel, psychiatrist, dated 25 November 1999. Mr Zilman, who appeared for the respondent, did not challenge any of the factual material presented by the applicant; he did not cross-examine any of the witnesses, nor did he seek to place any evidence before the Court. His argument is essentially that the applicant has failed to satisfy the onus upon her of satisfying the Court that her present psychiatric condition was caused “by reason of the offence of which (the respondent) is convicted”: section 663B of the Criminal Code. Before considering Mr Zillman’s primary submission, it is necessary to set out the relevant facts and also a brief history of this litigation.

The Application

[4]The application came on for hearing on 18 April 2000. The respondent had not been served. I was satisfied, on the basis of an affidavit of Graeme Kennedy Smith, sworn on that day, that the respondent was actively avoiding service. I proceeded with the application and made orders. However, I directed that execution of the order for compensation be stayed for a period of two months, and I further ordered that the application, supporting affidavits and reasons for judgment be served on the respondent by way of substituted service on his solicitors. On 19 June 2000, Mr Zillman applied to have the order for compensation made on 18 April 2000 set aside. His application was not opposed. The application was listed for further hearing on 23 August 2000, on which date I reserved my judgment.

The Factual Background

[5]The applicant’s affidavit, filed on 22 March 2000, adopts as true and correct her statements to police, dated 15 December 1993. The statement is ‘Annexure’ A to the applicant’s affidavit, filed 22 March 2000. At the time she made the statement, the applicant was 16 years old. She describes a history of extensive sexual abuse of her by the respondent, commencing when she was 4 years old, at which age she alleges the respondent had sexual intercourse with her. This allegation was the subject of Count 2 on the indictment on which the respondent was tried. He was acquitted of this charge. The applicant says that, thereafter, the respondent had sexual intercourse with her on a regular basis until 1989 when she was in Grade 7, and aged 13. Prior to June 1989, the offence of maintaining a sexual relationship with a child did not exist.

[6]Count 4, on which the respondent was convicted, was an act of digital penetration of the applicant’s vagina whilst on a boat off Mossman. She states:

“I remember he pushed it in a long way and it hurt me a lot…. That was the only time I can remember him putting his finger into my vagina.“

Count 6, attempted incest, occurred in the family home at Bellbird Park, when the respondent attempted to have sexual intercourse with her, but she successfully resisted. The applicant’s affidavit refers briefly to the severe and distressing psychological symptoms that presently afflict her, and she attributes her problems to “the offences perpetrated against me by my father”. Understandably, she relates her problems to the whole history of sexual abuse at the hands of the respondent and does not seek to isolate symptoms caused by the offences for which he was actually convicted. Similarly, the opinions expressed by the counsellor and the psychiatrist are based on her history of long term sexual abuse, including multiple acts of rape from the time she was four until she was thirteen. In the history she provided to Dr Apel, she described the respondent as a dominating tyrant who placed severe restrictions on her personal development. She also referred to an inadequate, depressed mother who contributed to her difficulties.

[7]Unfortunately, the applicant’s material offends many of the fundamental requirements relating to the preparation and presentation of evidence in support of such an application. The Chief Justice has drawn attention to such deficiencies, which occur far too frequently, seemingly because it is not expected that the application will be contested: see Hendry v Llorente [2000] QCA 377; unreported judgment of the Court of Appeal, delivered 15 September 2000. In this case, for example, the report of Dr Apel is not sworn by the doctor, instead it is annexed, in an unsigned format, to the affidavit of the solicitor. The applicant does not verify the truth of the factual account given to the psychiatrist, which must be established by admissible evidence: Ramsay v Watson (1961) 108 CLR 642; Gordon v R (1982) 41 ALR 64; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85 at 87. The deficiencies in the applicant’s material in Hendry v Llorente (supra) was such that the Court remitted the matter to the primary court for re-hearing. This case can, I think, be distinguished in that the respondent was represented by counsel who did not seek to challenge any of the applicant’s evidence in any way, and in that the factual basis relating to the sustained sexual abuse, which forms the basis of the psychiatric opinion, is in fact substantially verified in the applicant’s affidavit, which was unchallenged.

Delay

[8]There has been a substantial delay in bringing the application. This delay has not been explained. Under the compensation scheme governed by the Criminal Offence Victims Act 1995, which covers personal offences committed on and after 18 December 1995, the application would be statute barred, even considering that she was a child when the offences occurred. Frequently, applications are made well after the conclusion of criminal proceedings. Such a course is permissible. However, as far back as R v Muckan (1975) Qd R 393, D.M. Campbell J observed (at 398) that although there is no statutory period of limitation in Chapter 65A, applications should nevertheless be made promptly and delay may result in an order being refused. However, Mr Zillman takes no issue before me on this point and does not suggest any prejudice to his client by reason of delay.

The Issue

[9]It is axiomatic that the applicant has the onus of establishing a causal connection between her present injury and the offences of which the respondent has been convicted. In Chong v Chong [1999] QCA 314; unreported judgment of the Court of Appeal, delivered 13 August 1999, Demack J (with whom the Chief Justice substantially agreed) noted at page 3 of his judgment:

“The facts that have to be proved are

1. (a)
   conviction of offender on indictment
2. (b)
   of an offence relating to a person
3. (c)
   whereby injury was caused to victim”.

Only (c) arises for consideration in this application.

[10]Clearly, if there is an absence of direct evidence to establish causation, the Court is entitled to draw inferences: per the Chief Justice in Hendry v Llorente (supra), at page 7, paragraph 7. In his submissions, Mr Zilman relied heavily on the analysis of Lee J in R v Tiltman ex parte Dawe, Motion No 324 of 1995, unreported judgment of the Supreme Court, delivered 22 June 1995. The judgment deals with a number of issues relating to applications of this nature, but, relevantly, His Honour considered the issue of causation, commencing at page 15 of his judgment. His Honour said (at 15):

“……compensation cannot be awarded for injury sustained as a result of conduct in respect of which there has been no conviction on indictment of an offence relating to the person of the applicant, even thought that conduct may be by the same respondent and may be related to the conduct in respect of which a verdict has been entered.”

[11]His Honour was considering an uncontested application, under Chapter 65A, for compensation for a mental shock injury suffered by a child as a result of sexual offences committed by the respondent to the application. In fact, the respondent in that case, had been convicted (as part of a lengthy indictment involving offences against a number of boys) of two offences of indecent dealing of the applicant. Three other offences of a similar nature were taken into account, pursuant to s 189 of the Penalties and Sentences Act 1992. His Honour noted that “no compensation can…..be awarded in respect of an injury said to flow from the events which constituted the offences listed in the schedule.”

[12]In my view, the facts here are comparable and indeed it would be impossible to separate the effects on the applicant of the two offences of which the respondent has been convicted from the effects of his conduct which is not compensible under s 663B. Applying McClintock v Jones (supra), His Honour then proceeded to assess compensation “in accordance with ordinary principles of assessment of damages for personal injury in civil cases”. His Honour considered, and rejected, the approach, which has received some sanction, of assessing an award applicable to the total injury and then determining, in a broad and somewhat arbitrary manner, the contribution which could fairly be said to have been made to that injury by the conduct involved in the offences for which the respondent has been convicted (page 17). His Honour then considered, and adopted, the approach which derives some support from common law:

“In a tortious action, if the defendant’s negligent conduct combines with other innocent causes to produce a single indivisible injury, it is sufficient to base a finding of causation if that conduct can be said to have materially contributed to the total damage Bonnington Castings Ltd v Wardlaw [1956] AC 613; The Commonwealth v Introvigne 150 CLR 258. It need not be the sole or even the effective cause. That test is, of course, but one manifestation applicable in some circumstances of the proposition that causation in fact “is ultimately a matter of common sense”: Fitzgerald v Penn (1954) 91 CLR 268 at 277-8; March v Stramere (E & M.H.) Pty Ltd (1990-91) 171 CLR 506 at 515-6.”

(my emphasis added)

[13]Mr Zillman contends, and I agree, that this is a correct statement of the law and that the approach adopted by His Honour is the correct one to be applied in the circumstances here. The question is, therefore, has the applicant established, on the balance of probabilities, that the conduct has made a material contribution to her present illness, albeit not the sole or even the effective cause of such injury. Mr Zilman submits that the evidence falls well short of such proof because two isolated offences in an alleged nine year period of serious sexual abuse, could not be said to be a material cause of any psychological injury which is attributable, on the evidence, to the whole period of misconduct. The argument is superficially attractive until one considers that the accused was convicted of two serious offences of a sexual nature, against his own daughter, on occasions some years apart. If causation is ultimately a matter of common sense, it defies common sense and logic not to infer that such actions by a natural father against his daughter, even in the context of long-term sexual abuse, would not have materially contributed to her total injury. In so inferring, I derive support from the approach taken by the Court of Appeal in sentencing in such cases, where any fact adverse to the prisoner on sentence must be established to the satisfaction of the Court beyond a reasonable doubt: R v Morrison [1999] 1 QdR 397. In R v B (Qld No. 328 of 1995, unreported judgment of the Court of Appeal, delivered 23 October 1995) the Court concluded that the sentencing judge had not erred in concluding, in the absence of direct evidence, that the behaviour of the applicant must have had an adverse effect on the complainant’s emotional development:

“It is quite open to a sentencing judge to infer that sexually abhorrent conduct directed towards a young girl by an older man who is in a position of trust towards her may well, and is likely to, have an adverse affect on her both in the short and long term”.

[14]I find, therefore, that the conduct of the respondent in relation to the two offences of which he was convicted, is a material cause of the applicant’s present injury. In Tiltman v Dawe (supra), Lee J said that on the approach taken by him in that case:

“….if I were to find that the offences of which the respondentwas convicted made a material contribution to the applicant’s injury, then, unless the respondent is able to separate the effects of the compensible and non-compensible conduct on the applicant with some reasonable measure of precision, the applicant is entitled to have his compensation assessed in respect of the whole injury:Middleton v The Melbourne Tramway and Omnibus Co. Ltd (1913) 16 CLR 572; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.”

The cases cited relate to the onus on the defendant in relation to the issue of mitigation of damages and should not be read as suggesting any onus on the defendant to prove loss or absence of loss.

Quantum

[15]The applicant has suffered, and continues to suffer, from a post traumatic stress disorder of a chronic kind. She was interviewed by Dr Apel on 30 August 1999, at which time she was 23 years of age. She suffers from flashbacks, in the form of nightmares of her father coming to her house and stealing her baby and sexually interfering with the infant, one or two times a week. She has heightened suspicions of and has emotionally closed off from people around her. She has had difficulties in her sexual relationship with her husband, who is loving and strongly supportive. She has unreasonable fears about his contact with their baby daughter. She is emotionally labile, she sleeps poorly and is moderately depressed and anxious. Dr Apel states:

“…..distorted childhood experiences greatly increase vulnerability to depression in greater life. Similarly, there is much increased vulnerability to anxiety and panic disorders”. He describes her symptoms as “grossly intrusive” and that they “grossly interfere with her quality of life”. He recommends psychiatric care “on and off” for many years, but there is no specific evidence of costs of such treatment.

[16]The applicant’s counsel made no attempt to place comparable decisions before me. In Freeman v Grahame and Ors [2000] QCA 387; unreported judgment of the Court of Appeal, delivered 22 September 2000, the Chief Justice helpfully analysed a number of comparable quantum cases of plaintiff’s suffering from post traumatic stress disorder. Having regard to those cases, I assess compensation under the pain and suffering/loss of amenities head at $35,000. There is no claim for economic loss or gratuitous services. I will allow $3000, as a global figure, for future psychiatric treatment.

[17]The applicant’s counsel did not seek to argue that the conduct of the applicant in committing the two offences of which he was convicted, did not constitute closely related courses of conduct. The issue was considered by the Court in Hendry v Llorente (supra). In his judgment, the Chief Justice said (at page 3, paragraph 5):

“In determining whether courses of conduct are “closely related” these Code provisions invite analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them”. He went on to say (at page 3, paragraph 7): “Assaying a definition of ‘course of conduct’ for purposes of s 663B, the words connote in this context a succession of acts (or omissions) which, because of a sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern”. He said (at page 4, paragraph 8): “But even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct”.

[18]Applying these observations to the facts here, it can be seen that a reasonable argument could have been mounted that the conduct does not constitute a single course of conduct or closely related conduct. Regrettably, the applicant’s advisers have not even raised this issue for my consideration, so the respondent has made no attempt to meet such an argument. For the reasons discussed in Hendry v Llorente (supra), the evidence here, in its present state, would not be sufficient to establish a dichotomy between the conduct constituted by the separate offences. I am, therefore, constrained to an award equivalent to the prescribed amount, which is $20,000.

[19]The respondent will pay to the applicant, by way of compensation pursuant to section 663B, the sum of $20,000. The respondent will pay the applicant’s costs of and incidental to the application, including the costs of the adjourned hearing and the proceedings on 10 April 2000, to be agreed or assessed on the standard basis.