Murray v Noble[2001] QDC 297

CIVIL JURISDICTION

JUDGE HOWELL

and

IPSWICH

DATE 05/10/2001

JUDGMENT

HIS HONOUR: On 5 April 2000 the respondent was convicted after a trial before me of three counts of indecent dealing with the complainant. The applicant was born on 1 June 1967. The counts in the indictment were: count 1, that between 1 June 1979 and 1 January 1981 at Mudtapilly the accused unlawfully and indecently dealt with the complainant, a girl under the age of 14 years; count 2, between 31 December 1978 and 1 July 1981 at Goodna, he unlawfully and indecently dealt with a girl under the age of 16 years; count 3, between 1 March 1981 and 1 May 1982 at Goodna, he unlawfully and indecently dealt with a girl under the age of 16 years.

The respondent was the applicant's step-father. The facts comprising the respective counts were as follows: count 1, whilst living at Mudtapilly the applicant was walking through the respondent's bedroom, when she observed the respondent sitting on a bed with a white singlet and white Y-front underpants on. The next thing the applicant remembered, was the respondent kneeling down on his haunches in front of her, having pulled her knickers aside with his hands, licking her on the outside of her vagina and on her clitoris. The applicant was too scared to move, so she stood there for about ten minutes until he stopped.

Count 2, the respondent and applicant were living at Goodna. The applicant was sharing a room with her sister. There were bunk beds, and the applicant occupied the bottom bunk. The applicant, while asleep in her bed at night, was awoken by a cold sensation on her lips. She realised it was an ice cream. She opened her eyes and observed the respondent with an ice cream cone held up to her lips. She tried to ignore him and pretended to go back to sleep. The respondent then took the ice cream away from the applicant's lips, then she felt something else rubbing along her lips. She opened her eyes and observed it was the respondent's penis, which was pressed firmly against her lips. She did not move and after a time he moved his penis away from her face. She then felt the respondent's hands on her crutch area as he moved her knickers aside with one hand and started rubbing her clitoris on the outside of her vagina with his fingers.

It is unclear on the material the time lapse between count 1 and count 2, but the argument is reasonably open that it was a year or two. Count 1 occurred at separate premises and the one act involved attempted cunnilingus.

The second count involved a possible preliminary fellatio and a possible digital - if not digital penetration - rubbing on the outside of the vaginal area.

Count 3: One morning the applicant was sitting at the kitchen table having breakfast when the respondent came up and knelt down beside her, he started to rub her breasts on the outside of her clothes and, then, began rubbing his face all over her breasts and down her arms. Whilst he was doing this, the applicant's mother walked into the kitchen and caught him with his face on one of her breasts. At this stage, the applicant was in grade 9.

It is unclear what the time lapse is between counts 2 and 3 and between count 1 and count 3.

Count 1 occurred while the respondent was sitting on his own bed and count 2 with the applicant being asleep in her own bedroom at night. Count 3 occurred whilst she was sitting at the breakfast table during the day time.

Different types of acts were involved in each.

The applicant is now aged 34, she did not complain for almost 20 years. She unsurprisingly has suffered serious after-effects as a result of her own step-father's interfering with her at a vulnerable stage of her development. The person who was in a position of trust, her step-father, grossly abused that position of trust and, by his conduct, has understandably caused serious psychological and emotional after-effects.

A psychologist, Mr Ryan's, opinion stated that, “Having regard to all the above, it is considered that the applicant's sexual assaults constituted severe nervous shock.”

In his opinion, as a result of the said sexual assaults, the applicant has suffered post-traumatic stress disorder with anxiety and depressed mood, panic disorder, recurrent major depressive disorder and depressive personality disorder.

The psychologist later stated, “The abovestated nervous shocks would have caused a marked destabilisation in her emotional, social, psychological and behaviour functioning. Furthermore, each successive act of abuse would obviously have compounded the destabilising impact of the previous one thereby resulting in a cumulative, traumatic impact which appears to have been of life-long proportions.”

He late said, “It is thought that the emotional, social, psychological and behavioural destabilisation caused by (the said acts) perpetrated against the applicant has resulted in a marked reduction, not only in her general functioning throughout her life but also causing a significant and chronic impairment in her ability to enjoy life.

The applicant advised that her panic attacks abated in 1998... however, it is clear that significant residual trauma symptomology associated with her sexual abuse are still active at the present time.”

I do not propose to go on in relation to the material and the facts in the usual detail in this matter because, on the view most favourable to the applicant, the maximum that she can receive today is $15,000 for nervous and mental shock. Such results from the fact that all incidents occurred before 1 July 1984.

The maximum that could be awarded for nervous and mental shock for any act that occurred prior to 1 July 1984 was $5,000. However, the legislation permitted an award of $5,000 for each separate act unless the acts arose “out of the one course of conduct or closely related courses of conduct”. If each of the three acts was said not to arise out of the one course of conduct or closely related courses of conduct, the applicant would be entitled to a maximum of $5,000 for each such act.

If two of the acts were said to result from one course of conduct or closely related courses of conduct, but the third act not so, the applicant would be entitled to a maximum of two lots of $5,000. If all three acts arose out of one course of conduct or closely related courses of conduct, unsatisfactory as it might seem, she would be entitled to a maximum of one lot of $5,000.

It is necessary, therefore, to face head on the question of whether the three acts before me, or at least two of them, arose out the one course of conduct or closely related courses of conduct. As I stated when I considered the situation in Scicluna v. Owens, Application Brisbane DC2825/00, on 27 October 2000, appellate authority on the point is arguably irreconcilable.

The situation most favourable to the applicant is the ruling enunciated by the Court in Hendry v. Llorente, CA3016/00, the Court comprising de Jersey CJ, McMurdo P and Muir J. The Court heard argument on 22 May 2000 and delivered its judgment on 15 September 2000.

The appellate ruling most averse to the applicant is Marsten and Kello, CA6042/00 the Court comprising Davies JA, Ambrose and Chesterman JJ, none of whom sat on the Hendry appeal. Whilst the Hendry appeal was the subject of a reserved decision, the Court in Marsten heard the appeal on 17 August 2000 and delivered its decision on 6 October 2000.

I notionally attach my reasons in Scicluna and Owens, (Supra), wherein I refer to the seeming irreconcilability of the two decisions. If one were to apply what the Court of Appeal said in Hendry, the applicant here is in a better position than the applicant was there and she would be clearly entitled to three amounts of $5000, namely $15,000.

If I may repeat what I said in Scicluna; “One might provisionally say, applying the principles enunciated in Marsten, that it could be open to the trial Judge to say that the indecent dealing, each of the indecent dealings, was a discrete act, discrete from each of the other offences... Realistically, when one looks at the matter before me, it is close to the borderline, it is in the grey area, but in my view it is consistent with the appellate authorities, particularly in light of an arguable inconsistency between the two authorities to find that each of the acts before me are discrete acts. Following what the Chief Justice and the President said in Hendry's case, in my view, it is not only open to find that these are discrete acts but that such would be consistent therewith and on the stricter, arguably not necessarily consistent, test in Marsten, it is open, but as I said, falling somewhere near the borderline.”

I propose following a similar course in this particular case and adopting the reasoning enunciated in Scicluna and Owens, I find that each of the three acts in the three counts are discrete acts. Accordingly, I allow $5000 for mental shock in relation to each of the three said discrete acts and quantum is assessed at $15,000.

Judgment is entered for the applicant against the respondent in the sum of $15,000. As I have made clear, an assessment of quantum at $15,000 is clearly less than would have been awarded if one were permitted to assess the quantum on the normal principles without any upper limit.

If it were thought that I were incorrect in finding that the said offences were discrete acts and that the maximum I could apply was only $5000 (or $10,000), I would strongly recommend that consideration be given to making an ex gratia payment of the total sum of $15,000.

As I say, in the eyes of many that might seem to be compensation that is well and truly on the light side for offences of this nature, in light of the evidence in this particular case. For what it is worth, and I imagine it is nothing more than academic, but I further order that the respondent pay the applicant's costs of and incidental to the application, such costs to be assessed.