B v B[2002] QDC 327

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a criminal compensation application under s 663B of the Criminal Code by KB for compensation following the conviction of LB. 

2. [2]
   When I first heard this matter on 15 October 2002 I found it impossible to reconcile what I have said in my sentencing remarks and what is contained in the certificate of conviction. This has now been clarified and I attach a schedule. The lack of clarity was compounded by a possible error in the Applicant’s Affidavit filed by leave. The Applicant has since filed a further Affidavit submitted to me on 11 November, in which the Applicant deposes to moving to Acland “in about late May 1987”.

3. [3]
   It is clear that there are a large number of counts. In further written submissions Counsel for the applicant set out the counts, the number of the count and the description of each offence. My Associate has undertaken a further analysis of the counts and this is in the attached schedule.

4. [4]
   Counsel for the applicant submitted there were three courses of conduct as set out in his written submissions.

5. [5]
   The time gap between the counts, and the time gap between the three series of conduct suggested by Counsel, is relevant to the question how many courses of conduct there were: one, two or three.

6. [6]
   In the Court of Appeal decision of Hendry v. Llorente [2000] QCA 377 the Court set out the applicable principles in order to decide whether there has been the same course of conduct. The Chief Justice said in Hendry at paragraph 7,

Assaying a definition of ‘course of conduct’ for purposes of section 663Bthe words connote in this context a succession or series 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.  The American cases provide assistance pointing to the need for an element of continuity and regularity.

I therefore need to have regard to the nature, time, place, continuity and regularity  of the offences.

7. [7]
   The Chief Justice further said in Hendry at paragraph 8,

It goes without saying that one cannot be prescriptive of the requisite extent of relationship.  One obviously cannot, for example, specify a maximum duration for any separate course of conduct.  Given a high level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist over days, weeks or months.  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.  (These observations are consistent with the approach which has been taken by a number of Judges of the District Court.)

8. [8]
   The President of the Court of Appeal said in Hendry at paragraph 63 of her separate judgment:

The facts of this case are not in that category (having referred to the Queen v. Bridge and Madams; ex parte Larkin).  Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed sometimes years apart and over a six year period.  Although the respondent perpetrated regular sexual abuse upon the applicant over a lengthy period, it is the conviction for the six offences that, upon application, leads to an order for compensation.  Each offence in this case is completely distinct in time, place and detail and cannot fairly be said to arise out of the one course of conduct or closely related courses of conduct.

9. [9]
   The other relevant Court of Appeal decision is Marsten and Kello [2000] QCA 410 delivered on the 17^th of August 2000, a couple of months after the decision in Hendry.

10. [10]
    At paragraph 14 of Marsten, Justice Davies said:

The question is whether the offences to which I have referred arose out of one course of conduct or closely related courses of conduct of the respondent.  Factors relevant to the determination of that question appear to be the similar but escalating nature of the respondent’s conduct; and the facts that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although they indictment alleges a much longer period, they occurred over a period of a little under five months.  Giving section 663B its ordinary meaning seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent.

11. [11]
    Justice Ambrose, at paragraph 22 of his judgment in Marsten, said:

There is nothing on the face of the legislation in my view which would prevent a significant number of offences committed over a long period of time – years perhaps – coming within a category of offences ‘arising out of the one course of conduct’.  If for example the same kind of sexual abuse of a child occurred on a frequent and regular basis as the opportunity arose from time to time and circumstances permitted, the commission of particularised offences of such sexual abuse over a period of years leading to a psychiatric disorder in my view might well permit characterisation of those offences as offences arising out of the one course of conduct.  I find nothing in the section which would justify reading down the clearly expressed limitation by selecting an arbitrary time frame within which a ‘course of conduct’ must be held to              commence and  terminate in disregard of the persistent and regularity of the conduct in the absence of any significant intervals in its occurrence.

12. [12]
    At paragraph 24 Justice Ambrose further said in Marsten:

Having regard to the arguments advanced on behalf of the applicant, I observe merely that in my judgment had the same sort of conduct continued on a weekly basis over a period of years rather than over one of five months resulting in a number of the convictions for offences extending through that period of years, all such offences would clearly have arisen out of the one course of conduct or closely related courses of conduct.  If there were long intervals of time during which no acts of abuse occurred with regularity – for whatever reason be it lack of opportunity or voluntary restraint on the part of the offender – then obviously one would need to consider whether psychiatric injury resulted from only one course of conduct or closely related courses of conduct and this of course would involve considering, inter alia, the length of any intervals between acts of abuse.

13. [13]
    These two paragraphs from Justice Ambrose’s judgment are particularly apposite to this application.

14. [14]
    Justice Chesterman said in his judgment in Marsten:

The decisions to which Davies JA has referred illustrate the fact that there will on occasions be difficulty in deciding whether offences giving rise to an applicant’s injuries, particularly psychiatric injuries, were committed in a course of conduct or closely related courses of conduct or whether they were discrete.  Giving the words, ‘course of conduct’, the meaning elucidated by the Chief Justice (with whom Muir J agreed) in Hendry v. Llorente [2000] QCA 377 paras 7 and 8, there must be a succession or a series of acts which because of a sufficiently close interrelation by reason of their nature, time, place or other circumstance display an identifiable overall pattern.  There should ordinarily be elements of continuity and regularity if there is to be found a ‘course of conduct’ (paragraph 38).

According to that understanding the offences committed by the respondent upon the applicant did constitute a course of conduct.  There was, as Davies JA has pointed out, a close similarity in the acts of indecency committed by the respondent on each occasion.  More important is that the acts occurred in the same place and in the same circumstances, that is whenever the applicant and her sister were left at the respondent’s parents’ house to be cared for while the applicant’s parents were at work.  Although the indictment alleged six offences the applicant’s evidence was that she was indecently dealt with much more frequently: once or twice a week on every or almost every occasion she was left at the respondent’s home.  There was a clearly discernible pattern of conduct persisting for a period of about five months. (paragraph 39)

In my opinion the question whether indictable offences in respect of which compensation is sought arise out of the one course of conduct or closely related courses of conduct is not to be answered by reference to the minutiae of the conduct which constituted the offences.  A broader inquiry into the matters which are discussed in Hendry is called for.  It is most unlikely that acts constituting indecent dealing involving the same complainant and accused would be identical in their mode of commission.  If that were a requirement of “a course of conduct” it would hardly ever be satisfied.  There was here, as has been said, a marked similarity in the acts of indecency on the occasion of each offence.  That fact together with the other factors identified make this a case in which the offences arose out of the one course of conduct. (paragraph 40)

15. [15]
    Hendry and Marsten identify the difficulty for District Court Judges who wish to see that victims of extremely serious assaults, particularly sexual assaults, are adequately compensated. The Judges also recognize that many, if not all, the payments of compensation are from the public purse rather than private individuals, and also the necessity to give the appropriate recognition to the fact that there is legislation which is binding.

16. [16]
    These issues are not easy, and the present Application clearly highlights the difficulties which can arise in some cases.

17. [17]
    On my analysis of the offences they involve  a closely related course of conduct, if not actually one course of conduct. The acts involved are basically the same, and at the same level over the time period and the three locations. The respite the applicant received upon the move from Walsh Street to South Street and after the birth of the twins was just that -  a respite. The level and intensity of the offences committed against the applicant did not change after the first or second respites. The injury suffered by the applicant is therefore as a result of ‘closely related courses of conduct’. There is  an ‘identifiable overall pattern’ and there is ‘continuity and regularity’ as is required to establish a “course of conduct”  according to Hendry.

18. [18]
    As I have found only one course of conduct, S 663B of the Criminal Code prohibits the making of more than one order for compensation.

19. [19]
    I accordingly order that the Respondent pay to the Applicant the sum of $20,000 as compensation for the injuries suffered, together with costs of the Application.

Schedule

Attended Oakey High School  1988 – 1992

Lived at Walsh St Toowoomba 1982 – mid 1987

Lived at South Street Acland “about late May” 1987 (Applicant’s affidavit 11/11/02; #5) – conflicts with later statement in Applicant’s affidavit 11/1/021; #11 = late April, early May 1987; mid way through Grade  7 – commenced school at Acland Primary 5 May 87 (according to school records) (Applicant’s affidavit  11/11/02; #9); After move abuse ceased for 3 months on material in submissions, but not in police statement.

Twins born 17 March 1989;  after twins born abuse ceased for 3 months on material in submissions, but not in police statements.

Parents separated late 1990