S v Maxwell[2003] QDC 12

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation by S. The applicant is 41 years old and is presently unemployed and is on a disability pension. The applicant’s date of birth is 26^th July, 1961. The applicant was eight years old when the offending against him commenced in 1968.

2. [2]
   The respondent, Peter John Maxwell, was found guilty of five counts of unlawfully and indecently dealing with a boy under the age of 14 years, and three counts of unlawfully and indecently dealing with a boy under the age of 17 years. The respondent was convicted and sentenced on 6 September 2000 in the District Court at Mackay and sentenced to imprisonment for two years.

3. [3]
   As a result of the offences the applicant has suffered serious psychological problems. After the first offence he experienced shame, guilt, insecurity and fear. He began having nightmares. After the second assault he was particularly upset and considered suicide. After the third offence he lost trust and become submissive not just to the respondent but to other males. He became self-destructive and lost all sense of personal value or decency. He experienced a feeling of devastation that the respondent was performing oral sex on him while those he loved were just outside the room. Although the physical bruising and marks from the assaults lasted a couple of days the emotional scars and nightmares and repeated assaults resulted in the loss of his childhood and a feeling of utter devastation. He realised that any hope of assistance had gone. He was constantly unhappy with no self-esteem.

4. [4]
   The applicant says that as an adult his ability for joy has been non-existent. He considers he is unable to maintain standard skills in his communication. He is mistrustful and self-doubting and suffers bouts of depression which are debilitating. He has experienced additional loss and pain from the legal proceedings. He has limited ability to make friends or to obtain and keep employment.

5. [5]
   The applicant was examined by Dr Barbara McGuire on 17 June 2002. Her diagnosis is of a post-traumatic stress disorder as evidenced by nightmares, hypervigilance and dissociative phenoma. The level of severity is severe and she considers the applicant will experience these effects throughout his life. She has also diagnosed a borderline personality disorder which will be lifelong. She notes that the applicant has at times experienced depressive episodes and suicide and self-harming attempts. She says that he will need counselling indefinitely.

6. [6]
   Pursuant to s 663 of the Criminal Code the prescribed amount is $5,000.

7. [7]
   It becomes necessary for me to decide when the s 663B amendments took effect and in particular whether they were retrospective. In R v Boughton ex parte Holt (Unreported, District Court, 13 August 1993), Chief Judge Helman held that the course of conduct amendments in 1984 did not apply to the injuries suffered before the amendments commenced, and awarded $5,000 compensation for each of four offences committed between 1979 and 1989. He referred to R v Wraight and Dakin; ex parte Fullerton (1990) QdR 582 and R v Bridge and Madams; ex parte Larkin (1989) 1 QdR 554. Relying on s 60(1)(c) of the Acts Interpretation Act 1954 he considered that the amendments to s 663B should not be interpreted as effecting the applicant’s accrued rights to compensation. He accepted the submission of Counsel that the applicant’s rights “remained in limbo until crystallization by the conviction” of the respondent. Chief Judge Helman categorized them as accrued rights, which were inchoate or contingent relying on Free Lanka Insurance Co Ltd v Ranasingat (1964) AC 541, 552. He referred to Fox J in J R Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717 and explained the meaning of “right”, and considered that in his view it would be manifestly unjust for the 1984 amending Act to affect the applicant’s situation adversely.

8. [8]
   In Enoka v Thompson (Unreported, Supreme Court, 20 December 1999) Muir J cited R v Innel (1998) QdR 174 as authority for the proposition that the application ought to be dealt with in accordance with the legislation applicable at the time of the offences, and awarded $20,000 for each of four rapes committed in 1975.

9. [9]
   In Osborne v Bennett (Unreported, District Court, 11 February 2000), Judge Hoath dealt with offences committed between January 1966 and December 1975. He cited Chong v Chong [2001] 2 QdR 301 as authority for the proposition that is only after conviction that a victim has a cause of action. He held that the applicant’s cause of action came into existence after the 1984 amendments, and accordingly were subject to that legislation.

10. [10]
    In Johns v Brown (Unreported, District Court, 22 February 2002), Judge Robin QC adopted Osborne v Bennett (supra), and said that he considered that to be the correct approach. Johns v  Brown was adopted by Judge McLauchlan QC in Baxter v Bowman (Unreported, District Court, 28 May 2002) as authority for the proposition that no right to compensation existed in the absence of a conviction in respect of the offending conduct and said that if this reasoning is correct then the “course of conduct” provisions apply in assessing compensation for injuries sustained prior to the passing of the Criminal Law Amendment Act 1984.

11. [11]
    Judge Boulton took a different view in Reilly v Herd (Unreported, District Court, 8 October 2002). He followed Chief Judge Helman in R v Boughton, ex parte Holt (supra), and noted cases cited by Chief Judge Helman, namely, Justice W B Campbell in Wraight v  Dakin (supra) and R  v Bridge and Madams (supra). Judge Boulton considered he ought to follow the reasoning of Cheif Judge Helman, supported as it was by two reported cases. He noted that the Court of Appeal has not considered the application of s 663B as it existed prior to 1984.

12. [12]
    Mr Stevenson for the applicant submits that there is no direct Court of Appeal authority on point, and submits the reasoning of Chief Judge Helman in R v Boughton, ex parte Holt (supra) is not inconsistent with the Court of Appeal decision in Chong v Chong (supra) because Chief Judge Helman clearly appreciated that there was no course of action until conviction but held that the applicant had accrued rights which crystallized on conviction.

13. [13]
    I respectfully agree with the views of Chief Judge Helman and Judge Bolton. I consider that the amendments are not retrospective, and the applicant is entitled to compensation in respect of each of the offences without recourse to the “course of conduct” amendment.

14. [14]
    If I am wrong in this, it becomes necessary to consider whether there were separate courses of conduct.

15. [15]
    Section 663B (1) provides:-

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted.”

16. [16]
    Section 663B(1A) provides:-

“For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.”

17. [17]
    This provision has been considered by the Court of Appeal in Hendry v Llorente [2000] QCA 377 which was referred to in Marsten v Kello (2000) QCA 410. These cases were also considered by His Honour Judge Brabazon in McLeod v Jones (Unreported, District Court, 13 October 2000).

18. [18]
    In Hendry v Llorente (supra) the Court of Appeal set out the applicable principles in order to decide whether there has been the same course of conduct. In that case there were six offences (one of indecent dealing and five of rape) committed over six to seven years. Details of the offences are set out in the judgment of McMurdo P in paragraphs 55-61.

19. [19]
    The Chief Justice said in Hendry v Llorente at paragraph 7:

“Assaying a definition of ‘course of conduct’ for purposes of section 663B the 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 (Dyer v Dyer 166 PaSuper 520) and regularity (Aetna Cas. and Sur Co v Industrial Commission 127 Colo 225).”

20. [20]
    And 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.)”

And at paragraph 9:

“The events involved in these offences were too far distinct and separated in time and place to warrant the conclusion that they arose out of the same course of conduct. They arose out of the same relationship affected by ‘guilty passion’ on the part of the respondent. But that was not enough to establish a ‘course of conduct’ sufficiently precise and limited for the purposes of the provision.”

21. [21]
    The President of the Court of Appeal said in her separate judgment, at paragraph 63:

“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.”

22. [22]
    The Court of Appeal decision in Marsten v Kello (supra) was delivered on the 17th of August 2000, a couple of months after the decision in Hendry v Llorente (supra). It concerned six offences of indecent dealing over a period of a little under five months, which were part of a wider pattern of conduct of this kind.

23. [23]
    Justice Davies (with whose reasons Justice Ambrose and Justice Chesterman agreed) said at paragraph 14 of Marsten v Kello (supra):

“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 the 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.”

24. [24]
    At paragraph 15 Justice Davies said that there were sound policy reasons for construing the phrases “one course of conduct” and “closely related courses of conduct” narrowly:

“…giving those phrases a narrow ambit will reduce the number of cases in which compensation is inadequate. But I do not think that that is a sufficient reason for giving words in a statute a meaning narrower than they can ordinarily bear.”

25. [25]
    Justice Ambrose said at paragraph 22:

“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 persistence and regularity of the conduct and the absence of any significant intervals in its occurrence.”

And at paragraph 24:

“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.”

26. [26]
    Justice Chesterman said:

“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)

27. [27]
    Applying these tests I consider that there were four separate courses of conduct: Count 1; Count 2; Counts 3, 4 and 5; and Counts 6, 7 and 8.

28. [28]
    I consider that the applicant has suffered, and continues to suffer, greatly from each of the offences and each of them ought to attract the prescribed amount of $5000.

29. [29]
    In view of my ruling at paragraph 13, I order the respondent to pay to the applicant the sum of $40,000, together with costs of the application.