DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (Qld).

2. [2]
   On 24 January 2003 the respondent pleaded guilty before me to a number of offences.  He was sentenced to various terms of imprisonment.  The offence against this applicant was one of causing the applicant to take a noxious thing with intent to disable him.  That offence occurred between 29 November 1999 and 4 December 1999.  The respondent was also sentenced in relation to a number of other offences involving two other complainants.  The offences involving each of those other complainants also involved offences of unlawful and indecent assault.  One of those other complainants was this applicant’s older brother and the other was a friend of that brother.

3. [3]
   The facts placed before me in relation to the offence involving this applicant were that the applicant had met the respondent, a dentist, through his older brother. The respondent undertook dental procedures with respect to the applicant. The applicant was placed under anaesthesia. He awoke in the respondent’s home some three or four days later. He had no recollection of any events while under the effect of the drugs. He had a number of needle marks on his body. The applicant later saw a medical practitioner and a sample of his blood indicated the presence of benz-diazepam-metabolites in his system. Notwithstanding this, on later occasions, the applicant attended on the respondent for further dental treatment which also involved the use of anaesthetics.

4. [4]
   Some six months later, the applicant discovered that allegations had been made against the respondent that he had sexually assaulted two other young men whilst they were in a drugged state. With respect to one of those men, this applicant’s older brother, the alleged sexual assaults occurred whilst under the effects of anaesthesia administered by the respondent during the course of dental treatment. No charge of unlawful and indecent sexual assault was laid against the respondent with respect to this applicant.

5. [5]
   This applicant has become convinced that he has also suffered sexual assault by the respondent whilst he was in an unconscious state. The medical opinion is that he has suffered post-traumatic stress disorder as a result.

6. [6]
   The applicant attended upon Mr P Jordan, psychologist, who has provided two reports and given evidence before me. The initial report by Mr Jordan was compiled on the basis that the applicant had told him that he was sexually assaulted by the respondent. Mr Jordan formed the impression that the applicant believed that he was grossly sexually violated by the respondent. Mr Jordan noted that although the applicant had no memory of any specific incident, he assumed the worst. Mr Jordan was of the view that the applicant described numerous symptoms of post-traumatic stress disorder and depression. The applicant had also been drinking heavily in an attempt to deal with the matter.

7. [7]
   Mr Jordan noted that various triggers reminded the applicant of the trauma and stimulated high levels of anxiety. The applicant felt that he was unable to express his emotions. He has numerous avoidance symptoms. He avoids social contact. He has become hyper-vigilant and untrusting of others. He does not see himself as having a relationship with a member of the opposite sex at any time in his life. He has anger outbursts and disturbing daydreams. Mr Jordan diagnosed a condition of post-traumatic stress disorder of chronic severity. The applicant was also said to be suffering from an associated moderate to severe level of clinical depression. Mr Jordan had examined all three of the complainants involved in this matter and felt that this applicant was the most at risk. This was a function of his use of alcohol to self-medicate. He was in need to extensive counselling.

8. [8]
   In his report of 24 March 2004, Mr Jordan was of the view that the symptoms described in the earlier report continued with the same level of severity.  Mr Jordan described the condition as moderate because of the applicant’s ability to hold down a job and to continue with his studies.

9. [9]
   In his evidence, Mr Jordan accepted that there was no evidence that the applicant had been sexually assaulted by the respondent. The onset of the condition occurred when the applicant heard the allegations involving the other two complainants and related it to his prolonged drugged state at the hands of the respondent. He believed he had been sexually assaulted. That belief was a powerful one. Mr Jordan was of the view that the onset of the post-traumatic stress disorder was as a result of two factors: the fact that the applicant had been put into a drugged state by the respondent for a number of days and the later discovery that his brother had been sexually assaulted while in that same state.

10. [10]
    The respondent submitted that the primary factor in the development of the conditions from which the applicant suffers, was the belief that he had been sexually assaulted. The respondent had not been convicted of any charge of sexual assault involving this complainant. It was submitted that compensation under the legislation was limited to injury suffered because of the offence. Compensation should not be awarded for alleged criminal conduct by the respondent of which he was not convicted. It was submitted that as the primary factor that caused the applicant’s condition was his belief that he had been sexually assaulted by the respondent and as the respondent was not convicted of any sexual assault upon the applicant, it was not appropriate to award any compensation. The applicant was only entitled to have compensation assessed in relation to injury suffered because of the offence. It was submitted that any mental or nervous shock that the applicant suffered was as a result of the belief that a sexual assault had occurred and that this was not an injury attributable to the offence.

11. [11]
    The Criminal Offence Victims Act 1995 (“the Act”) establishes a scheme for the payment of compensation for an injury suffered caused by a personal offence committed against the applicant (s 19).  A “personal offence” is defined as an indictable offence committed against the person of someone (s 21).  Pursuant to s 24 of the Act, the court may make an order for compensation for “the injury suffered by the applicant because of the offence”.  Thomas JA stated in HV v LN [2002] 1 Qd R 279 at 283 that,

“… the essential right conferred upon an applicant by the Criminal Offence Victims Act is to require a convicted person to pay compensation ‘for the injury suffered by the applicant because of the offence’, and the respondent’s liability under that Act is limited to injury suffered as the result of offences committed after the commencement of the Act.” 

That was a case where the court apportioned compensation on the basis of causation, as between offences committed before and after the commencement of the Act.

12. [12]
    The Act clearly requires a causal relationship between the offence and the injury suffered. The Act does not indicate the nature of that causal relationship. This is particularly the case where the injury is caused by a number of factors which include the offence and other matters. Under the repealed Chapter 65A of the Criminal Code, Lee J in R v Tiltman; ex parte Dawe (SC324/95, 22 June 1994, unreported) held that the approach to causation in applications under that Chapter was to be equated to the approach taken in a tortious action so that if the conduct, which constituted the offence of which the respondent was convicted, materially contributed to the total damage, compensation could be awarded in relation to the total damage suffered; see also SAM v SAM [2001] QCA 12.  There is nothing in the Criminal Offence Victims Act 1995 that indicates that the approach to causation as interpreted under Chapter 65A of the Criminal Code was not to apply under the new legislation.

13. [13]
    The case of W v Nicholls (DC1660/2003, 11 May 2004, unreported) involved a case where the total state of injury suffered by the applicant was said to have also have been caused by other criminal conduct of the respondent of which he had not been convicted. His Honour McGill DCJ determined that it was sufficient if the offence materially contributed to the suffering of the total injury, whether or not other factors contributed to it.  He said,

“As long as the relevant conduct of the respondent, that is the conduct constituting the offences of which he has been convicted, amounted to a cause in the legal sense, that is, was a material contribution to the suffering of the particular injury the subject of the application, then compensation can be awarded for that injury.”

I respectfully agree with that approach.

14. [14]
    In the circumstances of this application, the respondent was convicted of an offence of causing the applicant to take a noxious thing with intent to disable him. That offence placed the applicant into a state of unconsciousness for several days. It occurred in the context of the provision of dental treatment. The applicant later discovered that the respondent had sexually assaulted the applicant’s older brother when that person was in a drugged state also receiving dental treatment. Were it not for the state of things which the respondent caused by committing the offence, the applicant would undoubtedly be able to remember what had happened to him, including whether he had been sexually assaulted or not. In my view, the offence materially contributed to the injury suffered by the applicant. It should not be lost sight of that it was the respondent’s criminal conduct in terms of the offence charged which has placed the applicant in the position where he has no recall of what happened to him whilst in the direct care of the respondent in the respondent’s home. I am satisfied that the applicant should be compensated for the whole of the mental or nervous shock which he has clearly suffered.

15. [15]
    I am satisfied that the applicant suffered injury as a result of the personal offence committed upon him by the respondent. That injury is constituted by mental or nervous shock. No behaviour of the applicant contributed either directly or indirectly to the injury that he suffered.

16. [16]
    The extent of the injury suffered by the applicant is not in dispute. Both parties accept that it falls within the moderate range (item 32 of the schedule).  Considering the nature of the impacts on the applicant as described by Mr Jordan, I am satisfied that the mental or nervous shock falls within the moderate range but towards the upper end of that range.  I would set it at 20 percent of the scheme maximum.

17. [17]
    The respondent is to pay the applicant the sum of $15,000 by way of criminal compensation. There is no power under the Act to award costs.