DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   MD, the applicant, claims compensation under Chapter 65A of the Criminal Code for injuries she sustained, arising out of the conduct of the respondent, BRD, occurring at various times between 31 December 1983 and 1 January 1987 (3 year period).  The applicant was aged between almost seven years and almost ten years when the acts giving rise to the claim occurred.  The application was filed on 26 July 2004

2. [2]
   The respondent was convicted on pleas of guilty in this Court on 3 August 1987 at Gympie and was sentenced on 21 September 1987 at Brisbane for the following offences:-

1. (a)
   First Count: Sodomy: between 31 December 1983 and 1 January 1985 at Warwick;

2. (b)
   Second Count: Indecent dealing with a girl under 14 years: between 1 January 1986 and

31 December 1986 at Bell; and

3. (c)
   Third Count: Sodomy: between 1 November 1986 and 1 January 1987 at Wooroolin.

Relevant Legislation

3. [3]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.^[1]  Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides: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,” (my emphasis).

4. [4]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amounts” which applied at the times when the respective offences were committed.

5. [5]
   Under s 663A of the Code the maximum “prescribed amount” for compensation payable to an “aggrieved person” for offences committed prior to 1 July 1984 is $5,000.00.

6. [6]
   Under s 663AA of the Code the maximum “prescribed amount” payable for injuries described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

7. [7]
   The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.^[2]  Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.^[3]

Limitation Period

8. [8]
   As there has been considerable delay in bringing this application before the Court since the respondent was convicted of the offences on 3 August 1987, reference must be made to the limitation issues arising out of such a delay.

9. [9]
   Section 663B of the Code does not prescribe a limitation period within which applications for compensation must be made. It is therefore necessary to refer to the Limitation of Actions Act 1974 (Qld) (“the Act”).

10. [10]
    Section 10(1)(d) of the Act prescribes a limitation period of six years within which to bring “an action to recover a sum recoverable by virtue of an enactment other than a penalty or forfeiture or some by way of penalty or forfeiture”. A claim under s 663B of the Code falls into this category.

11. [11]
    Section 663B of the Code provides an applicant with a right to apply to a court for compensation in respect of an injury caused by a person who has been convicted of an indictable offence relating to that injury: See Chong v Chong (2001) 2 Qd R 301.

12. [12]
    In Chong’s case the Court of Appeal held that the period of limitation for claims under s 663B commences to run from the date when the offender is convicted as that is the date when the cause of action arises (see s 10 of the Act).  However as the applicant in this matter was a minor at the time of conviction, the six year limitation period commences to run from the date the applicant would have turned 18 years of age by virtue of ss 5 and 29(1) of the Act.  Therefore the applicant’s limitation period within which her application should have been commenced expired on 23 January 2001 when she turned 24 years of age.  As her application was filed on 26 July 2004 when she was 27 years of age prima facie it would appear that she is statute barred from making this application.

13. [13]
    It is settled law that where a person has a right to sue for a remedy and that right is governed by a limitation period within which that right must be prosecuted it is for the other party to the proceeding to plead the expiration of the limitation period before that right can be defeated. As the Chief Justice said in Chong’s case:

“As pointed out in Ronex Properties Limited v John Laing Construction Limited (1983) 1 QB 398, 404, the time limitation provisions operate to ‘bar the remedy and not the right’, and operate only if distinctly relied upon (See also Leicester Wholesale Fruit Market Limited v Grundy (1990) 1 WLR 107, 114)”.

14. [14]
    The question of any relevance of the Act is therefore not a matter for a court to act upon unilaterally in the absence of its being raised by the respondent to a proceeding.

15. [15]
    No appearance has been made by the respondent in this matter despite service of the application and supporting documents on him on 30 July 2004.

16. [16]
    The limitation issue has therefore not been raised by the respondent and only arose when I enquired of the issue during the course of counsel’s submissions at the hearing of this application.

17. [17]
    The Court of Appeal has affirmed that applications for compensation brought after the expiration of the limitation period will not be defeated for that reason alone unless the point is taken by a respondent as non-compliance of the Act does not affect the right to bring the action only the remedy sought. See the following:

1. (a)
   Chong v Chong [2001] 1 Qd R 301;

2. (b)
   Edwards v Conrad [2002] QCA 37, unreported;

3. (c)
   Ward v McGarvey [2002] QSC 181, unreported;

4. (d)
   Coconut v Footscray [2002] QSC 370, unreported;

5. (e)
   R v N, ex parte N [2002] QSC 290, unreported.

18. [18]
    The situation is different under the current Criminal Offence Victims Act 1995 (COVA) where there is a definitive time limitation within which to bring an application for compensation.  It would seem that under COVA the Court must prima facie refuse an application that is commenced outside of that limitation period whether or not the issue is pleaded or raised in submissions by either party.  The only exception would be where an application is made under s 41 of COVA which provides for an extension of time within which to bring an application for compensation where ss 30 and 31 of the Act are relevant to the circumstances.

19. [19]
    Consequently I proceed to assess the compensation payable in this matter notwithstanding that the application has been filed beyond the expiration of the limitation period within which applications of this nature must be filed. This is an issue that may be considered when an application is made for an ex gratia payment under s 663C of the Code^[4].

Course of Conduct

20. [20]
    Section 663B allows only one award of compensation for injury to be made “arising out of the one course of conduct or closely related courses of conduct” and goes on to provide:

“(1A) 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.”

21. [21]
    This matter concerns sexual offending at intervals over a period of time against the same complainant. Counsel for the applicant has submitted that the three counts with which the respondent has been convicted and sentenced constitute three separate courses of conduct that may therefore attract three separate awards of compensation. I have been directed to the relevant Court of Appeal authorities on the issue, being:

• R v Llorente ex parte Hendry [2001] 2 Qd R 415; and
• MAJ v KM [2001] QCA 410

22. [22]
    Having regard to those cases it is clear that in determining whether the injury to the applicant arises out of separate and distinct courses of conduct, the Court must consider the details and particulars of each of the separate counts as charged. This is plainly stated by the Chief Justice in Llorente at 417:

“Assaying a definition of “course of conduct” for purposes of s 663B, the words connote in this context a succession or series of acts (or omissions) which, because 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 Pa.Super. 520) and regularity (Aetna Cas. And Sur. Co. v Industrial Commission 127 Colo. 225).

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, 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.)”

23. [23]
    In the instant matter the Court has not been furnished with detailed particulars of each of the respondent’s offences. At first instance the prosecutor, in submissions on sentence, referred the learned sentencing judge to passages of a record of interview conducted between the respondent and police in which the respondent made certain admissions. It appears that the charges in the indictment were based to a large degree upon those admissions. The prosecutor, however, did not tender the record of interview as an exhibit on sentence and despite attempts to obtain it by the applicant’s solicitors is not available.

24. [24]
    Counsel for the applicant has nevertheless referred the Court to the applicant’s original statement to police (dated 12 May 1987) and Dr Byth’s medical report (dated 3 December 2003) to identify the specific particulars of the offences:

1. First Count: Sodomy between 31 December 1983 and 1 January 1985 at Warwick.

In her statement to police the applicant remembers that she was 6 years old and her family were living at Warwick when the respondent first sodomized her.  She states that the respondent woke her up in the middle of the night, told her to be quiet and took her to his own room to sleep with him.  It was early in the morning when the respondent then woke the applicant, told her to be quiet, then removed his pants and underwear and removed her underwear.  He then sodomized her for about half a minute threatened her and told her not to tell anybody and he would buy her things.  She states further that this occurred on another two occasions at Warwick.

2. Second Count: Indecent dealing with girl under 14 years between 1 January 1986 and 31 December 1986 at Bell.

There are few details that can be gleaned from the material in particularising this count.  It seems from the indictment that this is said to have occurred when the applicant was aged 8 or 9 years of age and living at Bell.  The applicant’s history as outlined in Dr Byth’s report recounts numerous instances that could amount to indecent dealing during that period.

3. Third Count: Sodomy between 1 November 1986 and 1 January 1987 at Wooroolin.

The applicant states that she was nine when they moved to a house at Wooroolin.  She remembers that the respondent had his own room at this house and that he sodomized her in exactly the same way as he had done previously.  She states that this occurred on three different occasions while at Wooroolin.

25. [25]
    After considering the authorities and the particulars of the offences as outlined in the available material I am of the opinion that count 1 (the Warwick episode) constitutes one course of conduct and counts 2 and 3 constitute a second or separate course of conduct but are part of the same pattern of behaviour by the respondent so that together they are part of the “one course of conduct or closely related courses of conduct” by him.

26. [26]
    I do not accept that the respondent’s conduct complained of in each of these counts (2 and 3) is so “… far distant and separated in time and place” so as to be regarded as constituting separate courses of conduct in themselves. However I have no difficulty in separating the conduct in these two counts from count 1.

The Injury

27. [27]
    Dr Andrew Byth, Psychiatrist, has provided a comprehensive medical report consequent upon his examination of the applicant on 24 November 2003. His diagnosis is that the applicant suffers from “Posttraumatic Stress Disorder (PTSD) and Avoidant Personality Disorder”. He opines that she is “suffering from a permanent psychiatric impairment of 10-20%, considering the person as a whole” as a result of her sexual abuse. He goes on to state:

“In considering her total permanent psychiatric impairment, I judged that (sic) 95% was caused by her sexual abuse in childhood.  The remaining 5% resulted from her coming from a broken home, the difficult relationship with her mother, and her family history of Bipolar Affective Disorder.”^[5]

28. [28]
    Dr Byth notes:

“In her teens and adult life, she continued to suffer from adverse effects from abuse by [BD], in terms of ongoing anxiety, depression, insomnia and reliving experiences of PTSD. She had an ongoing fear of relating to other people, and a deep-seated lack of confidence in herself, along with sexual problems arising from her abuse in childhood.”^[6]

29. [29]
    He recommends that the applicant be prescribed higher doses of antidepressants and that she seek specialist psychiatric treatment over the next three (3) years. He estimates that this future treatment will cost in the range of $9,000. However, despite the additional treatment, Dr Byth opines that the applicant “is likely to be left with significant psychological impairment from these 2 conditions”.^[7]

30. [30]
    In her affidavit sworn 22 July 2004, the applicant states that she continues to experience nightmares and flashbacks, and suffers from bouts of depression and low self-esteem. Dr Byth opines that her future earning capacity would only be moderately impaired by her condition.

Assessment

31. [31]
    Assessment of compensation under the Code is carried out in accordance with the approach in McClintock v Jones (supra) at p 242 namely:

“compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed.”

32. [32]
    It is conceded on behalf of the applicant that there is no reliable material placed before the Court in respect of the applicant’s economic loss and/or impairment of earning capacity other than the general adverse effect which her problems have had on her in respect of her ability to cope with and maintain herself in employment.

33. [33]
    I therefore make the following assessments in respect of the two courses of conduct contained in the offences of which the respondent was convicted:-

1. First Count: Sodomy: between 31 December 1983 and I January 1985 at Warwick.

As the period during which this offence occurred falls either side of 1 July 1984 and it is impossible to determine accurately when the offence was committed during this period the prescribed maximum sum for any mental or nervous shock suffered at this time is $5,000.  I am satisfied that if the applicant’s assessment of compensation was made in accordance with the ordinary principles of assessment of damages for personal injury in civil cases that sum would exceed the prescribed maximum and I therefore award the applicant the maximum sum payable of $5,000 for compensation in respect of this offence.

2. Second Count: Indecent dealing with a girl under 14 years: between 1 January 1986 and 31 December 1986 at Bell.

3. Third Count: Sodomy: between 1 November 1986 and 1 January 1987 at Wooroolin.

On all the material before me in respect of these two offences I am of the opinion that if the applicant’s damages were being assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases, her damages would substantially exceed the prescribed maximum sum of $20,000 and I therefore award the applicant the maximum sum of $20,000 for compensation in respect of these two offences which I have found form part of the one course of conduct by the respondent.

Orders

34. [34]
    I therefore order that the respondent pays to the applicant the sum of $25,000 as compensation for the injuries suffered by the applicant as a result of the offences of which the respondent was convicted on 3 August 1987 and sentenced by this Court on 21 September 1987.

35. [35]
    I further order that the respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale of costs where the amount recovered is less than $50,000.