M v B[2004] QDC 432

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD899 of 2004

BRISBANE

DATE 03/08/2004

JUDGMENT

HIS HONOUR: This is an application for criminal compensation under section 663B of the Criminal Code, by a lady who is now 28, based on the conviction of the respondent on his own plea on three counts of unlawful carnal knowledge of her.  Those happened when she was 14 and 15.

The dates of the offences begin with 31 July 1990, referable to an occasion in the applicant's family home when intercourse happened in her older sister's bedroom.  The older sister was, in fact, the former partner of the offender.  Perhaps "partner" puts it too high; "former girlfriend" may be a more accurate description.

The second count happened on 11 September 1990 in the offender's motor vehicle after he had collected the applicant from a school dance.  Intercourse happened in the vehicle at Mt Coot-tha.  She found the event even more exciting because he was apprehended by police for speeding on the way home.

The third occasion was on 2 September 1991.  It happened after the protagonists had met in a shop and he had advised her that he had moved to a new flat in Ipswich and invited her to go and see him there.  She went there by train after keeping some appointment in Brisbane and sexual intercourse happened for the last time then.

The offender's age was about 6 years greater than the applicant's.  Notwithstanding the breakdown of the relationship with the older sister, he remained on very good terms with the family, and was welcome in the home.  He seems to have been mates with the applicant's brother.  The applicant was, it seems, infatuated with him, particularly, when he became available on the cessation of the relationship with her older sister.

The first sexual contact she talks about happened on an occasion after a visit to the movies when kissing occurred andthe applicant indicated she didn't want things to go any further than that, that the two of them should "just be friends".

On the occasion on 31 July 1990, the applicant, her brother and the offender were watching TV.  The applicant's brother went to bed, then the applicant - in her own bedroom; the offender entered that room and invited her out to watch more television, which happened for a short time.  He then took her into the sister's presumably vacant bedroom where sexual intercourse took place.  Although it is said that the applicant was naive, she plainly understood the nature of what was happening and agreed to it.

The Court has been denied access to the applicant's diary, to which she confided details of the incidents. Indeed, it was her mother's discovery of the diary which led to the prosecution of the respondent. That's not something the applicant wished to bring about.

It is intriguing that the psychiatrist, Dr Barbara McGuire, who saw the applicant for an hour on 19 December last year, notes in her report that after the time of the first count the respondent, "used to sneak into her bedroom window and have sexual relations with her whilst her family didn't know.  She thought that they were together and that they were going to get married.  Then he told her that he had a girlfriend and after that the relationship died down."  It flared again on 2 September 1991.

While the applicant is now revealing, it seems, a whole series of "uncharged acts", she now has no memory of the final act of intimacy in the respondent's flat. There's no reason to doubt that it happened. Her statement to police describes the event and the offender, of course, pleaded guilty in respect of it.

The indictment on which he pleaded contained, as Count 1, a charge of maintaining a relationship of a sexual nature in respect of which the Prosecutor entered a nolle prosequi and the respondent was discharged.  In my view he can be held responsible in this application only for those things and the consequences of those things for which he was convicted. That introduces a complication.  Quite apart from that, it is difficult for the Court to accept that all of the unsatisfactory features of the applicant's life, which she attributes to the offending, and I would add with the backing of Dr McGuire, can really be linked to it.

In another application, which has some similarities to the present, W v. P, 1887 of 2001, 25 May 2001, I noted the comment of Thomas JA that "It would be unrealistic to attribute all of her life's problems to this one incident, although it has no doubt played a major part in the problem of which she now complains" - a comment made in S v. K, SC 5144 of 2000, 12 July 2000, [2000] QSC 270.

The applicant apparently had a succession of relationships after the incidents involving the respondent, involving, it is said, a dozen men.  None of those relationships seems to have been satisfactory.  She has two children now.

She attributes the disruption of her education and her failure to achieve her ambition of becoming a lawyer to the respondent's conduct.  Likewise, as I understand it, her problems which may have extended to addiction with alcohol, marijuana and amphetamines, and her obtaining employment as a stripper to make money to finance her habits.

The breakdown of the applicant's parents' marriage is attributed by her to her parents' different reactions to discovery of the contents of the diary and what followed. She blames the offending for the difficulties she feels in relationships with her children, especially her son. She is determined to bring this compensation application, accordingto Dr McGuire, "Because she wants not to be seen as the perpetrator", and, according to herself, to achieve "closure".

There is no basis, given that the applicant's material is unchallenged, for doubting the genuineness of the applicant's complaints.  It is difficult, however, to fall in with the judgment that the respondent is the author of all of them.

The applicant says, and the Court must accept, she was a virgin at the time of the first offence.  While inexperienced sexually she was not, it seems to me, "naive", and I respectfully question Dr McGuire's ability after one short >interview which plainly didn't go into the dramatic intervening incidents of the applicant's subsequent life in any detail, to express with confidence some of her conclusions, which seem to me to represent acceptance of the applicant's own analysis; to this I suppose Dr McGuire had little alternative.

Authorities which happen to come from the Supreme Court reveal what I think is the approach the community would expect and that the Courts ought to take.

In T v. H, Application 6139 of 1996, 9 August 1996, while awarding compensation under the presently relevant provisions for other matters, Williams J, as his Honour then was, said:  "The material discloses that the applicant, though aged 15 at the time, was sexually experienced and willingly participated in the acts of intercourse giving rise to the unlawful carnal knowledge charges.  Having regard to section 663B(2), which obliges the Court to bring into account any conduct of the applicant contributing to the offence and consequent injury, no basis is made out for any claim for compensation with respect to the unlawful carnal knowledge offences.  Indeed there is nothing in material or psychological reports which suggests the applicant has sustained any injury in consequence of the acts of intercourse constituting those offences."  Plainly, the applicant here does not face the difficulty described in the last sentence of that quotation which, as I read it, assigns an independent basis for the refusal of a compensation order.  The repetition of offences of unlawful carnal knowledge on different occasions in different locations tends to confirm the complainant's willing participation.

It is certainly not the case that consent to sexual activity by an under-age applicant precludes success of the application. (See, for example, Duff v Holmes (1995) 12 SR(WA) 319, which involved an age disparity similar to that encountered here, and an offender who pleaded guilty to having carnal knowledge of the applicant against the order of nature.)

Decisions in our Supreme Court in which compensation orders were made based on unlawful carnal knowledge include S v. K, which depended on the Criminal Offence Victims Act ("COVA") and the associated Criminal Offence Victims Regulation, and KAB v. DJB, [2000] QSC 498, SC 8509 of 2000, in which thebulk of the award was made under the Code provisions, partalso being attributed to the COVA. The circumstances in boththose matters were considerably different from those of theusual sexual adventure involving an under-age complainant.

In S v. K, advantage was taken of her by the 22 year old husband of her pregnant cousin; he took advantage of her after effectively disabling her by provision of alcohol and marijuana, which made her quite sick.

KAB was an even more repellent scenario in which the offender was the stepfather of the applicant, who engaged inincreasingly serious sexual activity with her over about nine years until she reached the "age of consent".

The feature of it which seems to me applicable is that a clutch of UCK offences - I think there were six - which must have occurred over about three years, were treated by Atkinson J as a single course of conduct, so that together they could attract a no greater level of compensation, there being no physical injury, than the $20,000 relevantly applicable for mental or nervous shock.  Another $20,000 was available for other kinds of offending, which the Judge regarded as constituting a separate course of conduct.

In present circumstances, my view would be that the three relevant incidents should be regarded as a single course ofconduct, notwithstanding the break of the better part of ayear between the second and the third. It would seem to meanomalous that the effect of such a break would be to placethis applicant in a more favourable situation than KAB, forexample.

I have found this a difficult decision to make and have been reflecting on it not only overnight, when I had access to all the material, and Mr Stevenson's extremely helpful written submissions, but for some months since it came to my knowledge that this application would be brought. It has to be accepted on the state of the evidence that Dr McGuire is correct and that, at this stage, a dozen or more years after the offences,in the course of which the applicant has undergone momentous life experiences with effects both from and upon the experiences of her wider family, she "is suffering post-traumatic stress disorder to a severe degree". Dr McGuire goes on: "This has been present since the age of 15 and continues and is characterised by nightmares, flashbacks, avoidance of cues, reminding her of the incident and some dissociation (et cetera)."

What I find difficult to accept, because I am not persuaded that Dr McGuire had the opportunity to go into the matter, is that "there do not appear to be any contributing factors (otherwise) which have had an effect on her symptoms." 

The present circumstances are affecting and sad, but I am not able to avoid the conclusion which Williams J reached in the matter before him, that there was conduct by the applicant considerably contributing to the offence, which means the application ought to fail.  I am conscious that his Honour was dealing with an applicant who already had sexual experience, which does not appear to be the case here.  (Under the COVA a similar issue may arise under s 19(2)(a) as to whether the complainant child could be party to an offence of unlawful carnal knowledge committed upon her.  I note the doubt expressed by the authors of Carter's Criminal Code of Queensland as to the application to the Criminal Code of Tyrrell (1894) 1 QB 710 and Whitehouse (1977) QB 868: See 215.20).

I think it is appropriate to note some other features of this application. It is plainly statute-barred, not having been filed until the 10th of March 2004. Chong [2001] 2 Queensland Reports 301 establishes that there is a six year limitation period from the date of the conviction of the offender. That date was the 12th of November 1992. However, the applicantwas a minor until 24th of March 1994 and the limitation period did not start running against her until then. It expired in March 2000. It is established that, under the some what different regime of the COVA, the Court is obliged to apply the limitation provision it contains, whether or not arespondent relies upon it, and refuse an application which comes too late. See Jacob v. Roberts [2002] QCA 87 and Watson v. Poynter [2002] QSC 283, which I noted in Francis v. McGlone, Southport 514/2002, 6-8 July, 2004. That is not the situation under the Code provisions, as Chong establishes. Indeed, in the circumstances of it, no-one was going to take the point because Mr Chong was long dead. The Court of Appeal expressed the view that the Government authorities responsible for determining whether or not to make an ex gratia payment may have regard to whether or not the applicant was out of time. Experience seems to be that those authorities, for whatever reason, rarely, if ever, go behind the Court order.

The respondent has not appeared today.  Mr Stevenson has been careful to go what I think is probably an appropriate distance to look after his situation.  This matter was originally set down for a day when I was scheduled to be - and in the end was - out of Brisbane on circuit, the 20th of July.  When it became necessary to change the date of the hearing until today, Mr Stevenson ensured that the respondent, who had been served with the material advising the earlier hearing date, was informed of the change.

It was also recommended to the respondent that he seek legal advice and, if he had the wit to appreciate it, which I would think he did not, he would have understood that all that was required of him to defeat the application was to communicate to the Court a desire to take the limitation point. The applicant, in her affidavit, in paragraph 9, expressly states that, "I understand that my application is out of time", later going on to explain this situation arose because she was ignorant of certain matters.

The respondent's non-appearance today when called is what happens in respect of 99 per cent or more of respondentsin applications of this kind. It is idle to speculate why hehas not turned up. One of the unsatisfactory aspects of theoriginating application procedure, which is required to befollowed, is that the applicant has no need to advise therespondent of the likely amount of any money order that mightbe made. Many respondents who have the means to pay something themselves might be galvanised into action, if they knew, as is the situation here, that there is a claim for as much as $40,000. I would speculate that the respondent may have reacted somewhat cynically to the well-intentioned advice from Mr Stevenson and the Legal Aid Office that he ought to obtain legal representation for himself. To a suspicious mind, thatmight look like lawyers attempting to make work for other lawyers. Nonetheless, the Court is faced with circumstances in which it is not open to it, given Chong, to take the limitation point on behalf of the respondent. The application has to be allowed to run, in marked contrast to what would be the position if it were made under the COVA.

If the application had been successful, Mr Stevenson is correct that, in another contrast with the COVA situation, the respondent might have been ordered to pay the costs.

Unfortunately, for the reasons I have given, the application is dismissed.

I would like to close by commending Mr Stevenson and his office for the way in which they worked it up and provided what I think was determined and excellent representation for the applicant.