DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under Chapter 65A of the Criminal Code.  Although that chapter was repealed on 18 December 1995, it continues to apply to injuries suffered by anyone because of an act done before the commencement of the Act.^[1]  On 9 April 2002 the respondent was convicted by a jury after a trial of one count of indecent dealing and one count of assault occasioning bodily harm.  Both offences were committed on the applicant, the former on a date unknown between 7 September 1975 and 19 January 1981, and the latter on a date unknown between 1 January 1978 and 31 December 1979.  The respondent was sentenced on 23 April 2002.

2. [2]
   The application for compensation was filed on 5October 2004.  Initially the respondent appeared to answer the application, seeking an adjournment while she sought to obtain legal assistance in the conduct of her defence to the application. At one point the respondent was seeking to dispute for the purpose of this proceeding whether the offences had occurred; that course is not open to a respondent, because of the nature of the proceeding. For the purposes of this proceeding, I must accept the offences occurred in the way in which the jury in the criminal trial found them to have occurred, and that the nature and circumstances of the offences were as determined in the criminal proceeding, for the purpose of sentence, consistently with the jury verdict.^[2]

3. [3]
   After adjournments to give the respondent the opportunity to attempt to arrange for legal assistance, which ultimately she was not able to do, she sought to require an independent psychiatric examination of the applicant. In principle I was prepared to allow that^[3] but ultimately the respondent was unable to arrange for a suitable medical expert to examine the applicant.  Finally on 18 January 2005 the solicitor for the applicant received a note from the respondent to the effect that she was not going to continue with the case against the applicant.^[4]  I think it is reasonable to take this as an indication that the respondent was not proposing to take any further part in the application.  The solicitor for the applicant wrote advising her that on the date which I had previously fixed as a mention date he would seek to have the matter determined.  On that date the respondent did not appear, and the solicitor simply relied on detailed written submissions which had previously been provided to my associate.

Background facts

4. [4]
   The applicant was at the time of the offences a child, one of three siblings who were residing with the respondent and her husband to whom they were related. The applicant and her brother alleged that during this period they were persistently mistreated by the respondent and her husband. These particular charges arose out of two instances of mistreatment by the respondent. In respect of the first it was alleged the respondent had been angrily accusing the applicant of sexual activity with her husband, and had forcibly examined the genitalia of the applicant. The charge was left to the jury on the basis that they could only convict if they were satisfied that this was not a genuine physical examination of the applicant, but was an exercise of being deliberately disagreeable to her.

5. [5]
   The latter incident occurred when as a result of something that had happened at school, the respondent became angry with the applicant in the course of which she threw a plate at her which struck her on the top left-hand side of her back. That produced a small laceration which has left the applicant with a scar.

6. [6]
   The applicant alleged that as a result of these offences she suffered physical injury to her back, and also suffered mental or nervous shock. The physical injury would have been quite minor, and ultimately only the latter claim was pressed.

7. [7]
   The applicant was examined by Dr McGuire, a psychiatrist, on 31 March 2004 for the purposes of a report to the applicant’s solicitor.^[5]  Dr McGuire expressed the opinion that the applicant sustained a psychiatric injury as a result of the offences against her.  She said the applicant had the symptoms of post-traumatic stress disorder, and that she had also sustained depression and personality difficulties as a consequence of the abuse.  The assault with the plate led to fear and insecurity and general submissive personality traits;  the indecent dealing offence had made her feel dirty and guilty.  Those symptoms persisted.  She said that the post-traumatic stress disorder was suffered to a severe degree.  The symptoms were still persisting notwithstanding the considerable time which had elapsed since the offence was committed.

8. [8]
   The applicant in her affidavit said that she still found it awful to think about the indecent dealing occasion, and that she is still scared of the respondent. She had become very protective towards her own children and found it difficult to trust other people with them. According to Dr McGuire the applicant is still suffering from flashbacks, and she also spoke about sleep disturbance.

9. [9]
   The applicant was at school to Year 9 and then worked at Woolworths for a time, and subsequently did office work for ten years, although she is not working now.  She has had relationships with three men at different times, and she has three children.  Her problems did not seem to have prevented her from forming relationships with men;  on the other hand, the material available suggests that those relationships have not been satisfactory, and that could well have worsened her psychiatric state.  I think it probable that the psychiatric injury caused by the offending, particularly the depression, has been aggravated by subsequent unsatisfactory relationships, particularly the current one.

10. [10]
    I accept the applicant has suffered psychiatric injury as a result of each of the offences.^[6]  Compensation under this chapter is to be assessed according to the ordinary principles of the assessment of damages, subject to the limits in the statute.^[7]  Psychiatric injury suffered by the applicant amounts to mental or nervous shock for the purposes of these provisions.  Because the offences occurred prior to amendments which commenced on 1 July 1984, the limit in the case of mental or nervous shock is $5,000.  In the present case the offences are not offences arising out of the one course of conduct or closely related courses of conduct.  Although in a sense they are both aspects of what the applicant says was a fairly lengthy history of mistreatment by the respondent, the nature of the offending is quite different, and there is no particular reason to think that there was any close association in time between the two offences.  Accordingly up to $5,000 can be awarded in respect of mental or nervous shock consequent upon each of the offences.

11. [11]
    I find that the applicant suffered mental or nervous shock in respect of each of the offences. Bearing in mind the symptoms referred to in the material, and Dr McGuire’s opinion that this is suffered to a severe degree, I consider that any assessment of damages at common law in respect of such injuries would be for an amount in excess of $5,000. Accordingly it is appropriate to award in each case the amount specified as the limit in the Act as in force at the time.

12. [12]
    There is nothing in the material to suggest that any behaviour of the applicant in any way contributed to the commission of the offences, or the suffering of the injuries.

13. [13]
    In the circumstances, I order the respondent to pay to the applicant $10,000 compensation pursuant to the Criminal Code in respect of the injuries suffered by the applicant as a result of the offences for which the respondent was sentenced in the District Court on 23 April 2002.

14. [14]
    There is a power to award costs in respect of a proceeding of this nature.^[8]  Orders for costs are ordinarily made in such proceedings on the usual basis, that is, that the unsuccessful party will be ordered to pay the successful party’s costs, unless there is some particular reason not to do so.  In my opinion in the present case there is no relevant reason not to take that course, and accordingly I order the respondent to pay the applicant’s costs of and incidental to the application to be assessed.  That will include any costs previously reserved.