TLB v KDR[2006] QDC 275

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by TLB for criminal compensation pursuant to s 663B of the Criminal Code. The respondent, KDR was convicted after a trial of two counts of indecent treatment of a girl under 16 and two counts of rape. The respondent was the step father of the applicant. He was convicted on 24 February 2003. The two counts of indecent treatment occurred between December 1969 and January 1972 and the rapes occurred on or about 18 May 1977 and on a date unknown between 31 August 1977 and 1 October 1977, at Brisbane.

2. [2]
   The application was defended by the respondent who called numerous witnesses. The injury which the applicant alleges that she suffered was some discomfort to her vagina following intercourse and psychiatric symptoms which have been diagnosed as post traumatic stress disorder.

Issues for determination

3. [3]
   The factual matrix relied upon by Dr. Colls, a psychiatrist, has been challenged. In particular, the respondent contends that there was no violence shown to the applicant by him. Also, there was a failure by the applicant to relay their ongoing relationship both familial and commercial after the applicant left home. These matters and other issues of credit, the respondent contends, undermine the diagnosis of Dr. Colls to such an extent that there is no reliable basis for the finding that the applicant has suffered any psychiatric sequelae as a result of the offences.

4. [4]
   The other matter for determination is what is the maximum quantum able to be assessed under the provisions of the Criminal Code up to 1 July 1975 and after that date as relevant to the present case.^[1]  The applicant challenges what is suggested was obiter in R v Llorente ex parte Hendry^[2] where the court found that  for offences prior to 1 July 1975 the maximum is $2,000.00 per offence and thereafter $5,000.00 per offence.^[3]  The respondent contends that, if a sum is to be awarded, the total is $2,000.00 for both of the pre July 1975 offences and $5,000.00 total for the post July 1975 offences.  The basis of that submission is that each category arose out of one course of conduct or closely related courses of conduct within the meaning of s 663B(1) as amended on 1 July 1984.^[4]

Nature of factual matrix relied upon by Dr. Colls

5. [5]
   The following matters relied upon by Dr. Colls has been challenged by the respondent:

1. (a)
   That the applicant’s step father had always been violent towards the children: 

The present claim is not for compensation for violence.  However, it is relevant as part of the background to the case and particularly relates to the credibility of the applicant.  Originally, the applicant’s mother in her statement to police supported the applicant’s version of events.  On this application she has withdrawn any suggestion that the respondent was violent.^[5] Her evidence is supported by other witnesses in the case that the respondent administered the usual discipline but certainly it was not excessive.  Those witnesses include: Peter Price who lived at the household of the parties for over six months; Carol Minter who had a close relationship with the applicant from the age of 10 to 17 and stayed over often; Tracey Dodt, the applicant’s sister who was of the view that the applicant never got into trouble with the respondent; Lyn and Gordon the aunt and uncle of the applicant who visited the home of the parties regularly.  The applicant has failed to prove that the respondent was violent towards the children including the applicant.  There was one incident with Tracey who was given a belting by the respondent for taking cigarettes.^[6]

2. (b)
   That the applicant and her sisters ‘are still petrified of him, when we saw him at the trial’: 

This statement seems somewhat surprising given the ongoing relationship between the applicant and the respondent after she left home.  When the applicant moved to Melbourne in 1984, she kept in regular contact with the respondent and her mother.  She wrote to the respondent before her baby was born.  It was a loving letter from a loving daughter.^[7]  Subsequently, when the applicant returned to Queensland, she was helped financially by the respondent from time to time including providing employment for her husband Claude.  The respondent was the ‘father of the bride’ and paid for the wedding.  The respondent also set up a dress shop at Beenleigh in 1987.  The respondent provided some $17,000.00 of stock and made the applicant the manager and on his version a probable partner. He wanted to provide her with a business of her own.  I am satisfied that she used the income for her own purposes.   In about 1992, he provided advice as to whether she should take another garage at Meadowbank.  She had been managing it.   They looked at a Caltex service station at Annerley and became partners.  The respondent subsequently gave his interest and his wife’s interest to the applicant.  This was followed by a loan of $20,000.00 to keep it afloat.  Subsequently, another garage was obtained at Oxley which was managed by the applicant.  The garage at Annerley was sold.  The Oxley garage was flooded in 1997 and the business failed.  The respondent refused to help her financially after this.  The applicant moved to Keppel Sands to work in a shop owned by her natural father.  By this time her partner was Billy Speight.  The respondent had given her some advice about Mr. Speight and business. He told her that ‘the situation was a disgrace and don’t bother coming back unless things change’.  The relationship with Mr.Speight ended in 1999.  A Ms Tina Rose Connolly told the court that whilst she was at Keppel Sands, the applicant threatened ‘to get him [the respondent] back’ for his failure to help her after the Oxley flood.  There was no reason for Ms Connolly to make up this story.  I accept her evidence. Given the nature of this ongoing relationship between the parties, the applicant has failed to prove that she was ‘petrified’ of the respondent as at the date of the trial. 

3. (c)
   That the applicant was never allowed to sleep over at friends’ houses, or allowed to invite friends to her home:

This statement to Dr. Colls was contrary to that of Carol Minter.  The latter gave strong evidence that she stayed over at the applicant’s house often.  She regarded the house as a ‘safe haven’ from her own problems at home.  She believed the respondent to be a good father and was unaware of any violence by him nor did she see any evidence of it e.g. bruising on the girls.  Ms. Winter confirmed that the applicant also stayed at her house.  They socialised together for some years.  I am satisfied that the applicant did stay over and have Ms. Minter stay over on many occasions.

6. [6]
   The matters just discussed and other issues raised by the respondent cast some doubt about the applicant’s evidence relating to her symptoms. The other issues which touch upon credit include whether Mr. Price was living with the applicant and the respondent at the same time. Mr. Price says that he was and relates it to his time in the RAAF. The applicant denied that she put pressure on Tracey Dodt, her sister, to give a statement to police. Mrs. Dodt says that she did. Mrs. Dodt said that the applicant urged her to seek compensation for being flogged by the respondent. The applicant denied she suggested this. The selective or misleading information given by the applicant to Dr. Colls undermines to some extent the factual substratum of the opinion.^[8]  In his summary Dr Colls states:^[9]

Currently, I think she meets DSM-IV-TR for a diagnosis of Posttraumatic Stress disorder, Chronic (309.81) as a consequence of childhood sexual abuse at the hands of her step father.  On the basis of the chronicity of her symptoms, the ongoing effect on her sexual expression, and the intense fear associated with confronting her abuser, I think the symptoms are of moderate severity.  There is no suggestion of any pre-existing, or subsequently complicating psychiatric or other conditions or events.

7. [7]
   The applicant according to Dr. Colls suffered from anxiousness. Also, she has low libido and disturbed sleep. She also told Dr. Colls that she has a sense of unease in caring for her children when they were younger or intruding ‘on their personal space, even to the point of being wary of helping them in the shower’. She also has suffered some adverse affect on her sexual expression. Certain smells or touches cause her to recall her experiences. There is little doubt that the subject offences would be traumatic for a child. One can suffer acute symptoms (less than three months with PTSD) or chronic symptoms (three months or longer).^[10]  She told Dr. Colls of the associated emotions of fear following the offences.^[11]  Dr. Colls relates the history as follows:

The immediate effect of the offences has been fearfulness.  The subsequent effects have related to her choice of partner, and repeated relationship failure, sexual expression, and propensity to ‘re-experience’ the events emotionally.  I think her ability to enjoy life, overall, has been moderately damaged.^[12]

8. [8]
   Other factors were introduced by the respondent in cross-examination of Dr. Colls such as the applicant’s bankruptcy, loss of her home and the domestic violence caused by her husband Claude. Dr. Colls did not see these factors as particularly significant in relation to her present symptoms.^[13] The respondent contends that as some of the facts provided by the applicant have been proven to be wrong or distorted that no assessment can be made.  However, a court is required to make an assessment if there are sufficient facts and/or opinions to do so.  I am satisfied that the applicant did suffer from posttraumatic stress disorder but not to the extent that she contends.  There are sufficient reliable facts relied upon by Dr. Tolls to fall within the diagnostic criteria required.^[14]  In any event, I am satisfied that the applicant suffered from an abnormal condition of mind over and above that of normal human reaction or emotion following a stressful event.^[15]  In other words, the applicant has probably exaggerated her symptoms, but she is entitled to be compensated.   The following facts can be relied upon:

1. that following these offences she would have suffered from some fear of the applicant and anxiety;^[16]
2. that the offences have caused her problems in her personal relationships;^[17]
3. the offences have affected her relationship with her children.^[18]

9. [9]
   The subject offences have, I find, materially contributed to her symptoms.^[19]

10. [10]
    In making these findings, due regard has been had to R v Bennett; ex parte Facer.^[20] It was held in that case that:^[21]

In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury’s verdict in the criminal trial. In certain circumstances, where the jury’s verdict leaves open a number of possibilities as to the evidence, the sentencing judge may be required to form his own view of the evidence for sentencing purposes, provided it is not inconsistent with the jury’s verdict. In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s 25(7) of the Act to the issue of contribution. Thus, although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.

11. [11]
    In his sentencing remarks, his honour Judge Boyce in the present case specifically disregarded the evidence of violence and uncharged acts as relevant to sentencing considerations. Therefore, he was not required to make any findings in that respect. The present findings are not inconsistent with any findings required of the jury.

Appropriate quantum and relevant legislation

12. [12]
    There have been extensive written submissions in this case.^[22]  The effect of the applicant’s submissions is that it urges this court not to follow the findings of the Court of Appeal in Llorente’s case.^[23]  The applicant contends that she is entitled to $20,000.00 or $5,000.00 per offence maximum.  It is convenient to set out the relevant legislation before discussing the cases:

663A. “injury” – bodily harm and includes pregnancy, mental shock and nervous shock

663B. Court may order payment for compensation:

(1) where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, may, in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence of which the offender is convicted.

An order made under this subsection shall not, for any purpose, be taken to be part of a sentence

(2) in determining whether or not to make an order under subsection (1) of this section and in determining the amount of the order, the Court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by him, and to such other circumstances as it considers relevant (including whether the person aggrieved is or was a relative of the convicted person or was at the time of the commission of the offence, living with the convicted person as his wife or her husband or as a member of the convicted person’s household) and to the other provisions of this Chapter.

13. [13]
    The amendment in 1975^[24] added a definition of “prescribed amount –

“(a) where the offence in connexion with which the case arises is committed before the commencement of The Criminal Code and Justices Act Amendment Act 1975, two thousand dollars;

(b) in all other cases, five thousand dollars”

14. [14]
    The 1984 amendment is as follows:^[25]

663B Court may order payment for compensation:

(1) where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than one indictable offence relating to the person of any person (whether in respect of one indictment or more than one indictment) arising out of the one course of conduct or closely related courses of conduct of that person so conducted, 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 of 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.

S 663A:

“prescribed amount” means –

(a) where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 - $5000;

(b) in all other cases save those that are the subject of particular reference in section 663 AA, the amount for the time being specified in section 14(1)(c)(a) of the Workers Compensation Act 1916 as varied from time to time pursuant to section 14E of that Act

s 663AA

(1) the prescribed amount for the purposes of this Chapter in the case of mental shock or nervous shock is $20,000.00.

(2) where injury in connexion with which an application is made in accordance with this Chapter is the same or substantially the same as an injury specified in the table set forth in section 14(1)(c) of the Workers’ Compensation Act 1916 -1983, the prescribed amount for the purposes of this Chapter in respect of such injury is the maximum amount that may be paid as compensation under the said Act in respect of the injury so specified.

(3) Where injury in connexion with which an application is made in accordance with this Chapter consists of more injuries than one, the prescribed amount in respect thereof for the purposes of this Chapter is the amount for the time being specified in section 14(1)(c)(a) of the Worker’s Compensation Act 1916-1983 as varied from time to time pursuant to section 14E of that Act.

(4) subsections (1), (2) and (3) are subject to provision (a) of the meaning of the term “prescribed amount” in section 663A.

15. [15]
    The effect of the amendment was to increase the amount payable from $2,000.00 to $5,000.00 for offences which occurred after 1 July 1975. Section 663B remained in similar terms. The present indecent treatment offences fall into that category. It has been argued that as the convictions occurred after that date, viz. 2003, that the appropriate sum is $5,000.00. That submission is contrary to the decision of Llorente.^[26]   The alternative argument is that the 1984 amendment applies to increase the maximum to $20,000.00 or $5,000.00 per offence.  Reliance was placed upon the decision of Atkinson J. in R v Wilkinson ex parte Leber.^[27]  That decision was not referred to in Llorente’s case.  However, the decision of MAJ v KM^[28] supports her honour’s view without reference to it. The sum which is relevant to each offence, therefore, is $5,000.00. The prescribed amount was redefined in 1984 and increased to $5000.00 for offences occurring before 1984. The offences in MAJ occurred in 1977 or 1978.

16. [16]
    At the outset it should be remembered that s 663B(1) talks of ‘where a person is convicted on indictment’. The provisions relating to the relevant prescribed amount in 1975 talks of ‘where the offence in connexion with’ and in 1984 it talks of ‘where injury in connection with’. In the present case both the offences of indecent treatment occurred before 1 July 1975 and the two rapes occurred after 1 July 1975 but before 1 July 1984. The injury (physical) occurred before 1 July 1984 but the sequelae as far as any psychiatric injury is said to be continuing. This aspect has not been argued in the present case. For the reasons which I shall discuss, it would be academic in so far as the quantum is concerned. Any assessment is upon the usual principles applicable to assessing damages in a personal injuries case.^[29]

17. [17]
    In R v Boughton ex parte Holt,^[30] it was held that the 1984 amendments relating to course of conduct did not apply to injuries suffered before the amendments commenced.  The offences in that case related to the period 1979 to 1989 unlike the two indecent treatment offences in the present case which preceded the 1975 amendment.  The prescribed amount of $5000.00 was held to be applicable to each offence.  That decision has been applied and considered in this court and elsewhere.^[31]

18. [18]
    Therefore, there is authority for the proposition that the ‘course of conduct’ limitation does not apply in the present case. However, that line of authority must be doubted in view of MAJ v KM,^[32] where Llorente^[33] was approved. In this case I apply the latter Court of Appeal cases. This approach is consistent with other decisions in this court.^[34]

“Arising out of the one course of conduct of closely related courses of conduct”

19. [19]
    The facts relevant to each charge are as follows:

Indecent treatment - two counts

Count 1:  “on a date unknown between the 31^st day of December 1969 and the 1^st day of January 1972”

Count 2:   “on or about 5^th November 1971”

It could be said that these events were so closely related by reason of their nature, time, place or other circumstances that they would allow an identifiable pattern. According to the applicant’s original statement, there was touching of the penis on the first occasion and masturbating him on the second. The offences could have occurred within two months of each other. In that event, the applicant fails to avoid the limitation contained in s 663B(1). She is limited to $5000.00 for both offences.

Rape – two counts

These occurred some months apart according to the trial judge on sentence. The indictment alleged that the first occurred on the 18^th day May 1977 and the other between 31 August 1977 and 1 October 1977. On the first occasion the applicant’s mother was in hospital and having a child and on the second occasion the applicant was looking after the baby. The mother had to return to hospital. These were quite distinct events. They occurred when her mother was away. She did not struggle because of fear.^[35]

In MAJ v KM,^[36] the following passage appears:^[37]

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 fact that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrence, and that although the indictment alleges a much longer period, they occurred over a period of a little under five months. Giving s 663B its ordinary meaning it 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. I agree with what Chesterman J has said about the applicant’s supplementary submissions in this respect. Consequently, in my opinion, the learned primary judge was correct.  

It is open to find, and I do, that the rape offences arose out of the same course of conduct. The applicant, she says, was the subject of other rapes during this time. It was a pattern of conduct by the respondent.

Respondent’s submissions

Section 663(B)(2) – “Other Circumstances”

20. [20]
    Some of these submissions have been dealt with in relation to specific issues. The respondent by his counsel submits that there is a discretion under s 663B(2) for the court to consider other relevant circumstances including delay and whether the person aggrieved was living with the convicted person at the time of the offence. In relation to the latter, it was submitted that the respondent as the convicted person has supported the applicant over many years including the commercial arrangements referred to previously. She was living with him at the time. The extent to which this would affect the present application is unclear. If it is because the respondent has provided maintenance since the alleged offences, then it could be said that he would have done that anyway. This is not a case where the respondent would benefit from any order from compensation ordered on this application. No cases were referred to in order to provide a basis for changing the quantum otherwise assessed because of that discretionary factor.

Delay

21. [21]
    Another factor was that the application should be refused on the ground of delay. There was no limitation of action point. The respondent was sentenced in February 2003 and an appeal against conviction and sentence finalised on 11 July 2003 and the application filed 19 August 2005. There was a subsequent application for leave to appeal to the High Court. It is suggested that the complaint was made 23 years after the last rape and 34 years after the first offences. The applicant turned 18 in 1981. The case of R v Muckan^[38] was referred to.  In that case there was a delay between sentence and the application for compensation of some 12 months.  The Chief Justice in that case observed that there was no requirement that the application be made at trial.  These types of applications often require expert opinion particularly where some psychiatric evidence is required.  The procedure has become more complex since those observations of D.M. Campbell J. were made. The present Chief Justice has pointed to the need for these applications to be properly prepared.^[39]  A time then has to be arranged usually with the trial judge to hear such an application.  In the present case, the trial judge has retired.  However, the transcript of his remarks has been made available.  In the circumstances, the delay since sentence is not unusual.  The case of Brisbane South Regional Health Authority v Taylor^[40] was a case relating to a limitation of actions point.  Any prejudice relating to delay was required to be taken into account.  Assuming that delay can be considered in the present case, no prejudice has been established in the present case caused by the delay between the date of sentence and the date of filing the application.

Quantum

22. [22]
    The submission by the respondent that the applicant is not entitled to compensation is rejected. Apart from the mental or nervous shock aspect, she is entitled to be compensated for her vagina being ‘uncomfortably sore, red and itchy’. The sum of $500.00 is assessed for that aspect. The respondent submits that the ‘course of conduct’ arguments apply to limit the total compensation to $2,000.00 and $5,000.00 in total. In JT v AB,^[41]  his honour was dealing with a factual basis where the offences probably occurred after 1 July 1984 and so can be distinguished from the present case. A similar position existed in the case of ISB v WJG.^[42]  However, McGill DCJ referred to two cases which support the respondent’s position that the course of conduct provisions introduced in 1984 could limit the present quantum.  In Llorente^[43] the Court was concerned with five offences for rape which occurred in 1977, 1978 and 1981.  It was held that the offences were too far distant to constitute a course of conduct or closely related courses of conduct.  The reasoning assumed that the provisions relating to course of conduct applied to offences before 1 July 1984.  A similar approach was adopted in MAJ v KM.^[44]  There were six acts of indecent dealing which occurred between October 1977 and late February 1978.  One sum of $5,000.00 was awarded at first instance.  The Court of Appeal held that the ‘course of conduct’ restriction in s 663B was applicable.^[45] The present case falls into that category.

Conclusion

23. [23]
    The applicant in my view is limited to a sum total for compensation of $10,000.00. Applying the ordinary principles of assessment and considering her symptoms, compensation is assessed at $8,000.00.

Orders

3. The respondent, KDR is ordered to pay to the applicant the sum of $8,000.00.
4. It is further ordered that the respondent do pay the applicant’s costs of and incidental to this application and hearing to be assessed.