DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under s 663B of the Criminal Code. On 17 November 2004 the respondent was convicted, after a trial in the District Court in Townsville, of three counts of indecent dealing with the applicant and one count of attempted rape of the applicant.  A sentence of imprisonment was imposed.  The applicant claims that as a result of the commission of those offences, she has suffered injury, namely psychiatric injury, and seeks compensation for that injury in accordance with the provisions of the Criminal Code.  The respondent did not appear in response to the application.

2. [2]
   There is evidence that the applicant suffered psychiatric injury as a result of the conduct which constituted the offences, and each of them. The principal issue in the application is how the limits on the amount of compensation which can be ordered which were varied from time to time under the relevant provisions of the Code, operate in the circumstances of this case. This gives rise to difficulties because, although the trial was in 2004, the offences were committed a long time ago, in 1971. In the indictment it was alleged that each count occurred between 1 January 1971 and 1 January 1972 at Bowen.

History of the Provisions

3. [3]
   Section 663B and the related provisions were inserted into the Code by the Criminal Code Amendment Act 1968, s 4, and came into force on 1 January 1969.  Section 3 of that Act provided that:

“This Act does not apply in respect of compensation for injury suffered before the commencement of this Act.”

The section, at that time, permitted compensation in “a sum not exceeding $2000” for injury to be paid by a person who was convicted on indictment of any indictable offence relating to the person of another, and the injury was suffered by reason of the offence.

4. [4]
   The provisions were amended by the Criminal Code and the Justices Act Amendment Act 1975, which commenced on 1 July 1975.  That amended s 663B, by substituting the words “the prescribed amount” for the previous limit of “$2000”, and inserted a definition of “prescribed amount” in s 663A, as follows:

“(a) Where the offence in connection with which the case arises is committed before the commencement of the Criminal Code and the Justices Act Amendment Act 1975, $2000;

2. (b)
   In all other cases, $5,000.”

5. [5]
   The position thus far was clear. At the time when the offences were committed there was a power to order compensation in a sum up to $2000, and that situation did not change as a result of the amendments in 1975. There were however, further amendments in 1984. The Criminal Code Amendment Act 1984 amended s 663A by substituting a new meaning for the term “prescribed amount”, as follows:

“(a) Where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984, $5,000;

2. (b)
   In all other cases save those that are the subject of particular reference in s 663AA, the amount for the time being specified in s 14(1)(C)(a) of the Workers Compensation Act 1916-1983 as varied from time to time pursuant to s 14E of that Act.”

6. [6]
   Section 663AA was also introduced, which relevantly provided that the prescribed amount for the purposes of the chapter in the case of mental shock or nervous shock was $20,000. There was also an amendment to s 663B, by the insertion of the words “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 course of conduct or closely related courses of conduct of that person so convicted.” In addition, where the words “the offence” previously appeared, the words “or offences” were added. Finally, a further paragraph was added to the section saying:

“For the purposes 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.”

7. [7]
   Those amendments came into force on 1 July 1984. On this occasion, there was no statement in the amending Act as to whether the amendments applied only in respect of injuries occurring after that date. Obviously, to some extent at least, they applied in respect of earlier injuries. The question that arises in the present case is whether, when the definition of “prescribed amount” was amended in 1984, that part of the definition inserted which provided what the limit was to be in respect of injuries suffered before the 1984 Act applied generally, or whether it only applied to injuries suffered between the 1975 amendment Act and the 1984 amendment Act. This is of significance in the present case because the offences against the applicant were committed and the injuries suffered before the 1975 amendment Act, as well as before the 1984 amendment Act. A subsidiary question is whether the provision in s 663B inserted by the 1984 amendment Act, relating to a course of conduct or courses of conduct, also applies.

8. [8]
   The legislation introduced in 1984 on its face does not distinguish between injuries before and after 1 July 1975. There is no mention of this issue in the second reading speech when the Bill for the Amendment Act was introduced before parliament, and I suspect that the most likely explanation is that it simply did not occur to the legislature in 1984 that there could well be in the future claims coming before the courts in respect of injuries suffered as long ago as 1975, or earlier. Read literally, the amendment in 1984 in respect of injuries suffered prior to 1 July 1984 applies generally, including therefore to injuries suffered before 1 July 1975. On its face therefore, the legislation is retrospective.^[1]

9. [9]
   It is established that the right to claim under s 663B arises only upon conviction of the offender. Accordingly, prior to that time, there was no right accrued to an applicant, nor is there any liability accrued in respect of the respondent.^[2]  Accordingly, the ordinary principle, that the repeal or amendment of an Act does not affect a right accrued under the Act, or a liability incurred under it,^[3] will not apply in relation to a potential liability to criminal compensation which has not yet become a right and liability as a result of conviction.  This reasoning applies both to the amendment made to the definition of a prescribed amount, and to the amendment of s 663B to insert the “course of conduct” provision.  It follows in the present case that, conviction not having occurred until after the 1984 amendments were made, those amendments apply to this application.  Such a conclusion, however, is subject to the existence of any authority to the contrary.

The Authorities

10. [10]
    Somewhat surprisingly, this issue does not seem to have received a great deal of attention in the period shortly after the 1984 amendments were made. When Judge Brabazon investigated the matter in 1996, His Honour found only one other decision, also in 1996, where another judge had, apparently without detailed consideration, expressed the view that for an injury caused by an offence committed before 1 July 1975 compensation of more than $2000 could not be ordered.^[4]  His Honour also noted that there had been an earlier decision that, in the application of that part of the definition of “prescribed amount” which had reference to the changing scales under the Workers Compensation Act, it was relevant to have regard to the scales at the time that the order for compensation was made,^[5] a proposition that was subsequently approved by the Court of Appeal.^[6]  He also noted that there was a decision to the effect that the “course of conduct” amendment was not retrospective, that is to say did not apply to injuries occurring before 1 July 1984;^[7] for reasons which he gave, and with which I would respectfully agree, that decision proceeded on the basis of an incorrect application of s 20(1)(c) of the Acts Interpretation Act to a potential claim for compensation prior to conviction, an approach which is also inconsistent with the approach of the Court of Appeal in R v Chong, ex parte Chong.  That decision is consistent with and supports the analysis of Judge Brabazon.

11. [11]
    Difficulty arises because of some things said in the course of decisions in the Court of Appeal in R v Llorente, ex parte Hendry [2000] 2 Qd R 415.  In that case there was an appeal from a decision of a District Court Judge who assessed compensation in respect of six indictable offences committed over a period of six to seven years, for which an award of $35,000 was made.  That included $20,000 in respect of mental or nervous shock, on the basis that the various offences involved one course of conduct or closely related courses of conduct, so that the overall limit of $20,000 applied.  The Court of Appeal held that, for reasons it set out, the various offences did not amount to a course of conduct or closely related courses of conduct, and that it was necessary to assess compensation in respect of each of them.  The Court also held the trial judge’s approach was in error in relation to the application of the maximum amount.

12. [12]
    In that case, all the offences occurred before 1 July 1984 and one of them (count 4) occurred at some time in 1975. De Jersey CJ referred to the effect of the definition following the 1975 amendment, and the terms of the 1984 amendments and said at [19]:

“It presumably follows, for all claims save possibly that relating to count 4, that the relevant “prescribed amount” was $5,000, not $20,000 as assumed by the learned judge.”

His Honour went on at [21]:

“The amount in relation to count 4 depends on whether the offence was committed before or after 1 July 1975.  The material before the judge, and this court, was no more particular than its having occurred when the appellant was nine years old, which covers the period of twelve months commencing 31 December 1974.  If the offence was committed before 1 July 1975, the relevant maximum is $2000; if after that date, $5,000.  This aspect will have to be clarified at the further hearing.”

13. [13]
    His Honour said later at [26]:

“It may on reflection be considered that the touching of the vagina in count 4, when the appellant was eight or nine years old, should properly lead to an award, in respect of that office, of a lesser amount.  There is presently no evidence at all of any particular effect upon the appellant of that offence.  There also remains unresolved whether that offence was committed before or after 1 July 1975.”

His Honour went on to note certain deficiencies in the evidence, and ultimately concluded that the order made should be set aside and the matter remitted to the District Court for further hearing and determination in accordance with the Court’s reasons:[36]

14. [14]
    McMurdo P said at [51]:

“I am content to adopt the chief Justice’s analysis of Chong and Whyte and accept that those cases relate only to the appropriate scale of compensation to be applied to injuries which occurred after 1 July 1984.  The clear words of s 663A(a) and s 663AA(4) support the conclusion that the scheme provides that compensation for injuries suffered before 1 July 1984 cannot exceed $5000.  Similarly, compensation for injuries suffered before 1 July 1975 cannot exceed $2000.”

Her Honour went on to note that it was unclear whether the first offence occurred before or after 1 July 1975, adding that if before, compensation for that offence was limited to $2000.  In Her Honour’s summary at [69] she repeated the proposition that “the maximum amount able to be awarded for injuries suffered before 1 July 1975 was $2000 and before 1 July 1984, $5000.’  She agreed with the order proposed by the Chief Justice, as did the third member of the court, Muir J, who also agreed with the Chief Justice’s reasons.

15. [15]
    It may be noted that although senior counsel appeared for the appellant in that case, there was no appearance by or on behalf of the respondent. There is no indication from the reasons for judgement that there was any detailed argument in relation to the issue of whether the 1984 amendments applied to injuries and offences prior to 1 July 1975.  There is in the reasons no detailed explanation of how it comes about that, notwithstanding the terms of the 1984 amendment, the provision introduced by the 1975 amendment which restricted the maximum amount of compensation in respect of injuries incurred prior to the commencement of the 1975 Act which was removed by the 1984 amendment, should continue to apply in respect of injuries suffered before the 1975 amendment.  There is no discussion of the principles arising out of the Acts Interpretation Act, or the application of that part of the decision in Chong which dealt with the question of when a cause of action arises.  I suspect that the conclusion arrived at on this point by the Court of Appeal was not the result of a considered examination of the relevant issues.

16. [16]
    I am fortified in that view by the fact that there have now been a number of decisions where single judges of the Supreme Court or of this court have taken a different view from this aspect of the decision in Llorente, and have held that the limit introduced by the 1984 amendment in respect of injuries suffered before the commencement of that amendment applies to injuries suffered before the commencement of the 1975 amendment as well.^[8]  To get to that point now involves the propositions that the decision of the Court of Appeal on this issue was wrong, and that it is not binding.  I respectfully agree with the decisions of those judges on the first point.

17. [17]
    Strictly speaking, it is only the ratio decidendi of a decision of the Court of Appeal which is binding on me as a matter of law, although ordinarily any statement about the law made by the Queensland Court of Appeal would be of such highly persuasive authority that (at least in the absence of a decision to the contrary by the same court) it would be unnecessary for me to consider whether that proposition actually forms part of the ratio.  In a situation such as this, however, where it was submitted that I should follow the decision of those judges who have declined to follow the Court of Appeal on this point, it is necessary for me to look closely at the question of whether I am technically bound by this part of the decision of the Court of Appeal.

18. [18]
    The actual order made by the Court of Appeal was that the matter was remitted to the District Court for further hearing and determination “in accordance with these reasons.” It is apparent from the reasons that one of the matters which was to be determined by the District Court was whether count 4 occurred before or after 1 July 1975, and that, if there was a finding that it occurred before 1 July 1975, that the maximum amount of compensation which could be awarded for any injury caused specifically by that offence was $2000.  It was also necessary for that court to make an assessment in respect of the injury (I suppose if any) suffered in respect of each offence.  Accordingly, part of what the Court of Appeal ordered in that case was that the District Court, when further hearing the matter, make an assessment on the basis that if count 4 occurred before 1 July 1975, the maximum amount of compensation was $2000.  That proposition was therefore directly involved in the order which was made by the Court of Appeal in that matter.  In my opinion it follows that it was part of the ratio of that decision.  Accordingly, I am bound to proceed in this application on the basis that, all the offences having occurred before 1 July 1975, the maximum amount payable is $2000.^[9]  To the extent that the decisions referred to earlier decided to the contrary, I do not agree with them and will not follow them.

19. [19]
    That then raises the question of whether the “course of conduct” amendment in 1984 also applies to injuries suffered before 1975. The Court of Appeal not having explained exactly how it comes about that the restriction on compensation in respect of injuries suffered before 1 July 1975 inserted by the 1975 amendment Act and removed by the 1984 Act continues to apply, I can only conclude that the effect of the decision of the court is that the 1984 amendments do not apply to injuries suffered before 1 July 1975. Accordingly, there is a limit of $2000 per offence, but the course of conduct provisions also do not apply, so a separate award of that amount can be made in respect of each offence, even if the offences involved one course of conduct.

Evidence

20. [20]
    The applicant saw Dr McGuire, a psychiatrist, on 14 March 2006 for the purposes of a report.^[10]  Dr McGuire expressed the opinion that the applicant has post-traumatic stress disorder to a severe degree, caused by the offences, which has been present since then and which will continue throughout her life.  She noted that her mood during the interview was depressed and she appeared highly anxious, and seemed to find the interview extremely stressful.  My recollection is that she was also distressed at times when giving evidence in the course of the trial.  Dr McGuire was aware of the four counts, and of the facts surrounding each in some detail.

21. [21]
    The circumstances of events were dealt with in my sentencing remarks;^[11] briefly speaking, the first offence was committed when the parties were on a fishing boat moored in the harbour at Bowen close to shore, when the respondent placed his hand on the inside of her leg, ran it up and put it under her underwear and touched her in the genital area.  She threw her arm around and struck the respondent, and was so distressed by this that she threw up over the side of the vessel, then dived overboard and swam back to shore.  The second offence was committed the following day, at a time when the defendant, who was in the position of a stepfather to the applicant, was alone with the applicant at the house where they were living.  The respondent put his hand on her breasts under her shirt, and touched her under her underclothing in the genital area.  The following Saturday she was again taken on to the boat, where she was touched on the leg and in the genital area, and he masturbated in her presence.  Shortly after that there was another occasion when she was on the boat, and he took her into the cabin, undressed both of them and attempted to have intercourse, but was deterred from pursuing the attempt because of her screaming.

22. [22]
    Dr McGuire said that count 1 was the major trauma because it deprived the applicant of her innocence. The effect of count 2 would have been to reinforce symptoms acquired as a result of count 1, as would the effect of count 3, although she had said she had experienced more feelings of disgust and hopelessness as it went on. Count 4, which was attempted rape, was much more serious and was seen as highly intrusive. It does appear therefore that each offence contributed to the condition and the severity of the condition that the applicant is now suffering.

23. [23]
    The applicant said that after the events that she felt dirty, disgusted, depressed and suicidal. She lost weight, and would not shower, hoping that this would deter the respondent. She finds now that she has difficulty working, becomes upset easily and often becomes embarrassed. She cannot keep a job for more than three or four months, and this is causing economic hardship to her. She has, in the past, attempted suicide, and has had difficulty in socialising, becoming scared and intimidated in social situations. She has difficulty maintaining relationships with men. In the light of evidence, each event contributed to some significant event to the overall suffering of the applicant, which has been quite severe over the years and is continuing. Compensation under the Code is assessed on the ordinary principles of assessment of damages for personal injuries, subject to the statutory maximum.^[12]  On this basis, it is clear that assessment at common law in respect of each event would substantially exceed the maximum of $2000.  The appropriate course therefore is to award $2000 compensation in respect of each event, a total of $8000.  There is no suggestion that the applicant contributed to her injury in any way, or that the award should be reduced for any other reason.

Course of Conduct

24. [24]
    As it happens, this result is more beneficial to the applicant than the result that would have followed if the question of the applicability of the 1984 amendments had been decided as I would decide it, rather than the way I consider I am bound by the decision of the Court of Appeal to decide it. That is because, although the applicable maximum would be $5000, the course of conduct amendment would also apply and in my opinion in the circumstances of this case the four offences involved one course of conduct. The offences all occurred within a relatively short space of time, three of them occurring in the course of a week. They involved similar conduct, albeit of an escalating nature, although all of them involved some form of touching in the genital area. That there was some escalation in the severity of the offending is not inconsistent with the offending being one course of conduct, as shown by MAJ v KM [2000] QCA 410 at [14],  per Davies JA.  There are some differences between the facts of the present case and the facts in MAJ v KM.  The significant features are I think the close proximity in time, and the fact that four offences form part of an escalating pattern of abuse.  In the light of the considerations identified in the statute, and in Llorente (supra) and MAJ v KM (supra), I consider in this case that the four offences involved the one course of conduct.  Accordingly, if I were applying the 1984 amendments, I would award compensation of $5000.

25. [25]
    In the event however, I order that the respondent pay to the applicant $8000 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was before the District Court on 17 November 2004. I order the respondent to pay the applicant’s costs of and incidental to this application to be assessed. I would also like to say that I am indebted to the solicitor for the applicant, Mr Stevenson, for a very detailed and helpful argument and for his comprehensive reference to the relevant authorities.