NEP v Buxton[2008] QDC 282

DISTRICT COURT OF QUEENSLAND

1. [1]
   NEP applies for a compensation order pursuant to s 24(4) of the Criminal Offences Victims Act 1995 (“the COVA”) as a consequence of injury allegedly suffered by her as a result of two episodes of sexual offending committed by Peter Anthony Buxton in the Maroochydore Watch house in 2005. Mr. Buxton was then a serving police officer on duty at the watch house and NEP was a prisoner in his care and custody. She also claims that she has suffered adverse impacts of the sexual offences in terms of s 1A of the Criminal Offence Victim Regulations 1997 (“the Regulations”).

THE OFFENCES

2. [2]
   On the 20.7.07 Mr. Buxton pleaded guilty to 24 offences of a sexual natue including 8 involving NEP. The offences involving her were committed on two occasions on 1.1.05 and 3.10.05. His offending conduct was described at the sentencing hearing in this way:

“These offences were committed on NEP on the 31st of January 2005.  She was 23 years of age at the time.  On that date, 31st of January, she was escorted from the Brisbane Women's Correctional Centre to the Maroochydore Watch-house.  She was en route to a Court appearance in Maryborough.

She arrived at the watch-house around lunchtime on that date, and was to stay at the watch-house for that afternoon and for part of the night.  She was the only female in the watch-house on that day.  When she got to the watch-house, she asked the defendant, who was on duty, and on duty he wore his police uniform, obviously, if she could have a smoke.  He told her that she would have to wait until the boss left.

Then, later, sometime before dinner, NEP believes that it was around 4 o'clock, the defendant came to her cell and asked if she wanted a smoke.  She said, "Yes."  And was then taken from her cell to the internal vehicle loading bay.  And that's the loading bay on that photograph that's still up on the screen.

He took her past the charge counter into the loading bay and had her stand up against the wall near the door.  In other words, she was in the blind spot.  Could not be covered by the camera. 

Now, count 1 refers to the incident where, whilst in the loading bay, he asked NEP to flash to him, that is, in this case, to expose her genitals to him. And at that time, he was trying to pull her pants down. She - and - but she refused, stopping him from pulling her pants down, and count 2 concentrates on the pulling of the pants.

He then said, "Come on", or words to that effect, and took her back to her cell. Then sometime between 5 p.m. and 6 p.m. he again came down to her cell and again asked if she wanted a smoke. She was then taken back to the garage. By this time - at this time he took her into the storeroom that's off the vehicle bay, and I'll just go back to the photo which has number 27 on the back of it. Now, the storeroom is a windowless room that is capable of being locked, and the - and NEP’s - and it was locked on this occasion. He takes her in. It's used for storing lots of things, files, and also there's a pile of mattresses there, as well.

He took - NEP had no idea of what was about to happen. He then took two mattresses from the pile and placed them side by side on the floor. He told her to lay down. She just sat down on the mattress at first, and then the defendant said - "No, lie down."  He got her by the shoulder and pushed her back so that she was lying on the mattress. He then took her pants and briefs off, undid the zip and belt of his trousers and pulled his pants down. Didn't take them completely off. He left his shoes on and his trousers and boxer shorts were down around his ankles. He then moved her legs up and got on top of her. He was trying to kiss her. She told him not to, and here I'm going obviously to counts 3 and 4. She told him not to, and to stop, but he didn't. She had her arms up around her head, so he couldn’t kiss her. She was trying to push him off, but he kept forcing himself down on top of her. He wasn't saying anything to her, at that time. He was touching her vagina area, with his hands and fingers, and then he inserted his penis into her vagina and had sexual intercourse with her, for - NEP estimates - around five minutes. 

She tried to get up, but he pushed down on her, whilst this is going on, that's pushed down on her shoulders, and said words like, "I haven't finished yet."  NEP describes how she kept her eyes closed, whilst he was on top of her, so she didn't have to see him. She describes how she was trying to squirm out from under him, but was unsuccessful. He ejaculated inside her. He wasn't wearing a condom. To use her words, "He never asked me if I wanted to have sex with him, and he did not use a condom. He just went straight into it. I did not know what to do when this happening. I did not know what would happen to me or what he would do to me, if I refused to have sex with him. I did not feel in the circumstances that I really had any choice." 

When he had finished he got off her, and pulled his boxer shorts and trousers back on. He picked up her pants and brief on the floor, and he threw them to her. He asked her if she wanted some Hungry Jack's. She said, "Yes."  He told her not to say anything to anyone. She then followed him out of the storeroom, and went back to her cell. As she walked past the counter area, she noticed that there were two other officers at the counter, but didn't say anything to them. A short time later he came back to her cell, with a burger, fries and Coke, from Hungry Jack's.

Now, this leads to counts 15 to 20 which relates to NEP.  NEP  had been in the watch-house earlier that year, as your Honour's heard, in counts 1 to 4.

She was again in the Maroochydore Watch-house on 3 October 2005.  And dealing with count 15, that night, after dinner, Mr Buxton came to her cell and said words like, "Flash me", that is, expose her breasts, and NEP did as directed and exposed her breasts.  He then took her out of the cell to the vehicle bay for a cigarette.

As they were talking in the vehicle bay, he tried to - this is count 16 - he tried to get NEP to pull her pants down, pulling at the top of her pants, but she refused.  He then took her back to her cell, leading to count 17.

When they returned to her cell, he again asked her to show him her breasts, but she refused.  The cell door was open at this time.  She grabbed the cell door on the frame and tried to pull it shut, but he would not let her.  He then said words like, "I'll come back later when the cameras are covered."  Apparently there's toilet paper in the cell and prisoners sometimes wet it and used it to cover the lenses.

NEP, however, refused to cover the camera lens.  Mr Buxton later came back to her cell and said words like, "Have you blocked the camera yet?", and she replied, "No."  This leads to the facts surrounding count 18.

He came back again later to her cell, and, once again, asked NEP to expose her breasts to him which she did as directed, and he then took her out to the vehicle bay where he gave her a cigarette.  In the vehicle bay - and this is count 19 - he then directed her to stand next to the wall near the door, and, while in the vehicle bay, he asked her to take her pants off and to flash him, but she declined.

That then leads to count 20.  About 10 o'clock, which is just before the end of Mr Buxton's shift, he took her out to the vehicle bay again.  Whilst she was in the bay on this occasion, again having a cigarette, Mr Buxton asked her on a number of occasions to flash her breasts and to take her pants off.  Once again, she refused.  She then walked out of the vehicle bay and Mr Buxton told her not to say anything to anyone.  And she was then escorted back to her cell.

Now, as NEP described in her statement, "I was in a predicament that I had no control over, and the officer was totally in control.  The officer wanted to have sex with me" - and this covers all the allegations, obviously - "The officer wanted to have sex with me and I complied with the situation I was in.  In any normal circumstances, I would have objected to these actions.  However, I feared I was already in enough trouble, and any further resistance, or if I created a scene would have reflected badly on me.  Since this incident, I have lost total respect for police officers."”

THE ISSUES

3. [3]
   NEP claims that as a direct result of the offences and in particular the offence of rape committed upon her on 1.1.05, she has suffered a psychiatric injury, namely a chronic post traumatic stress disorder and/or a number of adverse impacts. She relies on the evidence of Dr. Chris Cantor, a clinical psychiatrist, who has provided an opinion that as a direct consequence of the sexual assault NEP has suffered a chronic post traumatic stress disorder. Dr. Joan Lawrence, a clinical psychiatrist has provided a report on behalf of Mr. Buxton, and her opinion is that NEP has not suffered any discrete psychiatric injury as a result of the offences.

THE ISSUES DISCUSSED

4. [4]
   Dr. Cantor interviewed NEP on two separate occasions and he has provided three reports dated 6.5.08, 19.8.08 and 8.9.08.

5. [5]
   NEP was born on 10.4.82, so at the time of the first episode of offending including the act of rape she was 22.

6. [6]
   Dr. Cantor saw her at his rooms initially on 17.3.08 for 1 hour 35 minutes and finally on 17.7.08 for 35 minutes. He notes that at the early stage of the interview she was “unusually hostile which may have limited or distorted her responses”. She eventually calmed down and he was able to administer Davidson’s Structured Interview for Posttraumatic Stress Disorder. As a result of his interview he provided the following diagnosis:

“Axis 1 (Psychiatric) - Chronic posttraumatic stress disorder (assault related)

- Multiple substance abuse/ dependency (pre-existing but exacerbated by the assault)

 Axis 2 (Personality) - Personality disorder with antisocial and borderline traits (pre-existing but exacerbated by the assault)

 Axis 3 (Medical) -  No current medical condition

 Axis 4 (Social & Recreational)

  - Inability to independently co-exist with society

 Axis 5 (Global Assessment of Function)

  - GAF score 30 “inability to function in almost all areas”

7. [7]
   He qualified his opinion thus:

“The reliability of the history given must be questionable for a number of reasons including her antisocial personality characteristics and her extreme drug abuse that would create unreliable memories and is culturally associated with a tendency to distort the truth for personal gain. Nevertheless, on the evidence available to me her symptom profile was consistent with the sort of posttraumatic stress disorder that might arise from such a rape experience. If an individual who had previously been accustomed to frequent street drug usage were then to be traumatised, it would be anticipated that her drug usage would escalate further as described by NEP. If it is possible to obtain information that clarifies her before and after assault drug usage, the details might shed further light on the reliability fo her account and by how much her drug usage may have changed. It is also the case that an individual with a personality disorder of the antisocial and borderline type would experience a worsening of these personality characteristics. The interaction of PTSD with multiple substance abuse and personality disorder would be expected to result in a chaotic pattern incompatible with many of the basic social norms required for independent existence.”

8. [8]
   She was seen by Dr. Lawrence on 26.8.08 who then had access to very detailed records (including medical records) from the Department of Corrective Services resulting from a number of periods of incarceration of the applicant for offences both prior and subsequent to the sexual offending against her in the watch-house. Dr. Lawrence however was considerably hampered in her assessment of NEP’s psychological functioning because of the latter’s sustained hostility and lack of cooperation. Her opinion is set out in her report dated 12 September 2008:

“11. Discussions and opinion

8. 11.1
   This psychiatric assessment of NEP proved particularly difficult because of her attitude and behaviour and the overall lack of cooperative involvement in the assessment process.
9. 11.2
   During the 1 ½ hours of interview she made repeated contradictions of earlier statements, denials and claims to withdraw any information previously offered. The assessment has been compiled on the basis of observations from the interview of both her cognitive, emotional and behavioural contributions but with reliance on corroborative material or collateral information as far as possible. On some relevant issues where there was information and this was denied at interview, mild challenges were issued and careful attempts made to ensure that her responses were clearly understood. This opinion thus is the result of this process.
10. 11.3
    NEP was in a state of high arousal during the interview. There was a short period of apparent emotional distress in relation to her son. It is possible, and even probably, that sh was under the influence of amphetamine at the time and this would have contributed to her abusive, hostile, uncooperative stance through most of the interview. In the event of her refusal to undertake any pathology tests, this cannot be confirmed or refuted.
11. 11.4
    The difficulty in the assessment clearly arose as a result of significant personality disturbances in NEP. There is no evidence to suggest that she suffers from any mental illness as such. There is clear evidence that she currently suffers from Polysubstance Abuse/Dependence, currently amphetamines and cannabis, but also past dependence on heroin and alcohol. At this interview, I could not establish any clear evidence of her current ongoing symptoms of Post Traumatic Stress Disorder but am of the opinion that there could be some residual symptoms of exacerbation of hostility and anti-authoritarian attitudes to Police Officers in uniform and possible decreased libido and involvement in heterosexual activity. These symptoms are dependant upon her complaints and with no definite corroborative information to confirm them.
12. 11.5
    NEP clearly suffers from a very disturbed Personality Disorder with significant borderline, narcissistic, antisocial and dependency traits. I would make reference to the frequency of bravado and denial in many of her statements, her extremely poor impulse control and her provocative behaviour which, in my opinion, often represented an effort to control others by displays of anger, aggression, intimidation and provocation. She clearly demonstrates her rejection and attack on authority figures but also, in my opinion, clearly needs assistance in controlling the chaos of her life. Her emotional instability was amply demonstrated at interview as she moved from obscenity and invective, the expression of significant hostility and denigration to tearfulness, which she did not acknowledge, in relation to sensitive issues and areas. She clearly fails to accept responsibility for her actions and displayed multiple cognitive distortions throughout the interview.
13. 11.6
    Her Polysubstance Abuse/Dependence commenced apparently around puberty or early adolescence, as did her behaviour which could be labelled as Conduct Disorder during childhood and adolescence but has been maintained as a feature of her personality such as to lead to a personality disorder.”

9. [9]
   It appears that Dr. Cantor was provided with the detailed Department of Corrective Services file in August, and he provided a further short report dated 19.8.08:

“Even though NEP did not volunteer the information, her early childhood molestation, physical abuse by her stepfather, eviction from home at 13, arm slashing in 1995 and abuse by the father of her son are all phenomena highly consistent with my formulation expressed in my original report. You will note that on axis 2 I made reference to both antisocial and borderline personalities having considerably higher rates of various abusive experiences in early childhood and subsequently, as well as of deliberate self injury.

The Corrective Services psychiatric assessment supported my diagnosis of PTSD related to her watch house assault adding confidence to this assessment. There was additional mention of major depressive episode in the Corrective Services assessment. I have not diagnosed this. It is possible that she was depressed when assessed by Corrective Services and not depressed at the time of my interview. It is also possible that she was depressed at the time of my interview but that I overlooked this (although I consider this unlikely). Either way, this does not substantially alter any of my conclusions.

The overall thrust of this new information is to strengthen what I have described as the relatively unreliable assessment of my original report.”

10. [10]
    In that report he acknowledged that there was “new” information which either had not been relayed to him by NEP or which was the subject of outright denials.

11. [11]
    Clearly, her revelation to a corrective services employee of being sexually abused by her grandmother’s boyfriend from age 2-6 is a very important part of her history. She specifically denied any prior sexual abuse, when asked directly about this by Dr. Cantor.

12. [12]
    NEP provided an affidavit in support of her application for compensation. She was not cross-examined by Mr. Kimmins. Given her serious and disabling personality disorder, it is probably unlikely that any cross-examination would have been productive. In her affidavit she does not swear that the information she provided to Dr. Cantor is accurate. This can be described as one of a number of “patent and serious inadequacies in the material” filed on behalf of NEP by her solicitor Mr. Laurentiussen of “Law Essentials” of Kingaroy. This description comes from the judgment of the Chief Justice in HW v LO [2001] 2 Qd.R. 415 where his Honour said [at 420]:

“There were further patent and serious inadequacies in the material put before the District Court. For example, the truth of the factual account basing the psychiatrist’s report was not verified by the appellant (cf. para 6 her affidavit). The factual basis of a psychiatrist’s opinion must be established by admissible evidence (Ramsay v Watson (1961) 108 CLR 642; Gordon v R (1982) 41 ALR 64; Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85, 87).”

13. [13]
    I was concerned that in the absence of adversarial challenge, NEP’s evidence would (in effect) be uncontested however this failure (to which I adverted on a number of occasions during the hearing) was not corrected and given the common ground between the experts about her unreliability, and Mr. Kimmins decision not to object to Dr. Cantor’s reports being received, I can deal with the matter generally on the basis of the medical evidence. Given that this was one of those rare occasions when the respondent was represented, it is not acceptable or professional that Mr. Stubbins was left without any instructing solicitor at Friday’s hearing.

14. [14]
    I infer that it was only after Mr. Stubbins became involved in the matter that the solicitor was even aware of his clients right to claim for adverse impacts of a sexual offence as evidenced by the very late request to have Dr. Cantor comment on this in his last report dated 8.9.08.

15. [15]
    As Mr. Kimmins submits, NEP has to prove that she has suffered a mental or nervous shock injury, and/or adverse impacts which are not symptoms of part of the mental or nervous shock injury: JI v AV [2001] QCA 510; [2002]2 Qd R 367.

16. [16]
    Causation is to be determined by reference to the approach taken by Holmes JA in SAY v AZ; ex parte A-G (Qld) [2006] QCA 462 at [23]:

“Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.”

17. [17]
    It follows that the first question for me is has this unfortunate woman suffered PTSD “because of” the offences committed by Mr. Buxton.

18. [18]
    Dr. Cantor reached his Axis 1 diagnosis before he had access to any corroborative material such as the Department of Corrective Services file, although he says that the material in that file tends to support his opinion. Both experienced psychiatrists are of the opinion that given NEP’s serious and debilitating personality disorder, and her consequent unreliability as a historian, it is especially important for a clinician in her case to attempt to obtain any corroborative material before relying on her as a historian.

19. [19]
    Dr. Cantor frankly acknowledged that his original opinion was very largely based on his acceptance of the accuracy of what NEP told him of her background and her reaction to the offences. As Dr. Lawrence noted, the Davidson Structured Interview Instrument is not intended to be used for forensic assessment because it depends entirely on the clinician accepting the patient as a reliable historian. She mentioned that an intelligent person with a borderline personality disorder is capable of manipulating his or her responses to such a questionnaire so as to produce a result favourable to their claim. Obviously, there is no evidence that NEP did do this; indeed given her disabling personality disorder and highly dysfunctional coping skills, it is probably unlikely that she could have so completely manipulated her responses to the questionnaire so as to entirely mislead an experienced clinician such as Dr. Cantor.

20. [20]
    Dr. Lawrence frankly acknowledged that she was significantly hampered in assessing this woman because of her hostility and lack of cooperation. Her opinion is largely based on her analysis of the DCS material, rather than her clinical assessment of NEP or her responses to PTSD instruments.

21. [21]
    Dr. Cantor also acknowledged that it is very difficult with a patient such as NEP who has had such an appalling and dysfunctional background to tease out symptoms of a discrete mental condition such as PTSD from behaviours and attitudes attributable to her severe personality disorder.

22. [22]
    The other major complicating feature of NEP’s situation is her long term polysubstance abuse dependency. She has been a chronic abuser of almost the complete panoply of illicit drugs since she was a child commencing with cannabis use as an 8 year old, and moving to intravenous use of heroin and amphetamines respectively (depending on which history you accept) from 11 and 13. The effect on her functioning from such long term drug abuse is obvious and confirmed by both doctors. I am not satisfied that the offences caused an exacerbation of her drug use which was already well established and out of control by January 2005.

23. [23]
    At the end of the day, what persuades me to prefer Dr. Cantor’s opinion to that of Dr. Lawrence is firstly he was able to observe her reasonably calmly in a clinical setting for approximately 1½ hours, and secondly his evidence (in cross-examination) that her responses to the questionnaire revealed a pattern of symptomology of PTSD with which clinicians are familiar, which he did not think such a highly disturbed individual would have been able to give if she was simply being manipulative. Certainly, there are gaps in the recorded history which Dr. Lawrence regarded as significant such as not complaining of PTSD symptoms, however when she was seen by Dr. Petersen, a psychiatric registrar, in prison on 13 June 2007, she was presenting then with symptoms of PTSD as recorded then in the doctor’s Axis 1 diagnosis.

24. [24]
    Everyone acknowledges, as they must, that such a shocking event as being raped in the watch house by a police officer who was supposed to be protecting her, must have had a significant adverse effect, even on such a psychologically compromised person as NEP.

25. [25]
    Adopting the broad brush approach referred to in SAY v AZ, and discounting for the many non-compensable causes of the injury, I assess NEP’s PTSD as being the mid range of Item 32 and I award her 15% of the scheme maximum namely $11,250. I have no power to order (as both Doctors suggest) that the award be placed under the care of a Guardianship and Trusteeship Tribunal. If I had that power, I would have so ordered.

26. [26]
    The only ‘adverse impact’ which is not part of her PTSD is a heightened adverse response to police and people in uniforms. Compensation pursuant to Reg 1A has to be discounted given that her long history of acrimonious contact with police prior to the offences as a result of her drug use and personality disorder, would also have contributed to her present attitude. Doing the best I can, I will allow her a further 5% of the scheme maximum for this adverse impact, which brings her awards to $15,000.

27. [27]
    I order Peter Anthony Buxton to pay to NEP the sum of $15,000.