DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act (“the Act”).  On 4 December 2002 the respondent pleaded guilty to two counts of threatening violence, one count of assault, and one count of stalking.  The only offence which was a personal offence committed against the applicant was one of the counts of threatening violence, which offence was committed in April or May 2000.  Earlier the same year, on 31 March 2000, the applicant assaulted the respondent, striking her on the nose with sufficient force to break it.  She was convicted of that offence, but on an earlier occasion, on 21 November 2000, following a trial.  In the meantime the offence of threatening violence was committed against the applicant. In addition, on 8 December 2001 there was an offence of threatening violence committed against the applicant’s mother, of which the applicant was aware.

2. [2]
   This application was filed on 31 August 2004; it sought compensation in respect of injuries suffered “as a consequence of offences committed by the respondent between March 2000 and June 2000 … for which offences the respondent was convicted on indictment before the District Court at Brisbane on 4 December 2002.”  The application came before me on 3 May 2006, when it emerged that the applicant was seeking compensation in respect of injuries suffered as a result of both the earlier assault which resulted in the broken nose, and the offence of threatening violence; but the application was not apt to deal with both of those matters, because it referred only to offences of which the respondent was convicted on 4 December 2002.  The assault which resulted in the broken nose was an offence of which she was convicted in November 2000.

3. [3]
   On that occasion I declined to award the applicant compensation in respect of injuries suffered as a result of both offences, on the basis that the respondent had not been given any notice of the intention to seek compensation in respect of any injury suffered as a result of the offence for which she was convicted on 21 November 2000, so that it would be a breach of the rules of natural justice for me to proceed with that application without notice to the respondent.  In addition, an application in respect of that offence was by then out of time under the Act.  The matter was adjourned to enable the applicant to consider her options.

4. [4]
   Subsequently a second originating application was filed, OA1748/08, which sought compensation in respect of injuries suffered as a result of the offence of which the respondent was convicted on 21 November 2000.  Initially the applicant sought to overcome the difficulty about the application being out of time by reference to an extension on the ground that she was at the relevant period under a disability.  However, when both applications came before me on 22 September 2008, counsel for the applicant conceded that the applicant could not obtain an extension of time on that basis, that that application was out of time, and could not be pursued.  Accordingly that application was dismissed.

5. [5]
   The earlier application, OA3119/04, was also brought on, having been adjourned to a date to be fixed. The respondent was given no specific notice that that application would be dealt with on that day, but the respondent was given notice of the application coming before the court on 3 May 2006, and she did not appear on that occasion, although called.  In those circumstances, it was open to the court to deal with the matter on that day without further notice to her, and in my opinion it follows that it was also open to the court to deal with the application on some later day without further notice to her, so long as it did not involve anything not encompassed within the scope of the relief sought in the material which had been served on her.^[1]  That is what has occurred.  The applicant is not now seeking relief not within the scope of the originating application, but rather seeking relief so far as it is available which is within the scope of that originating application.  For practical purposes, that means compensation in respect of any injury caused by the offence of threatening violence which was the only offence of which the respondent was convicted on indictment on 4 December 2002 which was a personal offence against the applicant.

6. [6]
   As I also mentioned in my reasons of 3 May 2006, there is the further difficulty that the material available, relevantly as to mental or nervous shock, addressed the consequences of both the earlier assault and the offence of threatening violence, without seeking to distinguish between them.  That is still a difficulty, and it must be addressed in the light of a significant development in the law in relation to applications of this nature since 3 May 2006.

The law

7. [7]
   On 10 November 2006 the Court of Appeal delivered judgment in SAY v AZ [2007] 2 Qd R 363.  In that matter Holmes JA, with whom the other members of the court agreed, held that s 25(7) of the Act deals with both causation and quantification, and covers other factors contributing to a single state of injury:  [20].  Her Honour went on to say 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 … 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.”

The evidence

8. [8]
   The applicant was born in 1976 and was 23 in the early part of 2000. She is now 32. She had known the respondent for some years, and described her relationship as “sort of friends” although she said she had been assaulted and threatened by the respondent in the past.^[2]  The incident the subject of the relevant offence occurred when the applicant was with her mother and her young son at a shopping centre; the respondent approached them and threatened that she would get the applicant and her child.^[3]  Then on 8 December 2001 she was at a bowling alley with her mother when the respondent was there as well, and the respondent spoke loudly to the applicant’s mother, causing the applicant to become frightened and to leave the area.

9. [9]
   She said that the respondent frightens her, and caused her to become afraid to live on her own and to go out on her own, and that she had seen a psychiatrist to discuss these matters. In a victim impact statement which she prepared she said that she had been suffering a lot of sleepless nights and had not been able to be on her own a lot, and that she lived in fear of the respondent; she had become a very nervous person because of the actions of the respondent.^[4]  She said in June 2004 that she continued to be afraid of the respondent, that she was afraid that the respondent would find out where she lived and harm her and that she had intrusive thoughts of suicide.^[5]  In April 2006 she said that she still becomes very anxious on seeing the respondent or at the prospect of having contact with her, although she has seen the respondent on numerous occasions; she had sought assistance from a support worker in relation to this anxiety, the last contact with the respondent being about six months ago, when she saw her at a shopping centre and ran away quickly.^[6]

10. [10]
    There was no evidence from any treating psychiatrist. Nevertheless the applicant saw a psychologist, Mr Morgan, on 31 March 2004 for the purposes of a report.^[7]  The report records that the dispute between the parties originally arose because of a claim by the respondent that the applicant owed her an amount of some $25 for telephone calls; although the applicant acknowledged a small debt of about $2, she disputed the rest.  This dispute had led to the conflict.  The applicant told Mr Morgan that she had encountered the respondent a few times during 2003 and 2004, the last being in February 2004, although she was trying to avoid the respondent.  The applicant had reported a considerable fear of the respondent, to the point where she was seeking to relocate away from the area, although that depended on being able to obtain a transfer from the housing commission.  The anxiety was persisting, although the most acute anxiety occurred in the first six to 12 months after the assault and immediately after the threats in December 2001.

11. [11]
    The report noted that the applicant has had other problems. She was born with a cleft palate, and a frontal lobe condition which has impaired her ability to be educated and her hand‑eye coordination.  She has had a number of other negative experiences during her life, including examples of sexual assault.  Her son is in the care of the Department of Family Services; she has support through the Endeavour Foundation and Disability Services Queensland, and her financial affairs are managed for her.^[8]  The report noted that there had been treatment from a psychiatrist at times, and that she had been prescribed antidepressants at times.

12. [12]
    Mr Morgan assessed her presentation as anxious but not depressed; there was no evidence of thought disorder.  He did not perform any psychometric assessment.  He expressed the opinion that she was suffering from a chronic adjustment disorder with anxiety which he said contributed heavily to her current limited social adaptation.  He thought she would benefit from both medical and psychological treatment.  He did not distinguish between the actual assault and the threatening behaviour in relation to the cause of the psychiatric problems.  He did note that the prior stressors, referred to earlier, were significant in terms of her predisposition, vulnerability, limited coping and also in terms of available support.  He thought that there were prospects of her condition improving with appropriate treatment.

Analysis

13. [13]
    It was submitted and I accept that as a result of the actions of the respondent the applicant has suffered mental or nervous shock, in the form of psychiatric injury, probably chronic adjustment disorder with anxiety. I further accept that the applicant’s behaviour did not, on the evidence before me, contribute in any way to the injury she suffered as a result of the respondent’s actions, so that there is no question of reducing her compensation on this basis. More difficult questions are the assessment of the seriousness of her current condition, and the question of causation.

14. [14]
    As to the seriousness of her current condition, it seems to me to be of some significance that the applicant has as a result of her fear of the respondent been seeking to move away from the area where they both live, and has at times been having some thoughts of suicide. It does appear that the interference with the applicant’s lifestyle has been substantial as a result of this distress, and the psychologist concluded that in functional terms her psychological impairment was within the moderate range even though the severity of her anxiety was relatively mild. This is because of her pre‑existing difficulties, which rendered her vulnerable to distress, and contributed to a heightened sense of anxiety, while limiting her capacity to cope with this problem.  It appears to be the psychologist’s view that the effect of her pre‑existing condition has been to make the anxiety worse than it would otherwise have been, rather than being something which amounted to a separate cause of the anxiety.  If that is the case, it would not be appropriate to reduce the award as a result of any considerations of contributing causes associated with her pre‑existing conditions.

15. [15]
    The more difficult question is one of disentangling the issues of causation as between the earlier assault and the subsequent threats. In this respect the psychologist’s report is not of direct assistance, since that was not a point he was considering, but he did refer to the applicant’s fear of the respondent, particularly with reference to the threats, and the applicant’s anxiety appears to be principally related to a fear that the respondent will assault her, or perhaps her child, at some time in the future. The fact that the respondent had previously assaulted her would certainly contribute to that fear, but it seems to me that the threats to her, delivered subsequent that assault, were likely to be of particular significance in relation to the continuation of the fear, and its continuing severity, particularly when assessed in the context of the subsequent events referred to in the material.

16. [16]
    After careful consideration of all of the evidence therefore I have come to the conclusion that, although it is appropriate to regard the earlier assault as a contributing cause of the applicant’s psychological injury, and hence the mental and nervous shock, it should not be seen as the dominant cause. As to whether the effect of the earlier assault should be discounted on the basis that it was part of a continuum of offending, it seems to me that the significance of that is lessened in circumstances where a separate application for compensation in respect of the consequences of that offence could have been made at an appropriate time, but was not. However, to the extent that the subsequent behaviour of the respondent has served to reinforce the effect of the threat for which the respondent was convicted, it does seem to me that the effect of the approach of her Honour in SAY means that not much consideration should be given to that factor as a contributing cause.

17. [17]
    There seems to have been some abatement of the applicant’s condition, though not very much; the only possible change which seems to hold out much hope for the future is the possibility of the applicant, or I suppose the respondent, moving away from the area where at the present time they both live, thereby reducing the risk of further confrontations. In the absence of that, it does not seem that there is much prospect of future improvement, but that is a possibility for which allowance should be made. In all the circumstances therefore it seems to me that the applicant’s injury is an example of mental or nervous shock and falls within Item 32 in the schedule, and, but for the complications in relation to causation, I would have allowed 16% under Item 32 in respect of the applicant’s injury.

18. [18]
    There are different ways in which the significance of other contributing causes can be taken into account, as the Court of Appeal has indicated. It seems to me that, for the reasons that I have given, the relevant offence was the most important single cause, but obviously the other matters, particularly the earlier assault, were significant causes, and so there must be some significant adjustment in some way. I think the most appropriate way is to fix a lower percentage on the compensation scale to allow for the role of the other factors. Approaching the matter in that way, I will allow 10% under Item 32 to allow for the contributing causes in the form of other actions of the respondent, principally the other offence.  Applying that to the scheme maximum produces an award of $7,500.

19. [19]
    Because the Public Trustee is the administrator of financial matters for the applicant under the Guardianship Administration Act 2000, it is appropriate that any award be paid to the Public Trustee in that capacity.  However, I do not think that it follows that it is appropriate to appoint the Public Trustee manager to take possession of the sum so paid.  The Public Trustee already has status as an administrator of financial matters pursuant to the Act, and it is simply a matter of requiring that the payment be made to the Public Trustee because he holds that position.  The Public Trustee’s responsibilities in relation to property of the applicant are as set out in the Guardian and Administration Act 2000, and the Public Trustee Act 1978.  In those circumstances it does not seem to me that it is necessary for me to make any particular order in relation to how the Public Trustee is to hold the proceeds of this order, or what is to be done with them.

20. [20]
    There is no jurisdiction to make an order for costs against the respondent. As for the applicant’s costs, the applicant is apparently in receipt of legal aid, and the question is whether any costs should be paid out of any money ultimately received by the Public Trustee to Legal Aid Queensland.  In circumstances where either of those bodies are strictly represented before me, I am wary about making an order that one of them make some particular payment to the other.  I would hope that matters of that nature could be resolved appropriately between two such bodies without any need for any order of a court, but I will give liberty to apply to any party in respect of any order in relation to the applicant’s costs as between her and her legal advisers as that party may be advised.

21. [21]
    I therefore order that the respondent pay to the applicant the sum of $7,500 by way of compensation pursuant to the Act for injuries suffered by the applicant by reason of the offence of which the respondent was convicted in this court on 4 December 2002.  I order that such compensation be paid to the Public Trustee of Queensland as administrator of financial matters for the applicant under the Guardianship and Administration Act 2000.  I give liberty to any party to apply for any further order in relation to the costs payable to the applicant’s legal advisers as that party may be advised.