Miller v The Estate of Ronald Leon Frampton (deceased)
[2008] QDC 335
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- Unreported Judgment
- Miller v The Estate of Ronald Leon Frampton (deceased)[2008] QDC 335
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Miller v The Estate of Ronald Leon Frampton (deceased)[2008] QDC 335
Miller v The Estate of Ronald Leon Frampton (deceased)[2008] QDC 335
DISTRICT COURT OF QUEENSLAND
CITATION: | Miller v The Estate of Ronald Leon Frampton (deceased) [2008] QDC 335 |
PARTIES: | MICHAEL ANDREW MILLER (Applicant) v THE ESTATE OF RONALD LEON FRAMPTON (DECEASED) (Respondent) |
FILE NO/S: | BD 3296 of 2004 |
DIVISION: | Civil |
PROCEEDING: | Application for criminal compensation |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 21 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 August 2007, 10 September 2007, 19 March 2008, 30 May 2008, 8 August 2008 |
JUDGE: | Searles DCJ |
ORDER: | I order the respondent to pay to the applicant $36,000 in compensation. |
SOLICITORS: | J. Stevenson - Applicant |
- [1]This is an application for criminal compensation arising from injuries sustained by the applicant resulting from conduct the subject of criminal charges against the applicant’s stepfather the late Ronald Leon Frampton (Respondent). He was born on 11 June 1970 and is currently 37 years old. The respondent was convicted of nine counts on 23 April 1986 six of which (counts 1, 2, 4, 5, 6 and 7) were indecent dealing with a boy under 14, one charge of sodomy (count 8) and two further charges (counts 9 and 10) of indecent dealing with a boy under 17 years. The applicant was the victim of the conduct constituting those offences.
- [2]On counts 1, 2, 4 to 7 the respondent was sentenced to three years’ imprisonment. On counts 9 and 10 he was sentenced to two years’ imprisonment to be served concurrently, and in relation to count 8 he was sentenced to four years’ imprisonment to be served cumulatively with the other sentences.
Legislative framework
- [3]Victims of criminal conduct who sustained injury as a result of that conduct were granted a statutory right of action for compensation under Chapter 65A of the Criminal Code which commenced on 1 January 1969. In 1995 Chapter 65A was repealed by the Criminal Offence Victims Act 1995 which commenced on 18 December 1995. However s 46 of that Act preserved the operation of Chapter 65A in relation to relevant injuries resulting from an act done before 18 December 1995, being the commencement date of the Criminal Offences Victims Act 1995. All the injuries in this matter occurred before that date, so that any compensation due to the applicant falls to be determined under Chapter 65A of the Criminal Code, specifically s 663B.
- [4]By the Criminal Code and the Justices Act Amendment Act in 1975 which commenced on 1 July 1975, the then statutory maximum amount of compensation of $2,000 was increased to $5,000 for offences committed on or after 1 July 1975. As a result of those amendments, s 663B (1) provided:-
“663B Court may order payment for compensation
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 injuries suffered by him by reason of the offence of which the offender is convicted.”
The “prescribed amount” was defined in section 663A in these terms:-
“Prescribed amount:-
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, two thousand dollars;
In all other cases, five thousand dollars.”
- [5]Chapter 65A was again amended by the Criminal Code Amendment Act 1984 which commenced on 1 July 1984. As a result of the 1984 amendments:-
- A new definition of “prescribed amount” was introduced, in s 663A namely:-
“‘Prescribed amount’ means:-
- Where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 – $5,000;
- In all other cases save those that are the subject of particular reference in section 663AA, 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”;
- A new s 663AA provided:-
“(1) The prescribed amount for the purposes of this Chapter in the case of mental shock or nervous shock is $20,000.
- Where injury in connection 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 injuries so specified.
- Where injury in connection 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 Workers’ Compensation Act 1916 – 1983 as varied from time to time pursuant to section 14E of that Act.
Subsections (1) , (2) and (3) are subject to provision (a) of the meaning of the term ‘prescribed amount’ in section 663A.”
- (c)The new s 663B(1) provided (changes identified by change of font):-
“663B Court may order payment for compensation
- (3)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 convicted, 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 or 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 injuries suffered by the person by reason of the offence or offences of which the offender is convicted.
(1A) 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 the other.
(1B) Injuries suffered by a person aggrieved by a person aggrieved by reason of the commission by the person convicted of more than one indictable offence described in subsection (1) may, in respect of the person convicted, be the subject of one application only and one court order for the payment of a compensatory sum only.”
Service on respondent estate
- [6]The evidence establishes that the respondent died on 2 May 1994.[1] The applicant’s cause of action survived the respondent’s death.[2] Inquiries of the Public Trustee of Queensland revealed that that office was not the executor of any will left by the respondent and did not administer the estate.[3] Further, the natural daughter of the respondent, Kim Frampton, swore an affidavit[4] in which she deposed to the fact that she only made contact with the respondent some two months prior to his death on 2 May 2004. She described the respondent at that stage as an old man dying of cancer with no money and living in a garage. She said he was a very, very poor man. A month after that visit she said he was admitted to Mount Olivet Hospital shortly before her 18th birthday. She said the only thing she received from the respondent’s estate was a photo album and her impression was that the respondent had no money or assets of value. Finally she said she recalls receiving a letter from the government to the effect that the respondent’s last pension payment could be kept by the family and used towards the cost of his funeral.
- [7]Ms Patricia Miller, the applicant’s adoptive mother and the former wife of the respondent swore an affidavit[5] deposing to the fact that she married the respondent on 3 September 1977, was married to him for seven years, and that at the time of the separation, which would have been around late 1984, there were no assets of the marriage. She said that the respondent had never worked to any great degree during the marriage, that she did not ever recall him having much or any money and that he died a few years after release from prison.
- [8]I am satisfied, on the balance of probabilities, that the respondent died in impecunious circumstances leaving no assets so that the hearing of this matter, notwithstanding the lack of service of the application on, or any appearance by, any representative of the estate, would not risk any detriment to the respondent’s estate. There was no estate. I accordingly order that service upon the respondent estate be dispensed with. In that regard I rely upon UCPR rule 3 and Supreme Court Rules order 3, rule 34 which becomes operative given the silence of the UCPR in relation to the dispensation of service on the estate.[6]
Limitations of Actions Act
- [9]A further preliminary issue arises and that is the operation of the Limitations of Actions Act 1974. Section 10(1)(d) of that Act sets a limitation period of six years for an application of this nature.[7]
- [10]The applicant was born on 11 June 1970 so the relevant time limitation period of six years ran from the date of his attaining 18 on 11 June 1988 and expired on 10 June 1994. His application was not filed until more than ten years later on 15 September 2004, so prima facie the application is statute barred. However time limitation provisions operate to “bar the remedy and not the right” and operate only if distinctly relied upon.[8] As no limitation period has been pleaded, there is no impediment to my hearing the application.
Circumstances of offences
- [11]The details of each of the offences are set out in annexure A.[9] There is no need for me to repeat the detail. Suffice is to say that the applicant sustained repeated sexual abuse from early 1979 to mid 1984, from the age of eight to the age of fourteen. I find that there was no disentitling behaviour on the part of the applicant as contemplated by s 663B(2).
Findings as to when offences occurred
- [12]I am satisfied from the evidence,[10] on the balance of probabilities, that the conduct constituting counts 1, 2, 4, 5, 6, 7 and 8 all occurred prior to 1 July 1984, the date of commencement of the 1984 amendment to s 663B. As to counts 9 and 10 I am likewise satisfied[11] that they occurred after 1 July 1984.
Psychologist’s report
- [13]An affidavit was filed by a psychologist Ms Gail Fisher-Nusenu annexing a report prepared by her following consultations with the applicant on 8 January, 17 January, 8 February and 17 February 2007. The applicant confirmed the accuracy of the factual content of that report.[12] Ms Fisher-Nusenu set out the applicant’s relevant personal and background history as follows:-
- He was born and raised in Brisbane and was adopted by Patricia and Clarence Staples who also adopted a daughter Katrina Staples at the same time. When the applicant was approximately six years of age his adopted mother left the family and went to New Zealand where she married the respondent. They had a daughter of that union, Kim Frampton and returned to live in Australia.
- He was very traumatised by the death of his adoptive father Clarence Staples, and upon his death the applicant and his sister Katrina returned to live with their adopted mother and new step-father, the respondent. That is when the abuse began. His mother subsequently left the respondent but the applicant visited him every two weeks, during which access visits the sexual abuse continued. Subsequent to the abuse being reported at school by his sister, the access visits stopped.
- His mother then formed a relationship with one Bruce Miller, whose name the applicant presently uses. The applicant described his new step-father as a very controlling man, and this resulted in the applicant leaving home and residing with his maternal aunt and uncle at Maroochydore for some 18 months before returning to his mother and Mr Miller.
- He left home at age 21, became engaged to be married but that relationship broke down. He said he experienced several unsuccessful relationships and had a daughter from one relationship with a work colleague. He continued to have access to his daughter between her ages of two and eight years before she moved to the USA with her mother.
- He moved to Melbourne in 2000 and lived and worked there for approximately three and a half years before returning to Brisbane where he boarded with his mother and step-father. He returned from Melbourne with accumulated personal debt of around $30,000 and his step-father Bruce Miller put him on a strict financial budget to assist him in reducing that debt. Indeed, according to the applicant, Mr Miller took over the control of his finances. The applicant is presently in a very close relationship of three years duration with Melissa Zahra and moved to Mackay with her to be closer to her family. They rent a house in Mackay and he has ongoing financial problems related to child support for his daughter which he is addressing. He works as a workshop supervisor in Mackay for Auto-Electrics Car and Truck Maintenance Mackay.
- At the time of his interview the applicant was struggling to understand why the offences had occurred and had been seeking a stable lifestyle since then. He believes there have been some irreversible changes to his lifestyle both physically and psychologically as a result of his abuse. He was quite distressed when discussing the offences with the psychologist and seemed to her to be obsessed with the manner in which he was viewed by others, particularly family members. He described the following symptoms to her:
Sleep patterns
- (i)Experiencing recurring vivid dreams that the respondent was coming after him in which dreams he would go over and over what the respondent did to him, asking himself why anyone would do that. Those dreams continued until the death of the respondent on 2 May 1994 which means they had a duration of some 15 years from early 1979 when the conduct the subject of count 1 occurred to May 1994.
Anxiety
- (ii)He described himself as a very anxious person and quite hyper-vigilant. The latter condition manifested itself on two separate occasions when he attacked men in Spencer Street, Melbourne, because he believed they were attempting to accost him. To gain closure on his traumatic past he attended the respondent’s funeral. Closure however was made difficult by his being constantly berated by his step-father Bruce Miller who he said constantly refers to him as hopeless, treats him like a child, and implies that because the subject offences happened to him, he must be constantly careful to ensure that he does not himself become an offender. He said those remarks distressed him and he said “I have always known I would never be like this and in fact it has probably made me over-protective”.
Depression
- (iii)One of the most disturbing consequences of his abuse is the fact that the applicant has contracted Hepatitis B Positive which he said for several years caused him to be withdrawn from people and having difficulties in forming and maintaining relationships. He said he was unable to trust people and their intentions and still has problems judging people which often causes him great concern. He demonstrated a quite obsessive desire for his family to approve of him. In that regard he does not enjoy a very good relationship with his sister Kim, the biological daughter of the respondent who has been quite abusive towards him. Contrary to that he has a very close relationship with his sister Katrina who herself was abused by the respondent. His summing up of the abuse was put in these words:-
“In some ways this has made me a stronger person, it is not like having broken bones which usually heal easily, in some ways it has helped me because of the constant remarks I have had over the years about my situation. I know it has taken me years to try and come to terms with (sic), but I am happy with the way I have turned out, and I view myself as a down-to-earth (sic) person, but I will be happy when this is over so I can have some closure.”
- [14]Ms Fisher-Nusenu concluded that the applicant’s condition suggests that he continues to experience considerable psychological distress as a result of the offences. She said those symptoms seemed likely to have occurred in relation to the offences and may be viewed as contributing to and impacting on his usual level of functioning. She said his recurrent symptoms would meet the criteria for a DSM-IV diagnosis of post-traumatic stress disorder which is evidenced by his reported symptoms of hyper-arousal, fear, persistent recollection of the events and feelings of detachment from others. She said those symptoms over a period of months or years are viewed as a common occurrence following a traumatic or life-threatening event outside the normative coping efforts of most individuals, but suggests that the relationship between the applicant’s current symptoms and the offences is significant. The applicant acknowledged to her that the refusal some years ago of his biological parents to have contact with him did impact on his feelings of abandonment and may have contributed to his low self-esteem. I do not see that that action on his biological parents’ part is relevant to the issue of assessment of damages. There is no evidence that, or motivated by, the offences under consideration.
The psychologist concluded that whilst the applicant had made some progress in his life, was a hard worker and had retained a sense of control over his life since the offences, nevertheless changes such as a lowered trust in the intentions of others, an inability to make judgments about others and the lack of support from significant people in his life suggests that he would benefit from ongoing psychological treatment and she recommended ten sessions.
- [15]As I have said, the applicant confirmed the accuracy of the above factual statements by the psychologist. In his own affidavit he made the following additional points:
- At the time the offences were occurring, he could not get changed in school change rooms which made it uncomfortable doing swimming classes which he loved;
- Before the offences occurred, his grades at school were good, but they dropped after the abuse started;
- He recalls trying to make up excuses not to have to go the respondent’s home for access visits each fortnight, knowing what sort of a weekend he would have and that serious abuse would occur;
- His ability to engage in certain employment has been adversely impacted by the offences. As a result of contracting Hepatitis B he could not hold a first aid certificate, could not participate in lifesaving or be employed in the defence force. He said these consequences had a very disturbing effect on his life;
- As a result of his abuse he finds it hard to trust males and anyone trying to be a father figure to him. Because the offences also involved his two younger sisters it has put a lot of pressure and torment on his family;
- At the time the offences were occurring he would not leave the house and his school grades and lifestyle were turned upside down by the offending. He was tormented and picked on a lot at school even by people he considered his friends. He was called names like poofter and queer;
- He feels stigmatised by society because in his view people seem to think that once a person has been molested that person will himself be a molester. He said he had heard and been told many times something which he hated and was sick of hearing, namely that if someone has been interfered with then the chances are that person will interfere with others;
- His daughter’s mother did not trust him and would not even drink from the same cup as him because of the Hepatitis B. She told him she did not trust him and did not want him bathing his daughter;
- The major impacts on his life have been:-
- Contracting Hepatitis B;
- Not being able to trust males or in particular a father figure;
- His inability to enter certain occupations;
- His inability to join in surf lifesaving and the air force which he was interested in; and
- The cancellation of his first aid certificate because of his Hepatitis B status;
- As a teenager he experienced extreme pressure and torment in the courtroom. He was not told about his entitlement to criminal injuries compensation, counselling or any other help which he could have obtained at that time;
- He said he has suffered financially as a result of the offences because as a result of trusting the wrong people he has lent money to them without being paid back. He was so keen to make friends and was gullible enough to lend money;
- He said for a long time he did not care about his life because he believed that the Hepatitis B would turn to Hepatitis C and shorten his life, but he has now learnt to make adjustments because of his Hepatitis B and all his family members have been immunised against that condition. He must inform any partner about immunisation for themself and their family and he himself has regular blood tests to monitor the Hepatitis B condition. Those blood tests occur every year. In that regard he said he was constantly reminded of the abuse every time he has a blood test because that brings on memories of what happened and how he contracted Hepatitis B. He said most people think that he contracted the condition as an intravenous drug user, because he was a homosexual or had a blood transfusion;
- Because of the offences he will not let children sit on his lap for fear that someone may accuse him of being a molester or playing wrongly with children. He will never bathe with a child ever again he says, and is uncomfortable even sleeping in the same bed with children, putting them into their own bed once they are asleep.
- [16]The above demonstrates to me that the applicant has suffered a substantial disruption to his life from an early age as a result of the sexual abuse of his step-father the respondent.
Injuries
- [17]In the absence of evidence to the contrary I presume, as the Chief Justice did in Hendry v Llorente[13] that the injuries arose proximately to the offences although their consequences may later have worsened. The applicant relied upon LMB v PWB[14] to seek to establish that, whereas the conduct the subject of counts 1, 2, 4, 5, 6, 7and 8 took place prior to 1 July 1984, the injuries occurred subsequent to that date. If that is correct the effect would be to increase the maximum compensation available.[15] In that case there was psychiatric evidence to support His Honour’s conclusion that the injury suffered namely an episode of major depression occurred in or about 1996 when the applicant was 18 years of age as a result of her being sexually molested between March 1980 and July 1983.[16] Unfortunately in this case I am unpersuaded that there was any such corresponding evidence to support such a finding. The applicant relied upon the evidence of the psychologist Ms Gail Fisher-Nusenu[17] and particularly on her conclusion that the applicant continues to experience psychological stress. There is nothing I could find in her report however which rebuts the presumption abovementioned that the injuries arose approximate to the offences notwithstanding that their consequences may have later worsened. I confirm my earlier finding that the injuries resulting from the pre 1 July 1984 conduct in counts 1, 2, 4, 5, 6, 7 and 8 all occurred prior to 1 July 1984.
- [18]The injuries fall into two categories, namely a physical injury being the contraction of Hepatitis B and mental shock or nervous shock. I am satisfied that the contraction of Hepatitis B could only have resulted from the conduct the subject of count 8 (sodomy) which occurred prior to 1 July 1984. The evidence[18] is that the condition was detected by the blood bank when the applicant was 16 years of age and donated blood. At that time he was not sexually active.[19] Any mental shock or nervous shock suffered by the applicant would result from the indecent dealings the subject of the remaining counts.
- [19]Section 663A of the Criminal Code provides:-
“‘Injury’ means bodily harm and includes pregnancy, mental shock and nervous shock.”
Section 1 of the Criminal Code defines bodily harm in these words:-
“Bodily harm means all bodily injury which interferes with health or comfort.”
Any injury apart from pregnancy or mental shock and nervous shock is confined to physical injury.[20] In my view the Hepatitis B injury is a physical injury within the meaning of bodily harm as defined, in that its presence interferes with the health or comfort of the applicant.[21]
- [20]The applicant relied upon a report of Dr Robert Parkes a general physician dated 10 July 2008 and I am satisfied from that report that it supports my finding of hepatitis B as a physical injury.
Mental or nervous shock
- [21]I am satisfied that the applicant has suffered mental or nervous shock. The psychologist concluded that his recurrent symptoms met the criteria for a diagnosis of Post Traumatic Stress Disorder evidenced by his symptoms of hyper-arousal, fear, persistent recollection of the event and the feelings of detachment from others.[22] Post traumatic stress disorder is a recognised psychiatric disorder but even if it was not, I am satisfied that the applicant has suffered mental or nervous shock as described by Thomas JA in Ferguson v Kazakoff.[23]
Applicable law – post or pre 1984 amendment of s 663B
- [22]There have been differing opinions in this Court as to whether or not the law as it stood after the 1984 amendment of s 663B applied to the assessment of compensation for injuries resulting from injuries occurring prior to 1 July 1984, the date of commencement of the 1984 amendment, but where the relevant conviction post-dated that point. That issue is relevant to whether or not the applicant may recover up to $5,000 for each offence without a consideration of whether some of the offences may constitute one course of conduct or closely related courses of conduct introduced by the 1984 amendment.[24] In that latter case the maximum prescribed amount of $5,000 would be limited to such offences as a group rather than as individual offences. There is no decision of the Court of Appeal directly on point.[25] In R v Boughton; ex parte Holt [26] the then Chief Judge Helman, considered the issue of the appropriate law applicable in relation to pre July 1984 injuries. He held that, even though the respondent’s conviction occurred after July 1984, by virtue of the operation of s 20(1)(c) & (e) of the Acts Interpretation Act 1954, the applicant had acquired inchoate or contingent rights to compensation against the respondent at the point she suffered the injuries (pre July 1984) which rights “remained in limbo until crystallised by the conviction”.[27] That resulted in the applicant being held to be entitled to compensation by reference to the law in force at the time of the injuries. Hence compensation was assessed for each separate offence unconstrained by consideration of whether some or all of the offences constituted one course of conduct or closely related conduct. The court accepted, as did the applicant’s counsel, that the case was clearly one of offences arising out of the one course of conduct or closely related courses of conduct of the respondent so the issue was important to the applicant’s entitlement. In the result his Honour awarded $5,000 per offence, a total of $20,000.[28]
Acts Interpretation Act 1954
- [23]The s 20(1)(c) of the Acts Interpretation Act in force at the time of R v Boughton; ex parte Holt is now s 20(2)(c) and it provides:
“20
- …
- The repeal or amendment of an Act does not:-
- …
- …
- affect a right, privilege or liability acquired or accrued or incurred under the Act;
- …
- affect an investigation, proceeding, or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).”
- [24]That section enshrined the established common law presumption stated by Dixon CJ in Maxwell v Murphy[29] as :
“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts and events that have already occurred in such a way as to confer or impose or otherwise effect rights or liabilities which the law had defined by reference to past events.”
- [25]Section 663B, in the form it was in at the time of Boughton’s case, and set out in paragraph 5[c] above, can be seen to have had the following elements necessary to entitle a claimant to compensation:-
- That the offender was convicted;
- On indictment;
- Of an indictable offence;
- That the offence related to the applicant; and
- That the applicant suffered injury by reason of the offence the subject of the conviction.
- [26]In making his finding his Honour said:-[30]
“The applicant’s right, acquired when she suffered the injuries, was to compensation of up to $5,000 for each of the four offences, in my view. Had the applicant had no more than mere hopes or expectations, s 20(1) would not assist her, but she had rights which, as Mr Kent put it, ‘remained in limbo until crystallised by the conviction’ of the respondent. They were in truth accrued rights, although they may fairly be called, as Their Lordships said in Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541 at p. 552 of the right of the respondent in that case, inchoate or contingent.
It would be difficult to explain the meaning of the word ‘right’ in this context more clearly than Fox J did in JR Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717. When discussing a similar provision in section 8 of the Acts Interpretation Act 1901, he said:
‘It is not possible to define an ‘accrued right’ anymore than it is a ‘right’, but the notion which underlies the latter, when dealing with the present type of problem is that there is something in the nature of a cause of action which has arisen, or is claimed to have arisen, before their repeal or amendment, in circumstances which would render it manifestly unjust for the repealing or amending Act to effect the situation adversely.’ (p. 719).”
Importantly, Fox J referred to the existence of something “in the nature of a cause of action which has arisen, or is claimed to have arisen, before their repeal”. I take his Honour’s reference to “claimed to have arisen” to refer to those courses of action asserted but which have not been finally determined at point of repeal of the relevant law. Obviously it could not have been intended that a non-existing right could be transformed to an existing one by the mere assertion of the former.
- [27]
Free Lanka Insurance Co Ltd v Ranasinghe
- [28]Given that the decision in Boughton, and those subsequent decisions relying upon it, treated Free Lanka Insurance Co Ltd v Ranasinghe[33] as authority for those decisions it is helpful to consider that case.
- [29]It involved a claim for personal injuries by the plaintiff/respondent (Insured). The relevant legislation was s 133 of the Motorcar Ordinance 1938 of Ceylon which, relevantly, provided:-
“(1) If after a certificate of insurance has been issued under s 128(4) to the persons by whom a policy has been effected, a decree in respect of any such liability as is required … to be covered by a policy of insurance … is obtained against any person insured by the policy … the insurer shall .. pay to the persons entitled to the benefit of the decree any sum payable there under in respect of that liability. …”
Under s 134 the insurer was not liable to an injured third party under s. 133 as the insured was in respect of the decree unless, within seven days after the commencement of the action seeking the decree, notice was given to the Insurer.
- [30]The equivalent of the Queensland Acts Interpretations Act 1954 was the Ceylon Interpretation Ordinance 1900, s 6 of which provided, relevantly:-
“(3) Whenever any written law repeals either in whole or part a formed written law, such repeal shall not, in the absence of any express provision to that effect, effect or be deemed to have effected …
(b) … any right … acquired or incurred under the repealed written law; …”
- [31]I shall set out the relevant timeline but, broadly speaking, the Insured sought to recover from the appellant/Insurer (Insurer), damages for personal injury awarded against the other driver (Defendant) pursuant to a decree of the type referred to in s 133 of the Motorcar Ordinance Act 1938. Execution of the judgment against the defendant had proved futile. There was an intervening appeal as to quantum of damages but that is not relevant. The timeline was :-
- 1938 – Motorcar Ordinance Act 1938 introduced;
- 29 March 1948 – Insured injured in motor accident with Defendant;
- 27 March 1950 – Insured commenced proceedings against Defendant for decree of damages;
- 29 March 1950 – pursuant to s 134 of the Motorcar Ordinance Act 1938, the respondent gave notice to the Insurer of commencement of the action for damages against the Defendant enclosing a copy of the plaint in that action;
- 1 September 1951 – Motorcar Ordinance Act 1938 repealed and replaced by the Motor Traffic Act 1951;
- 24 September 1951 – Insured granted decree of damages by Ceylon District Court;
- 17 September 1957 – having unsuccessfully sought to enforce the judgment against the Defendant, the Insured commenced proceedings against the Insurer to recover the damages the subject of the decree of 24 September 1951.
- [32]The insurer resisted the claim arguing, relevantly, that as the 1938 Ordinance had been repealed (1 September 1951) 23 days before any decree was obtained by the insurer (24 September 1951), the latter was precluded from asserting any statutory right under that repealed Ordinance.
In rejecting that argument and finding for the Insured the Court said:-[34]
“The distinction between what is and what is not ‘a right’ must often be one of great fineness. But their Lordships agree with Gunasekara J in thinking that on September 1 1951, the respondent had as against the appellants something more than a mere hope or expectation – that he had in truth a right, within the contemplation of s 6(3) (b) of the Interpretation Ordinance, under s 133 of the Ordinance of 1938 although that right might fairly be called inchoate or contingent. In Director of Public Works v Ho Po Sang [1961] AC 901; [1961] 3 WLR 1313; [1962] 3 All ER 915, the Board was concerned with an analogous problem under the language (closely approximating to that of the Ceylon interpretation Ordinance) of the Interpretation Ordinance of Hong Kong. Their Lordships were well content to accept and adopt the language used by Lord Morris of Borth-y-Gest in the judgment of the Board in that case:
‘It may be … that … a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected or preserved. It will be preserved even if a process of quantification is necessary. But there is a manifested distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.’
In the present case, as it seems to the Board, the appellants cannot now be heard to say that the respondent was not, immediately after the accident, an injured third party entitled to recover damages against Appuhamy and, as they think, his service upon the appellants of the notice of his claim (together with a copy of his plaint) pursuant to section 134 of the 1938 Ordinance was an assertion by him of his statutory right against the appellant; and nonetheless effectively so because the quantum of his claim was dependent upon the finding of the Court in a decree made in favour in his action against Appuhamy.”
- [33]It can be seen that the House of Lords was satisfied the plaintiff had a right against the insurer which had accrued prior to the amendment of the 1938 Ordinance because, although that right had not been finally determined by the Court in the form of a decree foreshadowed by s 133 of the Motorcar Ordinance 1938, nevertheless the plaintiff had taken steps to assert that right by giving Notice under s. 134 of the 1938 Act together with a copy of the relevant Plaint. The only outstanding matter was the determination of the Court which ultimately led to the decree in favour of the plaintiff. Any such right does not necessarily have to be, at inception, a right to a favourable determination. It was the right to a determination that was important.[35]
- [34]A more recent discussion of this issue is to be found in Adelaide Brighton Cement Ltd v Victorian Rail Track[36] a unanimous decision of the Victorian Court of Appeal. The facts are complex but essentially it involved a claim by the appellant to have certain land upon which a railway line was constructed, transferred to it, or, in lieu thereof, to be paid compensation. The relevant legislation upon which the appellant relied had been repealed. The Court was called upon to determine whether any right in the appellant survived the repeal of the relevant legislation within s 14 of the Victorian Interpretation of Legislation Act 1984, which relevantly provided:-
“(1) …
- Where an Act or a provision of an Act:-
- is repealed or amended; or
- expires, lapses or otherwise ceases to have effect-
The repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears:-
- …
- …
- affect any right, privilege … acquired, accrued … under that Act provision;
- …
- …”
- [35]
“[42] The first category described was one where a right of an individual to take advantage of a statute in the form in which it stood before amendment or repeal did not survive in circumstances where no acts had been done towards availing the individual of that right.
[43] …
[44] The second category … was described as that where a fully formed right exists but has not been exercised at the date of the repeal … The right … was fully formed. It simply had to be exercised and the failure to exercise it did not affect its continued existence after the repeal of the legislation. This … was a category where the repeal did not extinguish the right.
[45] A third category … was that where facts have occurred giving rise to a cause of action but it is necessary to commence court proceedings to enforce that cause of action. If the cause of action exists, it will survive the repeal of the legislation giving rise to the cause of action provided all that is absent is the failure to get a court decision to enforce it. …
[46] A fourth category was one where the facts giving rise to the cause of action had not occurred prior to the repeal but occurred subsequently to that repeal. …”
- [36]As to that analysis, Smith AJA (with whom Buchannan JA and Ashley JA agreed) said:-[39]
“[49] In my view the analysis put forward by the respondent should be accepted. It is true that s 17 specifically benefited the company (and its successors). In addition, the effect of s 17 was to give the company the right to benefits under the statute. But that right was dependant on certain events and circumstances occurring. Thus, at its highest, s 17 conferred no more than a right to take advantage of the statute if those events occurred.
[50] In the present case plainly the company had complied with all of its obligations under s 17. But before any entitlement to transfer the land could arise, at least the following had to happen:
- The Commissioners had to form the opinion that over a three year period the revenue was insufficient for maintenance and working expenses.
- The Commissioners had to close the line to traffic.
- The Commissioners had to determine that the land was no longer required for rail purposes.
[51] Those opinions and determinations having been made and the railway line having been closed, the Commissioners were obliged to transfer the land to the company but were not obliged to do so until six months had elapsed from the determination that the land was no longer required for rail purposes.
[52] Consistently with the authorities in this area, if the Commissioners had formed the necessary opinion, closed the line and made the necessary determination before the legislation was repealed, the company would have had a right enforceable by a court. Prior to that point, however, there were events that had to occur and several administrative decisions to be made, none of which, in my view, the Commissioners were obliged to make in a way favourable to the appellant. For example, assuming that over a three year period the Commissioners formed the opinion that the revenue was insufficient for maintenance and working expenses, they were not obliged to close the line and they were not obliged to determine that the land was no longer required for rail purposes. Further, even if they had formed the opinion that the revenue then being received was insufficient and closed the line, they were not obliged to determine that the land was no longer required for rail purposes – although, if they had determined the contrary they would have been obliged to pay purchase money or compensation in lieu of transferring the land.
[53] In a sense the case is one where the right is conditional on facts being established. But the facts to be determined by the Commissioners did not exist prior to the repeal of the legislation. In reality, the company was in the situation of an individual with a right to take advantage of the statute should the events described take place. Because they did not take place before the repeal, the right possessed was not such as could be saved by the relevant saving provisions because there was not a specific right acquired at that time, only a right to take advantage of the statute should a future event occur (Ogden Industries Pty Ltd v Luca (1967) 116 CLR 537 at 584). Applying that principle is necessary because as the Full Court stated in McDonald v Commissioner of Business Franchises ([1993] 2 VR 632 at 649) unless the line is drawn to exclude such situations, the saving provisions would effectively deprive repealing legislation of much of its effect.
[54] I have come to the conclusion, therefore, that the company had not acquired the alleged right to a transfer or compensation at the time of the repeal of the 1934 Act.”[40](my emphasis).
- [37]Returning now to the pre 1984 s 663B the elements of which are set out in paragraph 23 above. In Boughton, at the time of the commencement of the 1984 amendment on 1 July 1984, one essential element of the statutory cause of action available to a complainant had not arisen namely the conviction. In my view, Free Lanka[41] can be distinguished because, in that case, at point of repeal, the insured had a right to assert, and had taken steps to assert that right to payment by the Insurer under the 1938 Ordinance by commencing proceedings against the Defendant and giving Notice of Claim and copy Plaint to the Insurer. The only matter remaining was a determination (decree) of the Court.
- [38]That is to be contrasted with the outstanding matters in Boughton at point of injury, the point at which the inchoate right was said to arise. Those outstanding matters were:-
- The making of a complaint by the applicant;
- The investigation of the complaint;
- The making of a decision by the Crown to prosecute the respondent;
- The charging of the respondent; and
- The securing of the respondent’s conviction on indictment of an indictable offence.
None of those had occurred at point of injury which, according to the applicant’s psychologist was at point of abuse/offence.[42]
In my opinion it could not be said that, at that point, the applicant had more than a hope or expectation that the steps (b) to (d) above would occur and only then if the complaint in (a) was made. Consistent with that, I consider that no sufficient right had arisen in the applicant at point of injury to attract the operation of s. 20(1)(c) and (e) of the Acts Interpretation Act 1954 to be thereby preserved.
- [39]If one shifts the focus from point of injury to point of repeal on 1 July 1984, it is not apparent from the judgment which of the above steps, set out above, had been achieved by then. The conviction had not been achieved, it occurring on 17 November 1992. In the absence of any evidence to the contrary, it would not be an unreasonable inference to draw, to conclude that the complaint and above steps subsequent to it, took place closer to the conviction on 17 November 1992 than to the amendment date 1 July 1984. But that is speculation. The essential thing that had not occurred as at 1 July 1984 was the conviction.
- [40]I consider that Boughton falls within the fourth category of types of cases set out in paragraph 35 above as one where the facts giving rise to the cause of action had not occurred prior to the repeal but occurred subsequently to that repeal. The words of Smith AJA ,[43] (with whom Buchanan JA and Ashley JA agreed) are apposite:
“In reality, the company was in a position of an individual with a right to take advantage of the statute should the events described take place.”
- [41]In Boughton the relevant event, the conviction of the defendant, was the event entitling the applicant to take advantage of the pre 1984 law should it have occurred prior to the amendment on 1 July 1984. Until that occurred, the applicant was not in a position to assert a “right in the nature of a cause of action”[44] as the respondent was in Free Lanka. For the above reasons I am not persuaded that Free Lanka affords any authority for the decision in Boughton that the applicant had any right, Inchoate or otherwise, arising at point of injury or at any other point prior to 1 July 1984 so as to be preserved by the operation of the Acts Interpretation Act 1954. Accordingly I respectfully decline to follow that decision. In my view, in the present case, the applicant had no relevant right which survived the 1984 amendment to s 663B so as to entitle him to have his damages assessed by reference to the law prior to that amendment. The relevant law to be applied is the post 1 July 1984 law.
Assessment of compensation
- [42]I have already found that the conduct constituting counts 1, 2, 4, 5, 6, 7 and 8 occurred prior to 1 July 1984 and that the conduct relevant to counts 9 and 10 occurred subsequent to that date.
Compensation for counts 1, 2, 4 to 8
- [43]For these offences which occurred prior to 1 July 1984, the effect of ss 663A and 663B is that the maximum amount for each offence is capped at $5,000. That maximum amount per offence is further reduced if the conduct constituting one or more of the offences constitutes one course of conduct or closely related courses of conduct which would result in the offences falling into that category being approached as one offence for the purpose of assessing compensation.
- [44]What offences then, if any, constitute one course of conduct or closely related courses of conduct? Section 663B(1A) provides some guidance in providing:-
“(1A) 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 the other.”
- [45]
“[8] It goes without saying that one cannot be prescriptive of the requisite extent of relationship. One obviously cannot, for example, specify a maximum duration for any separate course of conduct. Given a high level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist over days, weeks, months. But even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct. (These observations are consistent with the approach which has been taken by a number of judges of the District Court.)
[9] The events involved in these offences were far too distinct and separated in time and place to warrant the conclusion that they arose out of the same course of conduct. They arose out of the same relationship affected by ‘guilty passion’ on the part of the respondent. But that was not enough to establish a ‘course of conduct’ sufficiently precise and limited for the purpose of the provision.”
Muir J agreed with the Chief Justice.
- [46]
“[63] The facts of this case are not in that category. Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed some times years apart and over a six year period. Although the respondent perpetrated regular sexual abuse upon the applicant over a lengthy period, it is the conviction for the six offences that, upon application, leads to an order for compensation. Each offence in this case is completely distinct in time, place and detail and cannot fairly be said to arise out of the one course of conduct or closely related courses of conduct.”
- [47]Mr Stevenson, who appeared for the applicant, submitted that counts 1 and 2 whilst only two weeks apart in early 1979 when the applicant was eight years of age, should nevertheless be treated as separate. I do not agree. Count 1 involved the respondent playing with the applicant’s penis whereas count 2 involved that, but also involved the respondent placing the applicant’s hands on the respondent’s penis. To my mind that conduct is not sufficiently separated in nature, time and circumstance to deny the conduct the categorisation of one course of conduct or closely related courses of conduct.
- [48]Count 4 occurred some 18 months later in the latter part of 1980 when the applicant was 10 years of age. It occurred at the respondent’s flat on one of the applicant’s visitations subsequent to the separation of his parents. The respondent procured the applicant to masturbate him in the shower and he reciprocated on the applicant. I consider that is also a stand alone offence.
- [49]Turning now to counts 5 and 6, count 5 occurred in March or April 1981. The police documentation[48] wrongly states the date as 1971 but it is clearly 1981. This conduct in March or April 1981 involved a separation period of several months. The conduct occurred when the applicant and respondent were sharing a double bed when the respondent played with the applicant’s penis until it was erect and then positioned himself so that the applicant’s penis slightly entered his back passage. The count 6 conduct occurred a week after the count 5 conduct when the applicant and respondent were again in a double bed and the respondent repeated the conduct the subject of count 5 except that on this occasion he used hand cream. I consider that counts 5 and 6 should be considered one course of conduct having regard to the time, place and nature of the acts.
- [50]Count 7 occurred over two and a half years after count 6. during the 1983 Christmas holidays when the applicant was 13 years of age. The conduct involved the respondent procuring the applicant to masturbate him and for him to then masturbate the applicant. This conduct is clearly separate from any other.
- [51]Count 8 stands apart from all other charges as being the offence of sodomy which occurred during the same Christmas holiday period in 1983 as when the conduct supporting count 7 occurred. This conduct involved the respondent and applicant showering together and the respondent inserting his erect penis into the applicant’s back passage. That is clearly a separate offence when one has regard to the nature of the offence.
Compensation for Counts 9 and 10
- [52]As to charges 9 and 10, they involve conduct within the same period when the applicant was 13 or 14 years of age. Count 9 involved the respondent procuring the applicant to masturbate him during a visit by the applicant. Charge 10 occurred in the same period and involved the respondent and applicant showering together when the respondent put his erect penis between the complainant’s crossed legs whist he was facing the respondent. On balance, I consider that the conduct constituting counts 9 and 10 were closely related courses of conduct so as to oblige me to consider them together as one offence for the purpose of compensation.
Principles of assessment of compensation
- [53]The ordinary principles of assessment of damages for personal injuries in civil actions are to be applied in assessing compensation subject to the statutory prescribed amount.[49] As to causation, it is sufficient that the conduct in question can be said to have materially contributed to the total damage.[50] Once that causal relationship between the conduct and the damage is established there is no requirement for proportionality between the extent of the causal relationship and the amount of compensation. I respectfully agree with his Honour McGill DCJ in Woodlock v Nicholls:-[51]
“In most circumstances, in my opinion the approach to causation to be applied under the Act is the same as the approach applied under the Code, and indeed the same as the approach applied in relation to liability in tort. There is not to be any apportionment of the basis of causation. As long as the relevant conduct of the respondent, that is the conduct constituting the offences of which he has been convicted, amounted to a cause in the legal sense, that is, was a material contribution to the suffering of the particular injury the subject of the applicant, then compensation can be awarded for that injury.”
I am satisfied from the psychologist’s report of the relevant causal link between the respondent and the applicant’s injuries. As she said:-
“In the writer’s opinion, based on the clinical interview, the information provided and the presenting symptoms, Mr Miller’s condition suggests he continues to experience considerable psychological distress, as a result of the offences. There does not appear to be any inconsistencies between Mr Miller’s presentation at interview and the information provided. Therefore, it seems likely that Mr Miller’s symptoms have occurred in relation to the offences, and may be viewed as contributing to and impacting on his usual level of functioning.
Mr Miller’s recurrent symptoms would meet the criteria for the DSM-IV Diagnosis of Post Truamatic Stress Disorder as evidenced by his reported symptoms such as hyper-arousal, fear, persistent recollection of the event, and feelings of detachment from others.”[52]
Quantum
- [54]It is now necessary for me to assess the amount of compensation to which the applicant is entitled on the basis, as I have found, that the post 1 July 1984 law applies. The correct approach is to assess damages according to common law principles and later adjust any amount arrived at, if necessary, to fit within the statutory maximums applicable.
- [55]I have considered a number of cases referred to me by Mr Stephenson[53]. In Freeman v Grahame and BJE v Spoor the Chief Justice and McGill DCJ respectively reviewed the authorities dealing with nervous and mental shock. I shall not deal with them individually as they cover a range of injuries of varying degrees of seriousness and compensation awards. Of all of them I consider that the case which probably most closely approximates the present one is BJE v Spoor where His Honour assessed general damages for psychiatric injury at $20,000 on common law principles. However I consider that the applicant in the present case has more serious injuries than the applicant in Spoor and consider that an appropriate common law assessment of damages for mental or nervous shock in this case would be $35,000.
- [56]It remains for me to consider whether any adjustment to that figure is necessary by virtue of the statutory maximums. I do not consider that there is for the following reasons. I have made findings that the pre 1 July 1984 injuries resulted from the offences being counts 1, 2 and 4 to 8. Further I have found that counts 1 and 2 together and 5 and 6 together are to be regarded as one cause of conduct amounting, for compensation purposes, to two offences. Counts 4, 7 and 8 are separate incidents resulting in separate injuries. Accordingly for the pre 1 July 1984 injuries constituted by counts 1, 2 and 4 to 8 there are five separate injuries with a maximum statutory compensation limit of $5,000 each. Counts 9 and 10 occurred after 1 July 1984 and again I have assessed them as being one cause of action. The statutory maximum for those offences, considered as one cause of conduct, is $20,000. That means that the total statutory maximum for mental or nervous shock is $45,000 which is $10,000 less than the $35,000 I have found to be the appropriate compensation assessed at common law.
Hepatitis B
That leaves me to consider what compensation, if any, should be awarded for the contraction by the applicant of Hepatitis B. Dr Parkes’ report page 5 considers that the present low grade Hepatitis B infection will persist indefinitely but the risk of it developing into Hep 2 hepatocellular carcinoma it is estimated at 1% or less. Nevertheless the applicant is stuck with an infection which has no finite life and it will require him, in accordance with Dr Parkes’ opinion to seek regular assessment by a gastroenterologist skilled in liver disease that is to detect the presence of any de-compensation. In all the circumstances I award $1,000 to the applicant for this injury.
ORDER
- [57]I order the respondent to pay to the applicant $36,000 in compensation.
Annexure A
“The allegations are:
It will be alleged that the complainant Child in this instance is presently 15 years of age, born on 11 June 1970. It will be further alleged that the Complainant child’s mother and his step father separated in December 1979 and the Complainant child visits his step father on the weekends and during the school holidays. It will be further alleged that the first three of these charges occurred at the family house at New Farm before the boy’s mother and his step father separated, and the remainder of the charges occurred when the Complainant Child visited his step father on the weekends and during the school holidays between the dates mentioned in the charges.
1st Charge: It will be alleged that on an unknown date while the Defendant was still living with the Complainant Child and his family, he visited the Complainant Child’s bedroom and got into bed with him and played with the boy’s penis. The boy was 8 years old at the time, and it will be alleged that it was in the early part of 1979.
2nd Charge: It will be alleged that on an unknown date about 2 weeks after the first charge occurred, the Defendant again visited the Complainant child’s bedroom while he was asleep, played with the boy’s penis, and then placed the boy’s hand on his (the Defendant’s) penis.
3rd Charge: It will be alleged that on an unknown date about 1 month after the first offence occurred, the Defendant was bathing two other children and the Complainant child was also present. It will be further alleged that the Defendant pulled the shower curtain across so these children could not see, and then procured the Complainant child to commit oral sex on him.
4th Charge: It will be alleged that on an unknown date towards the latter part of 1980 when the Complainant child was 10 years old, and after his mother and the Defendant were separated, the Complainant child was visiting the Defendant at his flat at Norman Park. It will be further alleged that the Complainant child and the Defendant were in the shower together, and the Defendant got the Complainant child to masturbate his penis, and the Defendant then reciprocated on the Complainant child.
5th Charge: It will be alleged that on an unknown date in March or April of 1971, when the Complainant child was about 10 years old, he was visiting the Defendant’s flat at Norman Park, and was sleeping in the same double bed, as the Defendant. It will be further alleged that the Defendant played with the Complainant child’s penis until it was erect, and then positioned himself so that the boy’s penis slightly entered the Defendant’s back passage.
6th Charge: It will be alleged that on an unknown date on the next weekend following the time when the 5th charge occurred, the Complainant child was again in the double bed with the Defendant, and the Defendant again played with the boy’s penis, and then positioned himself so the boy’s penis entered the Defendant’s back passage. It will be further alleged that hand cream was used to assist entry.
7th Charge: It will be alleged that on a date unknown during the school Christmas holidays of 1983 when the Complainant child was 13 years old, he was visiting the Defendant at his flat at Norman Park and they were in the shower together. It will be further alleged that the Defendant got the boy to masturbate him, and he then reciprocated on the Complainant child.
8th Charge: It will be alleged that during the same period as the 7th charge while they were both in the shower together, the Defendant inserted his erect penis into the Complainant child’s back passage.
9th Charge: It will be alleged that on an unknown date in the middle of 1984 when the Complainant child was 13 to 14 years old, and was visiting the Defendant at his flat, the Defendant confronted the boy in the outside toilet and got the boy to masturbate him.
10th Charge: It will be alleged that on an unknown date during the same period as the 9th charge, the Defendant and the Complainant child were in the shower together. It will be further alleged that the Defendant got the boy to hold his genitals out of the way, and then facing the boy, inserted his erect penis in between the complainant’s child’s crossed legs.
11th Charge: It will be alleged that on an unknown date in July or August 1984 when the Complainant child was 14 years old, the Defendant and the boy were in the lounge room of the Defendant’s flat. It will be further alleged that the Defendant then lay on top of the Complainant child so that his penis was in the vicinity of the Defendant’s mouth. It will be further alleged that the Defendant then committed oral sex on the Complainant and the Complainant child at the same time committed oral sex on the Defendant.
It will be further alleged that the Defendant was interviewed by Officers of the Juvenile Aid Bureau, and supplied a Record of Interview in which he admitted a number of mutual masturbation sessions in the shower with the Complainant child, but denied the remainder of the allegations. It will be alleged that on 3 October 1985, the Defendant was arrested and charged at the City watchhouse.”
Footnotes
[1] Exhibit D affidavit Debbie Richardson 3 September 2007.
[2] R v Chong; ex parte Chong [2001] 2 Qd R 301 at 303.
[3] Exhibit G affidavit Debbie Richardson 3 September 2007.
[4] Dated 18 March 2008.
[5] Dated 18 March 2008.
[6] Jacob Joseph Teddy v Estate of Ernest Amos Teddy (unreported) District Court decision, White DCJ, 20 June 2005, see also R v Chong; ex parte Chong [2001] 2 Qd R 301 at 303 paragraphs [6]-[8] per de Jersey CJ.
[7] Chong v Chong (Court of Appeal No. 11658 of 1998, 13 August 1999).
[8] Ronex Properties Ltd v John Laing Construction Ltd [1983] 1 QB 398 at 404; Chong v Chong (supra) per de Jersey CJ.
[9] Extract from police brief – Exhibit C affidavit D Richardson 3 September 2007 (ignore charges 3 and 11).
[10] Exhibit C affidavit D Richardson 3 September 2007.
[11] Applicant’s affidavit 22 August 2007, Exhibit A, page 4 paragraphs 4 and 6.
[12] Applicant’s affidavit 22 August 2007, paragraph 6.
[13] [2000] QCA 377 at paragraphs [18]-[20].
[14] [2007] QDC 339 Tutt DCJ 1912 2007.
[15] See definition s 663A para 5 above.
[16] LMB v PWB [2007] QDC 339 para 20 sub-para A.
[17] Psychologist report paragraphs 36-38.
[18] Psychologist report paragraph 17.
[19] Psychologist report paragraph 35.
[20] Per Davies JA R v Morrison; ex parte West [1998] 2 Qd R 79.
[21] See Whitehead v Crawford [2000] QFC 422.
[22] Psychologist report paragraph 39.
[23] [2000] QSC 156 at paragraphs [17]-[19].
[24] see paragraph 5(c) above).
[25] Both Hendry v Llorente [2000] QCA 377 and Marsten v Kello [2000] QCA 410 involved cases where the injuries pre-dated the 1984 amendment but the convictions post-dated it. In both cases the Court of Appeal applied the post 1984 law. This current issue was not agitated in either case.
[26] Unreported District Court No. 124 of 1993, 13 August 1993.
[27] R v Boughton ex-parte Holt p 12
[28] R v Boughton ex-parte Holt p 7
[29] (1957) HCA 7; (1957), 96 CLR 261 at 267
[30] Judgment page 12.
[31] R v Herd; ex parte Reilly, District Court Brisbane, 8 October 2002; Shields v Maxwell, District Court No. 4968 of 2002, 4 March 2003; Sanders v Flint, District Court No. D80 of 2003, 16 September 2003; Jones v Jones, District Court No. D26 of 2003, 10 October 2003; Pring v Alldridge, District Court No. D3134 of 2003, 15 October 2003; Vonhoff v Chapman, District Court No. D2661 of 2005, 22 March 2006; Vonhoff v The Estate of Handy, District Court D2660 of 2005, 22 March 2006; Doyle v Cooksley, District Court No. D216 of 2006, 5 May 2006; Nowlan v Diederich, District Court No. D1955 of 2006; PVB (2004) QDC 149.
[32] Osborne v Bennett, District Court No. 4606 of 1999, 11 February 2000; Baxter v Bowman, District Court D6024 of 2001, 6 June 2002; Johns v Brown, District Court No. D5533 of 2001, 22 February 2002; TNM v WGD, District Court No. 1499 of 2006 .
[33] [1964] AC 541.
[34] [1964] AC 541 at page 552.
[35] On that point see also Esber v Commonwealth [1992] HCA 20 at paragraph [21]; (1992) 174 CLR 430.
[36] [2007] VSCA 10.
[37] [2007] VSCA 10 at [49].
[38] [2007] VSCA 10 at [42]-[46].
[39] [2007] VSCA 10 at [49]-[54].
[40] See also Chang v Laidley Shire Council [2007] HCA 37.
[41] [1964] AC 541.
[42] Boughton’s case p 5
[43] Adelaide Brighton Cement Ltd v Victorian Rail Track [2007] VSCA 10 at [53].
[44] JR Exports Pty Ltd v Australian Trade Commission (1986) 71 ALR 717 at 719 per Fox J; R v Boughton; ex parte Holt, unreported District Court, No 124 of 1993, 13 August 1993, page 12.
[45] [2000] QCA 377; see also Marsten v Kello [2000] QCA 410.
[46] [2000] QCA 377 at [8]-[9].
[47] [2000] QCA 377 at [63]
[48] Page 2 Exhibit C affidavit D Richardson, 3 September 2007.
[49] R v Jones; ex parte McClintock [1996] 1 Qd R 524.
[50] R v Tiltman; ex parte Dawe, Supreme Court, 22 June 1995, Lee J.
[51] [2004] QDC at [28].
[52] Psychologist’s report paragraphs 38 and 39.
[53] Freeman v Grahame & Ors [2000] QCA 387 particularly de Jersey CJ para 24; VJE v Spoor [2007] QDC 345; S J Hunter v H D Fisher Howell DCJ District Court Judgment 5 September 1997; Whitehead v Crawford [2000] QSC 422.