S v L
[2009] QDC 203
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- Unreported Judgment
- S v L[2009] QDC 203
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S v L[2009] QDC 203
S v L[2009] QDC 203
DISTRICT COURT OF QUEENSLAND
CITATION: | S v L [2009] QDC 203 |
PARTIES: | S (Applicant) V L (Respondent) |
FILE NO/S: | D 314/08 |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court Southport |
DELIVERED ON: | 10 July 2009 |
DELIVERED AT: | Southport |
HEARING DATES: | 6 July 2009 |
JUDGE: | Newton DCJ |
ORDER: | Application dismissed |
LEGISLATION: | Criminal Offence Victims Act 1995 Part 3 Division 1, ss 5, 19(1)(a), 24 |
CASES: | LDM v FDW [2008] QSC 259. Gottfried v Wills & Attorney-General [2004] QdC 002 |
CATCHWORDS: | CRIMINAL LAW – compensation – where there is more than one cause of injury – identification of relevant injury – relevance of offence of which respondent convicted – causation – scope of deemed injury under Criminal Offence Victims Act 1995. |
COUNSEL: | Mr D J Kelly for the applicant. Mr A J Kimmins for the respondent |
SOLICITORS: | Frampton Legal for the applicant Jacobson Mahoney for the respondent |
- [1]This is an application for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (“the Act”). The applicant, S is aged approximately 20 years having been born probably on 23 September 1998.[1] The respondent, L, was convicted of one count of indecent treatment of a child under 16 (which count relates to the applicant) and one count of sexual assault with a circumstance of aggravation (which count relates to the complainant’s mother).
- [2]In my sentencing remarks I made the following comments in relation to the first count:
“According to the dates specified in the count, some time between the 23rd of September 2002 and the 23rd of September 2003, but having regard to your counsel’s submissions, probably subsequently to January of 2003, you engaged in inappropriate sexual contact with the child. You placed your finger in her vagina; you stopped your activity when the child told you it was hurting her. The child was then encouraged to accept you penis into her mouth. You ejaculated in her mouth and the child spat the semen out. The child at the time was intoxicated. It is said that the two of you had formed some form of inappropriate crush on each other.
I assume, although I have not been told directly, I assume that the child’s parents, at least her mother were not made aware of this incident as the family continued to socialise with you. This socialisation culminated in the events of the 3rd of May 2004.”
The events surrounding the second count in relation to the applicant’s mother occurred on 3 May 2004. It is unnecessary to detail the facts in relation to that count.
- [3]Unusually, there is no police statement by the applicant which details her allegations in respect of the first count. An affidavit by the applicant filed 6 June 2008 alleges that
“3. On various dates between September 2002 and May 2004 I was sexually assaulted by the Respondent on a number of occasions, I think at least three(3).
4. The first time is when he inserted his fingers into my vagina. At the time I was just 14. I remember it clearly. It hurt me and was painful for weeks after.
5. The second time is when he pushed my head down and forced his penis in my mouth. I do not remember it well because I was a bit drunk from the alcohol given to me by the respondent. However I do remember that the respondent ejaculated in my mouth and I felt disgusted and nauseas. I was about 14 at this time.
6. The third and final time is described in the attached statement given by me to Police which is marked ‘A’.”[2]
- [4]The applicant states in her affidavit that after the final assault on her she commenced self harm, has suffered flashback nightmares and has formed a distrust of all males. S confirms that she consulted Dr Trevor Lotz, psychiatrist on 16 April 2008 and that she has read the doctors report dated 17 April 2008 in relation to which she affirms the accuracy of the information given by her to Dr Lotz and history reported by him.
- [5]Unfortunately for the applicant the report of Dr Lotz does not support the applicant’s contentions and in at least one important respect contradicts the applicant’s case. Dr Lotz states that “[i]n summary, the first charge related to the offender L having carnal knowledge of a minor prior to the traumatic incident witnessed by S in May 2004.” The traumatic incident referred to by Dr Lotz concerned a sexual assault by the respondent upon the applicant’s mother and formed the basis of the second count on the indictment. The applicant witnessed this attack.
- [6]Dr Lotz in his report makes it clear that all the destabilising effects reported by the applicant relate to the events of 3 May 2004 and not to those surrounding the first count on the indictment. Thus, Dr Lotz states:
“Of significance is that this traumatic event has destabilised S. At the time of the event she was aged 14, she stated her life was stable, she had good friends, she was happy to go to school where she was an A student, she enjoyed being with her family, and she had plans for her future. She was at the beginning of a relationship with a young boy. In summary, she was a happy 14 year old girl. Since the event, S’s behaviour and psychological state has significantly changed.
Shortly after the event, she was fearful and scared, refusing to leave the home, and refusing to go to school. She became fearful of all men, and the family had to move to a friend’s house as they had fear of remaining in their own home…
After leaving the hospital, she stayed a further two months at a friend’s house as she felt that she could not return to her own home and face her mother. S stated that she had feelings of guilt that somehow she could have prevented the assault of May 2004, and she felt that somehow she had encouraged the relationship with L…
She started abusing various prescribed medications given to her by the hospital, and effectively had ‘given up’. She stated she ‘couldn’t care anymore’. She had constant ruminations of the event, as well as flashbacks. Nightmares at that time were severe.
S described what appears to be a Major Depression commencing around that time, with abuse of alcohol and prescribed medications…
She has been continuing to abuse alcohol, and cannabis. She states that she uses up to two cartons of beer per week and various quantities of spirits, and smokes on average five cones of cannabis per day. She stated that she did not use alcohol nor cannabis prior to the incident of May 2004.
S has also stated that she experimented heavily with ecstasy in the months following the incident of May 2004, however this has reduced now to occasional use.
She smoked 15 cigarettes a day whereas she did not smoke any cigarettes prior to the incident.
S stated that the alcohol and the cannabis helps to numb her pain and help her to forget the incident which she tends to ruminate about…
S is the middle of five siblings. At the time of the event, the two eldest siblings had left home and S and a younger sister and brother remained at home. On the night of the incident, S and her younger brother were in the room, her mother was sleeping on the couch and her father was sleeping in another bedroom in the Grand Hotel where they had been invited by L for dinner and to stay over.
Since the event, S’s parents have separated after 23 years of marriage…
Other than the counselling at the age of eight following the molestation, S has no other past psychiatric history. She stated that she was a happy girl and life was going well prior to the incident of May 2004…
S is currently on an anti-depressant but cannot remember the name. It appears she has been tried on various anti-depressants and possibly benzodiazepines since her admission to Logan Hospital at the age of 15 following the incident of May 2004…
She describes her premorbid personality as happy-go-lucky, enjoying life including her school, her friends and being a teenager…
Her insight and judgment appeared intact, and she described the change in her personality and psychological functioning pre and post the incident as in stark contrast.”[3]
- [7]There is nothing in the report of Dr Lotz that connects any of the symptoms or behaviour of the applicant with any event that occurred prior to 3 May 2004.
- [8]The hospital notes from the Logan Hospital dated 30 May 2004 commence in the following fashion;
“30.5.04 Nursing (1515hr) A 15 y.o. female admitted to Adolescent Unit (transferred by ambulance from Gold Coast Hospital) voluntary patient with a recent episode of Deliberate Self Harm, (see Gold Coast notes – O.D and scratching) in the context of allegedly being raped at the beginning of the month. Said her mother was also raped at the same time – police have been involved and perpetrator is currently imprisoned. Gives a history of previous abuse – molested aged 8 (family friend) – never went to court.
- recently disclosed that she was raped by a 50 y.o. family friend when she was aged 14 ? not pursuing this”[4]
- [9]From the hospital notes, then, it appears that the applicant disclosed an incident of molestation at the hands of a family friend when she was 8 years of age, a further incident alleging rape by a 50 year old family friend when she was aged 14 years and the incident of 3 May 2004. There is no reference in the notes to the incident in respect of which the respondent pleaded guilty on 22 September 2006 which is the subject of this application. I note that the respondent was aged 24 years at the time of the commission of the relevant offence and therefore is clearly not the perpetrator of the rape alleged in respect of the 50 year old family friend.
- [10]The scheme in the Act for compensation for personal injury from indictable offences is set out in part 3 of the Act. Division 1 explains the scheme and in section 19(1)(a) provides that this part establishes a scheme for the payment of compensation to a person for injuries suffered by that person caused by a personal offence committed against that person. The scheme does not allow an order to be made for compensation to a person such as the applicant who may have suffered psychological harm from witnessing an event such as that involved in count two on the indictment where a sexual attack was committed on the applicant’s mother. In the circumstances of this case, while I accept that the applicant has been clearly affected to a significant degree by the actions of the respondent on 3 May 2004 (as is indicated in the report of Dr Lotz) those injuries are not injuries which can be compensated under the scheme established by the Act.
- [11]Although the applicant is clearly a victim of the offence by virtue of s 5 of the Act because she is a member of the immediate family of a victim of a crime that involves violence committed against the victim in a direct way, she is not a person against whom the personal offence has been committed within the terms of s 24(2) of the Act.[5]
- [12]In his written submissions Counsel for the respondent contends that the psychiatric evidence in this case is deficient and unreliable in that it is based on one face to face session of approximately one hour duration. No tests were performed nor were any attempts made to independently corroborate the applicant’s statements. Furthermore, criticism is made that the report fails to properly consider other relevant factors that may have directly contributed to the applicant’s psychological status, namely:
- (i)molestation at age 8 by a family friend who never went to court;[6]
- (ii)rape by a 50 year old family friend at age 14;[7]
- (iii)awful and lonely childhood;[8]
- (iv)molestation in grade 9 by a bricklayer who worked at school;[9]
- (v)rape approximately 18 months ago by a man named Geoff who is married to a stripper;[10]
- (vi)changing schools and no desire to return to school;[11]
- (vii)started smoking marijuana at aged 13; a friend would give applicant a bag full of leaf;[12]
- (viii)in grade 9 smoking habits included 20 cones before and much more after school;[13]
- (ix)smoking marijuana to sleep;[14]
- (x)binge drinking habits at age 14;[15]
(xi)wrist slashing – superficial, desire to work her courage up;[16]
(xii)vulnerable girl with multiple episodes where is unchaperoned with drugs and involved with unsavoury characters…and bad family dynamics;[17]
(xiii)at least 3 major molestations in the context of family dynamics that appear to leave her increasingly vulnerable;[18] and
(xiv)witnessing her mother being sexually assaulted.
- [13]Despite the applicant being a poor historian[19] there has been a failure to cross check information provided by her and no attempt has been made to distinguish symptoms and injury attributed to a particular assault. In relation to the latter criticism Counsel for the respondent submits that the report by Dr Lotz demonstrates a paucity of detail in that it fails to establish any causal connection between an injury allegedly suffered by the applicant and the resulting condition.
- [14]I accept that the process employed in this case by the psychiatrist is fundamentally flawed in that the report represents little more than a distillation of answers by the author given by the applicant to a series of questions. The psychiatrist has failed to bring any real consideration to bear on the issues calling for his professional attention. As a result the court is unable to find evidence which would satisfactorily substantiate the applicant’s claim in terms of causation and resultant quantum of damages. It has been stated previously[20] that
“it is absolutely essential…that expert evidence in such proceedings carefully identifies the consequences of the relevant offence. The legislation requires this.”[21]
- [15]In the result I am unable to conclude on the evidence placed before me that the applicant has established that she has been adversely affected psychologically as a result of the commission of the offence in count one of the indictment. The application must therefore be dismissed.
Footnotes
[1] At the sentencing proceedings of 22 September 2006 I was informed by the Crown Prosecutor that the applicant’s date of birth was 23 September 1989.
[2] The statement is dated 3 May 2004 and alleges an incident which was not the subject of any relevant court proceedings. The statement makes no reference to the allegations the subject of the first count on the indictment to which the respondent pleaded guilty.
[3] Emphasis added
[4] Attachment “F” to the affidavit of Mark William Frampton sworn 6 June 2008 and filed 16 June 2008.
[5] See LDM v FDW [2008] QSC 259.
[6] Hospital notes, p14.
[7] Hospital notes, p14.
[8] Hospital notes, p14.
[9] Hospital notes, p15.
[10] Hospital notes, p17.
[11] Hospital notes, p15.
[12] Hospital notes, p15.
[13] Hospital notes, p15.
[14] Hospital notes, p17.
[15] Hospital notes, pp15,17.
[16] Hospital notes, p16.
[17] Hospital notes, p19.
[18] Hospital notes, p19.
[19] Hospital notes, p14.
[20] See Gottfried v Wills & Attorney-General [2004] QdC 002
[21] Ibid at [30].