DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”).  On 5 December 2005 the respondent pleaded guilty to 10 counts of offences of a sexual nature committed against the applicant’s half sister.  One of those offences was committed in the presence of the applicant, who was then a three-year old child.  The applicant was present in a car seat in a motor vehicle while the offence was also committed in the motor vehicle.  I dealt with an application by the half-sister in 2007.^[1]

2. [2]
   It is apparent from the certificate of conviction, a copy of which is exhibited to an affidavit before me,^[2] that all of the charges of which the respondent was convicted related to the half-sister.  Although the factual information about the circumstance of the occasion when the applicant was present for the offence against the half-sister suggests that it might have been possible for the respondent to have been charged with an offence of exposing the applicant to an indecent act, no such charge was brought and it was accepted by counsel for the applicant that the respondent had not been convicted of any offence committed against the applicant.  Nevertheless, it was submitted that compensation was available for the applicant on the basis that she fell within the definition of “victim” in s 5 of the Act.  That section provides:

“A victim is a person who has suffered harm from a violation of the State’s criminal laws—

1. (a)
   because a crime is committed that involves violence committed against the person in a direct way; or

2. (b)
   because the person is a member of the immediate family of, or is a dependent of, a victim mentioned in paragraph (a); or

3. (c)
   because the person has directly suffered the harm in intervening to help a victim mentioned in (a).”

3. [3]
   The applicant’s half-sister was a person against whom a crime was committed that involved violence in a direct way and, if as appears from the material before me the applicant has suffered harm from that violation of the State’s criminal laws, then the applicant satisfies the requirements of paragraph (b) of the definition of victim in s 5.  So much may be accepted.  However, there is no reference to the term “victim” in those sections which lay down the scope of operation of Part 3 of the Act, dealing with compensation for personal injury from indictable offences.  The significance of the term “victim” appears in Part 2 of the Act, which sets out “Fundamental principles of justice for victims of crime”.  Division 2 of Part 2 contains a “Declaration of fundamental principles”.  The heading for s 5 is:  “Who is a victim under the declaration”.  That strongly suggests that the function of the definition of “victim” in s 5 is to provide a definition for the purposes in particular of Division 2 of Part 2.  This, however, is separate from the scheme for compensation for personal injury from indictable offences dealt with in Part 3.

4. [4]
   The basic structure of that scheme is set out in s 19.  Subsection (1) provides:

“This Part establishes a scheme for the payment of compensation to a person (the applicant)—

1. (a)
   for injury suffered by the applicant caused by a personal offence committed against the applicant; or

2. (b)
   for the death of someone on whom the applicant was dependent, caused in circumstances constituting murder or manslaughter; or

3. (c)
   for funeral or other expenses from the death of a member of the applicant’s family, caused in circumstances constituting murder or manslaughter; or

4. (d)
   for injury suffered when helping a police officer to make an arrest or prevent an offence.”

5. [5]
   Subsection (2) contains two exclusions, neither of which is relevant for present purposes.  It is apparent, however, that this explanation of the scope of the scheme for payment of compensation does not operate by reference to the term “victim” as defined in s 5, but rather provides for the payment of compensation to an applicant falling into one of four specific categories.  Counsel for the applicant conceded that on the face of it this applicant did not satisfy any of those categories, because, although the offences of which the respondent was convicted were personal offences, and indeed were personal offences committed against the person of someone so as to satisfy the definition in s 21, they were not committed “against the applicant”, so she does not fall within s 19(1)(a).  In my opinion that concession was properly made.

6. [6]
   Apart from this, s 24, which lays down the circumstances under which a court may make an order for the payment of compensation by a convicted person, permits such an order to be made in favour of “the person against whom the personal offence is committed”, which is explained by subsection (1) as a conviction on indictment of such a personal offence.  In my opinion the crucial issue is whether the applicant was the person, or at least a person, against whom a personal offence was committed, being an offence of which the respondent has been convicted.  It is not enough in my opinion for a personal offence to have been committed against someone; the applicant must be the person against whom the personal offence was committed.

7. [7]
   It is true that s 18, which is part of Division 2, contemplates that a victim of crime may be able to obtain compensation, and in subsection (3) provides:  “A prosecutor should inform a victim of the following provisions, if it would help the victim to have the benefit of the principles mentioned in subsection (1).”  One of those is Part 3 of the Act.  That suggests that it was contemplated that commonly victims would have an opportunity to obtain compensation or restitution for injury, loss or damage, but the use of the word “if” suggests that the legislature contemplated that this would not necessarily arise under Part 3 of the Act.^[3]

8. [8]
   It is true that the long title of the Act is that it is “an Act to establish principles of justice for victims of criminal offences, and to make provision for the payment of compensation to them.” Nevertheless, I do not consider that this is in itself a sufficient legislative indication of an intention that all victims of crime, that is everyone within the definition in s 5, should have access to compensation under Part 3, particularly in circumstances where the term “victim” is not used in Division 1 or Division 2 of Part 3, and the scope of Division 2 is defined with some precision.

The authorities

9. [9]
   Prior to the commencement of the Act the question of compensation was dealt with in the Criminal Code, s 663B.  That provided that when a person was convicted on indictment of any indictable offence relating to the person of any person, the court on the application of the person aggrieved by the offence may order compensation to be paid to the applicant.  The scope of this was considered by Connelly J in R v Callaghan & Anor, ex parte Power [1986] 1 Qd R 457.  In that case the respondents had been convicted of the offence of armed robbery with violence.  During the course of the armed robbery violence had been offered to the applicant, but the applicant was not the person named in the indictment as having been subject to the violence, or having been robbed.

10. [10]
    His Honour said at p 458:

“I would read s 663B(1) as referring to an indictable offence which on its facts related to the person of any person.  That being so, this offence is demonstrated on the material before me to have related to the persons of two people, the first being [the person named in the indictment] and the second, the applicant.  However, I am persuaded, as I indicated in argument, that the reference in the subsection to an application on behalf of “the person aggrieved” means that the applicant must be the person or one of the persons to whose person the violence was offered.  As the applicant does answer that description I hold that he is within s 663B(1).  It follows from what I have said that in my opinion it would not be sufficient for a bystander to whose person no violence was even offered to say that he had suffered a nervous disorder as a result of having witnessed the offence.”

11. [11]
    That approach was endorsed by the Court of Appeal in R v Moors, ex parte Alex [1994] 2 Qd R 315, another decision under the Code.  The respondent was convicted of manslaughter of a person who was riding in the same vehicle as the appellant, after having fired a volley of shots at the vehicle.  The deceased was the only person suffering any physical injury, though there was evidence that the appellant had suffered mental or nervous shock as a result.  The Court of Appeal (by majority) upheld a decision dismissing an application for compensation under the Code.  Thomas J at p 318 accepted the correctness of the decision in R v Callaghan (supra), noted that the offender had not been convicted of any charge relating to the person of the appellant, and held that the appeal must fail, as the aggrieved person must be the person to whose person the offence relates:  p 319.

12. [12]
    Mackenzie J at p 320 also endorsed the approach of Connolly J:

“That pragmatic approach has much to commend it.  In my opinion it conforms to the intent of the legislation.  However, the difficulty in the present case is that the applicant is not a person to whom violence was offered in respect of the offence charged.  No doubt what happened was an assault upon him, as the violence was offered indiscriminately to the occupants of the vehicle.  No doubt a charge of assault at the very least could have been laid against the respondent in respect of the appellant.  However … such a charge was not pursued against the respondent … .  It followed from these propositions, in my view, that the learned trial judge was correct in refusing the application.  The appellant does not fit the description of a person aggrieved by the offence of manslaughter.”

13. [13]
    In French v Green [1997] QCA 464 an attempt to obtain compensation under the Criminal Code in respect of mental or nervous shock alleged to have been suffered as a result of the applicants being the victims of fraudulent conduct, of which the respondent was convicted, was unsuccessful.  The court referred to R v Moors (supra) and continued:

“The use of the expression ‘any indictable offence relating to the person of any person’ is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person. … Further, it is the offence which must relate to the person, not any injury caused thereby.  In order that compensation be payable, the offences charged must have a relationship to the person of the applicant.”

14. [14]
    That decision was referred to with apparent approval by the Court of Appeal in RZ v PAE [2008] 1 Qd R 393 at 401-2, although the issue there was somewhat different from the issue in the present case.

15. [15]
    The same approach was adopted in the context of the Act by White J in Summers v Dougherty [2000] QSC 365, notwithstanding recognition that the legislation was somewhat differently worded:  [15].  In that case the relevant offence was robbery with actual violence, and violence was specifically offered to each of the three applicants in the course of the respondent’s carrying out the robbery, so each was held entitled to apply for compensation. 

16. [16]
    The same approach was adopted by Mullins J in Pettingell v Minister for Justice and Attorney‑General [2003] QSC 385.  In that matter the applicant was present at the time when her de facto husband was shot and killed.  There was, however, no evidence of any violence offered to her.  The applicant applied for compensation under Division 3 of Part 3 of the Act,^[4] but the application was refused.  On an application for judicial review it was held that the application was rightly refused because it was out of time, but her Honour went on to consider the question of whether the applicant was a person against whom a personal offence had been committed.  After considering whether the offences created by s 75, s 306, s 317 and s 345 of the Code had been made out, her Honour concluded that none of them had.  It appears therefore that the application would have failed on this basis anyway.

17. [17]
    It may be noted that the explanatory note to Clause 24 of the bill, which became the Act, stated expressly:  “It is intended to retain the effect of the decision in R v Moors, ex parte Alex [1994] 2 Qd R 315.”  In those circumstances, it seems to me quite clear that the legislative intention was that the Act by s 24 would produce the same result as that achieved in that decision.

18. [18]
    In Byles v Palmer [2003] QSC 295 the respondent was found guilty of attempting unlawfully to kill a named person “or another”.  The circumstances of the offence were that the respondent fired a shot at a police car which was driven by the applicant and in which the named person, another police officer, was travelling as a passenger.  In circumstances where the offence involved an attempt to murder either the applicant or another, an issue arose as to whether the respondent was convicted of an offence against the person of the applicant:  [4].  Since it was not necessary for the jury to determine which occupant the respondent intended to kill, provided there was an intention to kill one of them, it could be seen that the conviction was of an offence committed against both officers, each of whom was under fire, so that it was an offence committed against the person of each of them:  [5].  Accordingly an order for compensation was made.

19. [19]
    In Brennan v Smith [2005] QSC 276 there were two applicants who were present as customers at a TAB when the respondent held it up at gunpoint.  He pleaded guilty to a charge of armed robbery, although there was no actual violence inflicted on any person.  Nevertheless, both of the applicants were threatened with a firearm and were ordered to lie on the ground.  White J referred to Callaghan (supra) and the subsequent decisions, and at [33] expressed the conclusion that:

“Only a person against whom the personal offence is committed may apply for a compensation order.”

20. [20]
    In that case her Honour held at [36] that the applicant’s “were not mere bystanders but had been commanded to get down on the floor and were threatened generally … with the firearm.”  Accordingly they were held to be within the scope of the offence.  This approach is consistent with the other authorities to which I have referred.

21. [21]
    In Schmith v Nolan [2002] QDC 257 I rejected an application for compensation under the Act in circumstances where the respondent had been convicted relevantly of an offence of entering premises and stealing, which was committed at a take-away food store where the applicant was working.  On an occasion where the applicant had opened the till, the respondent jumped across the counter, pushed her away, grabbed money from the till and fled.  The applicant alleged that as a result she had suffered mental or nervous shock.  I held that the offence committed, entering premises and stealing, was not a personal offence committed against the person of someone, specifically against the person of the applicant; it was simply an offence against property.  Accordingly the conditions for compensation were not satisfied.  Although the factual circumstances suggested that the respondent had also committed an offence against the applicant, namely the offence of assault, he had not been convicted of that offence.  I also considered, and rejected, an argument that the offence had been “taken into account on sentence” so as to satisfy the requirements of s 24(1)(b), on the basis that that was a reference to the process under s 189 of the Penalties and Sentences Act where a court may take offences into account on sentence in a formal way.

22. [22]
    An application for leave to appeal from that decision was refused by the Court of Appeal: [2003] QCA 93. The majority was of the opinion that the question of whether an offence was taken into account on sentence was confined to the situation referred to in s 189 of the Penalties and Sentences Act was arguable, but that the point did not arise in that case because there was no evidence that the sentencing judge had in fact taken into account that the applicant had been assaulted in connection with the commission of the other offence.  That, however, does not stand as authority to the contrary of my view; it was merely an indication by the majority that the point was one which would have justified the granting of special leave had the issue arisen squarely in that case.  Davies JA, with whom Jerrard JA agreed, said that when a judge takes into account in imposing the sentence either the use of force or circumstances indicating some other personal offence he or she should say so.

23. [23]
    In the present matter, although the sentencing judge did mention the presence of the applicant in the vehicle at the time of the offence, the sentencing judge did not say that this involved any circumstances indicating a personal offence committed against the applicant, or that he took any such matter into account on sentencing. Accordingly the position of this applicant is the same, and the application cannot be supported by s 24(1)(b) of the Act.  In any case, I adhere to the conclusion expressed in my reasons, and it follows that the mere fact that the sentencing judge mentioned the presence of this applicant in his sentencing remarks in relation to the offence of rape does not mean that the applicant satisfies the requirements of s 24(1)(b).^[5]

24. [24]
    In my opinion the authorities referred to, particularly Moors (supra) and Pettingell (supra), establish clearly that the mere fact that the person is a witness to an offence or present when an offence is committed does not mean that injury (usually in the form of mental or nervous shock) suffered by that person can be the basis for an application under s 24 of the Act.  That necessarily follows from the wording of that section, and is consistent with s 19 of the Act, and the explanatory note indicated an intention not to depart from the established law in this area.  That is the position of the applicant, and it follows that the application must fail.

Precautionary assessment

25. [25]
    In case a different view may be taken elsewhere, I will proceed to an assessment of compensation on a precautionary basis. The applicant was around three years of age at a time when the offence was committed. She says she felt frightened and helpless at the time, and described her half-sister screaming and crying out for help. She says that after this, she lived in a state of constant fear, particularly that the respondent would do the same thing to her. She has flashbacks and nightmares about the incident, and is frightened when she is in a street alone or around strangers.^[6]

26. [26]
    The applicant was seen by a psychiatrist, Dr Beech, on 17 February 2009 for the purposes of a report.^[7]  Dr Beech diagnosed post-traumatic stress disorder, and a mild major depressive disorder.  The latter condition, however, seems to have commenced following the disclosure of what had occurred, leading to the prosecution of the respondent.  That is consistent with the affidavit of her mother,^[8] who described the applicant as having been always well behaved at primary school, although as she became older she started to fight with her half-sister.  That was said to have escalated since the respondent was sentenced to gaol in 2006.  She was described as becoming very upset when someone mentions her father.  She was also described as moody, irritable, and solemn.

27. [27]
    There is a good deal of information provided by Dr Beech; without reviewing it in great detail, I had the distinct impression that the applicant’s problems were related more to the prosecution and ultimate sentencing of the respondent than the actual event when the offence was committed.  That is consistent with the applicant’s having generally done well up to about the time when disclosures were made and the matter came to the attention of the police.  Indeed, according to the report of Dr Beech, the applicant when growing up had not felt particularly close to her mother, but had felt closer to her father and liked being with him.  That suggests that she was not at that time particularly frightened that the respondent might behave in such a fashion towards her as well.

28. [28]
    Overall, my impression is that any problems the applicant has currently relate more to the prosecution and sentencing of the respondent than to the commission of the original offence. The effect of Dr Beech’s report is that the depressive disorder is related to that rather than the original offence.^[9]  The post-traumatic stress disorder would, however, appear to be related to the original offence, though its presentation has been modified by more recent events.  That is compensable; however, to the extent that the applicant is upset essentially because of the loss of her father, with whom she previously had a good relationship, as a result of his prosecution for the offences, that in my opinion is not compensable under the Act.

29. [29]
    Overall it appears to me that the applicant has suffered mental or nervous shock as a result of witnessing the offence committed on her half-sister, but in all the circumstances I am not persuaded that it is more than a minor example of that injury. If compensation were available, I would assess it as falling within Item 31, albeit towards the top of that Item, given its persistence, and I would allow 8%.  There is nothing to indicate that the applicant has contributed in any way to the injury or its consequences.  I would therefore not make any reduction under s 25(7).  When applied to the scheme maximum, that would produce an award of $6,000.

30. [30]
    For the reasons given earlier, however, the application is dismissed.