SLC v KD[2010] QDC 445

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant SLC claims compensation for injury sustained by her as a result of 6 criminal offences of a sexual nature committed against her by the respondent to the application KD.

2. [2]
   The respondent was convicted by this court at Brisbane on 1 March 2005 of six counts of unlawful and indecent treatment of the applicant between 1 May 1978 and 30 November 1979, when the applicant was aged between 7 and 8 years.

3. [3]
   This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Thomas Oldtree Clark, psychiatrist, in his report of 19 June 2009, exhibited to his affidavit filed 1 July 2010. A supplementary report of 15 August 2010 was also provided by Dr Clark exhibited to the affidavit of Jillian Christina McAuliffe, solicitor, filed 17 August 2010.

4. [4]
   There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

Relevant legislation:

5. [5]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.^[1] 

6. [6]
   Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 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 injury suffered by the person by reason of the offence or offences of which the offender is convicted” (emphasis added).

7. [7]
   Under s 663A of the Code “injury” is also specifically defined and includes “mental or nervous shock”. This was inserted by the Criminal Code Amendment Act 1984 and commenced operation on 1 July 1984.

8. [8]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amount” which applied at the times when the respective offences were committed.

9. [9]
   Under s 663A of the Code the maximum “prescribed amount” for compensation payable to an “aggrieved person” for injury suffered arising out of offences committed prior to 1 July 1984 (the date of commencement of the Criminal Code Amendment Act 1984) is $5,000.00.

10. [10]
    Under s 663AA of the Code as amended the maximum “prescribed amount” payable for injury described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

11. [11]
    The offences which give rise to the “injury” suffered by the applicant in this claim occurred before the 1 July 1984 date so that the maximum “prescribed amount” for compensation payable for the “injury suffered….by reason of the offence or offences…arising out of one course of conduct or closely related courses of conduct…” is $5,000.00 (emphasis added).

Course of conduct:

12. [12]
    Section 663B allows only one award of compensation for injury to be made “arising out of the one course of conduct or closely related courses of conduct” and goes on to provide:

3. “(1A)
   For the purpose 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 another.”

13. [13]
    This application concerns sexual offending by the respondent of the applicant over a period of 19 months for which the respondent was convicted on six counts as set out in paragraph [2] above.  The applicant has submitted that the six counts of which the respondent has been convicted and sentenced constitute four separate courses of conduct that may therefore attract four separate awards of compensation.^[2]  The court has been directed to a number of relevant Court of Appeal authorities on point, being:

• HW v LO [2000] QCA 377;
• AT v FG [2004] QCA 295;
• R v Jones; ex parte McClintock [1996] 1 Qd R 524 at 527;
• R v Farrell; ex parte Farrel & Lyons Sup. Ct (Qld) per Mackenzie J., 13/07/1992, unreported; and
• SAM  v SAM  [2001] QCA 12.

14. [14]
    Having regard to those cases it is clear that in determining whether the injury to an applicant arises out of separate and distinct courses of conduct, the Court must consider the details and particulars of each of the separate counts as charged. This is plainly stated by the Chief Justice in HW v LO (supra) at 417:

“Assaying a definition of “course of conduct” for purposes of s 663B, the words connote in this context a succession or series of acts (or omissions) which, because a sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern.  The American cases provide assistance, pointing to the need for an element of continuity (Dyer v Dyer 166 Pa.Super. 520) and regularity (Aetna Cas. And Sur. Co. v Industrial Commission 127 Colo. 225).

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.)”

15. [15]
    This principle has been followed and affirmed since HW v LO in MAJ v KM (2000) QCA 410.^[3]

Evidence of commission of offences by respondent:

16. [16]
    The applicant’s evidence in respect of the offences of which the respondent was convicted is:^[4]

“On multiple, unknown dates from 1 May 1978 to 30 November 1979, when I was aged 7 and 8 years, I was sexually assaulted by the respondent, KD.

I recall on one occasion when the respondent sexually assaulted me after I had been spearing cane toads in the back yard of the property. He took me inside a shed in the back yard, pulled my underwear aside and inserted a number of fingers into my vagina for a short period of time. He told me that it would not hurt, and that I should not tell anybody because it was “our secret.

I recall two other occasions when the respondent sexually assaulted me in the same shed. He pulled my underwear aside, inserted and removed his fingers from my vagina, and then bent down and performed oral sex on me.”

I recall two other occasions when the respondent sexually assaulted me after sneaking into my bed. I had been sleeping in the caravan I shared with my parents, and the respondent entered the caravan after my parents had gone to breakfast in the house. The respondent laid on the bed beside me, moved my underwear aside and placed his fingers inside my vagina. At the same time, the respondent placed my left hand on his penis, outside his clothing.

I recall a number of occasions where the respondent sexually assaulted me during drives to the local timberyard, ostensibly to collect firewood. When I was seated in the front passenger seat, the respondent bent towards me, pulled my underwear aside and placed fingers inside my vagina for a few minutes.”

17. [17]
    The applicant would have had her seventh birthday on 13 February 1978 and her evidence is that the offending conduct by the respondent “…occurred when I was only 7 and 8 years.”^[5]

The Injury:

18. [18]
    As stated in paragraph [3] above, the basis of this application for compensation is the assessment of the applicant by Dr Clark, psychiatrist, set out in his reports referred to therein.

19. [19]
    Dr Clark’s assessment includes the following:

• “She experienced the following symptoms –

• Upsetting recollections/dreams about the traumatic events & hypervigilance
• Unstable/angry mood
• Inattention
• Her work and social functioning are affected and  minor events can cause crises
• Psychomotor agitation, which she prefers to call compensatory overactivity.”^[6]

• Her development was marred by the abuse but she feels she reacted with what she as above calls a compensatory overactivity. This would technically be known as a hyperactivity.^[7]

• Her present hyperactivity is marked, in that she is constantly active, getting up in the night regularly at 3.00 am to coordinate her business with contacts abroad.^[8]

• On emotional state examination, her mood was unstable and her feelings of outrage made it difficult at times for her to concentrate on her history, which she gave in a somewhat circumloquacious manner.^[9]

20. [20]
    Dr Clark’s ultimate “Psychiatric Diagnosis” is “This woman, technically speaking, has a Hypomania.”^[10] “In conclusion, I can say this woman suffers a Hypomaniac Disorder. It is unusual to find chronic Hypomania but her history is consistent.”^[11]

What is mental or nervous shock?

21. [21]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”.

22. [22]
    His Honour’s analysis is comprehensively set out in the judgment and I accept the conclusion he reached as to the meaning of “nervous shock” under the Act.

Applicant’s Submissions

23. [23]
    The Applicant submits that she has suffered a “mental or nervous shock” injury and that it has arisen over four distinct courses of conduct viz.:^[12]

1. (i)
   Count 1 of the Indictment –   the first shed incident;

2. (ii)
   Counts 2 and 3 of the Indictment –  the second shed incidents;

3. (iii)
   Counts 4 and 5 of the Indictment –  the caravan incidents; and

4. (iv)
   Count 6 of the Indictment –   the drive to the timberyard incident.

24. [24]
    The Applicant concedes “that the Respondent’s conduct occurred over one category of time, between 1 May 1978 and 13 November 1979 when the Applicant was 7-8 years old”. However it is further submitted that due to the identified offences involving “distinct and discrete” events occurring in different locations (at least in respect of counts 4, 5, and 6 vis a` vis counts 1, 2, and 3), the offending constitutes four separate courses of conduct. Ultimately the applicant relies on the difference in location and nature of the offending to constitute four individual courses of conduct.^[13]

Findings:

25. [25]
    On the basis of the evidence before the court and the submissions made I make the following findings in this application:

1. (i)
   The Applicant has suffered a “mental or nervous shock injury” within the meaning of that term under s 663A of the Code as inserted by the Criminal Code Amendment Act 1984;

2. (ii)
   The Applicant has suffered this injury as a result of 4 separate courses of conduct for the following reasons:

1. a)
   There is no evidence before the court of when precisely, within the 19 month period of offending by the respondent, the respective sexual offences were committed by him against the applicant. The evidence reveals only that some of the offences were different in nature from others and occurred in different locations. E.g. counts 1, 2 and 3 occurred at the same location (at the applicant’s “grand parent’s home at Ipswich…. in a shed on the property”); counts 4 and 5 at the same location as counts 1, 2 and 3 but in a caravan on the property; count 6 when the applicant was a passenger in the respondent’s vehicle driving to a timberyard. I accept however on the balance of probabilities that the offences arose out of 4 separate courses of conduct in that while in counts 1, 2 and 3 the offences were committed in the same location, count 1 was different from counts 2 and 3 as the latter involved a different sexual act from count 1. Likewise counts 4 and 5 were committed at a different place from the previous counts and from count 6.

1. b)
   I find therefore that they are sufficiently separate “by reason of their nature, time and place” to be regarded as “arising out of” more than “one course of conduct” as provided in s 663B(1) of the Code.

Assessment of Compensation:

26. [26]
    Assessment of compensation under the Code is in accordance with the approach in McClintock v Jones (1995) 79 A Crim R 238 at p 242 namely:

“…compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed.”

27. [27]
    I have referred above to the effects suffered by the applicant as a result of the respondent’s sexual abuse of her together with Dr Clark’s diagnosis of her injury. On this basis I find that if the applicant’s compensation was being assessed in accordance with the ordinary principles of assessment of damages for personal injury in a civil case at the relevant time, the compensation to which the applicant would be entitled would more probably than not exceed the prescribed maximum of $20,000.00 in aggregate for the 4 courses of conduct but nowhere near the fanciful estimate suggested in paragraph [45] of the applicant’s submissions. I therefore assess that the applicant is entitled to the prescribed maximum of $20,000.00 in aggregate by way of compensation for the injury she has suffered arising out of the respondent’s offending conduct.

Contributing factors:

28. [28]
    I am satisfied the applicant did not contribute to her injury.

Orders

29. [29]
    In the circumstances I make the following orders:

1. The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 1 March 2005.

2. The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the relevant District Court scale applicable to the amount recovered.