DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Donna Leanne Lane (nee Reed) (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for “mental or nervous shock” and “adverse impacts” she allegedly sustained between the 1 November 2007 and 19 November 2007 at the Brisbane Women’s Correctional Centre at Wacol arising out of the criminal conduct of Elizabeth Pauline East (“the respondent”) who was convicted by the District Court at Brisbane on the 14 April 2009 of two counts of common assault only against the applicant. (emphasis added)

2. [2]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   The affidavit of Sarah Jane Dreger, Solicitor, with exhibits, affirmed and filed on 8 November 2010;

2. (b)
   The affidavit of the applicant, with exhibits, affirmed 2 December 2010 and filed on 3 December 2010;

3. (c)
   The affidavit of Peter Jordan, Psychologist, with exhibits, affirmed and filed on 28 February 2011;

4. (d)
   The further affidavit of Sarah Jane Dreger, Solicitor, with exhibits, affirmed and filed on 3 March 2011;

5. (e)
   The affidavit of service of Allan Leslie Green, Bailiff, affirmed on 28 February 2011 and filed 9 March 2011.

3. [3]
   The respondent was served personally with the application and supporting affidavits on 25 February 2011 but made no appearance at the hearing on 9 March 2011 at Brisbane and the hearing proceeded in her absence.

Background Facts:

4. [4]
   The offences against the respondent arose out of two incidents between the 1 November 2007 and 19 November 2007 whilst the applicant and the respondent were prisoners at the Brisbane Women’s Correctional Centre at Wacol. The facts upon which the respondent pleaded guilty to the two offences of which she was convicted are set out in “Exh SJD-01” to the affidavit of Sarah Jane Dreger filed 3 March 2011 in the following terms:

• “… both the complainant and the defendant were serving prisoners at the Brisbane Women’s Correctional Centre at the times of the offences before the Court. On 20 November 2007 the complainant reported the incident subject of the offences to staff at the Brisbane Women’s Correctional Centre and the Corrective Services investigation unit commenced an investigation.

In respect of count 1, the defendant placed an ice cube down the font of the complainant’s top. She then reached down inside the complainant’s clothing, grabbed her left breast, causing the complainant pain and discomfort. The complainant was able to push the defendant away and then left the vicinity.

Several days later the complainant stated she was standing in the residential area when the defendant walked up to her from behind and placed her walking stick between the complainant’s thighs, touching her genital region. The complainant stated the defendant then pulled the walking stick backwards, causing the complainant pain and discomfort between the legs. The complainant subsequently reported these incidents to staff.

The defendant was approached by detectives from the Corrective Services investigation unit on 20 December 2007. She participated in an interview with them that was recorded. She made partial admissions to the offences being that the act the subject of count 1, initially denying the offence in count 2 but by her plea of guilty today has accepted responsibility for that offence.”

The prosecution further stated that:

• “The Crown accepts that these offences were an attempt to humiliate the complainant who was a fellow inmate at the time rather than having any particular sexual overtones.”

Applicant’s Injuries:

5. [5]
   The applicant’s claim for compensation is made on two bases:

1. (i)
   “Mental or nervous shock” condition characterised by the following               psychological conditions as a result of the offences:^[1]

  “(a)Post-Traumatic Stress Disorder;

1. (a)
   Major Depressive Disorder; and

2. (b)
   Panic Disorder.”

And

2. (ii)
   That the applicant has suffered “adverse impacts” as a result of a  sexual offence.

6. [6]
   In her statement dated 20 December 2007 to the Queensland Police Service the applicant described “the first occasion Elizabeth (the respondent) grabbed me on the breast” in the following terms:

• “… it was in beginning of November and that’s when it was getting quite out of hand. This quite upset me. I was sitting at the dining room table having breakfast. She got some ice out of the freezer in the unit. She put her hand down the front of my shirt with an ice cube, she dropped it in then placed her hand inside my bra and was twisting my breast and twisting my nipple. This caused me pain and discomfort. It was more embarrassing and humiliating. I didn’t receive any injuries as a result.”

7. [7]
   The applicant then discussed “the walking stick incident occurred after the breast incident” in the following terms:

• “I was cooking toast again I can’t give a date. I had my back to her and every one cooking toast and she used her walking stick by putting it between my legs and pulling back on it. The stick touched me in the crotch area. Elizabeth has a name for the walking stick. It’s called “Bob”.”

8. [8]
   The applicant further stated:

• “There were numerous other times that Elizabeth touched me either on the backside or breasts but these were the main two that topped it all off. I had enough and was considering moving units. At that stage I was having bad dreams.”

9. [9]
   The applicant was assessed by Muriel Simmons, Corrective Services Officer, on 20 November 2007 at the Ipswich District Office. The ‘Offender Case File’, included the following information (“offender Reed” being the applicant):

“I interviewed Offender Reed at the request of the Senior Psychologist this                             afternoon. She presented willingly and was cooperative and polite.                                                         Offender Reed had appropriate eye contact and affect. She reported                                           decreased appetite and poor sleep. She has had a series of nightmares                                           recently, as a result of ongoing problems with another offender, who                                           has subjected Offender Reed and other inmates to inappropriate                                                         behaviour. This has triggered a list of symptoms from abuse incurred                                           in the past. As a result Offender Reed feels down, depressed, helpless and                             hopeless today. Offender Reed has the future plan of getting out and                                           staying out. She denied any self-harm thoughts today. I have referred                                           Offender Reed to PMH for more modern medication, she is currently                                           taking Zoloft. Offender Reed was also given a mindfulness exercise to                                           practice twice daily.” (emphasis added)

10. [10]
    An incident report of Brian Thorley, Corrective Services Officer dated 20 November 2007 included the following information:

 “At approximately 17:00hrs on 19 November 2007 at the request of  prisoners ------ and REED an interview was conducted in the office of the Residential Supervisor. Both prisoners are currently domiciled in Residential Unit 5B. Prisoner ----- stated prisoner ------- has made sexual advances towards her -------. Prisoner REED stated that Prisoner -------  has grabbed her breasts and moved the crook end of her walking stick up between her legs. This action was carried out form behind as prisoner REED was washing the dishes. Prisoner REED stated that she has been affected by this behaviour psychologically as a result of a history of sexual assault at the hands of her former violent husband.” (Emphasis added)

11. [11]
    A further report dated 19 November 2007 from Lynette Warren, Corrective Services Officer referred to the 2 assault incidents and noted:

“Prisoner Reed has been affected by this behaviour psychologically due to a  history of sexual assault.”

12. [12]
    The applicant was assessed by Peter Jordan, Psychologist on 2 November 2010, 3 years post the assaults. Mr Jordan’s report of 20 February 2011 is “PJ-01” to his filed affidavit and contains a summary of what the applicant has told him upon which his opinion is based. The only other evidence of a medical nature before the court is contained in a report dated 27 July 2010 from Christine Stranger, Psychologist whom the applicant consulted about that time i.e. two and a half years post the index assaults.

13. [13]
    Peter Jordan’s diagnosis of the applicant’s condition includes the following:

“12.1 As a result of sexual harassment and sexual assault during a period of  imprisonment, Donna Lane has developed a range of psychiatric symptoms.

12.2Her symptoms include severe panic attacks which are controlled through  the use of Diazepam during the day but are uncontrolled at night. In my opinion, her condition meets the threshold for Panic Disorder. She is becoming avoidant of leaving the home and to that extent there is a degree of agoraphobia also associated with her condition.

12.3 She experiences ongoing nightmares related to the incident. The  nightmares almost always relate to a sexual assault by the perpetrator. She is completely avoidant of sexual activity.

12.4 She has a full range of depressive symptomatology and has developed a Major Depressive Disorder. In my opinion, this is in association with the development of Posttraumatic Stress Disorder.”

14. [14]
    He states further at paragraph 12.15 within the terms of his expertise that the applicant’s condition is appropriately expressed as follows:

“Axis – 1 Clinical disorders

Posttraumatic Stress Disorder, severe, chronic

Major Depressive Disorder, single episode, moderate severity

Panic Disorder”

15. [15]
    Mr Jordan further purports to set out “a number of adverse impacts” which he says the applicant “has suffered…. as a direct result of the sexual harassment and the sexual assault/s upon her” which include a number of those matters set out in Regulation 1A(2) of the Criminal Offence Victims Regulation 1995 a number of which relate to the applicants claimed “incontinence”. 

Applicant’s Submissions:

16. [16]
    The applicant claims compensation in the following terms:^[2]

Causation:

17. [17]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending but are also of general application.

18. [18]
    Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made particularly where her Honour states:

“[23]Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.”

What is “mental or nervous shock”?

19. [19]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and in particular what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed carefully and comprehensively 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”.

20. [20]
    There has been some divergence of opinion among judges following Byrne SJA’s conclusion on point as to the meaning of “mental or nervous shock” and some have come to a contrary view from his Honour on its meaning upholding the previously held view of Thomas JA in Ferguson’s case – with some relying upon the Court of Appeal decision of MR v Webb [2001] QCA 113. With respect, the Court of Appeal in that authority did not embark upon the comprehensive analysis of the topic as did Byrne SJA nor make any definitive interpretation of its meaning. I therefore accept Byrne SJA’s conclusion as to the meaning of the condition which is overwhelming supported by his Honour’s thorough analysis in the paragraphs of his judgment referred to above.

Findings and Conclusion:

21. [21]
    On the basis of the evidence before the court and the submissions made I make the following findings in this application:

1. (a)
   I am satisfied that the applicant has suffered a “mental or nervous shock” condition arising out of the index assaults upon her within the terms of s 20 of the Act arising out of the respondent’s criminal conduct the subject o the application and is entitled to an appropriate award of compensation therefor but I am not satisfied that the applicant’s condition is caused as a result of any sexual assault upon her by the respondent for the following reasons:

1. (i)
   Firstly, both assaults were of a trivial nature and in respect of the first assault the applicant herself conceded that “it was more embarrassing and humiliating” rather than “sexually motivated” and from the material filed the respondent’s actions seemed to be part of her somewhat bizarre behaviour towards fellow inmates generally;

2. (ii)
   Secondly, the second assault was even more trivial than the first and from the evidence before the court the “walking stick” was placed between the applicant’s legs from behind and “touched me in the crotch area”. Again it would seem that this was a further attempt to humiliate the applicant rather than the respondent deriving any sexual gratification from the assault and this was the basis upon which the respondent pleaded guilty to both of these offences and the basis upon which her pleas were accepted by the crown.

2. (b)
   Notwithstanding that the assaults were not of a sexual nature I am satisfied and so find that they “materially contributed” to the applicant’s Posttraumatic Stress Disorder although I find further that the applicant’s proliferation of symptoms and their sequelae were as much the consequence of her pre-existing fragile personality and inability to adjust to the exigencies of a prison environment (evidenced by her being “very intimidated” not only by the respondent “but by people she mixed with in the unit”) as they were of the 2 minor assaults with they being in effect “the last straw” in precipitating the multiplicity of symptoms of which complaint is made 3 years later.

3. (c)
   I find further that the category of injury under which the applicant is entitled to an assessment of compensation for her “mental or nervous shock” condition is Item 33 of the compensation Table under Schedule 1 of the Act that is “mental or nervous shock (severe) 20%-34%” based upon the applicant’s own evidence and the psychologist’s report. I assess the applicant’s compensation under this item at 25% of the Scheme Maximum i.e. $18,750.00.

4. (d)
   I find further that the applicant is not entitled to an award of compensation for any alleged “adverse impacts” pursuant to s 1A(1) and (2) of the Regulation for the reason that she did not suffer a “sexual offence” within the meaning of that term under s 1A(3) of the Regulation on the basis of the evidence before the court in respect of the two offences of which the respondent was convicted on her pleas of guilty.

Applicant’s Direct Contribution to Injury:

22. [22]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

23. [23]
    I refer to the circumstances of the incidents as set out in paragraph [4] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries she sustained at the hands of the respondent.

Orders:

24. [24]
    I order that the respondent Elizabeth Pauline East pays the applicant Donna Leanne Lane (nee Reed) the sum of $18,750.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 April 2009.

25. [25]
    In accordance with s 31 of the Act I make no order as to costs.