McFawn v Thompson[2006] QSC 75

SUPREME COURT OF QUEENSLAND 

[1] HER HONOUR: The applicant seeks criminal compensation in respect of two rapes committed on her by the respondent in 1977. The respondent, who was convicted of the offences in the same year, is presently an inmate of a jail in Western Australia. He has been served with the application and supporting affidavits but has not appeared.[1] By virtue of the transitional provisions of the Criminal Offence Victims Act 1995, Chapter LXVA of the Criminal Code applies to the application for compensation. At issue are whether the delay in bringing the application presents any bar to its success and whether the applicant is entitled to recover separate amounts of compensation in respect of each offence. 

The circumstances of the offences

[2] At around midnight on 21 March 1977, the applicant, then seventeen years old, was hitchhiking on the Gold Coast. She accepted a lift from the respondent, who instead of taking her in the direction of her home, drove to a deserted parking lot near the beach at Tugun. There he forced the applicant out of the car at knife-point, threatening to kill her if she tried to escape. He walked her to a nearby beach, the knife still at her throat, removed her clothing and attempted to put his penis in her vagina. Unable to do so, he slapped her face a number of times and demanded oral sex. When she resisted, he resumed his attempt at penetration, this time successfully. He then allowed her to dress and walked her back to the car, where he pushed her into the front passenger seat. 

[3] The respondent started then to drive away, but changed his mind and parked the car once more. Again he forced the applicant back to the beach at knife-point, undressed her and penetrated her vagina with his penis. The applicant struggled; she was able to push him off, get to her feet and run. The respondent chased her, tackled her and brought her to the ground, where he choked her with his hands around her neck and thumbs pressed into her throat, so that she could not scream or breathe. He eventually let go of her neck, telling her that if she tried to get away again he would kill her, took her by the hair and tried to put his penis in her mouth. She resisted; he choked her again with his hands around her neck, pushing her face into the sand. She managed to twist his penis, forcing him to let go, and was able to run to a nearby house. 

[4] The respondent was arrested not long afterwards. The applicant gave evidence at a committal hearing and at a jury trial which resulted in the respondent’s conviction on 9 June 1977. Hoare J sentenced the respondent to 12 years imprisonment in respect of each of the two offences, to be served concurrently.

Injuries

[5] In the early hours of 22 March the applicant was taken to the casualty department of a local hospital. A contemporary medical report from a practitioner, who saw her there, details the injuries observed. (The report is clearly missing its second page, but the page which is available does set out all injuries to the head, neck, limbs and trunk.) They consisted of a small laceration of the skin over the bridge of the nose, a small abrasion of the right upper eyelid, bruising and tenderness of the skin of the neck, a bruise over the mandible without any underlying bony injury, bruising in the left infraclavicular fossa, some superficial scratches on the back, a small scratch on the right arm, a small bruise on the left thigh, a 2.5cm scratch on the right buttock and a 4cm scratch on the right thigh.

[6] In December 2005 the applicant was assessed by a psychiatrist, Dr White. He was provided with the applicant’s statement and the sentencing remarks of Hoare J, and took an account from her of the events and her subsequent experiences. In his report, Dr White expressed the opinion that the applicant was likely to have suffered post-traumatic stress disorder for a period of 6 to 12 months after the rapes, with later episodes of anxiety, including one amounting to an adjustment disorder in 1985, when she was shown a report of the respondent’s conviction of other offences in Western Australia. She was currently suffering mild anxiety symptoms because of the respondent’s impending release from imprisonment in that state. 

Delay

[7] The applicant was born on 13 July 1959; she was seventeen when the offences were committed and when the respondent was convicted. She says in her affidavit that at the time of the respondent’s conviction she was “offered criminal compensation”, but did not understand what it meant. She says also that when the prospect was raised in 1977 she could not bring herself “to go through another court case”. She had found the cross-examination at the committal proceedings particularly arduous. It has, she says, taken the intervening period of almost 30 years for her to develop the strength to bring the application.

[8] The respondent does not seem to have spent much time out of jail in the past 30 years. No material was before me as to whether he had any assets, but it seems most unlikely. It is probable that recovery of any amount ordered would be by way of ex gratia payment. Ms Muirhead, for the applicant, referred me to the two step approach to delay taken by De Jersey J, as he then was, in Re Gudz; ex parte De la Cruz[2]: looking first at any explanation for it and second at any prejudice to the respondent resulting from it. But that approach has rather been overtaken by the Court of Appeal’s decision in R v Chong, ex parte Chong[3], in which the Chief Justice presided.

[9] In Chong, the Court of Appeal took the view that a cause of action arose under s 663B (the provision of Chapter XLVA giving a right to apply for compensation) when the offender was convicted of the offence causing injury. That was a cause of action which met the description in s 10(1)(d) of the Limitation of Actions Act 1974, of “an action to recover a sum recoverable by virtue of an enactment”,  and was thus subject to a limitation period of six years. In Chong, the limitation period had expired; but since the application was uncontested, no point had been taken as to its being time barred. Since the limitation provisions operated to bar the remedy, rather than the right, and had not been relied upon, there was nothing to preclude the making of the order for compensation. The lapse of the limitation period was a matter which the Minister for Justice could take into account when deciding whether to make an ex gratia payment.

[10] In the present case, the limitation period expired on 13 July 1983; six years after the applicant attained her majority.[4] The action is statute-barred; but, as in Chong, there has been no contest to it, much less any taking of the point. On the authority of Chong, and in the absence of any reliance on the expiration of the limitation period, I see no occasion to consider it, or to treat the issue of delay as presenting any obstacle to the application; although it may assume some relevance if and when an ex gratia payment is considered.

The applicable legislation

[11] Section 46 of the Criminal Offence Victims Act 1995 preserves, in the case of injuries suffered before its commencement, the application of Chapter LXVA of the Criminal Code. Section 663A of the Code as at 1977 set a “prescribed amount” of $5,000. The Criminal Code Amendment Act 1984 had the effect of maintaining that amount as the prescribed amount in respect of injuries suffered before its commencement. 

[12] In 1977, s 663B(1) of the Code provided as follows:

“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 injury suffered by him by reason of the offence of which the offender is convicted.”

[13] Section 5 of the Criminal Code Amendment Act 1984 amended that provision, so that it read:

“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 him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence or offences of which the offender is convicted. 

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.

Injury suffered by a person aggrieved by reason of the commission by the person convicted of more than one indictable offence as hereinbefore in this section described 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.”

[14] This application raises the issue of which version of s 663B(1) should be applied. (If it were the amended form, I must say that I would have considerable difficulty in regarding the two rape offences as other than arising out of the one cause of conduct.) Relevantly, s 20(2) of the Acts Interpretation Act 1954 provides:

“The repeal or amendment of an Act does not—

…

(c) affect a right, privilege or liability acquired, accrued or incurred under the Act…”

[15] Ms Muirhead referred me to a number of District Court decisions as to the effect of the 1984 amendment of s 663B. Among those was the decision of Chief Judge Helman, as he then was, of the District Court in Re Boughton; ex parte Holt.[5] In that case the respondent had been convicted in 1992 of rape and indecent dealing offences committed between 1979 and 1981. His Honour took the view that the applicant had acquired a right to compensation at the time she suffered the injuries, which, by virtue of s 20 of the Acts Interpretation Act, remained unaffected by the amendment. Since at the time she had suffered her injuries, compensation was not restricted in respect of offences arising out of the one course of conduct, she was entitled to recover the prescribed amount in relation to each offence unaffected by the amendment. 

[16] Subsequently, however, it seems that a variety of views have been taken on this issue in the District Court, other judges concluding that the amendment applies to offences committed prior to 1984. In Osborne v Bennett,[6] Hoath DCJ referred to the Court of Appeal’s decision in Chong, reasoning that since the right to claim compensation arose on conviction of the offender, the amendment applied to offences where conviction occurred after it came into operation, irrespective of whether the relevant offences were committed prior to it.

[17] But, of course, the significant difference between this case and Holt is that here both offences and convictions occurred before the 1984 amendments, so that the objection raised by Hoath DCJ to the reasoning in Holt has no application. As at 9 June 1977, the applicant’s cause of action had, on the authority of Chong, accrued. She had at that point in time a right to claim compensation under s 663B as it then stood,

“albeit one which may yet have to be established by demonstrating matters on which the right depends, even matters which involve opinion and value judgments, and perhaps even criteria-controlled discretions.”[7]

That accrued right, by virtue of s 20(2) of the Acts Interpretation Act, was unaffected by the passing of the Criminal Code Amendment Act in 1984.[8]

Compensation

[18] Section 663B, in the form it took in 1977, enabled payment of compensation for injury in respect of any given offence. The amount of such compensation was to be assessed by reference to ordinary principles of assessment of damages for personal injuries.[9] Here there are two compensable offences of rape, each incident distinct and terrifying; undoubtedly each contributed very substantially to the applicant’s psychiatric injury. I consider it appropriate to award in respect of each offence the maximum amount of $5,000.

[19] I order:

1.  that the respondent pay to the applicant the sum of $10,000 by way of compensation for injuries suffered by her as a result of the offences of which he was convicted.

2.  that the respondent pay the applicant her costs of and incidental to the application.