Louise Elizabeth Duchesne Cic [1991] ACTSC 108 (12 December 1991)

SUPREME COURT OF THE ACT

LOUISE ELIZABETH DUCHESNE
C.I.C. No. 42 of 1990
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Criminal Injuries Compensation - Assault - Sexual Assault - Post Traumatic Stress Disorder - Medical Evidence - Independent Opinion sought on behalf of Territory.

Criminal Injuries Compensation Act 1983

HEARING

CANBERRA
12:12:1991

ORDER

Compensation be awarded to the applicant in the sum of $13,000.00 together with the sum of $556.00 for expenses.

DECISION

This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 7th May 1990 one Michael Robert Wyatt was indicted in this Court on one charge of engaging in sexual intercourse with the applicant without her consent and on one count of unlawfully assaulting her with intent to engage in sexual intercourse. On that first count he was convicted and sentenced to imprisonment for four years.

3. On the evening of Sunday 22 October 1989 the applicant went with a friend of hers, Ian Campbell, to meet friends at a cafe in Lyneham. Towards midnight they went in a friends car to a bar in civic to play pool.

4. While there, she and her companion were engaged in conversation by Wyatt and played two or three games of pool with him. At about 3.30 in the morning she and Campbell decided to leave the bar. So far as the applicant was aware Wyatt had suggested that Campbell and the applicant return to his room at the Rex Hotel and have a few beers. The applicant did not wish to go to Wyatt's room, but she did want to be accompanied when she left the bar which was not in the centre of town, and she planned to ring for a taxi from the hotel.

5. On the way the three were walking through a park. The applicant was ahead of the other two. She heard a noise behind her and returned to find Wyatt standing in a clearing with Campbell lying on his back on the ground. Campbell appeared to be unconscious. Wyatt then attacked the applicant and forcibly removed her underclothes. She struggled and kicked, and screamed for help. He inserted his fingers inside her vagina with force. At the time she was menstruating. After a few seconds he stopped and she was able to move away from him. Wyatt later grabbed her from behind around her neck and threatened to break it unless she stopped screaming. She stopped screaming and for some reason apologised to him. Wyatt let go of her. She picked up her belongings and began to run. As she did so she saw the headlights of a car, which was a Police car. She was taken to the Police Station and went to the Sexual Assault Unit where she was medically examined.

6. At about 6.15am Dr Navin, Police Surgeon, examined her. On examination he noted that she was in distress, but there were at that stage, no observable physical signs of injury. Later that day she saw Dr Christie at the Melba Health Centre. Dr Christie found her disoriented and distressed. She was complaining of a sore neck and a sore right abdomen. On examination she found marked tenderness and spasm of the trapezius muscle. Her abdomen was tender in the region of the right kidney. There were no obvious external injuries to the genital region. She did not perform an internal examination because of the nature of the assault and because the applicant was menstruating at the time. She did not feel that the applicant had physical injuries which required specific treatment but thought that her major injuries were psychological.

7. On 26 November 1990 the applicant had a long consultation with Dr Venness, Consultant Psychiatrist. She still had a vivid recollection of the details of the assault. She described persisting feelings of fear, anger and humiliation. She had suffered constant nightmares of the attacker's face at her window, commencing a month or so after the attack. These were occurring about once every month by the time she saw Dr Venness, but they had been more frequent than that. The inevitable legal proceedings had compounded her feelings of apprehension and anger. She continued to suffer from anxiety, often feeling sick in the stomach even when simply walking along the street. She had feelings of being degraded and humiliated. She often suffered from depression.

8. There can be no doubt that she underwent a terrifying ordeal on the night of the attack. In the opinion of Dr Venness, her relationships with other people, especially men, had suffered, because she could no longer trust. She was suffering from chronic anxiety with phobic features and was subject to fluctuating periods of depression. Dr Venness thought it would probably be many years before the applicant would again feel confident and at peace and that she may well carry some emotional scars for the rest of her life. She was in need of continuing psychotherapy. Dr Venness thought that given the right therapist, she could benefit from continuing treatment but that a period of up to two years might be needed, which could cost in excess of five thousand dollars.

9. The applicant did not seek immediate counselling, despite the advice of Dr Venness.

10. On 26 November 1991 the applicant was examined, on behalf of the Territory Government Solicitor, by Dr Robert Tym, a Consultant Psychiatrist. I commend this action on behalf of the Authorities. While it did not result in any unnecessary element of adversary procedure, this sort of independent opinion enables the Court to be more confident in coming to an assessment, especially in this type of case.

11. The applicant had not sought any psychological or psychiatric help following the assault until October 1991, about two years after the assault. She had then seen a psychologist with whom she had about three treatment sessions up to that time. In Dr Tym's opinion there is no evidence of any continuing significant psychiatric illness or disorder. Dr Tym summarised her injury as "physical trauma followed by transient but severe psychological shock with some persisting mental anguish not amounting to a definable and recognisable mental disorder".

12. He thought that the mental injuries suffered as a result of the assault has increased the possibility of her developing a mental disorder in later life and increased the probability of suicide in later life.

13. Evidence was also given by Miss Sands, the psychologist who has been seeing her since August 1991. In her opinion the applicant is deriving benefit from the therapy and she contemplates that it will continue for about two years at a frequency of about once a fortnight. The fee for consultations has varied from $60 to $80 each. It appears that the expense for treatment will therefore be more of the order of three thousand dollars than the five thousand dollars mentioned by Dr Venness. I did not understand Dr Tym to be saying that the treatment was not required, and I accept the opinion of Dr Venness and Miss Sands that it is reasonable.

14. Since August 1991 she has already incurred out-of-pocket expenses of the order of $450.00. Including the time during which she was required to attend the Committal proceedings and the Trial, she was absent from work for a total period of about two months. Her rate of pay is approximately $350.00 nett per week. On the evidence it is not possible to assign an exact figure for the expense actually incurred by the applicant as a consequence of the injury, nor the pecuniary loss suffered by her as a consequence of incapacity for work. Taking those matters into account, however, it seems to me that an amount that would reasonably compensate her for the pain and suffering resulting from the injury together with that expense and pecuniary loss would be $13,000.

15. The expenses of bringing the application were $556.00.

16. I award total compensation in the sum of $13,556.00.