Joan Mary Anne O'Brien and Criminal Injuries Compensation Act 1983 [1992] ACTSC 64; (1992) 104 FLR 373 (24 June 1992)

SUPREME COURT OF THE ACT

JOAN MARY ANNE O'BRIEN and CRIMINAL INJURIES COMPENSATION ACT 1983
No. SCA 54 of 1991
Criminal Law - Criminal Injuries Compensation
[1992] ACTSC 64; (1992) 104 FLR 373

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - Criminal Injuries Compensation - appeal from award of Registrar - principles applicable on appeal - appeal by way of hearing de novo.

Criminal Injuries Compensation - Assault during raid by intruders - on going psychological distress amounted to compensable condition under Act.

Commonwealth of Australia v. Pillifeant [1990] FCA 179; (1989) 23 FCR 397

HEARING

CANBERRA
24:6:1992

Counsel for the appellant: Mr A. Tsirimokos

Solicitors for the appellant: Vandenberg Reid Pappas and

Macdonald

Counsel for the respondent: Mr K. Holmes

Solicitors for the respondent: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The appeal be allowed.
2. There be judgment for the appellant in the sum of $6,862.35.

DECISION

This is an appeal against an award of compensation made by the Registrar under the Criminal Injuries Compensation Act 1983 (the Act) for $4,362.35. The appellant claims that the award was inadequate.

2. As is common in appeals to this Court, a consideration of the merits of the appeal has to be prefaced by a consideration and statement of the principles to be applied in order to determine the appeal. The jurisdiction in the Supreme Court comes from sub-ss.28(1) and (2) of the Act. That section further provides as follows:

"28(3) An appeal under this section shall be by way of a re-hearing.
(4) On an appeal under this section, the Supreme Court may -
(a) affirm, set aside or vary the determination of the Registrar;
and
(b) make such other order as it considers just."

3. The trend towards treating the decisions of judges and tribunals at first instance as in a sense provisional by enlarging the fact-finding powers of appeal courts was continued by the Full Court of the Federal Court of Australia in Commonwealth of Australia v. Pillifeant [1990] FCA 179; (1989) 23 FCR 397. It was held that although the Act does not confer on the Court a power to receive fresh evidence, that power is "implicit in the very nature of the function which the Supreme Court is required to perform" (at 409). Accordingly, the appeal Judge is not restricted to the evidence before the Registrar. It was also held by the Federal Court that the Judge hearing the appeal is under a duty to ascertain for himself or herself the scope of operation of the various criteria laid down in the Act and to decide whether on "the primary facts" as found by the Registrar, those criteria are met. The Federal Court further decided that the appeal Judge is not constrained by limitations similar to those which govern the exercise of a judicial discretion. Lastly, the Federal Court held that the Registrar should adopt procedures akin to a judicial hearing. The Federal Court said nothing about the Registrar or the appeal Judge being bound by the rules of evidence but it is consistent with the judgment that the Registrar and the appeal Judge would be prudent to apply the rules of evidence, albeit perhaps without the scrupulous insistence necessary for a criminal trial.

4. The result is that the hearing before the Registrar, and the re-hearing on appeal by the Supreme Court, are to be treated much like an assessment of damages in an action for damages for personal injury. That assessment, however, takes place in a curial context in which there is no real defendant to resist or test the claim. The Australian Capital Territory (formerly the Commonwealth) has a right of appearance in any proceedings on an application for compensation and that right is invariably exercised. Whilst it may be that in other parts of Australia criminal compensation proceedings are intended to be informal, quick and cheap and able to be determined without an application of the rules of evidence, this is not the result in the Australian Capital Territory. Applications for criminal compensation take up considerable time of the Registrar and of the Court. The Registrar and the Court are bound by the terms of the Act and of the decision in Pillifeant's case and it is not open to streamline proceedings any further without legislative action. Whether such action should take place is a matter that might be considered by the ACT Law Reform Commission.

5. The Registrar delivered a short judgment and it is necessary to go behind it in order to conduct this re-hearing. The "primary facts" as expressly found by the Registrar provide an adequate framework for the Registrar's own decision, but because of the extent to which this is a re-hearing, they are insufficient for the purposes of this Court.

6. The affidavit and oral evidence of the appellant disclosed that she was a young woman of 19 years of age who, just after midnight on Saturday, 25 February 1989, was at the suburban home of some friends. They had finished dinner and were watching television. One of the men present answered a knock at the front door. Two men burst in. Both were masked. One was carrying a sawn-off rifle. The appellant and the others present complied with an order to lie on the floor. One of the occupants was ordered to go to his room and get his wallet. He did this. He was accompanied to the room by one of the masked men. The other remained in the loungeroom with the firearm held at the back of the head of one of the other men. He called out, "Hurry up, Joe I can't hold the trigger any more". The other man returned, took the appellant's handbag and searched it and then conducted a hurried search of the kitchen. He returned and said, "We have been ripped off today and thought it may have been this house". Both intruders then departed.

7. As a result of this extremely unpleasant, if not terrifying incident, which constituted at least an assault on the appellant, she was left fearful and in shock. She had difficulty sleeping that night but eventually, as she said, "cried myself to sleep". She continued in much the same condition over the rest of the weekend, feeling nauseous and suffering from headaches. She was attending a business college and when she went there on the Monday she fainted "after having a flashback of the incident". She had been dieting rather strictly up to this time which no doubt contributed to her fainting, but I find that it is probable that without the criminal incident on 25 February 1989, the fainting would not have occurred.

8. The Registrar found that she suffered headaches as a result of the incident and that they continued daily for about ten months, sometimes lasting a whole day. Those are findings of primary fact and I accept them.

9. The Registrar went on to say as follows:

"The headaches often lasted for the whole duration of the day
and as a result of which the applicant did seek medical treatment
and in the end treatment from a psychiatrist in relation to the
problems that she did suffer as a result of the incident. I am also
satisfied that the applicant has significantly come to terms with
the incident and the headaches have in fact now gone back to the
pre-incident level but notwithstanding that the applicant still
obviously has vivid recollections of the incident which will stay
with her no doubt for the rest of her life and have some effect on
her life in relation to that, I think which is probably outlined
specifically in the sorts of incidents that are referred to in
paragraph 17 of the applicant's affidavit and that will continue to
suffer from those sorts of situations, no doubt, through her life."

10. That passage also contains findings of primary fact, which I accept.

11. The Registrar continued:

"However, I am satisfied generally that the applicant's medical
condition is basically improved significantly as a result probably
of the very positive efforts that she has made to come to grips with
them and from the medical support that she has received."

12. Whilst I think that those remarks also constitute findings of primary fact and that without the assistance of Pillifeant's case I would have thought that the Registrar was in a better position than I am to make them, I do not consider that the findings are sufficiently explicit for me to come to a confident conclusion about what the result should be expressed in the monetary terms of an award of compensation. This means that I have to go back to the evidence.

13. The appellant herself said that she attended doctors for her headaches and because she felt she was "cracking up" she asked for a reference to a psychiatrist, Dr Lee. She improved dramatically after treatment by Dr Lee but at the time of the hearing before the Registrar she was still prone to become extremely frightened on particular occasions such as cracker night, when she saw a friend playing with an air rifle and an occasion when she saw a man in the street wearing a balaclava.

14. The Registrar was correct in categorising the appellant's condition after the incident and continuing, as a prescribed injury under the Act. His remarks also point to the fact that unpleasant memories do not sound in damages. But persisting fear of the dark, nightmares and depression and their recurrent incidence to which I have just referred, go beyond mere unpleasant memories and are just as much symptoms of a compensable condition brought on by the injury as are the headaches.

15. Dr Lee's report of 11 March 1991 confirms the appellant's evidence that these symptoms continued for about a year. Anti-depressant medication prescribed by her local doctor was discontinued and replaced during this period. She was given psychotherapy and taught self-hypnotic techniques for relaxation. Dr Lee saw her on four occasions over the nine months ending 12 November 1990 when the appellant did not think she needed further therapy. Her sleep became normal, her headaches occurred only under stress as they had occurred previously, the past fears relating to the robbery were gone and medication ceased. She was having an interview for promotion at work. In her evidence before the Registrar, the appellant agreed with the suggestion put to her by her own counsel that she had "basically recovered". She was not cross-examined about her condition or symptoms.

16. There are other medical reports which it is not necessary to discuss in detail as they do not carry the case any further. A report of Dr Greenman, who treated the appellant for headaches on three occasions in early 1990 indicates that she did not learn of the robbery until the third visit. However, in my view, that in no way reduces the strength of the appellant's claim. There are all sorts of reasons why the appellant might not have told Dr Greenman about the robbery. Ms Murray, a psychologist, said in her report that a relapse is possible if the appellant or someone else close to her suffers a "similar trauma" but again that is a very minor matter as far as damages are concerned.

17. For pain and suffering under para.6(1)(c) of the Act I would award the appellant the sum of $6,000. There is no dispute that under sub-s.5(4) of the Act the appellant should be awarded $551.50 for the expenses of making the application and $310.85 under para.6(1)(a) for her out-of-pocket expenses, both of which sums were awarded by the Registrar. The total is $6,862.35. That is more than the Registrar awarded and so the appeal is allowed.

18. It is not the practice to order professional costs on these appeals. The practice, however, may be based on a belief that there is no power to do so. Pillifeant's case suggests that the power to award costs may be there, like the power to receive fresh evidence, as "implicit in the very nature of the function which the Supreme Court is required to perform".

19. I will hear counsel for the appellant and for the Territory if they wish to be heard on the matter of costs.