Application Under the Criminal Injuries Compensation Act 1983 and Jacqueline Marie Beckley [1993] ACTSC 15 (25 February 1993)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and JACQUELINE
MARIE BECKLEY
No. CIC 69 of 1988
Number of pages - 8

COURT

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

HEARING

CANBERRA, 10 December 1992
25:2:1993

Counsel for the Plaintiff: H. Hayunga

Instructing Solicitors: Legal Aid Office

Counsel for Defendant: P. Walker

Instructing Solicitors: Australian Government Solicitor

ORDER

1. Compensation be awarded to the applicant in the sum of $17,976.47.

DECISION

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

2. On 29 March 1989 an indictment was presented in this Court charging that between 11 August 1987 and 14 August 1987 Misko Zeljko assaulted the applicant thereby occasioning to her actual bodily harm. On 31 March 1989 the jury returned a verdict of not guilty.

3. The plaintiff is now 60 years of age and is employed as a security attendant by the Department of the Senate at Parliament House.

4. In April 1981 she began to live with Zeljko in a de facto relationship. It was a stormy union. The applicant stated that during the course of the relationship she was assaulted by him on numerous occasions and separated from him for various periods of time. The relationship ended at about the time of the incidents which were the subject of the assault trial, that is, in August 1987.

5. Shortly before the alleged assault she was living apart from him. She had arranged to meet with him at his flat, as he wished to discuss the future of their relationship.

6. At about 5.30 pm on 12 August 1987 she went to his flat with him and his employer. They had some refreshment and the other man then left. The applicant and Zeljko then had a discussion, it seems, about whether they would marry. The conversation did not proceed as she might have hoped. She decided to leave. He tried to prevent her from leaving. There was a struggle. He grabbed her by the arm and pushed her against the kitchen sink. He struck her on the left side of the jaw with a clenched fist. She fell to the floor. She felt a number of blows to the legs and body. She lost consciousness.

7. When she awoke she found most of her clothing had been removed. Zeljko was in another room. She dressed as best she could and left the flat. He chased her down the driveway, caught up with her, snatched from her the bags that she was carrying and punched her on the back, causing her to fall to her knees. She escaped, and went home. She then went to the police. She was confused about what had happened. They do not seem to have understood her to be reporting an assault. They escorted her back to Zeljko's flat to look for her watch. The police simply identified themselves to him there, and then took her home.

8. The next day she rested at home. She was visited by a general practitioner, Dr Hill. A friend who also visited her reported her injuries to the police. On 14 August 1987 the police attended on her and took a statement from her.

9. They then took her to Royal Canberra Hospital, where she was examined and x-rayed. She was also examined by a Commonwealth Medical Officer and photographs were taken.

10. The Commonwealth Medical Officer, Dr Smyth, reported that the chest x-rays had disclosed no abnormality. His examination elicited the following injuries:
"(a) Swelling and bruise with a central abrasion between the

angle and point of the left lower jaw. This is consistent
with a heavy blow which Miss Beckley stated had knocked her
out for some time.
(b) Redness and skin bruise of the neck below the left ear.
(c) Bruise on the right of the bridge of the nose under the
nasal support of spectacles.
(d) A 4 x 2.2 cm bruise on the inner upper right arm.
(e) A 15 x 6 cm area of bruise on the posterior aspect of the
right forearm with a 3 x 2 cm area of bruise on the back of
the wrist.
(f) Bruising and swelling of the proximal inter-phalangeal
joint of the right ring finger.
(g) A 1.5 cm laceration over the lateral maleolus of the left
ankle.
(h) Swelling and bruise over the lateral maleolus of the right
ankle.
(i) A small abrasion in the centre of an area of skin bruise
over the mid sternum.
(j) A small round bruise on the front of the left arm just
above the elbow with deep scratches on the outer aspect.
(k) Bruising over the spines of the 3rd, 4th and 5th thoracic
vertebrae.
(l) Bruising over the left posterior 9th and 10th ribs.
(m) A 5 cm scratch of the outer right thigh just above the
knee.
(n) Swelling and abrasion over the right kneecap and just
below the left kneecap.
(o) Abrasion and bruise over the upper left shin. 5-cm below
the abrasion in (n) above.
(p) Bruising and minor abrasions down almost the whole length
of both shins.

11. She returned to the hospital for the suturing of the laceration to her left ankle.

12. There is also evidence from her dentist and endodontist that satisfies me that the assault caused damage to her tooth, which required root canal therapy.

13. It is clear from the statement by Mr Ryan, a social worker with the Community and Health Service, that over the previous years she had suffered constantly, and had been assaulted on many occasions by Zeljko.

14. From March 1988 she consulted Dr Fedoroff, who confirms that she was worried and frightened over the period while the Court case was pending. In July 1988 Dr Fedoroff recommended treatment by a psychiatrist. Her solicitors referred the applicant to Dr Saboisky, who saw her for a medico legal assessment on 12 October 1988. In November 1988 Dr Saboisky reported as follows:

"With the passage of time her physical problems have been
rectified by dental work for her teeth, her back has spontaneously
improved and psychologically she has improved. She still has
periods of depression withdrawal but her sleep disturbance and
appetite disturbance which were apparent in the initial phases
after the assault have now rectified themselves. Flashbacks of
the incident which were occurring at a frequency of about once per
week now occur at a frequency of about once per month."

15. His summary was:

"In summary Ms Beckley was involved in an unsatisfactory
relationship with Mr Zeljko for a seven years period. At the end
of this relationship she suffered both physically and
psychologically from the assault described above. I would say
from the evidence that she was quite seriously disabled
psychologically for at least three to four months after the
incident and she still bears the scars to some extent.
In respect of treatment, she has had some counselling and I do not
think that she would require any more apart from periods of time
when her contact with this individual may involve a re-emergence
of symptomatology. I have in mind particularly legal
proceedings.
Apart from the initial period of one month when she was unable
to work I did not think her work capacity would be severely
curtailed by the assault."

16. Dr Saboisky reviewed her condition on 18 June 1990. It appears that at least part of her continuing upset was attributable to the long course of ill treatment that she had previously suffered from Zeljko, from continuing court processes, and attempts by him after the assault to contact her. She had, for example, found it necessary in December 1987, to apply for a protection order from the Magistrates' Court. There were a number of appearances in Court, and interim orders were made, between then and 20 November 1989.

17. Many of her absences from work were also attributable to those proceedings, and to reasons not connected with the assault on 11 August 1987.

18. It is not possible in these proceedings to award to her compensation for the whole injury that she sustained, in the broad sense, as a result of Zeljko's conduct towards her over all the time that she knew him.

19. On this application compensation can be awarded only for the injury that is attributable to the one assault.

20. It is also obvious from her sick leave records that she suffered from ill health over the period from 1988 to 1990 for reasons that were not connected with the assault.

21. The state of the evidence is such that it is impossible to make an accurate dissection of the various absences and complaints.

22. But it is reasonable to conclude that the violence of the beating that she received on 12 August was the cause of a major part of the psychological harm that she suffered, and from which she continues to suffer.

23. She continues to suffer from nose bleeds and sinus trouble as the result of the blow to the face. She suffered the pain and some infection in the jaw, which spread to her eye, and which abated only after the root canal therapy. She suffered reactions from the medications.

24. Counsel for the Territory raised the issue whether the claim should fail by the application of S.14 of the Act, as it was in force with respect to this application. The applicant has no idea where Zeljko is now. The usual searches did not disclose any assets, or his address. She has seen him since the trial, but it does not follow that she knows his whereabouts or his circumstances. He did not appear on the hearings of the proceedings for protection orders. I accept that she was genuinely terrified of him, and still is. I am not satisfied that there were any other steps to enforce rights or to pursue remedies that it was reasonable for her to have taken against him.

25. For her pain and suffering arising from the assault of 12 August 1987 I would award $15,000.

26. The medical expenses resulting from the assault are agreed at $642.47.

27. The expenses of bringing the application are claimed at $2,334. $1,725 of that is for the cost of the transcript of the trial. In the way this application was conducted, Mr Zeljko was not called to give evidence. But, there having been an acquittal, those who were advising the applicant were not to know that the case would be conducted in that way. The transcript of the trial was obtained by them. It was admitted into evidence, without objection. Counsel for the Territory based some of his cross examination on it. I do not think therefore that it was unreasonable for the Legal Aid office to have obtained a copy of the transcript in order properly to prepare this case. Many might think it outrageous that the Commonwealth Reporting Service should charge that sum of money for supplying it, since it had probably already been transcribed for the trial, but that is not the fault either of the Legal Aid Office or of the Territory Government Solicitor. I allow the sum of $2,334 for the costs of bringing this application.

28. I award compensation in the sum of $17,976.47.