Criminal Injuries Compensation Act 1983 and Melanie Johnston [1993] ACTSC 44 (23 April 1993)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and MELANIE JOHNSTON
Nos. CIC95 of 1988 and CIC26 of 1992
Number of pages - 8

COURT

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

HEARING

CANBERRA, 18 February 1993
23:4:1993

Counsel for the Plaintiff: D. B. Hynes/C. M. Todd

Instructing Solicitors: Higgins Solicitors

Counsel for Defendant: K. J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

The Court orders that:
1. In matter CIC 95 of 1988 compensation be awarded to the applicant

in the sum of $10,100.
2. In matter CIC 26 of 1992 compensation be awarded to the applicant
in the sum of $30,235.

DECISION

MASTER HOGAN These are two applications for compensation under the Criminal Injuries Compensation Act 1983 made by the one applicant. By consent of counsel for the Territory they are being heard together.

2. The first, CIC 95 of 1988, relates to an assault upon the applicant on 26 June 1988. On 7 April 1989 Glen Thomas Beadman pleaded guilty in this Court to a charge that on 26 June 1988 he assaulted the applicant, thereby occasioning to her actual bodily harm. He was discharged without sentence on his entering into a recognizance to be of good behaviour for 12 months.

3. In June 1988 the applicant had been living with Beadman in a de facto relationship for about 3 years. The relationship had been a stormy one. Beadman had from time to time accused the applicant of being unfaithful to him.

4. On the evening of 25 June 1988 they had another squabble about such an accusation. Beadman left the house, telling the applicant that he would see her later at Pandora's night club. She met him there and told him that she wanted this relationship to end. He said he would go, and would take his belongings from the house that night. The applicant left him and went to another club. She met a friend with whom she attended a number of night clubs, and in the early morning went to a male friend's house, where she stayed until about 11.00 am the next morning. He then drove her home.

5. When she arrived home Beadman was still there. There was an argument about her staying out all night. He pushed her, and threatened to ring the welfare department so that they would take her 9 year old daughter from her. She followed him to the phone, which she disconnected. He then followed her into another room, threatening to kill her. He pushed her violently against a wall, and she fell to the ground. He took hold of her violently and pushed her upstairs and into the bedroom, where she fell on to the bed. He turned her over and began to hit her about the face, causing her nose to bleed. She was dragged from the bed and pushed into the bathroom, where she broke loose and ran to a window calling for help. He pulled her back, threw her on to the bed, sat on her and continued to hit her about the head. He turned her on her stomach and forced her arms behind her back. He taped her wrists together. At this stage she began to fear for her life, thinking that his threats to kill her had gone beyond mere angry abuse. He placed more tape across her mouth. She could not breathe properly and began to panic. He dragged her out of the bedroom, down the stairs and into the kitchen. The tape around her mouth came loose and she screamed again for help. She fell on her back, and looked up to see him standing above her with an axe. As he brought it down at her she closed her eyes and turned her head away. He was shouting that he was going to kill her. She heard the thud of the axe as it hit the floor. Her eyes were still closed. The handle fell against her head.

6. She was then dragged to her feet, forced outside and into a car. The police arrived just as Beadman was about to get into the car.

7. The police sergeant observed blood on her hair and around her nose and upper lip. Her hands were tied behind her back with black insulation tape. The police untied her.

8. When she was taken to the police station, the medical officer observed multiple places where she had tender, raised, soft tissue and swelling on her scalp, her ears, the right side of the face, upper lip, arms and back.

9. Later that day she saw Dr MacIver. He observed the bruising on her face, wrists and arms. She was obviously distressed and anxious, and he prescribed Diazepan, an anxiolytic, and Normison, a hypnotic, to calm her down and help her to get some sleep.

10. About a month later, on 23 July 1988, she presented again to Dr MacIver, claiming to be a nervous wreck, and having problems sleeping. He referred her to Dr Knox, a consultant psychiatrist.

11. There is no report in evidence from Dr Knox, but a report from Dr MacIver dated 22 November 1989 summarises his views, and some of the applicant's previous history. Dr MacIver's report is as follows:

"Melanie has been attending my practice since 1983. She has seen
a couple of psychiatrists over this period. She has a history of
alcohol abuse and was seen by Dr William Knox, a consultant
psychiatrist, who wrote to me on 3 August 1988 advising me that
Melanie has had a very troubled life on account of instability in
her family of origin and then an unstable and sometimes violent
marriage and other distressing inter-personal relationships during
her adult life. He felt that things were brought to a head in a
murder attempt on 26 June 1988 by her then current defacto husband.
On top of the anxiety suffered by this lady over earlier years, she
now had a more acute reaction from the trauma of the violence during
the murder attempt. He goes on to state that this lady has abused
alcohol in the past and there are features of personality disorder.
He felt there was a depressive element present. Although there
is no family history of gross psychiatric illness, the father was
a violent man who abused alcohol. Melanie's mother suffered severe
burns when Melanie herself was aged 13 and she was taken out of
school to care for her mother. Her sister suffered brain damage in
a motor vehicle accident at age 10. He stated that Melanie had
spent some time in Calvary Hospital in 1981 following the breakdown
of her marriage and that over the previous several years had
received counselling from psychiatrists and other counsellors.
He wrote to me again on 22 August 1988 when he had seen Melanie for
one further session of counselling. He was due to see her again
recently but she didn't keep her appointment. He stated that
Melanie does have a chronic personality disturbance.
I also have on file a Discharge Summary from Calvary Hospital when
she was admitted on 2 October 1985 and discharged on 31 January
1986. She was under the care of Dr Mickleburgh, a consultant
psychiatrist. She was admitted for suicidal behaviour and a
relationship problem. Her diagnosis on discharge was Alcohol
Abuse/Personality disorder ("Explosive" Personality).
When I last saw her on 30 October 1989 she advised me that she
was currently undertaking counselling. She appeared to me to be
very stressed and I had prescribed an agent to help her relax (3
October 1989).
In my opinion she requires regular counselling. She may also
require further psychiatric help."

12. Two matters are apparent from that history. The first is that it is not possible to attribute all that she suffered after this assault to that single criminal act. The second is that she was a very vulnerable person before she was attacked, and such a violent and terrifying incident had a devastating effect upon her. But it is simply not possible on the evidence presented in this application to point to a time and say that by then the effects of the assault were spent. Neither is it possible to point to any particular time after the assault and say that she was then suffering any particular symptoms as a result of it.

13. But the long and tragic series of traumatic events in her life had not yet finished.

14. On 3 October 1989 she presented to Dr MacIver in an acutely anxious state, advising him that she was on drug charges. He advised her to get counselling, which later that month she was doing. He continued her on anxiolytic drugs.

15. During 1990 she was involved in two court cases, one involving drug charges and the other concerning custody of her children. It appears from later evidence that custody was awarded to the father, although she was allowed access to them.

16. In November 1990 she was living at Reid in the Australian Capital Territory, when the events happened which gave rise to the second of these two applications.

17. On 25 March 1991 Ross Clifford Bates was committed by the Magistrates' Court for trial in this Court on charges of inflicting actual bodily harm upon the applicant with intent to engage in sexual intercourse with her, of engaging in sexual intercourse with her without consent, of assaulting her, and of threatening to kill her. The offences were alleged to have happened on 28 November 1990. Bates committed suicide before coming before this Court.

18. The applicant had known Bates for about 5 years. The acquaintance had been casual until about 3 months before the assault, when she began to see him more frequently. On one occasion about a month before she had consented to sexual intercourse with him. Thereafter the relationship went back to just being a friendship.

19. On the evening of Tuesday 27 November 1990 the applicant went alone to a club in Civic, which was about a ten minute walk from where she was living in Reid. After she had been there for a little time Bates came to join her at the bar, and they spoke together for a few minutes. During the evening Bates was drinking. At one time she kissed him, but pushed him away when he then tried to bite at her breast. Later in the evening Bates had an argument with a female friend, during which he kissed the applicant in front of her. The applicant said goodbye to him and left the club, intending to walk home.

20. Bates followed her, caught up with her and asked whether she wanted a lift home. She said no, because he was too drunk to drive, but offered to drive him. He gave her the keys and she drove his vehicle to her home. During the journey there was an argument, during which he hit her with his open hand on the face. When she reached home she stopped the car on the roadway. He abused her. She got out of the car and ran from him. He chased and caught her, and slapped her three times with an open hand. He then dragged her inside her house through the back door. She was frightened and crying, pleading with him to stop. She struggled free and ran out the front door screaming for help from her neighbour. He dragged her back inside, carrying her so that her feet were off the ground. He threw her on the lounge and hit her again about the face a number of times. She escaped and ran to the stair, where he caught her again, took hold of her hair and used it to hit her head against the stair railing five or six times. He then dragged and carried her upstairs to the bedroom, where he threw her on the bed, continued to assault her, pulled her underclothing off and forced sexual intercourse on her. Without going into more detail, he was violent, penetrated her a number of times, and forced a number of other indecencies upon her. She was terrified, and resisted as best she could. The assaults continued over a period of 15 to 20 minutes, and ceased only when police arrived at the bedroom door. She covered herself with a dressing gown, and was led out into another room, while one of the police stayed with Bates.

21. On examination at the police station she had dishevelled hair, bruises on her scalp, left upper arm, left face, left eye, lower lip and left breast, and the appearance of a bite on her left breast. The internal examination revealed tender and swollen mucosa. A doctor from the locum service prescribed medication. In April she saw Dr MacIver, who again prescribed Murelax and Normison.

22. In about October 1991 she met Mr Mark Terrence Carr, who later became her de facto husband, and who gave evidence in the application. He helped her to move away from Canberra to Batemans Bay. There she came under the care of Dr Wray, who in July 1992 reported as follows:

"I have known Melanie for about 12 years but I had not seen her for
many years until she presented to our practice in Moruya in November
1991.
Her history included substance abuse including injected drugs and a
long history of alcohol abuse. Melanie had been separated from her
children for some time and related the instance of her rape.
Melanie attended our surgery on the following dates: 20.11.91,
28.11.91, 19.12.91, 23.12.91, 3.1.92, 17.1.92, 31.1.92, 18.2.92,
5.3.92, 18.3.92, 31.3.92, 10.4.92, 28.4.92, 28.4.92, 5.5.92,
15.5.92, 28.5.92, 4.6.92, 17.6.92, 29.6.92, 17.7.92.
When Melanie presented to the surgery, our main aim was to
reduce the amount of medication she was consuming and so a
reduction plan was introduced.
There were no residual physical signs from the sexual assault
and whilst Melanie's psychological state was disturbed, it is
difficult to separate the effects of the rape from her longstanding
drug dependence.
On 28.4.92 Melanie attended the surgery with bruising as the
result of falling up some stairs the previous weekend. The bruising
was extensive and involved the chest wall and leg. Recovery was
uneventful.
Melanie was distressed when I last saw her on 17.7.92 and was more
than usually anxious and depressed. She had the added burden of
bronchitis as the result of her cigarette smoking and infection.
She said that she had been 'going through hell' because of the rape.
She states that she sleeps poorly, has bad dreams, poor sex life
and is a 'nervous wreck'.
I consider that Melanie has many problems to which the rape has
been an added burden however the pattern of her substance
consumption has not altered significantly since the sexual assault."

23. At about the time of that last visit to Dr Wray she attempted suicide by overdose of prescribed medications. She was referred by the local hospital to Mrs Quinnell, a social worker with the Moruya Community Health Service. Mrs Quinnell, in a report of 24 August 1992, made the following comments:

"Dates of Therapy Sessions:
10th, 23rd March; 6th, 15th, 27th April; 18th May; 10th,
24th June; 15th, 22nd July; 5th, 18, 24th August.
REASON FOR REFERRAL
Ms Johnston was referred to the Moruya Community Health Service
for counselling following a suicide attempt in March 1992. The
main issue for Ms Johnston at that time was dealing with the
severe emotional trauma of the past rape and physical assault
experience. Ms Johnston has again recently attempted suicide,
(date 10th August 1992) while experiencing flash backs of the rape.
HISTORY
Melanie Johnston is presently living with her fiancee Mark and his
daughter Kyle, at the above address. Melanie has a son 15 years
and a daughter 13 years, living with her ex-husband in Victoria.
She has access to her children during school holidays.
Ms Johnston moved from Canberra to Broulee in October 1991. Ms
Johnston in this time has established very few social supports
outside her relationship with Mark.
In November 1990, Ms Johnston was living at 44 Booroondara Street,
Reid, ACT. On the evening of the 27th November Ms Johnston was
sexually and physically assaulted in her home. The man convicted
of this crime committed suicide soon after. Ms Johnston claims to
then have been physically and psychologically tormented by the
family and friends of the perpetrator, who blamed her for his
suicide.
It was for these reasons that Ms Johnston was forced to leave
Canberra and now experiences extreme anxiety attacks whenever she
returns there.
The trauma of this sexual assault is intensified by the fact that
Ms Johnston was a victim of a violent crime in 1988.
ASSESSMENT
Ms Johnston presents as an extremely anxious woman who uses humour
and a "casual" exterior as a protection from her underlying fears
and emotional chaos.
Ms Johnston reports the following symptoms following the rape:
. Sleep disturbance (waking each night).
. Vivid nightmares of attack three to four times a week.
. Dependent on valium and sleeping tablets to relieve extreme
nervous tension.
. Reports increase in intake of alcohol and cigarettes.
. Experiences sexual inhibition and fears and is unable to
establish a safe sexual relationship with her fiancee.
. Distorted body image.
. Mood - swings, irritability.
. Reports difficulty in forming social contacts (which has
exacerbated her isolation and depression).
. Suicidal ideation and intent.
TREATMENT
Over thirteen sessions Ms Johnston has received counselling
addressing the emotional and psychological legacy of the sexual
assault. Techniques utilised have included Post Traumatic Stress
counselling, Stress Management techniques, Communications and
Relationship skills, Grief counselling, Self esteem and body
image awareness.
Ms Johnston has also received supportive counselling, advocacy
and advice as other life crises have arisen throughout this
period of contact.
Ms Johnston has been regularly attending Dr Jenny Wray's surgery
for prescription valium, sleeping tablets and for emotional support
in this time. It has been felt by Dr Wray and myself that Ms
Johnston required this temporary medical support.
ASSESSMENT
It is my opinion that Ms Melanie Johnston has suffered severe
psychological and emotional damage as a result of being sexually
assaulted.
It is impacting on every facet of her life and has placed her
life in danger with the possibility of suicide being a reality
that cannot be ignored.
She has had two attempts since the sexual assault.
The aim of therapy with Ms Johnston is to allow her to ventilate
her feelings and fears to achieve some level of emotional healing
and to develop her skills and strengths to now continue her life
with some stability. It is likely that her dependence on alcohol
and medication will continue for some time, but this will be
closely monitored, along with her suicidal tendencies."

24. Both the applicant and Mr Carr gave evidence about the strain that her reaction to the rape has placed on their relationship. He also confirms that she has, with Mrs Quinnell's help, begun to have some success with her attempts to overcome her drug dependence. I have no doubt that his support and compassion will also help her to build up her self image. But the healing process has, it seems to me, only just begun, and it can not be said with certainty that it will ever be complete.

25. It is true that not all her present disabilities can be attributed even to both of the criminal injuries taken together. Despite the difficulties involved in trying to sort out the aetiology of her present sufferings, I think it is also true that, even before the first assault, her previous experiences had left her with a fragile personality, liable to be harmed the more easily and the more severely by those crimes against her.

26. Counsel for the Territory did not submit that there were any matters arising under S.15 of the Act that needed to be taken into account.

27. Terrifying though it was, the assault which was the subject of the first application did not leave any long lasting physical effects. It did, In Dr MacIver's opinion, cause a deterioration in her general mental and emotional condition, resulting in some exacerbation of her depression and personality disorder. For her pain and suffering I would award $10,000. The costs of bringing the application were $100.00. I award compensation pursuant to application CIC 95 of 1988 in the sum of $10,100.

28. Not only was the assault in 1992 more violent, more prolonged, and aggravated by the sexual nature of the acts committed against the applicant, it obviously resulted in psychological trauma that was much more long lasting, which is still identifiably present, though lessening, and from which it is not possible to say when or even whether she will completely recover.

29. In respect of that injury I award for her pain and suffering the sum of $30,000. The expenses of bringing the application are agreed at $235.00. Pursuant to application CIC 26 of 1992 I award compensation to the applicant in the sum of $30,235.