Criminal Injuries Compensation Act 1983 and Ss [1993] ACTSC 45 (23 April 1993)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and SS
No. CIC2 of 1990
Number of pages - 5

COURT

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

HEARING

CANBERRA, 4 March 1993
23:4:1993

Counsel for the Plaintiff: P. Coleman

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Defendant: K.J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

The Court orders that:
Compensation be awarded to the applicant in the sum of $10,635.

DECISION

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

2. On a date proved in evidence "DAM" was charged in this Court with assaulting the applicant on 9 April 1988 with intent to commit an act of indecency upon her, and with committing an act of indecency upon her on that date without her consent.

3. He was convicted on the first count, and, without being sentenced, was released on a bond to be of good behaviour for 3 years.

4. The applicant later brought proceedings for damages for assault against "DAM" in the Magistrates' Court, and obtained judgment against him for $10,000, together with costs which were later taxed at $1,761.65. Attempts to obtain satisfaction of that judgment by various forms of execution have been unsuccessful. I am satisfied that the applicant has taken all reasonable steps to pursue her remedies in respect of the injury.

5. In April 1988 the applicant was 16 years of age, about to begin a secretarial course at Bruce TAFE College.

6. On 8 April "DAM", who was her uncle, arrived with his wife and 8 month old son to stay the night at her home. That evening she went out for the evening to a friend's home. Her mother came to drive her home shortly after 11.00 pm. After spending a little time with her aunt she went to bed.

7. About midnight she heard the noise of an argument between her uncle and aunt downstairs. She went to sleep.

8. She was wakened to find that "DAM" was sitting on her bed, with his arm across her body, outside the bedclothes. As he talked to her he attempted to caress her. He kissed her, but she asked him to leave. The door opened and her aunt came in. He left the room and the applicant heard them quarrelling as they went elsewhere in the house.

9. She drifted off to sleep again. Later the door opened and "DAM" again entered her bedroom. He put one hand over her mouth, and the other under the bedclothes on her pubic area. She struggled and hit at him, while he raised his fist at her and told her to shut up. She was frightened. She was able to hit him, and when his hand was no longer over her mouth was able to scream out. Her aunt again came into the room, and in the light the applicant could see that he was wearing only underpants.

10. "DAM" got off her bed and left her room. There followed an understandable altercation between her parents, her aunt and "DAM".

11. At her mother's suggestion she dressed, and left the house with her aunt and her mother. They went to the police station to report what had happened. On the way the applicant informed her mother and aunt that her uncle had sexually assaulted her on a previous occasion. The circumstances are set out in a report by a consultant psychiatrist to whom she was later referred, Dr Veness. Dr Veness also sets out some relevant information about her prior psychological state, which is broadly consistent with the oral evidence that she gave on the hearing of the application.

12. Her parents had sent her to Radford College, in the expectation of her receiving a good education. She did not relate well to the discipline there, and was transferred to Charnwood High School. There her behaviour deteriorated. She was avoiding school, staying out late and coming home drunk. There were angry confrontations with her parents. She left home to live with a friend. She and her parents attended family counselling. She was in Year 10 at school.

13. When she had been living away from home for about 6 months, in late 1987, she went to visit her uncle and aunt in Sydney. After dinner one evening, as a result of discussions with them, she rang her parents and asked to go back home.

14. Later that evening her uncle and aunt began to fight. When she told him to stop punching his wife he hit her with the back of his hand. She took his 9 year old son out of the house, returning with him some time later when things had quietened down. She put the child to bed and went to bed herself.

15. Soon afterwards her uncle came into the room and got on top of her, making suggestive remarks. She called out, but her aunt did not respond. When she resisted he hit her until she stopped resisting. He forced vaginal intercourse upon her. He went back to his bed and passed out. She showered, drank some beer, and sat up till morning. The next morning, although her face was bruised, she was afraid to tell her aunt what had happened, for fear of aggravating the obviously violent relationship between her uncle and aunt.

16. She returned home to live with her parents. She did not tell them what had happened either. She became even more irritable and reactive.

17. Although the police were informed about the earlier rape when the second assault was reported, in the absence of any corroboration or contemporaneous complaint her uncle was not charged with the offence.

18. This case illustrates yet again the unsatisfactory results of the way in which jurisdiction to award compensation under this Act has been conferred. Dr Veness reports that it is not possible to separate the effects that the second assault had upon her from those caused by the first. What she is suffering from is the combined effects of two crimes. But because no criminal proceedings were brought in respect of the first assault, I do not have jurisdiction to award compensation in respect of its effects. I am forced to attempt what the consultant psychiatrist says is impossible. Again I urge upon the authorities the urgent need for reform of the legislation. I refer to my comments in CIC matters 22/89 (13 December 1991) and 69/89 (4 March 1991).

19. The effects of the assaults were summarised by Dr Veness in his report dated 3 April 1990 as follows:
"EFFECTS OF THE ASSAULT

Soon after the first assault, In September or October of 1987, "S"
returned home to live with her parents. She became even more
irritable, cranky and oppositional. Her moods would swing violently
and when aggravated she would scream and yell, mostly at her
parents. After the second assault, her internal feelings of
depression and her outward behaviour worsened further. She began to
hit her mother, slam doors and bash walls. Things deteriorated so
much that she was again obliged to move out and live with her
girlfriend for a period of four months. She found she could not
stand being in the house alone or sleeping in the bedroom where the
second assault took place. When living at home, she moved into a
room downstairs although her mother tried to persuade her to move
back into her bedroom. "S" 's response to this was to begin to
stay at other people's houses overnight.
Her sleep became disturbed. She was fearful of retiring at night
and was troubled by nightmares. She would wake repeatedly during
the night. This pattern has continued to the present day. In
consequence she feels tired in the daytimes and frequently
develops a headache about an hour after wakening. This lasts
until midday.
She withdrew from friends and associates and dropped her boyfriend.
She would cry frequently and retire to her room a lot of the time.
She also began to drink heavily and smoke cannabis to excess. At
one stage, she was drinking half a bottle of Bourbon every night
but this has now been reduced drastically to only half a bottle
on weekends. She also smokes fifteen cigarettes per day.
She still gets down in the dumps and is subject to marked mood
swings. She still gets cranky and irritable and cries without
obvious reason. Her bad moods may last weeks but then again so
can her happier times. Depressed and elevated moods are split in
time about half and half. When depressed, she gets to the point
of feeling that life is not worth living and experiences suicidal
thoughts.
She has had feelings of being degraded and hates to talk about
the attacks. Sometimes she feels no one loves her and that her
friends do not like her and she has fears of getting fat and ugly.
She has a new boyfriend and speaks highly of him. They have a
sexual relationship but she denies any problems in this area.
However she does worry about losing her boyfriend."

20. She did not perceive that she derived much benefit from the three counselling sessions she had at the Rape Crisis Centre.

21. Dr Veness's conclusions in April 1990 were as follows:

""SS" is still suffering from a severe post-traumatic stress
disorder as the result of sexual assaults made upon her by her
uncle, "DAM". Although she was a disturbed and troubled adolescent
prior to the attacks, I have no doubts that they have aggravated
and prolonged her psychological disturbance which takes the form of
a fluctuating depression. Her recovery from this is only partial
and is quite tenuous. Treatment for her problem has been quite
inadequate but she does not appear motivated for further therapy,
mainly because she is using the primitive ego defence mechanism of
denial. This is very likely to continue to break down in the future
and I expect that she will be subject to even more prolonged
depressive episodes as time goes by.
Her feelings have been compounded rather than relieved by the legal
proceedings that ensued. She was betrayed by her aunt who not only
dropped her own charges against the offender but gave evidence in
support of him at his trial. "S" believes (and I find no reason to
doubt her) that both of them lied during the proceedings. A
transparent excuse of "sleep-walking" under the influence of alcohol
was concocted and although this was evidently not believed by the
jury (for he was convicted) he nonetheless received only a good
behaviour bond as punishment. She feels cheated and has lost
faith in the justice system. It would be very difficult for a girl
of this age to understand the complexities of the legal proceedings
that led to such a result. Her failure to report the first attack
upon her, whilst understandable in its context, no doubt contributed
to the end result.
In summary, this young woman has been severely psychologically
scarred and is still suffering from a post-traumatic stress
disorder. There have been marginal improvements in that she has
been able to develop a new relationship with a young man, she has
been able to live again, albeit not very harmoniously, with her
parents and she has ceased to drink to excess. Nonetheless she is
still subject to frequent and serious episodes of depression and is
struggling with feelings of degradation, humiliation and poor self
esteem. Her prognosis for the future must remain guarded."

22. On the recommendation of Dr Veness she sought help from Dr Judy Collett, a psychologist, whom she saw four times. The sessions helped her a lot, but she had to stop going because her employer objected.

23. In her evidence she stated that her condition has improved, particularly since early 1991. She still gets bouts of depression, but her happier periods last a lot longer. She finished her secondary education at Reid TAFE in 1991, and has embarked on a Marketing Course at the University of Canberra.

24. I am of course not bound in any way by the assessment of damages given in the Magistrates' Court. I do not know what evidence was presented to that Court. I doubt that it had to confront the same jurisdictional limits that I do, so that I assume that it took into account both the assaults and the combined effects of both upon her. I can only comment that if I were empowered to do the same I would arrive at a much larger figure than $10,000. I respectfully and gratefully agree with all that Kelly J said in Re Criminal Injuries Compensation Ordinance 1983 (1984) 58 ACTR 17.

25. As I commented during argument, I regard the first assault as being the more serious, and as causing the greater part of her suffering. Doing the best I can to appreciate the aggravation of her condition that was brought about by the assault the subject of this application, together with the inevitable Court proceedings that followed it, I think that a proper compensation for her pain and suffering is $10,000. She incurred expenses of $475.00 for Dr Veness, and $160.00 for Dr Collett.

26. I award compensation in the sum of $10,635.