Application Under the Criminal Injuries Compensation Act 1983 and Fms [1993] ACTSC 59 (25 June 1993)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and FMS
No CIC71 of 1992
Number of pages - 6

COURT

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

HEARING

CANBERRA, 6 May 1993
25:6:1993

Counsel for the Plaintiff: P. Burton

Instructing Solicitors: Pamela Coward and Associates

Counsel for Defendant: K.J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $50,465.

DECISION

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

2. Although a person was committed for trial to this Court by the Magistrates' Court on charges of assault, indecent assault and sexual intercourse without consent, that person was not convicted of any relevant offence. I was also satisfied that it was necessary in the interests of the administration of justice to make an order under S.17 of the Act.

3. I therefore made an order at the hearing prohibiting the publication of any particulars likely to lead to the identification of the applicant or of the person whose criminal conduct is alleged to have resulted in the applicant's prescribed injury.

4. In these reasons I refer to the alleged offender as RH. The transcript of the committal proceedings against him are in evidence on this application. I note that in those proceedings the Magistrate made an Order under S.76D of the Evidence Act that the evidence of the applicant be given in camera.

5. The applicant is a married woman aged about 22 years. At the time of the injury she was single, aged 19. In the words of Dr Rosenman, consultant psychiatrist, "she appears to have been a successful rather 'compulsive' personality. She is the youngest child and only daughter of a highly achieving, highly disciplined household committed to the ethic of service."

6. She was attracted to a service career. Her performance at school was good enough to entitle her to entry to the Faculty of Law in the principal university of her State. However, she applied for a place in, and was accepted by, the Australian Defence Force Academy.

7. Affidavits by officers who supervised and assessed her performance, and copies of contemporaneous service records, attest to her professional dedication. Their evidence also of the contrast between her abilities and personality before and after the assault of which she gives evidence afford to me the most telling corroboration of her evidence.

8. On 24 March 1990 she attended a barbecue at the home of a friend. That friend shared the house with her boyfriend, his brother and RH. The applicant had arranged beforehand with her friend that she would stay the night.

9. Although other people at the barbecue were still up, she went to bed at about 1.00 am. When she was almost asleep she heard some people come into the room and turn the light on. She asked them to leave, which they did. She closed the door and went back to bed. As she drifted off to sleep she heard RH come into the room. She was facing away from the door. He sat on the bed and began to caress her back. She told him to leave. He hit her with the back of his left hand on her left cheek. She turned away from him. He got onto the bed and took her pants off. She was crying and telling him to stop. She rolled up into a crouched position, lying on her side and facing away from him. He penetrated her vaginally from behind. As he was doing so the door opened and her friend came into the room and left again, closing the door, which had no handle on the inside. She eventually managed to get away from him and put on her underpants and track suit. RH jumped out the window, and went around into the house and opened the bedroom door. She immediately took her bag, left the house and drove back to the Academy. She was afraid to be alone and stayed with a friend at the Academy. He gave evidence at the committal proceedings about how upset she was when she arrived at his room in the early hours of the morning. He calmed her down and she slept for a while in the chair in his room.

10. Later that following day, 25 March 1990, another friend took her to his home, where she met his mother, an experienced nursing sister. She noticed how frightened and upset she was, and the following day took her to see Dr Shannon at the Military Hospital. She stayed in that home for a week, in obvious distress, before returning to the Academy. When she did return she was unable to cope, and was granted leave of absence.

11. Dr Shannon gave evidence at the committal proceedings that she examined the applicant at about 9.00 am on Monday 26 March 1990. She noted a faint bruise on the left zygomatic region of her face, a bruise on the right upper buttock, a bruise on the right back of the mid thigh, a small bruise 3 centimetres below that, and a faint bruising mark on the front of the right thigh. There was swelling of the introitus of the vagina and there was quite a marked tenderness to the examination of that area.

12. The suggestion was made during her cross examination that the bruising could have been caused by her falling off the bed. One comment that might be made about that suggestion is that if it were true about the bruise on her face it would be quite consistent with her leaving the bed hurriedly to escape her assailant. But I am more inclined to the view that the injuries described by the doctor bearing in mind their position on her body, are more consistent with the applicant's having been assaulted in the manner that she described than with any other cause.

13. During that cross examination, a lot of time was spent and many questions were directed at suggested variations in the complainant's versions of what had occurred, particularly with reference to whether her assailant attempted sexual intercourse with her before he hit her, or whether he hit her before he sexually assaulted her.

14. These issues were not explored during the hearing of this application. On reviewing the evidence I am convinced that the decision not to do so was a proper one. There was nothing in that cross examination that would cause me to doubt her evidence. In coming to that conclusion I also take into account the evidence given on the committal by the friend at whose house the events took place. She confirmed that RH left the bedroom through the window, that shortly after the bedroom door was opened the applicant drove away, and that RH said to her shortly afterwards that the applicant had become upset and asked him to leave. Those uncontested facts are more consistent with the applicant's version of events than with any inference from other circumstances that she was consenting.

15. After the committal proceedings a decision was made by the Director of Public Prosecutions not to proceed to trial of RH. The reasons for that decision are not in evidence. On 11 April 1990 the applicant had made a written statement to a Constable at the Sexual Assault Unit, in which she said

"Due to lack of police evidence and what my 'so called friends'
have told the police, I want to withdraw my complaint. I don't
want the matter to proceed to Court. I don't want any further
police action to be taken.
What I told to Constable Slater was the truth and the sexual
assault did happen but because of the circumstances I don't want
the matter to proceed."

16. Her friend gave evidence at the committal proceedings that when she came into the room and went out again, closing the door, she gained the impression that what appeared to be happening was happening with the applicant's consent. That suggestion was not put to the complainant in terms during her cross examination, but this was at the committal proceedings, not the trial.

17. Evidence was also given that the applicant was affected by alcohol, which evidence the applicant denied both at the committal proceedings and in these proceedings. If faced with the choice, I would be inclined on the evidence before me to accept the applicant's version.

18. But the prosecuting authorities may have taken into account the possibility that the defence might call evidence at the trial to that effect. Since, at the trial, the prosecution is required to prove its allegations beyond reasonable doubt, there would be at least the possibility of an acquittal, even by a jury which might be inclined to accept the applicant's evidence on the balance of probabilities. That possibility, combined with her expressed desire that the matter should not proceed, may have been the explanation for the decision not to go to trial. I do not criticise the decision. It may have been compassionate. She has been spared the trauma of a further trial. There is simply no evidence before me of what the reason was. But even if there were, the decision not to proceed to trial would have no probative value in this application.

19. But I am convinced, as I have said, by the evidence of the effect upon her of the incident, both expert medical opinion and observation of fact by unimpeachable witnesses, that the statements she made to the police and the evidence she gave on oath at the committal proceedings were true and accurate.

20. Immediately after her initial visit to Dr Shannon she attended the Rape Crisis Centre. An administrator at the Centre gave evidence that when she attended there she was distressed and emotional.

21. Dr Shannon referred her to Dr Tennant, consultant psychiatrist, whose report is in evidence. She attended Dr Tennant at approximately monthly intervals over the rest of 1990. Dr Tennant noted that she was depressed and anxious. She was having great difficulty coping at the Academy. This is confirmed by her supervisors. She could not concentrate. She could not sleep. She had lost confidence in herself. She had lost trust in men.

22. Although she gradually improved with the anti depressant therapy she continued to have problems.

23. Dr Pyne, an Air Force Medical Officer, reported that the psychological and physical trauma resulting from the assault prompted her to push herself even harder with her physical training. She had a developmental spondylolisthesis at L5/S1, which had not caused her any problems before, despite the vigorous physical activities involved in Academy training and her normal love of sport. As she pushed herself to the limit she began to suffer back ache. While on a cross country run in May 1990 she fell, and suffered an acute exacerbation of her back pain. Her back condition deteriorated to the extent that surgery became necessary to relieve the pain. In August 1990 Dr McNicol performed an anterior lower lumbar spinal fusion to alleviate it. Dr Pyne certified that if the assault and the increased physical training had not occurred he would have expected her back to give her little, if any pain, and doubted that she would have required the surgery.

24. When Dr Tennant saw her in October 1990 she was wearing a spinal brace. She was still depressed and taking anti depressant medication.

25. As a result of the back injury her career prospects were adversely affected. She can not be posted to positions which may require heavy lifting, or be required to undertake field or tactical deployments. She received official notification that she might not be as competitive for promotion to squadron leader as her peers. She was given special consideration in her academic assessments, and successfully completed the Academy course. As a result of her distress over the balance of her course, however, she did not achieve the high marks or standards that she had every expectation of achieving before the assault, and that also has affected her career prospects.

26. Early in 1991 she met the man who was to become her husband. They married in April 1992. He is obviously compassionate and understanding, but also gave evidence of her continuing stress disorders.

27. In March 1993 she was seen by Dr Lowenstern, consultant psychiatrist, initially concerning the possibility of plastic surgery not related to this application. He subsequently saw her on five more occasions. His detailed report is in evidence. There is no need for me to recapitulate all that he noted. She still displayed some symptoms and signs of depression, although he considered it mild in severity. His conclusion was as follows:

"This young woman is suffering from Post Traumatic Stress Disorder
and displays the typical features including Anxiety/Depression and
relationship disturbance as a result. This is attributed directly and
is completely consistent with her reported rape. This is not something
that will 'magically' resolve itself in time. She still experiences
considerable distress related to the experience, her self-image has
suffered as has her confidence and self-esteem, her relationship with
her family members and friends have been greatly affected and none
least her relationship with her husband.
She will require ongoing treatment in the form of Supportive
Psychotherapy for some time to come - probably of the order of years
rather than months.
I would anticipate that over time she will be able to resolve most of
her feelings related to this experience because of her intelligence and
maturity. She will, however, be highly unlikely to be able to
'forget'.

28. Dr Tennant also reported in April 1992 that she was no longer clinically depressed, but that she still suffered a post traumatic stress disorder, which had gradually improved, but that she still had residual problems, some of which will never completely go. She suffered no loss of income as a result of her suffering. I make it clear that the whole of this award is for pain and suffering and loss of amenity, and not for any economic consequences of the assault.

29. I am satisfied that the assault was causally connected with the damage to her back and the necessity to undergo the operation. I do not think that on common law principles of causation that finding is inconsistent with the determination of the relevant departmental authority that her RAAF service has aggravated her pre-existing spondylolisthesis. But even if that were not so I do not think it would make much difference to this award.

30. It must be remembered that the measure of the award is to be equated with the damages that she would receive at common law in an action for assault against RH. There was some physical violence associated with the assault, but that is the least of the components calling for compensation. Sexual intercourse forced upon any woman is an assault of a uniquely harmful character. In this case it resulted in more than mere distress, and more than traumatic stress disorder. There was a clinical depression for which she needed treatment by a consultant psychiatrist, which lasted for more than a year. Some of the effects will probably remain with her for the rest of her life. She is only 22 years old.

31. It is clear to me that on the ordinary principles relating to assessment of damages a complete award of damages for the pain and suffering that she has sustained, and will continue to experience for an indefinite time, would exceed the limit imposed by the legislation.

32. For her pain and suffering I award the sum of $50,000.

33. The expenses of bringing the application were $465.00.

34. I award compensation in the sum of $50,465.