v [1994] ACTSC 125 (1 December 1994)

SUPREME COURT OF THE ACT

V
No. CIC 105 of 1994
Number of pages - 7
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Criminal Injuries Compensation - Multiple assaults - Offender not charged in respect of some assaults - Committed for trial to Supreme Court on others - Jurisdictional difficulties - Need for reform.

Criminal Injuries Compensation Act 1983, s.11

CIC 33 of 1993 (Supreme Court of ACT, Miles CJ, 14 April 1994, unreported).

HEARING

CANBERRA, 22 September 1994
1:12:1994

Counsel for the Applicant: Mr Z Gabriel

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

1. The publication of any particulars likely to lead to the identification of the applicant or of the offender who caused her injuries is prohibited.
2. Compensation be awarded to the applicant in the sum of $75,000.00 in respect of the Criminal Injuries within the jurisdiction of the Supreme Court.

DECISION

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

2. On 22 September 1994 I made an order prohibiting the publication of any particulars likely to lead to the identification of the applicant or of the offender who caused her injuries.

3. The application as amended seeks compensation in respect of injuries sustained by the applicant, caused by criminal acts of B on 17 named dates between 2 July 1992 and 14 September 1993, and a number of times in October 1992 of which the dates were not known, (listed (a) to (r) in the amended application).

4. On 9 May 1994 B was committed for trial to this Court on 14 charges, relating to assaults of various types alleged to have occurred between those dates. Some of the formal charges were alternative offences arising out of the one incident. The dates of the incidents involved were 5 July 1992 ((c) in the amended application), 11 November 1992 (5 charges) ((i) in the amended application), between 30 September 1992 and 1 December 1992 ((g) in the amended application), 18 December 1992 ((j) in the amended application), 21 May 1993 (2 charges) ((l) in the amended application), 15 July 1993 (2 charges) ((m) in the amended application), 8 September 1993 ((q) in the amended application) and 14 September 1993 ((r) in the amended application).

5. When the indictment was presented in this Court on 5 August 1994 there were only 3 charges, namely those of negligently causing grievous bodily harm to the applicant on 11 November 1992 ( (i) in the amended application), assaulting her on 18 December 1992 thereby occasioning to her actual bodily harm ( (j) in the amended application) and assaulting her on 8 September 1993 ( (q) in the amended application).

6. B pleaded guilty to those 3 charges, and on 7 September 1994 he was sentenced to cumulative terms of imprisonment of 6 months, 6 months and 3 months respectively.

7. As a result of the provisions of S.11 of the Criminal Injuries Compensation Act 1983, I have jurisdiction to award compensation only in respect of the injury suffered as a result of the criminal acts in respect of which B was committed for trial in this Court. Those acts occurred on only 8 of the dates referred to in the amended application.

8. The Registrar has jurisdiction to award compensation in respect of injury suffered as a result of the other ten incidents, referred to in the application, but in respect of which formal charges were not laid, either in this Court or in the Magistrates Court.

9. When I have determined the matters within my jurisdiction the balance of the application will then be dealt with by the Registrar.

10. This is an imaginative and proper attempt by the legal advisers of the applicant to overcome the difficulties caused by the structure of S.11 of the Act, but it is necessarily imperfect. It involves extra expense and the trauma of an additional appearance by the applicant. I call again for reform of the Act. I most respectfully agree with the remarks of the Chief Justice in CIC 33 of 1993 (Supreme Court of ACT, Miles CJ, 14 April 1994, unreported), in which he said that,
"At least in applications for criminal injury brought in the Supreme

Court, regard might be had to the whole of the criminal conduct
which contributes to the victim's condition, regardless of whether
charges are laid, or the Court in which charges are laid, or whether
convictions are recorded."

11. That decision of the Chief Justice also affords guidance to the proper approach to deciding cases such as the present, and I respectfully propose to adopt and apply his remarks in that case, where he said,

"I would also observe that legislation which enables victims of
crime to obtain compensation for prescribed injuries does not
concern itself with nice principles of causation. In my view, the
broad brush approach is particularly appropriate in this area. In
any event, I do not see any violation of principle in awarding
compensation to a victim without reduction by reason of contribution
to the victim's condition by such of the offender's conduct which
falls outside the criminal conduct relied upon and in respect of
which compensation is sought."

12. Nevertheless, in order to avoid double compensation, it is necessary to identify precisely for what injury I am awarding compensation, so that the Registrar may deal with the balance of the application.

13. Counsel for the applicant and for the Territory submitted, and, in the light of the remarks by the Chief Justice to which I have referred, I agree, that the psychological effects on the applicant of the whole course of conduct should be dealt with by me, leaving the physical effects of the particular incidents, detailed in the application, and in respect of which charges were not laid, to be dealt with by the Registrar.

14. The applicant formed a serious personal relationship with B in March 1992. They began to live together in April 1992, and in October 1992 the applicant became aware that she was pregnant. Her daughter was born on 19 May 1993.

15. By July 1992 B's violence had reached the stage where the applicant had decided to seek a domestic violence restraining order. On 5 July 1992, before it had been served on him, he punched and kicked her, and threatened her with a kitchen knife. She went to a neighbour's house, but he found her there and forced her back home. The police were called, and she spent some time in discussions at the police station, but she declined to proceed to criminal charges against him. She had a bruised nose and cheek and, fearing for her safety, stayed at a Women's Refuge for a few days.

16. On 21 July 1992 she was admitted to Calvary Hospital Emergency Department, suffering from an overdose of medication and alcohol, and with her wrists cut. She was worried that she had become HIV positive. She was noted to have multiple bruises to her limbs and trunk. She was admitted for 2 days.

17. On an occasion in October 1992, of which the date is not known, B's brother and a male friend were also living at the flat occupied by the applicant, together with two of B's children from a previous relationship. He was continually ordering her to do things, such as bringing beers and keeping the children quiet. He pushed her, so that she fell over a chair. When she got up he hit her in the face. His brother protested. She went upstairs. He followed and accused her of trying to attract the other men. He hit her a few times around the head and body, lifted her up and threw her across the landing. She was winded. He then began to kick her in the ribs, and hit her as she attempted to get up.

18. After the attack ceased she stayed upstairs for a while. Eventually she returned to the kitchen. He ordered her to do something, and she told him to do it himself. He stood up saying, "Right, now you're going to cop it, you bitch". He walked to the kitchen. She was afraid that he was going to assault her again. She was holding a knife as he came towards her. The knife was taken from her. B walked out the door and fell down. He was later taken to Calvary Hospital by his brother, suffering from a stab wound to the stomach. She was interviewed by police, but no charges were laid.

19. On 11 November 1992, in the morning, B was still under the influence from a drinking bout the night before. He was abusive to the applicant because his wound was leaking. There was an argument. He took a kitchen meat cleaver from a drawer, grabbed her by the neck and pushed her face first into the wall. He placed the cleaver across the back of her neck, and threatened her with words like, "I'll show you what it's like to be cut" and, "I might go all the way and kill you."" She was terrified, and pleaded to be let go. He eventually let her go, and walked away. As he did he overturned a table. She knelt down to clean up the resulting mess. Her back was to him. Se felt a sharp pain in her right ankle. She screamed, and saw that her ankle was bleeding profusely, and the cleaver was on the floor nearby.

20. B put a towel around the ankle, and rang his brother. The police arrived. She was taken by ambulance to Calvary Hospital.

21. On examination she had a 2 inch deep laceration to the right ankle. There was no tendon or nerve damage. The laceration was sutured with 9 sutures, and she was advised to have them removed after 7 days. She attended Dr McGuiness at Belconnen Health Centre on 20 November 1992 for care of the wound. The wound healed, but has left a scar which appears to be permanent.

22. On 18 December 1992 the applicant and B went to a club in Belconnen. There was an argument. He ordered her out of the club. He attacked her in a laneway between the Rugby Club and the Labour Club. The incident was reported to the police, who arrived soon afterwards.

23. She had been punched and kicked a number of times. The police arrested B, but the applicant refused to cooperate with the police or the Domestic Violence Counselling Service, as she was frightened of what he might do to her if she did.

24. On 21 May 1993 she had just come home from hospital with her 2 day old baby. He objected to her going upstairs instead of staying with him. She told him to shut up and leave her alone. He said, "Now you've made me angry, bitch". He grabbed her and held her against the wall by the throat. She lost consciousness, and came to lying on the floor, while he yelled at her to get up. The kitchen bin had been knocked over, and there were things from the shelves on the floor. He ordered her to clean up the mess. Terrified, she did so.

25. On 15 July 1993 the applicant and B had been drinking. He became angry with her. After a number of minor assaults during the day she told him she was going out. She was afraid of being hurt if she stayed. He grabbed her by the hair from behind and hit her head on the stairs. Her forehead was lacerated. He tried to apologise and help, but she struggled free and left the flat. A friend drove her to Calvary Hospital. The hospital recorded a large 3 inch laceration over the left side of the forehead, which was repaired with 10 sutures. Tenderness over the left jaw was also noted. Xrays of her skull and jaw disclosed no bony injury. When a member of the St Vincent de Paul Society visited about a week later she tried to hide her face from him. On 30 July he noted that her face was still swollen but healing.

26. On 20 July 1993 Esme Bracken, a case worker with the Family Services Branch, the Statutory Agency responsible for child protection, became involved. She noted a number of instances of assault, when the applicant was too afraid of B to take any action.

27. On 8 September 1993 there was an argument about the children. He threatened to take her daughter from her and have her locked up in a mental asylum. There was a scuffle, in which she received sore ribs and a sore back. B picked up the child and went to walk out with her. There was another struggle. He hit her in the face with his fist. He then ran out of the flat with the baby. She later consulted Esme Bracken, who took her to Calvary Hospital, where a painful right chest wall and back was noted. Xrays of the chest and ribs were taken, but revealed no bony abnormality. She was given analgesics and allowed to leave.

28. On 14 September 1993, after the applicant had gone to bed, B arrived home under the influence. He accused her of playing around. He punched her in the ribs, knocking her down on to the sofa. He then lit a cigarette lighter and threatened to burn her and the house. He put the lighter near her hair. She was afraid to leave. Eventually he went to sleep at the table.

29. When he left the house the next morning the applicant went to see Esme Bracken, who recorded her fear of fire and her humiliation.

30. The Domestic Violence Crisis Service had been in touch with the applicant since July 1992. At last she was persuaded to take action. On 17 September 1993 the Service supported her at the Magistrates Court, where she was granted an interim Domestic Violence Protection Order. On 24 September 1993 a twelve month protection order was made. The Service also helped her in an application to avoid eviction. B had been taking her money from her, but had not been paying the rent.

31. On 23 September 1993 she began a counselling course at the Alcohol and Drug Service at Woden Valley Hospital. She attended 8 sessions, the last being on 9 December 1993. In May 1994 the counsellor reported as follows,

"On initial presentation it was noted that V was obviously
malnourished and shaking constantly. She was also described as
having a scar on her forehead which she claimed was the result
of being thrown into stairs.
A history taken of V's alcohol and drug use revealed regular
social drinking from age 24 and some occasional use of other
drugs, including cannabis and amphetamines. Excessive
consumption of alcohol (> one litre of wine) was stated as
occurring at age 29, concurrently with abuse of antidepressants
and tranquillisers. V related escalation of her substance
abuse to her abusive relationship with her ex-partner, B.
Indeed, V claimed abstinence from alcohol and drugs following
her separation and throughout the therapeutic process. She
also claimed to have reduced her consumption of caffeine and
cigarettes.
The major focus of sessions was on V's experience of domestic
violence, coping strategies and practical considerations around
this at the time. V's counsellor noted an extremely violent
18-month relationship with her ex-partner, who had become
increasingly more violent and controlling over her behaviour.
V claimed that he had been manipulative, labelling her as
psychotic and attempting to undermine her stance. V engaged in
discussions about the dynamics underlying domestic violence,
and was provided with support and encouragement in relation to
decisions which she was making at the time. It would appear
that V clearly identified with the information she received
about the nature of domestic violence. V's counsellor noted
her astonishment at receiving information about the cycle of
violence and associated thoughts and behaviours which commonly
occur among victims of domestic violence.
It is difficult to determine the impact of V's experience of
domestic violence on her psychological well-being from the case
notes. What is apparent from the notes is that considerable
attention was paid to V's abusive relationship with B, and
practical considerations surrounding her situation. While a
substance abuse history was taken and strategies for avoiding future
drug and alcohol abuse discussed, V's stated abstinence
would appear to have precluded the need for a major focus on
this behaviour."

32. The history given by the counsellor is supported by a report from Dr McGuiness, who was the applicant's general practitioner from February 1992 until February 1994. At that later date, Dr McGuiness reported, she was re-establishing herself, emotionally and financially. She was still afraid and experiencing strong and painful emotions such as anger. Given the prolonged nature of the violence, Dr McGuiness expected that she would need continuing treatment for several years. Her employment opportunities would be limited.

33. Her next general practitioner referred her to Dr White, consultant psychiatrist, who saw her on 4 May 1994. He remembered having seen her in intensive care at Calvary Hospital in July 1992.

34. On examination he noted the scar on her forehead. She was cooperative, but moderately anxious in mood and affect. She was still afraid of B.

35. Dr White made a formal diagnosis of an anxiety disorder of Post Traumatic Stress Disorder. He also reported that the psychological effects of her experience had made her chronically fearful, very concerned for the well being of her child, and she had difficulty with basic trust in people. He also reported that further treatment was indicated, both by monthly counselling and a six week day therapy course at the psychiatry unit at Calvary Hospital.

36. He thought that, given treatment, her prognosis was generally good. He continued,

"I anticipate that she will suffer some very long term
psychological sequelae, but with a stable, supportive environment
this should be tolerable, and should gradually improve over time. I
consider she will become fit to return to work. The work should be
appropriate; she has been too long out of work to be current to
return to hairdressing and did not in fact complete her
apprenticeship. She would be suitable initially for part time or
casual work."

37. The injuries received as a result of the eight incidents within my jurisdiction were each separate criminal injuries, and subject to the limitation imposed by s.7 of the Criminal Injuries Compensation Act 1983. None was so serious as to attract an award of $50,000, but it is obvious that the total award may well do so.

38. I do not propose to set out a fixed amount in respect of each individual incident, but to take into account those that are within my jurisdiction, and the overall psychological effect of the course of conduct upon her.

39. It must be borne in mind that there were eight incidents. The most serious were those in respect of which the offender was sentenced and that on 15 July 1993. The applicant is left with a scar on her ankle which is permanent, and another on her forehead, less noticeable on direct inspection, but which is also probably permanent.

40. Her income earning capacity has been adversely affected, and will be so for some years, but her child is so young that she may well have not attempted to obtain work for some time in any event. Although there should be some weight given to that loss, it should not be great, and the amount to be awarded in respect of it can not be separately identified.

41. For the injuries within the jurisdiction of this Court I award compensation of $75,000. Compensation in respect of the balance is to be separately assessed by the Registrar. If there were any sums to be claimed under sections 4 or 6 they may also be awarded by the Registrar.