Pamela Sue Henderson [1994] ACTSC 131 (15 December 1994)

SUPREME COURT OF THE ACT

PAMELA SUE HENDERSON
No. CIC 240 OF 1993
Number of pages - 9
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Applicant charged with theft - Perjured evidence - Emotional Trauma - Injury - Whether sustained by applicant in the Territory - Dismissal from employment - Not consequence of incapacity for work - Legal Expenses - Not consequence of injury.

Criminal Injuries Compensation Act 1983, ss. 2(1), "Injury", "Prescribed Injury", "Sustained by the person in the Territory", "Aggravation ... of any physical or mental injury", "Criminal Conduct", "Offence", "Prescribed property damage"; ss. 5(1)(a); 6(1)(a), (b) and (c), "Expense reasonably incurred ... as a consequence of the injury", "Pecuniary loss ... consequence of total or partial incapacity for work", "Pain or suffering resulting from the injury".

HEARING

CANBERRA, 1 December 1994
15:12:1994

Counsel for the Applicant: Mr C Todd

Instructing Solicitors: Higgins Solicitors

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

Compensation be awarded to the applicant in the sum of $30,763.00.

DECISION

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

2. The applicant is aged 32 years. Between September 1988 and March 1991 she worked as a bookkeeper and manager at Jaggers Niteclub, in Canberra, a business which was owned by a Mr Wayne Trevor Bawdon and members of his family. The applicant shared a flat with Miss Kim Bokenkamp who also worked at the Club. A Mr George Kokkinis was also employed at the nightclub. Kim Bokenkamp had a sister named Sue Bokenkamp.

3. In March 1991 there was a breakdown in the relationship at work between the applicant and Mr Bawdon. She felt threatened by his attitude. She resigned from her position and moved to Queensland.

4. Shortly after she left, Bawdon, Kokkinis and Sue and Kim Bokenkamp met together. It was in the interests of Mr Bawdon to have it believed that the applicant had stolen money from the nightclub. The others may possibly have believed that she had done so, but that they did not have the evidence to prove it. Mr Bawdon decided to remedy the defect by inventing the evidence.

5. At his suggestion Kim Bokenkamp then made a statement to police alleging that she had seen the applicant taking money from a box containing the nightclub takings, and that the applicant had given her money as a bribe not to disclose the theft.

6. After some investigation a warrant was issued. Two AFP Officers travelled to Brisbane, searched her premises, seized some items, and arrested her. She spent the night in the Brisbane Watch House until she was bailed the next morning to return to Canberra.

7. Committal proceedings were held in the ACT Magistrates Court on 26 November 1992. Kim Bokenkamp gave evidence on oath in accordance with the statement she had given to police. Bawdon, Kokkinis and Susan Bokenkamp also gave evidence on oath. However, only Susan Bokenkamp's evidence specifically corroborated that of her sister.

8. The applicant was committed for trial to the ACT Supreme Court on charges of theft and false accounting. The trial was eventually fixed for 16 August 1993.

9. On 12 August 1993 Kim Bokenkamp decided to tell the truth to an officer of the Director of Public Prosecutions. The trial did not proceed, and the applicant was discharged.

10. Kim Bokenkamp was charged with perjury, and Bawdon, Kokkinis and Susan Bokenkamp with procuring or aiding and abetting her perjury. They were each committed for sentence to this Court.

11. On 24 February 1994 Kim Bokenkamp was convicted by Justice Higgins, and ordered to perform 208 hours of Community Service, enter into a bond to be of good behaviour for 2 years, and to pay a fine of $1,500.

12. Mr Bawdon was convicted on 17 June 1994. He was the principal offender, who had devised the deception. He was sentenced to 6 months imprisonment, suspended on his entering into a bond to be of good behaviour for 2 years. He was also fined $5,000.

13. Susan Bokenkamp and George Kokkinis were convicted on 17 June 1994, and received the same sentences as had Kim Bokenkamp.

14. The effect of the false accusations upon the applicant was quite devastating. She had become aware that Mr Bawdon had been making allegations that she had stolen money from his business. She had consulted a solicitor, made a statement denying the allegations, sent it to the police, and expressed her willingness to be interviewed by them. That offer was not taken up. Her next contact with police was the arrival of three officers at her home on the evening of 9 June 1992.

15. She was locked in a cell at the City Watch House at about 8.30pm that evening, together with a number of other women. She was disgusted by the conditions in the cell.

16. She was charged in Court the following morning, bailed to appear in Canberra Magistrates Court in August 1992, and ordered to report to police three times a week.

17. When she went home she became agitated because her belongings had been searched. She asked her de facto husband to burn the clothes she had been wearing in the cells.

18. The next day she read a report of the arrest, with her name and address, in the Courier Mail. She went to work, where her employer told her she had his support.

19. She felt degraded by the requirement to report to the police three times a week.

20. She travelled to Canberra with her husband for the first Court appearance at the Canberra Magistrates Court. There she first heard the details of the deliberate theft alleged against her. A hearing date was fixed for November 1993.

21. When she returned to Brisbane she had problems with her neighbours. She and her husband decided to move house. She was also told by her employer that her employment was to be terminated on the basis that she had too much to deal with. She became depressed and upset. She contemplated suicide, but was persuaded by her sister to seek medical help. She consulted Dr Cotterell on 19 August 1992.

22. Dr Cotterell reported that the applicant presented with facial eczema and complaints of depression, lack of energy and overeating. She prescribed Prozac, but the applicant did not use them, because she feared that her ability to fight the allegations might be affected.

23. She became withdrawn from her husband, her family and her friends. She did not want to go outside the house. She obtained some work cleaning houses for her sister.

24. At the committal hearing she had to sit through the evidence, particularly that of Kim Bokenkamp. When she was committed for trial on the basis of that false evidence she was upset and frightened. She returned home more depressed than ever.

25. She had to contemplate the possibility of an adverse verdict, and of a prison sentence. She became more withdrawn. Her relationship with her husband deteriorated, and sexual contact ceased. She became estranged from her father.

26. About a week before the trial she travelled to Canberra for a conference with her barrister, an experience which she described as devastating, in the light of the detailed lies that were arrayed against her. She returned to Brisbane by bus, as she could not bring herself to stay in Canberra for a week, waiting for the trial to commence, and contemplated the possibility of going to jail.

27. She then received the message from her solicitor that the charges had been dropped. She then, naturally, became very angry.

28. The applicant had been able to work at casual house cleaning from 6 August 1992 until November 1993. During that time she earned about $4,170 gross. She had been earning a salary of $334.26 net per week.

29. Between November 1993 and April 1994 the applicant received counselling from a social worker at the Beaudesert Hospital on 7 occasions. A report from the social worker testifies to the intensity of her distress, especially in the initial stages of treatment. By the end of the course the symptoms had improved and were lessening.

30. A general practitioner referred her to Dr Apel, psychiatrist, who saw her on two occasions, on 7 June and 5 July 1994. She complained of chronic sleep disturbance, difficulties in concentration and lack of energy and motivation. She had experienced suicidal thoughts, and visual flashbacks of the testimony at Court. On examination he noted a tearful and tremulous woman, whose mood was a mixture of anxiety of a severe degree and depression of a moderate depth. He diagnosed a major depression and post traumatic stress disorder, caused by her experiences of being threatened by Bawdon, arrested, spending a night in jail, and the Court experiences in Canberra. He expected her to require continuing treatment for some months. It would take years for her to fully recover.

31. That diagnosis and prognosis is supported by the facts deposed to by her husband.

32. If the applicant had at all times lived in the Australian Capital Territory she would obviously be entitled to a substantial award of compensation, comprising not only compensation for her pain and suffering, under s.6(1)(c) of the Act, but also, possibly, expenses of her defence under s.6(1)(a) and her loss of income under s.6(1)(b). The total award could possibly come up against the limit imposed by s.7.

33. In the course of argument at the hearing I raised the possibility that a difficulty was created for the applicant's case by the fact that she suffered a large part of her pain and suffering before the act of perjury was committed.

34. But on reflection I am convinced that no such problem arises.

35. The criminal conduct which would be sufficient to found an award in respect of all her suffering was the procuring of the perjury, a crime which had been committed by Mr Bawdon before she was arrested, and in respect of which he was convicted in this Court. An award does not have to depend on the actual perjury committed later by Kim Bokenkamp.

36. The relevant criminal conduct obviously occurred in this Territory. But, as counsel for the Territory submitted, an award under the Act does not depend upon that fact, but on the place where the "injury" was sustained.

37. By s.5(1)(a) the Court may award compensation to a person when that person "sustains a prescribed injury".

38. "Prescribed injury", so far as is here relevant, is defined in s.2(1) to mean "an injury sustained by the person in the Territory .... (a) as a result of the criminal conduct of another person."

39. "Criminal conduct" is defined there also, to mean "an act or omission that constitutes, or is an element of, an offence", and "offence" means "an offence against a law in force in the Territory".

40. Counsel for the Territory, while conceding that the criminal conduct came within the definition, and took place in the Territory, submitted that the applicant was arrested in Queensland, there spent the night in jail, there suffered her depression and stress disorder, and there incurred her financial loss. He submitted that therefore she did not sustain her injury in the Territory.

41. The submission needs further analysis.

42. The Act does not require that the applicant suffer pain and suffering or incur loss or expense within the Territory.

43. By s.6(1),
"The compensation that may be awarded to a person who has sustained

a prescribed injury is an amount that is equal to the sum of -
(a) the expense reasonably incurred by her or him as a consequence
of the injury;
(b) the pecuniary loss suffered by her or him as a consequence of
total or partial incapacity for work due to the injury; and
(c) an amount that will reasonably compensate her or him for pain
or suffering resulting from the injury."

44. It will be noted from the terms of the subsection that a distinction is drawn between "the injury" on the one hand and the expense incurred "as a consequence of the injury", the pecuniary loss suffered as a consequence of incapacity for work "due to the injury", and compensation for pain and suffering "resulting from the injury" on the other.

45. The definition of "injury" in s.2(1) should be set out in full. It is as follows,

""Injury" means any physical or mental injury, and includes -
(a) mental shock and nervous shock;
(b) pregnancy;
(c) the aggravation, acceleration or recurrence of any physical or
mental injury;
(d) the contraction, aggravation, acceleration or recurrence of a
disease; and
(e) damage to spectacles, a contact lens, a hearing aid, artificial
teeth, an artificial limb or other artificial substitute, or a
medical, surgical or other similar aid or appliance".

46. It will be seen that in the usual type of case no difficulty is caused by the structure of the Act in these respects. If a visitor to the Territory from Victoria is assaulted at (or outside) a Canberra nightclub, and suffers a broken jaw, he may return to Victoria the next day, there suffer pain for some time, and there incur expense and lose income, and receive compensation under this Act in respect of his whole damage, because the "injury" was sustained here, even though the consequential pain, expense and loss was suffered outside the Territory.

47. The question therefore arises whether anything happened in the Territory in relation to the applicant which amounted to an "injury" within the meaning of the Act.

48. The first meaning given in the Oxford English Dictionary for "injury" is,

"Wrongful action or treatment; violation or infringement of
another's rights; suffering or mischief wilfully and unjustly
inflicted. A wrongful act; a wrong inflicted or suffered",

49. An example of the word's use in that sense is given from Wharton's Law Lexicon,

"any wrong or damage done to another, either in his person, rights,
reputation, or property".

50. In that sense it could well be said that to procure another person to give false testimony accusing the applicant of theft did her an injury immediately, and that act was done in the Territory.

51. Does the statutory definition cut down that ordinary meaning of the word? I think that it does.

52. The definition first restricts the word by reference to "physical" or "mental". It then extends that meaning, so restricted, by including the concepts listed (a) to (e). The first four of those inclusions might well be thought to be comprised within the concept of "physical or mental injury" in any event, and to have been set out merely for greater caution and to forestall argument. They all relate to an effect upon the physical or mental state of a person. The concept in (e) is a true extension of the meaning, comprising physical objects which are not part of the person, but which are closely connected with it in their use.

53. That the meaning of "injury" is restricted to a meaning narrower than its dictionary meaning is also indicated by the separate provisions relating to property.

54. "Prescribed property damage" means damage to the property of a person sustained in particular, narrowly defined, circumstances. "Physical or mental injury", therefore, obviously does not include damage to property, and is narrower than the dictionary meaning of "injury".

55. I think that the words "physical or mental", and the list of inclusions in the statutory definition, do restrict the meaning of "injury" to effects upon the physical or mental well being of a person, with the extension provided by inclusion (e).

56. The definition would include the shock and grief suffered by the applicant when she was arrested, incarcerated and charged, had she suffered that shock and grief in the Territory. Since the Statute requires that the injury be suffered in the Territory, and she suffered that initial shock and grief in Queensland, compensation under this Act may not be awarded in respect of it, nor may it be awarded in respect of the pain and suffering that resulted from it, or any expense incurred in consequence of it, or any loss suffered as a consequence of incapacity for work due to it.

57. The applicant was already suffering stress by the time she was required to come to Canberra for the first Court appearance in August 1992. Had Kim Bokenkamp revealed the truth shortly before that journey, and had the applicant then been told that the proceedings against her were to be discontinued, and that she was not required to answer to her bail, no doubt she would have been angry and may even have demonstrated clinical signs of an emotional disorder. But the injury and the pain and suffering she had sustained to that time were nowhere near as severe as what she came to suffer later.

58. Before her attendance at Court in Canberra in August 1992 she had not been informed about the actual allegations made against her, who was making them, or on what they were based. It was in Canberra that she was informed that Kim Bokenkamp, with whom she had worked and with whom she had been sharing a residence, alleged that she had seen the applicant stealing a roll of fifty dollar notes. The case was not one of argument about the state of the accounting records, or inferences to be drawn from them, about which there could be argument, but one of deliberate physical stealing, brought by a witness who falsely claimed to have seen it happen. That information caused her great distress.

59. It was when she returned to Brisbane after that Court appearance that her condition worsened. Other factors were operating, which it is not possible to connect with the false allegations, such as the problems with her neighbours.

60. However, there is no doubt that her loss of employment was so connected.

61. It was at this time that she began to feel suicidal, and went to see Dr Cotterell.

62. I infer from her evidence, and that of the doctors, that her distress at attending Court in Canberra in August 1992, and there hearing the detail of the allegations against her, aggravated the mental or emotional injury that she had already sustained as a result of what had happened in Brisbane, and itself therefore constituted an injury within the meaning of s.2(1) of the Act.

63. The pain and suffering that she thereafter endured, though not solely caused by that injury, did result from it in the legal sense.

64. It is foreseeable that, if a false accusation of stealing from an employer is made against a person who earns her living as a bookkeeper, that person is likely to be dismissed from her job. By the principles of tortious liability, she would probably be able to recover compensation for her loss of income.

65. The terms of s.6(1) are, however, more restricted than the principles of the common law. Section 6(1)(b) includes in an award under the Act the pecuniary loss suffered by an applicant "as a consequence of total or partial incapacity for work due to injury."

66. The words are apt to describe what often follows from a physical injury. But in this case the applicant was not incapacitated for work by the injury. She was quite capable of doing her job. She wanted to continue to do it. It was her employer who terminated her employment. There was no evidence that he did so because of any "incapacity" on her part. The only evidence is that he did so because she "had too much to deal with". I do not include in the award, therefore, any sum for loss of income.

67. The distress that she suffered from being dismissed, however, is part of the pain and suffering that resulted from the injury.

68. Next, in the Territory, the applicant was required to sit through the committal proceedings, and listen to the allegations being made against her on oath. She had to stand in open Court and be committed for trial. The distress that she then and there suffered again aggravated the emotional injury from which she was already suffering, and itself constituted an injury within the meaning of the Act.

69. All her distress that followed thereafter was attributable to those injuries, which I hold she did sustain within the Territory.

70. There was no evidence about the cost she incurred in defending the charges brought against her. On ordinary common law principles they would be recoverable in an action against the wrongdoers. But they were incurred as a consequence of the wrong, not as a consequence of the injury, as "injury" is defined in the Act.

71. The costs of bringing the application together with the cost of treatment, were agreed at $763. I make no further allowance under s.6(1)(a) of the Act.

72. In summary, she suffered what Dr Apel, consultant psychiatrist, described as a major depression and post traumatic stress disorder. The prognosis is that it will take years for her to recover. The memory of the events will always cause her anger and distress.

73. For the pain and suffering resulting from the injuries sustained in the Territory, I award $30,000.

74. I award compensation to the applicant of $30,763.