Re An Application Under the Criminal Injuries Compensation Act 1983 v Djn [1994] ACTSC 20 (3 March 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 v. DJN
No. CIC49 of 1990
Number of pages - 3

COURT

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

HEARING

CANBERRA, 3 February 1994
3:3:1994

Counsel for the Plaintiff: R Livingston

Instructing Solicitors: Gary Robb 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 $21,344.

DECISION

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

2. On 3 May 1990 a person was indicted in this Court on charges of engaging in sexual intercourse with the applicant without her consent, and of assaulting her with intent to engage in sexual intercourse with her. The jury returned a verdict of not guilty.

3. I therefore prohibit the publication of any particulars likely to lead to the identification of the applicant or of the accused.

4. The applicant had moved in to share a house owned by the accused about the end of October 1988. She had not known him beforehand. It was entirely a business arrangement entered into at the suggestion of a trusted friend. On one or two occasions he indicated that he would be interested in a sexual relationship, but she had made it quite clear to him that she was not.

5. On 2 December 1988 she arrived home after a musical function and began to listen to some music on the radio. She had a conversation with the accused and then went to her bedroom, undressed, and went to bed. She heard a song that she liked being played on the radio in the loungeroom. She went there to listen to it and after a short conversation with the accused returned to her room and went to bed again.

6. Shortly afterwards the accused opened her door and came into the room. He asked if she was lonely by herself. She asked him to leave, which he did.

7. Some time later he came back in. He pushed her back onto her bed and began touching her. She resisted and left her room. When he left also and went into the kitchen she returned to her room and closed the door. He came back in and took hold of her. She struggled and screamed. The struggling went on for a considerable time. He forced oral sex upon her, but was unable to achieve penile penetration.

8. In February 1991 the applicant was examined by Dr Veness, consultant psychiatrist, who commented that during his consultation she was extremely detailed in her recollection of the events of that night. She seemed unable to describe the events succinctly, needing to expound upon them in a most detailed fashion. This reflected to him how vivid the events still were in her mind.

9. The statement that she made to the police the day after the assault was also extremely detailed, covering 13 typewritten pages. Dr Veness studied that statement and found no major contradictions between the account that she gave him and that statement.

10. There is no need for me to recount those events in detail. She put up a vigorous and sustained defence. She was forced by his violent attack upon her to submit to indignities over a considerable time.

11. He made no attempt to prevent her leaving, however, and she drove immediately to the home of her friend, who took her to the police station, where she was interviewed by officers of the Sexual Assault Unit.

12. She was examined there by Dr Maynard, who recorded a tender lump on the back of her head, tenderness across the shoulders, abrasions over the scapular area and on both elbows, a bruised and swollen upper lip, abrasions to the front of both shoulders and right wrist, and one large abrasion and several smaller ones on her left forearm.

13. The next day she saw her general practitioner, Dr Tyler, who noted the bruising and decreased neck mobility. Two days later Dr Tyler found her right hand was still swollen and her left arm was sore. Her main complaint was insomnia. She prescribed Normison and certified the applicant as unfit for work for two days.

14. A week later she continued to suffer pain in the left arm and restricted abduction of her left shoulder. Dr Tyler prescribed anti-inflammatory medication.

15. On examination on 15 August 1989 she had chest pains and tenderness over the third left costochondral joint.

16. In January 1990 she was complaining again of insomnia. Dr Tyler diagnosed tension depression and prescribed a relaxant, which helped somewhat.

17. When she saw Dr Veness, more than two years after the assault, she still felt disturbed and fearful of being alone. Her sleep had improved, though she had occasional nightmares. She had become engaged to be married and was at first apprehensive about intercourse with her fiance, but the relationship had helped to restore her self-esteem.

18. Dr Veness diagnosed that she had suffered a post traumatic stress syndrome, which was then still persisting to some extent in the form of phobic anxiety. He expected her symptoms to fade gradually with time.

19. On 8 February 1993 she was examined by Dr Tym, consultant psychiatrist, at the request of her solicitors. He found no evidence of psychiatric illness or of post traumatic stress disorder. But he thought that she would benefit from a brief course of psychiatric counselling in the form of cognitive therapy. Given that treatment he expected that the long term deleterious effects of the incident could be minimised, but never totally eradicated.

20. At the time of the hearing she was married, with one child and expecting another.

21. She intends to seek the counselling advised by Dr Tym.

22. At the time when this application was brought the maximum amount of compensation that could be awarded was $20,000.

23. There is a difference between Dr Veness and Dr Tym as to whether the applicant suffered a post traumatic stress disorder, within the meaning of that term as it is defined in the diagnostic literature.

24. I do not think that it matters in this case whether she did or not. The assault caused physical injuries to her, the effects of which persisted for some time, but left no permanent symptoms. The assault was degrading and sexual in nature, which in my judgment is a part of the injury that was inflicted upon her. It left psychological consequences which lasted for years, causing her suffering and anxiety, from which she is not expected to recover completely, even by Dr Tym.

25. I think that a reasonable compensation for her injury is at least $20,000, which is the sum I would award for her pain and suffering.

26. The medical expenses are agreed at $1175, and the expenses of bringing the application, which I have ruled included the costs of investigations into the means of the accused, total $169.

27. I award compensation to the applicant in the sum of $21,344.