Re An Application Under the Criminal Injuries Compensation Act 1983 and Na [1994] ACTSC 60 (22 June 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 AND NA
No. CIC102 of 1993
Number of pages - 2

COURT

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

HEARING

CANBERRA, 16 June 1994
22:6:1994

Counsel for the Applicant: Mr D Hynes
Instructing Solicitors: Higgins Solicitors

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

Compensation be awarded to the applicant in the sum of $16,697.80.

DECISION

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

2. On 13 May 1993 MJ was indicted in this Court on a charge that on 25 October 1991 he engaged in sexual intercourse with the applicant without her consent. On 17 May 1993 the jury returned a verdict of not guilty.

3. On 16 June 1994 I made an order prohibiting 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. The applicant was 23 years of age at the time of the assault. She was a student at Reid TAFE College, studying special care. She had been living for some years in a defacto relationship and continues to do so.

5. On 24 October 1991 she went with friends to a nightclub in Mawson.

6. At the end of the evening's entertainment she went with two of her female friends to a house they were sharing. One of the friends invited MJ to stay with her. The applicant shared a double bed with the other. She went to sleep.

7. She awakened to find that MJ was engaging in sexual intercourse with her. She pushed him off and on to the floor. He immediately left the room.

8. She was angry at what had happened, and followed MJ into her friend's bedroom and attacked him. He left when she rang the police.

9. She went with an officer of the sexual assault unit to the police station, and was medically examined. She noticed bruises on her upper left arm and right thigh, which were caused as her friends tried to restrain her.

10. MJ's defence at the trial did not controvert her evidence in any important detail. It was that he thought she was consenting. It is quite clear that she was not, but the jury had to be satisfied beyond reasonable doubt on the issue of his knowledge. Counsel for the Territory rightly conceded that the applicant suffered a prescribed injury as the result of criminal conduct.

11. She sought help from the Rape Crisis Centre. She was unable to sleep properly. She could not concentrate on her studies, and felt forced to defer them. Her consumption of alcohol and use of marijuana increased drastically. She was depressed and even felt suicidal. Her relationship with her defacto spouse deteriorated.

12. Because of her feelings of insecurity and anxiety she decided to undertake a course in self defence. During one of the classes she over extended a practice kick and injured her left knee. I agree with the submission of Counsel for the Territory that the expenses of the Tae Kwan Do classes and of the knee injury were not causally related to the sexual assault.

13. She also suffered from a number of other ailments, and it is part of her emotional trauma that she is inclined to attribute them all to the assault.

14. In May 1992 she began to consult Dr Sue Close, who has qualifications in Counselling and Family Therapy in addition to her medical and gynaecological qualifications. Dr Close gave her counselling support on 7 occasions over the next 12 months. The most persistent symptoms she considered were her anger, frustration and despair.

15. The experience of the trial was traumatic. Dr Close expected her condition to improve after all the Court proceedings were concluded, and in July 1993 expected her to improve over about 2 years to the point where she could undertake her studies again, but beyond that, thought that further attempts at prognosis would be speculation.

16. Dr Richards, who was her general practitioner for a time, prescribed sleeping tablets in July 1993. The evidence does not suggest that she required treatment by antidepressant medications.

17. For her pain and suffering I award $16,000.00. Pharmaceutical expenses were $127.80. The cost of medical reports was $570.00.

18. I award compensation to the applicant of $16,697.80.