Re An Application Under the Criminal Injuries Compensation ACT and Sk [1995] ACTSC 89 (4 August 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
AND SK
No. CIC 256 of 1994
Number of pages - 4
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Sexual Assault on a minor - Accused found not guilty by a jury - Relevant considerations - Psychological trauma.

HEARING

CANBERRA, 27 July 1995
4:8:1995

Counsel for the Applicant Mr C. Todd

Instructing solicitors Higgins Solicitors

Counsel for the Territory Mr K. Holmes

Instructing solicitor ACT Government Solicitor

ORDER

Compensation be awarded to the Applicant in the sum of $50,656.00.

DECISION

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

2. The applicant was born on 13 August 1977. She alleges that she was the victim of a series of sexual assaults when she was between 6 and 11 years of age. Her uncle, NE, was indicted in this Court on 28 March 1994 on 5 counts of committing an indecent assault upon her and 3 counts alleging sexual intercourse with her. After a trial lasting 9 days, the jury found him not guilty on all charges.

3. On 27 July 1995 I made an order under s.17 of the Act prohibiting the publication of any particulars likely to lead to the identification either of the applicant or of the person charged with the offences against her.

4. At the trial it was necessary that the jury be convinced beyond reasonable doubt about every element of each of the specific charges before they were obliged to convict him on each charge. A number of the charges alleged an offence upon a specific date. The crossexamination of the applicant extended over 3 days. An acquittal does not imply that the applicant was, in the opinion of the jury, not worthy of belief. It is quite consistent with the jury's verdict that in their opinion she was probably telling the truth, but that they were not convinced beyond reasonable doubt about every element of the particular charge. This is axiomatic to a lawyer. To a teenage girl who has just been through the trauma of confronting her fears, disclosing what had been hidden through years of suffering, submitting to intrusive medical examinations, and being questioned in public about such intimate matters, it obviously must have been difficult to accept.

5. On the hearing of this application, I need only be satisfied on the balance of probabilities that her injury arose out of the relevant criminal conduct. Counsel for the Territory did not suggest any reason why I should not be so satisfied. There is no need for me to traverse in detail the evidence about each of the incidents alleged. I am satisfied that the applicant suffered injury as a result of the criminal conduct of NE, and that she continues so to suffer.

6. The attacks upon her took place between December 1983 and June 1988. They were all contrary to her will. The offender did not live in her family home, but he was a trusted visitor. He achieved her silence over many years by threats. He succeeded in making her feel that she was in some way to blame, and was made to feel degraded during critical years of her physical and emotional development. Even when she came to be persuaded intellectually that she was not at fault, she continued emotionally to feel guilty.

7. Her mother discovered what had happened at the end of 1992. She sought the assistance of the Child at Risk Assessment Unit at Woden Valley Hospital in January 1993. There she was examined by Dr. Sue Packer, paediatrician, on 2 February 1993. She obtained a history that during the previous 18 months the applicant had been admitted to both Woden Valley Hospital and Yass Hospital for severe abdominal pain. In October 1992 a laparotomy had been performed at Yass Hospital. No cause was found for the pain. While she was in Woden Valley Hospital she required Pethidine for severe spasmodic pain. She was seen in consultation by Dr. Cubis, psychiatrist, and his registrar, Dr. Ferguson. It was considered that the pains had a large psychogenic component.

8. On examination Dr. Packer did not find any physical abnormalities that were due to the abuse. Tests were conducted for sexually transmitted diseases, including HIV. The tests were all negative, but the applicant was apprehensive and distressed during the time before the tests were completed.

9. The Unit undertook a psycho social assessment from 10 February 1993 to 10 May 1993. The report of the social worker details the applicant's description of the effects of the events upon her.

10. Dr. Packer had been able to carry out only an external examination. The applicant was admitted to Woden Valley Hospital for an internal examination under anaesthetic, which was performed by Dr. Packer and Dr. Anne Hoskings. I assume that she underwent this trauma primarily in the search for evidence to be used at the trial. She had described an incident of genital penetration some 5 years before. Dr. Packer reported that there was on examination no evidence of gross hymenal disruption, but it was certainly possible that genital trauma sufficient to cause significant bleeding could have occurred and recovered spontaneously to an extent consistent with present appearances.

11. Her solicitors sought a report from Mr. Leigh Nomchong, clinical psychologist, to whom she had been referred by her general practitioner. He had had discussions with her on about 17 occasions between February and October 1994. He reported in October 1994 that she described to him typical symptoms consistent with her having suffered sexual abuse. He noted complaints of high fatigue levels, flashbacks of the assaults, poor sleep, nightmares, periods of irritability, frequent mood swings, poor concentration, poor memory performance, prolonged periods of depression and little tolerance to stress. In his observations of her he also noted that she was emotionally dependent, over sensitive to emotional issues, angry, attention seeking, despondent, alienated from her parents, manipulative and had a strong need to prove herself to others.

12. He engaged in therapy designed to help her learn new coping strategies to deal with her emotional problems. The experience and the result of the trial had been a shattering experience. His prognosis was that she would improve to some extent as she grew older. However, he thought that she would still be emotionally dependent and manipulative, and under periods of stress would be likely to develop somatic symptoms due to an overconcern with her body's function.

13. Mr. Nomchong continued to treat her during 1995. In his report dated 29 May 1995 he stated that his prognosis had been accurate, and that she had continued to lurch from emotional crisis to emotional crisis since his previous report. Her reporting of the crises appeared to him to be exaggerated and designed to manipulate him rather than seek guidance or support. This of course is dysfunctional behaviour, and in my opinion part of the consequences of her injury. It demonstrates that if she is going to improve the process will be slow and painful for her and for her family.

14. In the light of her present condition, that prognosis, and the many years over which she has been suffering, it is obvious, I think, that a full award of compensation exceeds the limit imposed by section 7 of the Act. The cost of treatment to date is over $4,000, and she will continue to need further treatment. For her pain and suffering, therefore, I award $50,000. The costs of bringing the application are $656.

15. I make an award of compensation under the Act of $50,656. Since she will be of full legal capacity in about I week, I do not think that it is necessary to order the amount to be paid into Court.