ACD v ESD [2010] QDC 500

DISTRICT COURT OF QUEENSLAND CITATION: ACD v ESD [2010] QDC 500 PARTIES: ACD Applicant V ESD Respondent FILE NO/S: D10 of 2010 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Ipswich DELIVERED ON: 21 December 2010 DELIVERED AT: Ipswich HEARING DATE: 19 November 2010 JUDGE: Bradley DCJ ORDER: I order that the respondent pay to the applicant the sum of $55,000 by way of criminal compensation and that the respondent pay the applicant’s costs of this application on a standard basis. CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the deceased respondent was convicted of 10 counts of indecently dealing with the applicant – where the offending took place between 1973 and 1985 – where the now repealed Chapter 65A Criminal Code Act 1899 therefore applies to criminal compensation for the offences committed – where the applicant suffers from post traumatic stress disorder to a severe degree as a result of the events – whether the 1984 amendment of the Criminal Code Act 1899 should be applied retrospectively to those offences committed before the amendment – whether the offences arose “out of the one course of conduct or closely related courses of conduct”. Chong v Chong [1999] QCA 314 P v B [2004] QDC 149 R v Boughton ex parte Holt Unreported District Court No 124 of 1993 13 August 1993 R v Jones; ex parte McClintock [1996] 1 Qd R 524 -- 1 of 6 -- 2 Criminal Code Act 1899 (Qld) Criminal Offence Victims Act 1995 (Qld) Victims of Crime Assistance Act 2009 (Qld) Succession Act 1981 (Qld) Uniform Civil Procedure Rules 1999 (Qld) REPRESENTATIVES: F Muirhead, solicitor of Legal Aid Queensland for the applicant. No appearance for the respondent. [1] On 1 December 2006 in the District Court at Ipswich, ESD pleaded guilty to 10 counts of indecently dealing with the applicant, his daughter. On 23 February 2007 ESD was convicted and sentenced to five years imprisonment for 5 counts, suspended after serving 18 months for an operational period of five years; and to three years imprisonment for the other 5 counts, suspended after serving 18 months with an operational period of five years. The offences were committed between 31 January 1973 and 31 December 1985. [2] The applicant now seeks an order for compensation for the injuries suffered by her because of the offences pursuant to the now repealed Chapter 65A of the Criminal Code Act 1899 (“the Code”) and specifically section 663B of the Code. [3] Chapter 65A was repealed by the Criminal Offence Victims Act 1995 (“COVA”), which commenced on 18 December 1995. Section 46 of COVA provides that Chapter 65A of the Code continues to apply to “injuries suffered by anyone because of an act done before the commencement of the Act”. Claims pursuant to the Code must be made within six years of the date of conviction. This claim was filed on 18 January 2010 and is therefore within time. [4] COVA was repealed by the Victims of Crime Assistance Act 2009, which commenced on 1 December 2009. Division 6 of that Act deals with Repealed and Transitional Provisions and provides that where a conviction happens before commencement, a person may still apply to the court for orders for criminal injuries under the Code. [5] ESD passed away on 24 July 2007 at the Ipswich hospital. He was still in lawful custody at the time of his death. A claim for compensation pursuant to the Code is a cause of action which survives the death of an offender by virtue of s66 (1) of the Succession Act 1981.1 [6] On 12 October 2010, the solicitor for the applicant posted a letter to ESD’s wife seeking confirmation as to whether she was responsible for administering the estate of ESD. On 21 October 2010 a solicitor sent a fax to the applicant’s solicitor informing them that he acted for ESD’s wife in regards to the deceased’s estate. The solicitor confirmed that ESD’s estate had been completely administered and there were no assets available for the payment of compensation. [7] On 19 November 2010 I gave the applicant leave to file an amended application pursuant to Rules 375 and 376 of the Uniform Civil Procedure Rules 1999 1 Chong v Chong [1999] QCA 314 -- 2 of 6 -- 3 (“UCPR”) and to amend the name of the respondent to ‘Estate of ESD (deceased)’ pursuant to r377 and r71(2) UCPR. [8] There was no appearance by or on behalf of the respondent estate at the hearing of this application. [9] The applicant was born on 31 January 1970 making her 40 years old currently. She was aged between 3 and 15 years at the time of the commission of the offences. [10] The first count involved ESD have the applicant perform oral sex on him behind a tent when the applicant was aged between 3 and 5 years old. [11] The second count arose when the applicant was staying with ESD whilst her parents were separated. The applicant and ESD were sleeping in the same bed. He took off the applicant’s underwear and made her lie on her side. ESD put his penis between the tops of her thighs and thrusted until he ejaculated. She was aged between five and eight. [12] Count 3 occurred when the applicant was sleeping at her grandparents’ house at Lowood. ESD went into the room where she was sleeping and masturbated her until she orgasmed. [13] Counts 4, 5 and 6 arose when the applicant and ESD were living together in Gladstone away from the rest of the family. Whilst the applicant and ESD were sleeping in the same bed together one night (which was the common arrangement whilst they were living together in Gladstone), ESD put his penis between the tops of the applicant’s thighs and thrusted until he ejaculated. The incident which gave rise to count 5 occurred when ESD put his fingers inside the applicant’s vagina and then had simulated sex with the applicant similar to the incident in count 4. Count 6 arose when ESD put a blanket over the applicant and played with her genitals. This act was committed in the presence of the applicant’s sisters. The applicant was aged 12. [14] Count 7 occurred when both were living with ESD’s parents at Lowood. The applicant was shaving her legs in the bathroom when ESD went into the bathroom and shaved her legs for her, whilst she was naked. He then played with her genitals. ESD then had the applicant stand up with her legs together and he put his penis between the top of her thighs and engaged in simulated intercourse until he ejaculated. The applicant was aged between 12 and 13. [15] Counts 8, 9 and 10 arose out of instances when the applicant and ESD were driving together on three separate occasions. The applicant was between 14 and 15 years old and ESD was giving her driving lessons. Count 8 occurred when the applicant was driving and ESD made the applicant rub his penis on the outside of his clothing. They then pulled over to the side of the road and the applicant lay down on the ground. ESD put his penis between the top of the applicant’s thighs and thrusted until he ejaculated. Count 9 involved the applicant parking behind some trees at Twin Bridges. The applicant lay down on the ground and again ESD engaged in simulated intercourse where he ejaculated. Finally, count 10 involved the applicant and ESD driving to a dump at Lowood. The applicant lay on the ground and ESD engaged in simulated sex again and ejaculated. -- 3 of 6 -- 4 [16] On 29 September 2005 the applicant gave a written statement to police. Clearly there was no behaviour on the part of the applicant which contributed to her injuries. [17] In her affidavit affirmed on 12 October 2010, the applicant recounts the adverse effects that these incidents have had on her life. She has been obsessed by the abuse inflicted on her by her father throughout her whole life. The applicant experiences flashbacks of the incidents during sexual activities and has very little interest in sex which has caused tension between her and her husband. The applicant stated that she feels she was never able to have a real childhood as she lived in fear of ESD and what he would do next. The applicant described that: “[ESD] had no appropriate boundaries regarding my body and my life and he assumed control of all aspects of my life. I feel I was never given the opportunity to develop my own sexuality and sexual boundaries in a healthy and normal way.” [18] In relation to the particular events committed upon the applicant by ESD, the applicant describes that she experienced feelings of distress and helplessness, and found the acts that constitute counts 8, 9 and 10 to be uncomfortable and humiliating. [19] The applicant was interviewed on 24 August 2010 by Dr Barbara Anne McGuire, a Psychiatrist. [20] In her report dated 25 August 2010, Dr McGuire is of the view that the applicant demonstrated a low mood and was minimising her symptoms, however she did not find that the applicant had a disorder of thought or perception. Despite this, Dr McGuire found that the applicant suffers from Post Traumatic Stress Disorder “to a severe degree as demonstrated by her symptoms of: • nightmares; • flashbacks; • avoidant behaviour; • irritability; and • lowered self esteem.” [21] In regards to whether the offences committed upon the applicant by ESD were a contributing factor to her condition, Dr McGuire wrote, “I believe that the Post Traumatic Stress Disorder was caused entirely by the offences committed by her father.” [22] Compensation pursuant to the Code is to be assessed according to the ordinary civil principles applicable to claims for damages for personal injuries subject to prescribed maximum amounts 2 . “Injury” is defined to include “mental or nervous shock”. [23] The prescribed amount where an injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 is $5000. These amendments came into effect on 1 July 1984 and increased the prescribed amount for compensation for mental or nervous shock to $20,000. 2 R v Jones; ex parte McClintock [1996] 1 Qd R 524 -- 4 of 6 -- 5 [24] The amended provisions further provided that where a person is convicted of one or more offences “arising out of the one course of conduct or closely related courses of conduct of that person so convicted” the Court may order payment of “a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted.” [25] The offending took place between 1973 and 1985. The dates of each of the offences are framed as “unknown” dates within time spans of between one and six years. Having regard to the facts however, and construing them generously in favour of the applicant (as is appropriate in the circumstances), it would appear that counts 1 to 7 involve offences committed prior to 1 July 1984, and counts 8, 9 and 10 after that date. [26] There is therefore a significant difference in the maximum amount to which the applicant is entitled if the 1984 amendment is retrospective i.e. whether the applicant is entitled to a maximum of $5,000 for each offence committed prior to 1 July 1984 (7 offences) or a total of $5,000 for all seven offences, if the offences arose “out of the one course of conduct or closely related courses of conduct”. [27] The issue of the retrospectivity of the 1984 amendment has been judicially examined on a number of occasions. In R v Boughton ex parte Holt3 then Chief Judge Helman held in a claim for compensation arising out of circumstances similar to those in this case, that the applicant’s right to compensation arose at the time she suffered the injuries i.e. prior to 1 July 1984 and that therefore she was entitled to compensation of up to $5,000 for each of the offences of which the respondent was convicted. [28] However, as discussed in P v B 4 by Robertson J the alternative argument that the right to compensation only arises upon conviction (in this case 1 December 2006) has apparently been successful in other cases. If that argument were accepted then where the conviction occurs after 1 July 1984, and if offences arose out of one course of conduct or closely related courses of conduct, then the maximum compensation payable would be a total of $5,000. [29] The approach taken in Boughton v Holt has not been directly considered by the Court of Appeal and after a careful analysis of recent Court of Appeal decisions Robertson J concluded that the Court of Appeal has not expressly or by implication, ruled against the approach taken by Helman J in Boughton v Holt. [30] Single judges in both the District and the Supreme Courts have reached views both in accordance with the reasoning of Helman J in Boughton v Holt and in favour of the retrospective application of the 1984 amendments. Again a number of these decisions were extensively analysed by Robertson J who concluded that on a proper construction of s 663B(1) and having regard to provision of the Acts Interpretation Act that the amendment of an Act does not affect a right previously acquired,5 the approach in Boughton v Holt should be adopted. His Honour found that the applicant in this case was entitled to an award for each offence. 3 Unreported District Court No 124 of 1993 13 August 1993 4 [2004] QDC 149 5 s. 20(1) -- 5 of 6 -- 6 [31] With respect, I adopt the reasoning of Robertson J and find that the “course of conduct” amendments in 1984 do not apply retrospectively. I am satisfied that in this case the applicant is entitled to compensation for each of the offences committed prior to 1 July 1984 rather than one sum for all such offences on the basis they may arguably arise “out of the one course of conduct.” [32] I am satisfied that the applicant would be entitled to an amount in excess of the prescribed maximum by way of damages at common law for the mental or nervous shock suffered by her as a result of each of the offences committed by the respondent. [33] The applicant is therefore entitled to compensation of $5,000 for each of the seven offences committed prior to 1 July 1984, a total of $35,000. [34] It is conceded on behalf of the applicant that the three offences committed after 1 July 1984 appear on the facts to amount to one course of conduct. The applicant is therefore only entitled to a total award of $20,000 for the last three offences. [35] The applicant is entitled to a total of $55,000 compensation for the injuries she has sustained as a result of the offences committed upon her by her father. I order that the respondent pay to the applicant the sum of $55,000 by way of criminal compensation and that the respondent pay the applicant’s costs of this application on a standard basis. -- 6 of 6 --