ANM v HHG [2010] QDC 461

[2010] QDC 461 DISTRICT COURT CIVIL JURISDICTION JUDGE SAMIOS No 2929 of 2008 ANM Applicant and HHG Respondent BRISBANE DATE 15/06/2010 ORDER -- 1 of 6 -- 2 HIS HONOUR: This is an application for compensation to be assessed pursuant to 663B of the Criminal Code. Although that section was repealed by the Criminal Offence Victims Act 1995, which commenced on 16 December 1995, section 46 of that Act provides that chapter 65A, in which section 663B is to be found, continues to apply to injuries suffered by anyone because of an act done before the commencement of the Act. the Criminal Offence Victims Act 1995 has also been repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The application before me was filed on the 21st of October 2008. Pursuant to section 167 of the Victims of Crime Assistance Act 2009, once an application is filed, even under the repeal provision 663B, and the application has not been finally decided before the commencement of the Victims of Crime Assistance Act 2009, the Court must hear or continue to hear and decide the application under the repealed provision. One issue that does arise on the hearing of this application is whether the period of limitation should be extended to allow for the application to proceed. That is, the respondent was sentenced by the District Court on 19 July 1991. The applicant had six years from the time he turned 18 within which to apply for criminal injuries compensation under the Criminal Code or from the date of sentence whichever was the later. Therefore he had until the 19th of July 1997 to file an application for criminal injuries compensation. -- 2 of 6 -- 3 As I said the application was filed on 21 October 2008. Therefore there is a need to look for an explanation for the delay and any consequences of the delay in the filing of the application. Applying the provisions of the Limitations of Actions Act 1974 the circumstances indicate that the circumstances that have been deposed to indicate that the applicant was only 18 or 19 at the time of the respondent's conviction. At no stage during the process was he told he could apply for criminal injuries compensation, however, he remembers listening to the public apology by the Prime Minister to the aborigines in 2008 when he realised that he himself had been significantly abused and might be entitled to compensation. He then sought advice through Legal Aid Queensland and was granted legal aid in 2008. He repeated his position to Dr Barbara McGuire; the psychiatrist who has examined the applicant. He told her he never realised he could claim and did not like talking about it. Because he had disclosed it before and not been believed, this has had a significant effect on him. He decided to apply for compensation after the public apology by the Prime Minister when he'd realised that he himself had been significantly abused. The offences were committed upon the applicant when he was between the age of eight and 13. One of the offences of the -- 3 of 6 -- 4 two that the respondent was convicted of was committed at Eidsvold between 1 March 1978 and 1 March 1979. The second offence was committed between 1 January 1982 and 31 December 1983. I come to the view that bearing in mind the applicant's age at the time he was offended against that it is entirely understandable, particularly if he was not believed when he made the revelation of the abuse, that he would not take steps to ascertain his position. Again it is understandable that something might trigger him, looking at his legal rights, and that occurred in 2008, and he sought to bring the application then when he realised what his rights were and that he could do something about compensation. Bearing in mind the requirements of the Limitations of Actions Act 1974 I am satisfied those requirements are met in this case, and that the period of limitation should be extended, and I so extend that period of limitation to permit the application to proceed. I extend the time for the bringing of the application to the 21st of October 2008 when the application was filed. I consider the application has moved with reasonable speed to this point. There's no prejudice to the respondent. Searches have indicated he has no assets, and it is likely any compensation will be from the public purse. Dealing with the impact on the applicant the facts of the two -- 4 of 6 -- 5 offences are: That the applicant was encouraged to stay behind with the respondent on a farm to work a bulldozer, and during the lunch break the respondent was masturbating himself and requested the applicant to take hold of his penis and pull on it. The applicant did as he was requested, and the defendant later had an orgasm. That was the first offence. The second offence involved the applicant when he was a little bit older and the respondent visited his home. The applicant was lying on his bed reading a book, and he was touched on the genital area by the respondent. The applicant told his mother and stepsister, but they did not take any notice of him. Dr McGuire who has examined the applicant has come to the opinion that the applicant is suffering from post traumatic distress disorder as demonstrated by nightmares, flashbacks and avoidant behaviour. She considers his condition to be of a moderate degree. Nevertheless to the applicant's credit, despite his condition, he is in a reasonably stable marriage, and a stable employment history. The applicant told Dr McGuire that he thinks of the sexual abuse daily. He experiences distressing flashbacks. He has had panic attacks, and he had one about two months before seeing Dr McGuire. He has been a chronically anxious person. There are some other issues in the applicant's life, for example, he found out that he was adopted, but I do not think that in any way detracts from the impact that the offending has had upon the applicant. I do not think it can be assumed -- 5 of 6 -- 6 because someone is adopted they therefore are going to suffer, the way this applicant has suffered, because of the sexual abuse. The statutory allows for an award of compensation of up to $5,000 per offence. These were two separate offences and not one course of conduct, and they are to be compensated separately. In my opinion, because of the applicant's age, it cannot be taken that he directly or indirectly contributed to his injuries. He was a child, and the law is designed to protect children from adults who offend against them. Dr McGuire in her report expresses the opinion that the post traumatic distress disorder diagnosed, which he exhibits to a moderate degree, is attributable to the offences for which the respondent was convicted. The assessment is to be conducted as if it were a personal injury matter. See: The Queen v Jones ex parte McClintock [1996] 1 Queensland Report 524. For each of those offences I would assess the applicant's compensation at $5,000. That makes a total of $10,000. I order the respondent to pay the applicant the sum of $10,000, and the costs of and incidental to the application. There will be an order as per the draft which I have inserted the amount of $10,000 in the draft. Yes, order as per the draft, initialled by me and left with the papers. ----- -- 6 of 6 --