DM v Ford [2010] QDC 149

DISTRICT COURT OF QUEENSLAND CITATION: DM v Ford [2010] QDC 149 PARTIES: DM (Applicant) V Garry Robin Ford (Respondent) FILE NO/S: 2872 of 2009 DIVISION: Applications Division PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 16 April 2010 DELIVERED AT: Brisbane HEARING DATE: 25 January 2010, 2 March 2010, 12 April 2010 JUDGE: Griffin SC, DCJ ORDER: Judgement is given for the applicant in the sum of $25,000.00 by way of criminal compensation. CATCHWORDS: CRIMINAL COMPENSATION – indecent treatment of a child under 16 years, permitting sodomy, attempted sodomy, assessment of compensation under the Criminal Code Act 1899 (Qld), material and substantial contribution to applicant’s injury. LEGISLATION: Criminal Code Act 1899 (Qld), ss 663B, 663AA Criminal Offence Victims Act 1995 (Qld) ss 25(8)(a), 46 CASES: R v Jones; ex-parte McClintock [1996] 1 Qd R 524, 527. R v Llorente ex;parte Hendry [2001] 2 Qd R 415. COUNSEL: J W Selfridge for the Applicant. The Respondent appeared on his own behalf. SOLICITORS: John Paul Mould Solicitors for the Applicant. The Respondent appeared on his own behalf. [1] The respondent was convicted after trial in the Brisbane District Court on 29 February 2008 on the following offences. Count 1 indecent treatment of a child under 16 years on a date unknown between 1 December 1992 and 1 December 1993; Count 2 indecent treatment of a child under 16 years on a date unknown between 1 December 1992 and 1 December 1993; Count 9 permitting sodomy on a -- 1 of 7 -- 2 date unknown between 1 December 1994 and 31 December 1995; Count 11 attempted sodomy on a date unknown between 1 January 1994 and 31 December 1995. [2] By this application the applicant seeks criminal compensation pursuant to provisions of s 663B of the Criminal Code which provisions although now repealed, continue to operate for offences committed prior to 19 December 1995 when the Criminal Offence Victims Act 1995 (“COVA”) came into operation. 1 [3] Although the application was originally framed under the Criminal Offence Victims Act 1995 it was conceded during the hearing by the applicant that on the evidence given both at trial and in Exhibit DJMM-2 to the affidavit of the applicant, the offences clearly fell during the period prior to the operation COVA.2 [4] The respondent has appeared in person during the hearing of this matter which occurred over a number of days and has resisted the application. [5] The point essentially at issue is whether, although the respondent has accepted the commission of the offences upon the applicant, the applicant can sufficiently demonstrate that the respondent’s conduct by the commission of those offences has contributed to or can be regarded as playing any role in the applicant’s present psychiatric condition described as Post Traumatic Stress Disorder. [6] The provisions of Chapter 65 of the Criminal Code provide for compensation in these circumstances. “Injury” is defined to include mental shock and nervous shock. [7] By s 663AA the prescribed amount for mental or nervous shock is $20,000. [8] Section 663B provides relevantly: (1) Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than one indictable offence relating to the person of any person … arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to pay to the person aggrieved 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. (2) In determining whether or not to make an order under sub-section 1 and in determining the amount of any order, the court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injuries suffered by the person and to such other circumstances as it considers relevant (including whether the person aggrieved is or was a relative of the convicted person or was at the time of the commission of the offence living with the convicted person as his wife or her husband or as a 1 See s 46 Criminal Offence Victims Act 1995. 2 See affidavit of applicant sworn 25 August 2009 [13]-[14]. -- 2 of 7 -- 3 member of the convicted person’s household) and to the other provisions of this chapter. [9] The applicant relies primarily on his own affidavit referring to the commission of the offences themselves, the effects upon him and on the expert opinion of a psychiatrist, Dr Barbara McGuire, who provided a report, two addendum letters by way of report, and was cross-examined on 12 April 2010 by the respondent. [10] The applicant 3 states that “as a result of the incident (sic) I now suffer from depression, anxiety and Post Traumatic Stress Disorder which has affected me in a way referred to in my Victim Impact Statements prepared after the incident the subject of this application.” The Victim Impact Statements are also exhibited to the affidavit. The applicant further swears that he attended Dr Barbara McGuire on 13 March 2009 and says “I have read all of the above notes and the report of Dr McGuire dated 25 March 2009. I agree that the notes and the report accurately state the relevant history as provided by me.”4 [11] Dr McGuire’s report of 25 March 2009 describes the applicant as suffering from Post Traumatic Stress Disorder and depression. She further opines that the applicant suffers fear, mental and nervous shock and that as a result of the abuse the applicant feels dirty and ashamed, blaming himself and that his social life has diminished and family relationships deteriorated. The second report of Dr McGuire exhibited to her affidavit sworn 10 February 2010 addresses the central issue which has arisen in these proceedings, namely, the extent to which or if at all the respondent’s conduct can be said to have contributed to the overall mental state of the applicant as assessed originally by Dr McGuire. She states: “Other significant factors in his background are that he had a difficult childhood characterised by the separation of his parents when he was 8 and teasing and bullying as a result of his homosexuality. He also appears to have suffered rejection by his parents as a result of his homosexuality. A further negative influence on his life is him having contracted HIV virus. He sees his unfortunate relationship with Mr Von Schrader as being a consequence of his association with Garry Ford who introduced him. It is my view that the difficult relationship with his parents certainly would have had a psychological effect upon him but the features of posttraumatic stress disorder are probably attributable to a very large extent to the sexual abuse by Mr Ford. In particular the symptoms attributable to Mr Ford’s actions are flashbacks, security fears, hypervigilance, nightmares and an exaggerated startle reflex along with low self esteem, shame and guilt. I believe that had he had a more supportive life as a child and adolescent at the hands of his parents he would have been able to deal with his symptoms more effectively than the ways which he has chosen such as substance abuse and that he would have been more responsive to treatment than he is. In other words I believe that the 3 At [7] of the applicant’s affidavit (above). 4 [11] affidavit of applicant. -- 3 of 7 -- 4 actions of Mr Ford caused posttraumatic stress disorder in a boy who had pre-existing vulnerabilities. You ask me to comment on Mr Meiklejohn’s opinion that the two convictions of “permit sodomy” and “attempted sodomy” are very significant in relation to his current symptoms. I believe that this is highly probable and in particular that his feelings of dirtiness, shame and guilt may proceed from these offences. He appears to have developed his obsessional traits as a means of defending himself against the unpleasant symptoms caused by these offences. They represent the most intrusive of the acts for which the respondent was convicted.” [12] Significantly, Dr McGuire is of the opinion that symptoms attributable to the respondent’s actions are flashbacks, security fears, hypervigilance, nightmares and an exaggerated startle reflex along with low self esteem, shame and guilt. [13] Dr McGuire’s third report exhibited to the affidavit sworn 22 March 2010 which report is dated 24 February 2010 makes the following comments: “Obviously the diagnosis of posttraumatic stress disorder is based on the subjective account of the sufferer. Psychiatrists cannot determine that as a fact and in the case of Mr Meiklejohn, Mr Ford has been convicted of offences against him. In other words his account has been tested in court and he was found guilty. My diagnosis in addition to the information given to me by Mr DM was based on his demeanour at the time of interview and was congruent with the material that he was presenting.” [14] In cross-examination on 12 April 2010 by the respondent, Dr McGuire, did not waiver essentially from her opinions earlier expressed in reports. Furthermore, the respondent tested Dr McGuire in relation to questions concerning Mr Meiklejohn’s ability to dissemble, malingering, a degree of inconsistency in his recollection of events and what role, if any, his own conduct had to play when assessed against a background of information involving an abusive relationship with another partner Von Schrader, who on the evidence that I accept, must have had a relationship with Meiklejhohn over part of the period when the respondent sexually abused the applicant. [15] Dr McGuire gave the following evidence in cross-examination on 12 April 2010: “So, the point - the question really is, does that document line up with your views of DM and Von Shrader and me being responsible for what happened to him, as he seems to make out?-- Obviously he has had a lot of trouble with Mr Von Shrader. To my mind the significant thing is that I think his first sexual experience at the age of 13 was with you, and not with Mr Von Shrader. So, to some extent it may be that a path of activity was laid down from the age of -- 4 of 7 -- 5 13. But I wouldn't dispute that he seems to have had a very difficult relationship with Mr Von Shrader.” 5 “The main problem seems to be, and this is the main reason I asked you to come, is differentiate - how can you differentiate what Von Shrader's responsible for from what I'm responsible for?-- Yes. Um, well, I think that's a significant question. I would think that if his relationship with Mr Von Shrader was, as you've outlined, it is possible - likely that he was traumatised by Mr Von Shrader. Nonetheless I feel if he'd never met Mr Von Shrader he would have sustained post traumatic distress disorder as a result of his experiences with you. Even though he's - admitted that I haven't changed his sexuality in any-----?-- Yes. It wasn't his homosexuality which was concerning him. It was the fact that he had been sexually abused as a child.” 6 “He told me that he had been sexually abused by you when he was 13, and he outlined symptoms which fulfil the criteria for a diagnosis of post traumatic distress disorder as a result of his experiences with you. I agree with you that he appears to have had a difficult relationship with Mr Von Shrader which has led to the very serious consequence of him having HIV infection and that this would be a trauma. But, as I said, if this hadn't happened I still believe that he developed post traumatic stress disorder to a severe degree as a result of his experiences with you.” 7 [16] I am prepared to accept for the purpose of these proceedings that the relationship between the applicant and Von Schrader was an abusive one, and further, that the respondent and the applicant’s mother “rescued” the applicant from the relationship by removing him from Von Schrader’s presence. [17] Although there was implied criticism in the cross-examination of Dr McGuire of the applicant’s credibility, reliability and motive as to the making of this application, the respondent did not seek to cross-examine the applicant. One such example of this implied criticism appears as follows: “Now, just one last question I think, your Honour. Dr McGuire, Mr Meiklejohn, when I last saw him, was very able and capable and having a good relationship with Terry Staunton. This appears to have gone on until 2004, this is going by Mr Meiklejohn's own affidavit, when in January 2004 all of a sudden he starts going to St Luke's Clinic for treatment for his depression and anxiety and AIDS and everything, and this is after the committal cases had gone on and there had been other cases heard. Do you think that's usual, that somebody would suddenly find they need to go for psychiatric help and counselling, you know, so many years after it and only after (a) 5 T9 – 12/04/2010, L23 – L35. 6 T13 – 12/04/2010, L39 – L53. 7 T14 – 12/04/2010, L42 - L52. -- 5 of 7 -- 6 they're in financial difficulties and (b) they've - they fear - well, I've been convicted of other offences?-- It's not unusual for sufferers of PTSD to experience symptoms many years after the initial trauma. I can't speculate on why he went for psychiatric treatment then, I know nothing of his finances at the time, but it's certainly part of the natural history of the condition that there can be many years between the trauma and symptoms.” 8 [18] On the whole of the evidence, I accept the applicant’s evidence in support of his application. [19] Having considered the material before me including the detailed cross-examination of Dr McGuire by the respondent, I have no hesitation in accepting that the applicant suffers from a severe Post Traumatic Stress Disorder that has been occasioned by the abuse by the respondent. [20] The question of compensation [21] Although the provisions of COVA describe a somewhat different approach to the way in which compensation is assessed, an application under s 663B of the Criminal Code requires assessment of damages for injury “in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.”9 [22] Dr McGuire concludes 10 that amongst the factors influencing the applicant’s mental state is the fact that “had the applicant had a more supportive life as a child and adolescent at the hands of his parents he would have been able to deal with his symptoms more effectively than the way he has chosen …”. [23] Far from accepting Mr Ford’s submission that the applicant’s present condition presents in so complex a way that it is impossible to identify any contribution or behaviour by the respondent that could or did actually contribute to the present condition, I am satisfied on the evidence including the evidence of Dr McGuire that the respondent’s abusive behaviour to the applicant was a material and substantial cause of his condition as presently described by Dr McGuire. [24] According to the proper approach I should proceed on the basis that the applicant must establish the consequences flowing from the offences of which the respondent has been convicted thus, the test is one of causation. [25] I am satisfied that the respondent’s behaviour has materially and substantially contributed to the applicant’s present mental state. Quantum of compensation [26] The applicant has established that he is entitled to compensation because the offences have directly caused substantially and materially the present mental state from which he suffers. Under chapter 65 of the Criminal Code the question remains as to the quantum of compensation. 8 T16 – 12/04/2010, L41 – T17, L2. 9 R v Jones; ex-parte McClintock [1996] 1 Qd R 524, 527. COVA s 25(8)(a) proscribes such an approach to applications falling within its purview. 10 Report 2 February 2010. -- 6 of 7 -- 7 [27] Compensation may be awarded where there is a demonstrated “course of conduct”. Although that phrase is not specifically defined, considerable assistance is to be found in the decision R v Llorente ex;parte Hendry [2001] 2 Qd R 415. The learned Chief Justice with whom Muir J (as he then was) agreed concluded that the meaning of “course of conduct” under s 663B connoted a succession or series of acts or omissions which because of a sufficiently close inter-relation whether by nature, time, place, or otherwise, displayed in aggregation an identifiable overall pattern. [28] In this case two lesser offences both of which involved displaying pornographic material to the applicant occurred between December 1992 and December 1993. Two particularly serious sexual acts of assault, that is, permitting sodomy and attempted sodomy occurred as the indictment alleges between January 1994 and December 1995, although on the evidence those acts may have occurred in mid- 1994. The applicant’s evidence at trial suggested that those two acts occurred in mid-1995. I do not regard that inconsistency as reflective of untruthfulness, deliberate or otherwise, but more likely to be the result of some confusion because of the applicant’s mental state by the time of trial. [29] The history of events as described by the applicant, which I accept, describe two separate courses of conduct independent of each other in terms of time and abusive activity, although there is, of course, commonality as there must be expected to be with the applicant and the respondent. The activities to my mind suggest two separate courses of conduct and are therefore separately compensable. [30] The conduct involving displaying pornography to the applicant (Counts 1 and 2) should be allowed $5,000.00. The second course of conduct involving sodomy and permitting sodomy (Counts 9 and 11) should be allowed $20,000.00. [31] I order the respondent pay the applicant $25,000.00 by way of criminal compensation. [32] I will hear submissions as to costs. -- 7 of 7 --