CMT v Bellamy [2008] QDC 298

DISTRICT COURT OF QUEENSLAND CITATION: CMT v Bellamy [2008] QDC 298 PARTIES: CMT Applicant AND JOSHUA LUKE BELLAMY Respondent FILE NO/S: BD2596/07 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 11 December 2008 DELIVERED AT: Brisbane HEARING DATE: 18 September 2008 JUDGE: McGill DCJ ORDER: The respondent pay to the applicant $2,250 in respect of the injury suffered by her as a result of the offence of which the respondent was convicted on 31 March 2006. CATCHWORDS: CRIMINAL LAW – Compensation – identification of relevant injury – relevance of offence of which respondent convicted – causation – scope of deemed injury under regulation. Criminal Offence Victims Act 1995 Chong v Chong [2001] 2 Qd R 301 – applied. Facer v Bennett [2002] 2 Qd R 295 – applied. Jullie v Atwell [2002] 2 Qd R 367 – applied. Moran v Broadbent [2004] QCA 401 – cited. Vlug v Carrasco [2006] QCA 561 – applied. COUNSEL: TJ Masterman for the applicant M Thomas (solicitor) for the respondent SOLICITORS: Campbell and White Lawyers for the applicant Delaney and Delaney Solicitors for the respondent -- 1 of 9 -- 2 [1] This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 31 March 2006 the respondent pleaded guilty to one count of unlawful carnal knowledge of a child under 16, which offence was committed on the applicant on a date unknown between 1 September and 3 October 2003. At the time of the offence the applicant was 15 years of age; the respondent was 18 years of age. It was not disputed and I proceed on the basis that the offence of which the respondent was convicted was a personal offence for the purposes of the Act. The applicant sought compensation only in respect of the deemed injury constituted by the totality of the adverse effects of the sexual offence, under s 1A of the Regulation under the Act. The application is unusual, because of a number of features, including the fact that the respondent was represented before me on the hearing of the application. [2] The applicant was sentenced on the basis of agreed facts which were put before me at the time of sentence.1 It set out that they had been friends for several weeks prior to the day in question. The applicant had an ear infection for which she was taking antibiotics and Panedeine Forte; but there was no medical evidence as to any effect this medication might have had on her. The respondent knew she may have been taking painkillers but maintained in his interview, and it was accepted, that she seemed fine. He went to her house in the afternoon at a time when her parents were absent, although there was a friend of the applicant’s present at the house.2 The applicant and the respondent were in the lounge hugging and kissing for a time, and then he asked and she agreed that they go to a bedroom. After 15 minutes of foreplay he requested sex and she verbally agreed, although apparently expressed some concern about getting pregnant because after they had undressed he put on a condom. The friend was in the lounge watching TV or listening to music at the time. Afterwards he stayed at the house for a while, and they kissed goodbye before he left about 9 pm. The respondent maintained in his police interview, and it was accepted for the purpose of sentence, that they had sex on a further occasion the following January, on a date not specified, and before they broke up; if this occurred on or after 19 January it would not have been an offence. [3] In the applicant’s affidavit filed 14 September 2008 the applicant swore in para 10: “The act of sexual intercourse was consensual however I don’t believe that I would have given full volitional consent to the act had I not been medicated at the time.” [4] The affidavit also referred to the fact that she had attended a psychologist and had subsequently seen a report he had prepared, and the factual matters outlined in the report were true and correct: paras 24, 26, and 28. However, in a further affidavit sworn 19 September 2008 and filed by leave at the hearing, the applicant swore in paragraph 7: “I maintain to this day, that the act was not consensual as outlined in my initial complaint to the police and as to the statements made to the psychiatrist, Dr McGuire, and the psychologist … .” 1 A schedule setting them out became Exhibit 2 in the criminal proceeding: Affidavit of Campbell filed 14 September 2008 Exhibit B. I was the sentencing judge. 2 Parts of the schedule suggest that another friend was also there. -- 2 of 9 -- 3 [5] She maintained that she was not a party to the process by which the facts for the purpose of sentence were agreed between the DPP and the respondent, she was not asked to approve them and she felt when the sentencing occurred that her story was not being told: para 5, 6. She said (para 10) that the earlier statement in her affidavit had been made “because these were the facts as outlined in court. My affidavit should have read: “The act of sexual intercourse was consensual as outlined in the transcript of the court and agreed to by the Director of Public Prosecutions and the respondent, however, I don’t believe that I consented to the act and wouldn’t have done so if not medicated.” [6] An affidavit of the psychologist was filed by the applicant’s solicitors on 14 September 2007, but it was not read before me. An affidavit by Dr McGuire, psychiatrist, sworn 15 September 2008, was read before me by the solicitor for the respondent. That affidavit exhibited a report provided by Dr McGuire to the solicitors for the respondent on 26 March 2008, in respect of an interview with the applicant on 19 March 2008. In that report the version recorded as having been given by the applicant was that she had been in a relationship with the respondent for about five or six months, that she had never previously had sexual intercourse, that she had gone home and was lying down alone in her bedroom when her friend let the respondent in, that the respondent came into the bedroom, took her underwear off, asked if she wanted sex and she had replied no, and he had physically forced her, holding her hands over her head. She was trying to fight him off. When he had had intercourse with her she told him to leave her alone. She said she was bleeding heavily. The authorities [7] It was accepted on behalf of the applicant that for the purposes of dealing with an application of this nature it was necessary to proceed on the basis on which the offender was sentenced: Chong v Chong [2001] 2 Qd R 301 at [22] per McMurdo P, [45] per Demack J, where his Honour said: “The compensation is in respect of the injury suffered by reason of the offence (or offences) of which the offender is convicted. It is not only proper but necessary for the judge to recall the basis upon which Chong was sentenced.” The President expressed agreement with this at [22]. [8] In Facer v Bennett [2002] 2 Qd R 295 Philippides J at p 300 said: “In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing; to do otherwise would result in unfairness and would be incongruous. However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s 25(7) of the Act to the issue of contribution. Thus, although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on -- 3 of 9 -- 4 sentencing should not be permitted. This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.” [9] It seems to me with respect that the position outlined by her Honour, with whom the other members of the court agreed, is quite clear. The application for compensation can only be in respect of an injury or injuries caused by the offence or offences of which the respondent has been convicted. The question of the definition of those offences, and their content, is a matter determined in the criminal trial and depends on the verdict of the jury (if any) and the findings of the sentencing judge for the purpose of sentence. Where an issue arises which is not something which is relevant to the criminal trial, such as the question of contributing conduct, then it is appropriate to receive additional evidence which can deal with that matter. [10] The fact that the respondent was sentenced on the basis that the applicant had consented to the intercourse does not mean that the applicant is necessarily disentitled to compensation in respect for any injury suffered as a result of that offence; everything depends on the circumstances of the particular case: Moran v Broadbent [2004] QCA 401, a case where it was not disputed that the applicant was very much a willing participant in all of the acts constituting the three counts of unlawful carnal knowledge. Ultimately, the Court of Appeal did not review the conclusion of the judge at first instance that no compensation should be awarded, because this was not solely on the basis that the applicant had contributed to the commission of the offence, but also because of the judge’s lack of satisfaction that the injury referred to in the material in support of the application had actually been caused by the offences. Analysis [11] The difficulty here for the applicant is that she now maintains that what actually occurred was not the offence of which the respondent was convicted, but a separate offence, namely rape. On her account given to Dr McGuire, that is the offence the respondent committed. But he has not been convicted of that offence. Compensation can only be given for the offence of which he has been convicted. The things said by the applicant in her affidavits were attempts to reconcile her position with the limitations imposed by the authorities, but they were inevitably artificial. [12] One might consider what would have happened if the matter had not proceeded by way of a plea of guilty, but had gone to trial. Assume that in those circumstances the applicant had given evidence in terms of what she told Dr McGuire, the respondent had given evidence in terms of what he had told the police, and the jury found him not guilty of rape but guilty of the alternative offence of unlawful carnal knowledge. In those circumstances, it would be plainly inconsistent with the Court of Appeal authorities to award compensation in respect of any injuries suffered as a result of the applicant’s having been raped, in circumstances where the respondent had not been convicted of that offence. -- 4 of 9 -- 5 [13] In circumstances such as this, the applicant faces a real difficulty under the current regime for compensation.3 Her subjective position is that what really happened was that she was raped, and in those circumstances inevitably the evidence that she has given as to what has happened to her as a consequence is evidence as to the injuries suffered by her as a result of the commission of an offence of which the respondent has not been convicted. If the true position were that the intercourse was not consensual, or if she believes that, it necessarily follows that the various things she is describing in her affidavits as consequences to her of what the respondent did are consequences of an offence of which he has not been convicted. In the hypothetical situation given earlier, where the matter went to trial and the dispute as to what happened was resolved by the verdict of the jury, it would plainly be inappropriate for compensation to be assessed on the basis that the actual consequences to the applicant of the offence that had occurred, which the applicant maintained was the offence of rape, should be treated as consequences of the offence of which the respondent had been convicted. That would have the effect of putting the respondent for the purpose of compensation in the same position as if he had been convicted of rape, which would be inconsistent with the terms of the legislation and the authorities to which I have referred. I consider the position to be the same here. The applicant’s evidence [14] The applicant’s first affidavit said that she became increasingly and significantly depressed after the assault had taken place; she felt she was not a whole person anymore, she had not maintained her physical integrity and her worth as a person was impugned.4 She did not feel able to tell anyone about it until some time later, and she says that one person she told, a school counsellor, reacted by disbelieving her.5 She provided the victim impact statement, which was exhibited to her affidavit, and which disclosed that later on the night after the incident she became suicidal and cut her left wrist with a pair of scissors.6 Her consumption of cigarettes increased, she felt that she was robbed of her virginity, and she suffered abdominal pain and could hardly walk for a period, and experienced a lot of bleeding for about three days. She said in the statement that she suffered nightmares on a weekly basis, and feelings of helplessness, confusion, violation, fear and betrayal. She was scared of having another relationship with another male, although she went on to say that the crime still affects her in her relationship with her partner, preventing her from enjoying sexual relations. She said in her first affidavit that while her level of anxiety was significant following the assault and leading up to the time of the respondent’s sentencing, she was currently much improved in her psychological outlook: para 20. She was as at 30 March 2007 7 in what she described as a loving and caring relationship with a fiancé. She was in employment. [15] On 19 September 2008 she swore a further affidavit which was filed before me by leave. In that affidavit she deposed to how at the time of the sentencing hearing she felt sick, ashamed and confused (para 6). She said that at the time she did not understand the consequences of entering into a sexual relationship (para 15), and (para 17) that “since the assault my feelings have been affected in a bad way.” She 3 The scope for an application to the State under s 33 of the Act is too limited to be of assistance to the applicant. 4 Affidavit of applicant filed 14 September 2007 paras 11, 12. 5 Ibid para 14; affidavit of applicant sworn 19 September 2008 para 25. 6 Affidavit of applicant filed 14 September 2007 Exhibit B. 7 The date on which she swore the affidavit not filed until 14 September 2007. -- 5 of 9 -- 6 has a short temper and feels anxious and sometimes her anger is overwhelming. She said that she had no intention of starting a sexual relationship with the respondent, or with anyone else, until she married: para 21. She felt devastated that her virginity was stolen from her, and feels like she is not a whole person without it: para 22. She said that after the assault happened she felt helpless and confused, really scared, and confirmed that she had attempted suicide that night: para 23. She had been concerned about the reaction of her parents (para 27), although she said under cross-examination that her parents had in fact been supportive of her. She had felt betrayed by her friend who had been in the house at the time, and that person was no longer her friend: para 24. She said that she had lost all her friends at school as a result of that person telling them what had happened: para 30. She confirmed in this affidavit she has a strong relationship with her fiancé, and they engage in sexual intercourse although it is difficult at times, particularly at the time when she swore the affidavit because she knew the matter was going to court, which had stirred up her memories of it: para 34. Overall, the applicant has repeatedly related her problems to her subjective belief that the intercourse was not consensual. Medical evidence [16] As I mentioned earlier, the applicant saw Dr McGuire, psychiatrist, on 19 March 2008 at the request of the respondent’s solicitors for the purposes of a report, which is exhibited to an affidavit by Dr McGuire read before me. Dr McGuire expressed the opinion that the applicant had sustained psychiatric injury in the form of post-traumatic stress disorder to a moderate degree, which she had had since the incident, and noted that the applicant had not had any counselling. She was exhibiting mild depression at the time of the interview, her social relations were limited, sexual intercourse with her partner, who was supportive, was adversely affected, her educational standards were “less than they would have been had she not been abused”, so that her employment prospects were diminished. Dr McGuire thought she would benefit from counselling. She considered that the applicant had suffered a number of adverse impacts as listed in the regulation, namely a sense of violation, reduced self-worth or perception, increased fear and feelings of insecurity, an adverse effect of the reaction of the others, an adverse impact on lawful sexual relations. Dr McGuire expressed the view that all of these adverse impacts were an aspect of the post-traumatic stress disorder, or a consequence of it, apart from the adverse effect of the reaction of others. [17] In response to a question from the solicitors in these terms: “Are the injuries and effects suffered by [the applicant], as a result of [the respondent]’s conduct, conceivable in light of her consent to the sexual act?” She responded: “She informed me that she did not consent and that [the respondent] was aware of this. Had she consented it is unlikely that she would have experienced post traumatic stress disorder.” Dr McGuire was not cross-examined. Analysis [18] The matter was further complicated by the fact that the applicant advanced no claim for compensation in respect of physical injury, despite her complaints of pain for some time after the incident, and bleeding for three days, nor did she advance any claim on the basis that she had suffered mental or nervous shock for the purposes of the Regulation. However, the evidence of Dr McGuire was uncontested and I accept it, and on the basis of Dr McGuire’s evidence I find that the applicant is -- 6 of 9 -- 7 suffering and has suffered since the incident from mental or nervous shock in the form of post-traumatic stress disorder, which was to a moderate degree. I do not think that the fact that the applicant does not advance a claim on this basis means that I should ignore the uncontradicted medical evidence that she is in fact suffering from that condition, but I accept Dr McGuire’s evidence that it is unlikely that she would have suffered from that condition had she in fact consented to the offence. That emphasises the particular difficulty which confronts the applicant in these circumstances. [19] The applicant has sought to advance a claim only on the basis of the deemed injury constituted by the adverse impacts. But it seems to me that this approach is not an effective response to that difficulty. The various things relied on by the applicant as constituting adverse impacts were a sense of violation, reduced self-worth or perception, the adverse effects to the reaction of others, the adverse impact on lawful sexual relations and the adverse impact on feelings. Dr McGuire considered that the last of these was not applicable, but otherwise, apart from the adverse effect to the reaction of others, these were all part of or a consequence of the condition of post-traumatic stress disorder. [20] In my opinion, if an applicant has in fact suffered mental or nervous shock, then it is artificial to proceed on the basis that that injury is to be ignored, but the claim advanced in respect of the deemed injury under the Regulation in respect of various matters which are actually part of or a consequence of something which does amount to mental or nervous shock. The Regulation provides that the deemed injury is the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under s 20. The effect of this has been authoritatively determined by the Court of Appeal in Jullie v Atwell [2002] 2 Qd R 367 and Vlug v Carrasco [2006] QCA 561. If the applicant has suffered an injury within the schedule, then compensation for that injury, including matters which are aspects of that injury or are consequences of that injury, is to be by reference to the provisions of the schedule in respect of that injury, and it is only for matters which are not part of that injury to which resort may be had to the deemed injury under the Regulation. It follows that, in the present case, where the applicant has in fact suffered post-traumatic stress disorder, if she were entitled to compensation in respect of that injury, the compensation in respect of that injury would have to be assessed under the schedule, and only matters which were not covered by or a consequence of that injury would be assessed as the deemed injury. [21] The applicant did not advance the case on that basis, because on the evidence the applicant would not have suffered that psychological injury but for the fact that the intercourse was not consensual. The effect of Dr McGuire’s evidence was that, if all that had occurred was consensual sexual intercourse in accordance with the statement of facts on the basis of which the respondent was sentenced, the applicant would probably not have suffered post-traumatic stress disorder. It seems to me further from the evidence of the applicant that what she deposes to by way of symptoms and signs amount to things she has experienced because of what she says happened to her, not things she would have experienced anyway if the intercourse had been consensual. [22] On the evidence, I cannot and do not find that the applicant has suffered post-traumatic stress disorder as a result of the offence for which the respondent has been convicted. But it does not follow that the applicant has not suffered -- 7 of 9 -- 8 post-traumatic stress disorder; I find on the evidence that she has. The position is simply that that condition was caused by events which, if they occurred in the way the applicant described, constituted an offence of which the respondent has not been convicted. The applicant is not entitled to compensation under the Act in respect of that injury. [23] The only thing that the applicant has suffered, on the evidence before me, which was not part of that injury, was the adverse effect of the reaction of others. It was submitted that the applicant told her closest friend, who told others, and that eventually the applicant lost all of her friends as a result of the incident, and that the applicant told her school guidance counsellor, who said it was the applicant’s fault. Reference was also made to the applicant’s having told her parents, but there was no evidence that the parents’ reaction was anything other than supportive, or produced any adverse effect. The difficulty here is that the evidence does not make clear what was told to the various friends she says she lost as a result of this. [24] Under cross-examination, the applicant said that she told her friend the next day, and said that this friend, and others that she told, were concerned. This occurred before she told the school counsellor. She also said that her relationship with the former best friend ended when she reported the matter, and ended because she refused to have anything to do with that person, not because of the way that person was behaving towards her. She said that she left school during year 11 because she used to get teased at school about being abused, and this was the only reason she left school. In the light of this evidence, I could not find that the applicant had suffered an adverse effect of the reaction of the former best friend; the effect of the applicant’s oral evidence was that there was no particular adverse reaction on the part of that person, but rather that the applicant had terminated the relationship. [25] It was also not clear whether the hostility, or at least teasing, directed to the applicant while she was at school, which certainly would amount to an adverse effect of the reaction of others, was attributable to what the applicant says really happened to her, which was rape, or to a belief that the applicant had engaged in consensual sexual intercourse. That was the offence of which the respondent was convicted, and if there was an adverse effect of the reaction of others who were reacting because they believed that the applicant had engaged in consensual intercourse with the respondent, that is an adverse impact of the offence of which he was convicted in respect of which compensation can be awarded under the Act, on the basis that this was an injury caused by the offence of which the respondent was convicted. On the whole I accept the applicant has discharged the onus on this point. However, I am not persuaded that the evidence before me shows that there was any other adverse impact suffered by the applicant as a result of the offence of which the respondent was convicted, as distinct from the offence which the applicant says was in fact committed, but of which the respondent has not been convicted. [26] In these circumstances, any assessment of compensation on the basis of that deemed injury will necessarily have to be quite a moderate amount, since this is only a relatively small part of the various matters which it was submitted justified an award in respect of the deemed injury of 20%. In LMW v Nicholls [2004] QDC 118 the applicant had suffered significantly but largely in respect of matters appropriately covered by an award in respect of the injury of mental or nervous shock. The matters outside the scope of that injury were again the adverse effect of -- 8 of 9 -- 9 the reactions of others, and a temporary loss of a specific employment opportunity. In that case the reaction was an unsympathetic and indeed hostile reaction on the part of the applicant’s mother, and led to the breakdown of her relationship with her mother, although it was not the sole cause of the problems in that relationship. I found that the breakdown of that relationship had, to some extent, upset and distressed the applicant: [35]. In that matter I allowed 2% in respect of the deemed injury, on the basis referred to. In all the circumstances, I will allow 3% in respect of the deemed injury in this matter. Precautionary assessment [27] I should on a precautionary basis make a finding as to what amount would have been awarded in respect of the injury under the schedule in the form of mental or nervous shock, had it been appropriate to make an award for that injury, in case a different view may be taken elsewhere. I accept the evidence of Dr McGuire that the applicant suffered post-traumatic stress disorder to a moderate degree. There is some evidence that there was some improvement after the criminal proceedings were finalised; I accept that there would have been some deterioration again about the time when these proceedings came to a hearing, but hopefully the conclusion of these proceedings will again produced some amelioration. The applicant’s reaction was initially quite severe, in that it prompted a suicide attempt, and thereafter there was a good deal of social withdrawal, but the applicant has been able to establish a good relationship with another person who is very supportive, and that has served to distinguish this from matters where there is a continuing inability to develop a sexual relationship at all, or another more severe reaction. Overall, I would assess compensation for mental or nervous shock under Item 32, and I would have allowed 12% under that Item. [28] There is no basis upon which it would be appropriate for me to reduce the award in this matter, in respect of the injury constituted by the relevant adverse impacts, on the basis of any contribution on the part of the applicant, or any other basis. For that purpose, it is appropriate for me to proceed on the basis of the evidence led before me. In those circumstances, I assess compensation at 3% of the scheme maximum, an amount of $2,250. [29] I therefore order that the respondent pay to the applicant $2,250 in respect of the injury suffered by her as a result of the offence of which the respondent was convicted on 31 March 2006. There is no jurisdiction to make any order in respect of the applicant’s costs. -- 9 of 9 --