F v Hamilton [2008] QDC 210

DISTRICT COURT OF QUEENSLAND CITATION: F v Hamilton [2008] QDC 210 PARTIES: F Applicant and WILLIAM ARTHUR HAMILTON Respondent FILE NO/S: BD1081/08 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Brisbane DELIVERED ON: 29 August 2008 DELIVERED AT: Brisbane HEARING DATE: 26 August 2008 JUDGE: Kingham DCJ ORDER: 1. The respondent William Arthur Hamilton pay the applicant F the sum of $20,000 by way of compensation 2. The respondent pay the applicant’s costs of and incidental to the application as assessed. CATCHWORDS: Criminal law – court of compensation application see pursuant to Chapter 65A of the Criminal Code –application made after the expiry of the six year limitation period s10(1)(b) of the Limitation of Actions Act 1974 – where the respondent did not appear and did not plea the expiry of the limitation period as defence – whether the applicant is entitled to compensation – criminal law – compensation – mental or nervous shock – where the applicant suffers from an illness not a recognised psychiatric or psychological condition – where there is a likelihood of a further condition developing in the future – assessment of damages Limitation of Actions Act 1974 (Qld) s10(1)(d) R V Chong; ex parte Chong [2001] 2 QdR301 RV Gudz; ex parte de la Couz, Supreme Court of Queensland dated 29 November 1995 per Justice de Jersey -- 1 of 5 -- 2 R V Holder ex parte Jenner [1988] 2 QdR580 SOLICITORS: Fiona Muirhead, Legal Aid Queensland, for the applicant No appearance for the respondent [1] This is an application for compensation under Section 663B(1) of the Criminal Code for injuries sustained as a result of offences committed by the respondent. He was convicted on his plea of guilty in the District Court at Beenleigh on 4 April 1996 of two counts of sodomy and two counts of indecent dealing of a boy under seventeen years of age. His Honour Senior Judge Skoien then sentenced him to nine years imprisonment for the two counts of sodomy and one year for the counts of indecent dealing. [2] Mr Hamilton is no longer in custody and was served with the application and supporting material. He was also served with a letter advising of a change in the time set for the hearing of the application and was also personally advised by the applicant’s solicitor of the time at which the application would be heard. The respondent informed the applicant’s solicitor that he would not contest the application and did not intend to attend or participate in the proceedings. [3] Chapter 65A of the Criminal Code, in which Section 663B appears, was repealed by the Criminal Offence Victims Act 1995, which commenced on 18 December 1995. Section 46 of that Act provides that Chapter 65A of the Criminal Code continues to apply to “injuries suffered by anyone because of an act done before the commencement of the Act”. The offences occurred between 29 September 1986 and 29 September 1990, before the commencement of the Act. [4] There has been a significant delay in making this application. Some twelve years have passed since convictions were recorded. Section 10(1)(d) of the Limitation of Actions Act 1974 provides that an action of this nature shall not be brought after the expiration of six years from the date on which the cause of action arose. It has long been established that provisions of that nature have been interpreted to bar the remedy and not the right and to operate only if distinctly relied upon. That interpretation of the impact of that provision on a claim under section 663B was specifically considered in R V Chong; ex parte Chong. [5] Mr Hamilton has not appeared as indicated he intends not to contest the proceedings or to participate in them. Section 10(1)(d) of the Limitation of Actions Act has not been relied upon and it is not for this court to raise it. [6] As to the delay, the court must consider any explanation for the delay and the consequences for the respondent in determining whether that prejudice should outweigh the benefit of making an award (RV Gudz; ex parte de la Couz). The applicant’s explanation is that he was not aware of his right to apply for criminal compensation until towards the end of 2007 during the course of ongoing counselling with a therapist. The applicant had given evidence at committal but was given little information afterwards other than that there was a subsequent conviction. The Police did not inform him that he had a right to make a claim for criminal injuries compensation. In or around October 2007, after the matter was raised with his therapist, he contacted Legal Aid Queensland for advice and an application for compensation was made on 30 April 2008. -- 2 of 5 -- 3 [7] The applicant had not sought assistance by any therapists until September 2006. At this time, he became conscious that he had difficulties with emotional intimacy, amongst other things. At the time of the offences coming to light his GPD advised he and his parents not to seek therapeutic intervention because he appeared to be fine at the time. In her report dated 2 June 2008, his psychiatrist, Dr Maguire opined that the considerable delay between the commission of the offences and Mr F reporting the offences was attributable to the mechanism of repression and disassociation. It should also be noted that the applicant was between ten and fourteen years of age when these offences occurred and was only nineteen at the time of the committal hearing. [8] I am satisfied Mr F was advised and encouraged to put the offences behind him and that he had, during the course of the offending period, developed the condition for which he is now being treated and that this itself explained both the delay in his reporting the offences to authorities and his delay in seeking assistance for the impact of those offences. [9] As to the question of prejudice, the respondent has not sought to contest the proceedings. The material before the court suggests the respondent’s means are limited at best and it is most likely that any award to the applicant will only be met if the Governor-in-Counsel is prepared to make an ex gratia payment. [10] In short, the delay has been explained and there is no particular prejudice to the respondent which would prevent the court from making an award for criminal injuries compensation. [11] The compensation sought is the sum of $20,000 which is the amount capped by Section 663B(3) for compensation for mental or nervous shock. The applicant was a boy at the time of the offence. The respondent was his Scout Master. Two of the offences occurred at a Scout den and two at Hope Island. The applicant cannot remember the detail of all the abuse. He knew nothing about sex at the time but knew it was wrong, although he said it did not feel like that. He put the abuse aside and did not think about it for years. [12] When he was nineteen or twenty the Police contacted his father about complaints made by other boys. Initially the applicant denied the abuse occurred because he thought he would be in trouble but eventually rang the Police and made a disclosure. The major motivation for his disclosure was that the Police had told him that some of the boys had been badly affected. The applicant had compartmentalised the abuse and did not become aware of the extent to which it had affected him until he started a serious relationship where he had difficulty engaging at an emotionally intimate level. [13] The applicant has difficulty coping with ordinary conversation. He shuts down, feels quite unable to say anything and becomes increasingly anxious. This occurs once or twice a week. He has not felt any grief over the death of his mother. He has difficulty appropriately displaying his emotions and being able to conduct disputes at an adult level. [14] Dr Maguire concluded that the applicant did not exhibit the features of post traumatic stress disorder but that he did, to a quite remarkable degree, exhibit the phenomenon of disassociation. This is a mental mechanism causing him to repress -- 3 of 5 -- 4 any emotions related to the sexual abuse. Dr Maguire stated this has resulted in a freezing of his emotions and almost certainly had been responsible for his difficulties with relationships with girls and his failure to grieve adequately for his mother. Dr Maguire concluded that it is likely that if the applicant continues therapy he will at some stage develop post traumatic stress disorder delay. The reason for the delay and onset is because of the applicant’s repression of any acknowledgement of the magnitude or effect of the abuse. Dr Maguire has diagnosed the applicant’s current state as a clinical condition equally disadvantageous to the presentation of post traumatic stress disorder. The phenomenon of disassociation which he demonstrates to a marked degree was induced by the offences and has led to considerable difficulties with interpersonal relationships and has caused him to avoid human emotions. [15] The meaning of the term Mental or Nervous Shock includes conditions recognised as psychiatric disorders but is not limited to that alone. It extends to an abnormal constitution of mind or body over and above that of the normal human reaction or emotion following a stressful event (see Thomas J in Ferguson v Luke Michael Kazakoff SC8834 of 1999). The phenomenon identified by Dr Maguire falls within the broad meaning attributed to that phrase. [16] There is also her prediction that the applicant will most likely suffer from post traumatic stress disorder delay as his current therapy continues. This is a proper consideration for compensation. The chance that the event might occur in the future should be assessed and compensation awarded accordingly. The applicant is now in therapy and has been since September 2006. He is committed to continuing with his therapy. Dr Maguire has assessed the prospect that he will develop the disorder as a likelihood if therapy continues. [17] In summary the phenomenon of disassociation adopted by the applicant to deal with the impacts of the abuse has affected his ability to be emotionally intimate both within his family relationships and with girlfriends. It has affected his ability to grieve for his mother and has emotionally stunted all of his relationships. He is likely to develop post traumatic stress disorder delay due to the longstanding repression of the effects of the abuse. [18] I am satisfied that the mental or nervous shock the applicant has and is likely to further experience justifies an award in excess of $20,000. An award for injuries of this nature is capped at $20,000 and, accordingly, the maximum will be awarded. The applicant in no way contributed to the injuries he has sustained and there are no other relevant circumstances which would justify a reduction of the award. [19] The court has the power to award costs on an application for compensation under Section 663B (R V Holder ex parte Jenner). Costs are in the discretion of the court. Nothing in the material before me suggests that such an award would be inappropriate. [20] I order the respondent William Arthur Hamilton pay the applicant F the sum of $20,000 by way of compensation pursuant to section 663B(1) of the Criminal Code for injuries sustained as a result of the offences which led to the conviction of the respondent on 4 April 1996 upon indictment under the Criminal Code of Queensland. -- 4 of 5 -- 5 [21] I order the respondent pay the applicant’s costs of and incidental to the application as assessed. -- 5 of 5 --