B v Butler [2005] QDC 27

DISTRICT COURT OF QUEENSLAND CITATION: B v Butler [2005] QDC 027 PARTIES: B Applicant v ROY VAUGHAN BUTLER Respondent FILE NO: BD 4646 of 2004 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court of Queensland at Brisbane DELIVERED ON: 23 February 2005 DELIVERED AT: Brisbane HEARING DATE: 17 February 2005 JUDGE: Alan Wilson SC,DCJ ORDER: 1. Order that the respondent pay the applicant the sum of $20,000 by way of compensation under s 65A of the Criminal Code. 2. Order that the respondent pay the applicant’s costs of and incidental to the application. CATCHWORDS: CRIMINAL COMPENSATION – Criminal Code – measure of damages for mental and nervous shock - costs Criminal Code Amendment Act 1984 Ch 65A, s 663AA, s 663B Criminal Offence Victims Act 1995 Cases considered: R v Holder ex parte Jenner (1988) 2 Qd R 580 R v Hurle ex parte Anderson (1991) 2 Qd R 682. R v Jones; ex parte McClintock (1996) 1 Qd R 524 R v Morrison ex parte West (1998) 2 Qd R 79, 81 Steinback v Steinback (Robertson, DCJ,unreported, 27 October 2000) Steinback v Steinback [2001] QCA 12 COUNSEL: Ms F Muirhead, solicitor for the applicant Respondent did not appear -- 1 of 3 -- 2 SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] This is an application for compensation for mental and nervous shock under Ch 65A of the Criminal Code and, specifically, under s 663B. It relates to offences which occurred in the mid-1980s1. Chapter 65A was repealed by the Criminal Offence Victims Act 1995 which commenced on 18 December 1995, but s 46 of that Act provides that the former legislation continues to apply to “… injuries suffered by anyone because of an act done before the commencement of the Act”. [2] “Injury” is defined under s 663A to include mental and nervous shock. Section 663B empowers the court to order a convicted person 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 … of which the offender is convicted”. [3] For injuries suffered between 1 July 19842 and the commencement of the Criminal Offence Victims Act 1995 the prescribed amount in the case of mental and nervous shock is $20,0003. Each of the offences in the present case was committed within that period. [4] On 28 October 2003 the respondent was found guilty, after a trial before his Honour Judge Healy QC, of two counts of indecent dealing with the complainant, a girl under 12 years of age. He was sentenced to 18 months imprisonment, suspended after six months with an operational period of three years. [5] Compensation under the former legislation is to be assessed according to the ordinary principles of assessment of damages for personal injuries in civil actions, subject to the prescribed amount4. The words “mental shock and nervous shock” do not have a narrow, technical meaning and are used interchangeably in the law of tort to include any mental or psychological disturbance5. [6] The applicant was aged between 10 and 11 when the offences were committed. The respondent was 41 and the husband of the applicant’s stepfather’s sister. The offences occurred while she was in his care and he held a position of trust, which he abused. Both offences occurred simultaneously one morning and involved the respondent putting the applicant’s hand on his penis, and holding her hand while he masturbated, and the respondent rubbing the applicant’s vagina. [7] The applicant did not suffer any physical injuries but according to an experienced psychiatrist, Dr Barbara McGuire who examined her last year and provided a report6 she exhibits clear signs of a diagnosable psychiatric disorder, namely post traumatic stress disorder to a severe degree. In the psychiatrist’s opinion this condition has been present since the abuse occurred and is likely to persist for the rest of her life although symptoms might lessen with the passing of time. 1 Between 31 December 1985 and 1 June 1986. 2 The date of commencement of the Criminal Code Amendment Act 1984. 3 Section 663AA. 4 R v Jones; ex parte McClintock (1996) 1 Qd R 524. 5 R v Morrison ex parte West (1998) 2 Qd R 79 per Macrossan CJ at 81. 6 8 July 2004. -- 2 of 3 -- 3 [8] The evidence shows the applicant has apparently suffered quite serious symptoms, and they have affected her life ever since. They were exacerbated by the trauma of the trial, during which the respondent showed no remorse and continued, even after sentence was returned by the jury, to deny his guilt. It has affected her relations with her daughter, and her family, and male partners. [9] The question arises whether these incidents, so long ago, can fully explain (and be causally linked to) subsequent signs of mental disturbance, and behavioural irregularities. These questions were helpfully addressed by Robertson DCJ in Steinback v Steinback (unreported, 27 October 2000) in which his Honour said: The question is, therefore, as the applicant established, on the balance of probabilities that the conduct has made a material contribution to her illness, albeit not the sole or even the effective cause of such injury. Mr Zillman submits that the evidence falls well short of such proof because two isolated offences in an alleged nine year period of serious sexual abuse could not be said to be a material cause of any psychological injury which is attributable on the evidence to the whole period of misconduct. The argument is superficially attractive until one considers that the accused was convicted of two serious offences of a sexual nature against his own daughter on occasions some years apart. If causation is ultimately a matter of commonsense, it defies commonsense and logic not to infer that such actions by a natural father against his daughter, even in the context of long term sexual abuse, would not have materially contributed to her total injury. [10] On appeal7 McMurdo P said: The primary judge rejected that argument adopting a commonsense approach to causation and concluded that the commission of two serious offences of sexual abuse by a natural father upon his daughter was a material contribution to her present psychological injury. This approach, with respect, appears to be plainly right. [11] These comments are apposite here and, indeed, the evidence points quite strongly (in the absence of any other suggestion of a causative trigger) to the conclusion that the offences had a significant, material contribution to the development of her mental illness. I am satisfied the plaintiff is entitled to have compensation assessed in respect of the whole of her injury. [12] That injury is, the psychiatrist says, significant. It was submitted that in light of the psychiatrist’s conclusions she ought to be awarded all of the prescribed amount. If damages were assessed according to ordinary principles for personal injuries in civil actions she would recover a sum of that order and it is, for that reason, the appropriate award. [13] She also seeks costs, an entitlement also established by authority8. 7 Steinback v Steinback [2001] QCA 12. 8 R v Holder ex parte Jenner (1988) 2 Qd R 580; R v Hurle ex parte Anderson (1991) 2 Qd R 682. -- 3 of 3 --