Borg, Re [1990] QSC 465

IN THE SUPREME COURT OF QUEENSLAND CRIMINAL JURISDICTION No. 321 of 1990 ~\ 1/\.._,-,) BEFORE MR. JUSTICE McPHERSON S. P. J. ·9, . A:, . 10 20 30 -lO 50 60 BRISBANE, 13 DECEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) IN THE MATTER OF THE CRIMINAL CODE OF QUEENSLAND -and- IN THE MATTER OF an application by DEBORAH LEE BORG for compensation under Section 663B of the Criminal Code of Queensland ORDER HIS HONOUR: This is an application for criminal compensation by Deborah Lee Borg. She was the complainant in charges against the respondent, Andrew Keith Challinger, of rape, sodomy and indecent assault alleged to have been committed by him on her on 2 December 1987. The respondent was tried before me in this court and was found guilty by the jury of those three charges after a trial which began on 5 September 1988. The sentences in respect of those offences were, due to the unavailability of counsel or of me, not imposed until 18 October 1988. There was then an appeal. That resulted in a quashing of the rape, but not the sodomy conviction or the conviction for indecent assault. The respondent was then retried on the charge of rape and he was again found guilty by the jury at a trial conducted before Mr. Justice Lee. He was sentenced by His Honour on 29 September 1989. On behalf of the respondent, Mr. Claire has raised a question about the lateness of the application, but I think given all the circumstances, including the matter of retrial and the difficulties of arranging to have Judges hear these matters at any time that the applicant may be ready to proceed, the delay is certainly not unreasonable - if, which I am not to be taken as deciding the delay, a delay has any significance in these matters at all. Returning to the circumstances of the offences, they were these: the applicant was, at the time of the incidents, a girl aged 16 and a half years, living with her parents ij the Coolangatta -Tweed Heads area. She went with a companion to a nightclub in the area,where the respondent _Govt. Printer, Old. 1 10 20 30 40 50 60 -- 1 of 3 -- 10 20 30 40 50 60 and a co-accused at the trial before me, named Morgan, were working. The complainant met those two men there. She evidently took a fancy to Morgan and accompanied him eagerly, I may say, back to his flat. Sexual intercourse there took place between her and Morgan and it took placewith her consent. The respondent Challinger then enteredthe bedroom and proceeded to commit these three offences. He, I gather, continues to deny that he did so. MR. CLAIRE: I am sorry to interrupt, the issue was consent at the trial and His Honour remarked on that in his remarks. HIS HONOUR: The evidence before me is that the applicant is now 19 years of age. She was born on 30 December 1970 and so was 16 and a half at the time of theoffence. She now resides with a stepmother at Warwick. She is, I see from the material, employed as a law clerk. After the incidents in question she was left with some physical damage to her person. There were tears in and around her vagina and the sodomy may have caused some discomfort in the anal area. She also had some bruises on her. By and large, however, the physical consequences ofthe offences were not great. The emotional consequenceswere far more considerable. In particular, it is necessary to remind myself of what happened after the rape and sodomy in the course of what constituted the indecent assault. She, after being freed of the respondent Challinger, was thrown by him on to the bed. Her legs were held in the air, one leg being held by Challinger and the other by Morgan. Challinger and Morgan then placed a finger each in hervagina or anus. She screamed and protested. She was thenallowed to go and propelled, partly clothed, out of the unit. ·My sentencing remarks observe that as a final indignity. The experience was unquestionably a humiliating one. she has had the benefit of counselling from a lady named Jude Robb who is a specialist in this field of endeavour and who has provided a helpful report filed on 6 December 1980. What it tells me is pretty much what one has come to expectas the aftermath of rape cases of this kind. The applicant for compensation has suffered difficulties in re-establishing her personal confidence, her trust in men and in forming emotional relationships ofpermanence with persons of the opposite sex. She had notsucceeded in forming a serious relationship of that kind until recently, from which I infer that she is now improving in that regard. She was originally emotionally distressed and suffered phobia of people in public places. That affected her employability and she was at first forced to go from one employment to another. I think there is no doubt Govt. Printer, Old. 2 10 20 30 50 60 -- 2 of 3 -- 10 20 30 -JO 50 60 that she is improving and has largely overcome the embarrassment she felt initially at the interest that people show in the circumstances of the offence against her. The offence is not to be passed over lightly. It would have been a frightening experience for a girl of that age. On the other hand, Mr. Claire has pointed out that the girl certainly acted foolishly in going where she did and at the time at which she went there. That corresponds to remarks I made when I was sentencing the respondent at the end of the first trial. Mr.- Claire has pointed out that s.663B (2) provides that in determining whether or not to make an order 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 her and to such other circumstances as · it considers relevant. On behalf of the applicant, Mr. Goodwin has submitted that the applicant's conduct, in so far as it was foolish and over-trusting, was related to the accused Morgan in that respect, but not to the accused Challinger. There is some point in that remark, but nevertheless one would not expect a girl of the age of this one to take upon herself the risk of going to the flat of a man she had met only that night and who was in the company of other men. It is right to say that girls of that age are perhaps inclined to be foolish, but still I think that an element of risk and foolhardiness was involved in her conduct and that she ought to have been aware of it than perhaps even that she was. I take that factor into account, though not to any great extent in arriving at an assessment of the compensation to be awarded in this case. The application is one which, both in terms of the evidence presented and the circumstances disclosed, seems to me to be not on nearly so serious a scale as that of the complainant in the previous case I have just dealt with and I do not think that an award of the same order is merited here as it was in that case. In the case of Paivi Hakkinen, which is the one to which I refer, there was considerable evidence of past economic loss and ::.i1at t.here would be a similar loss that would be incurred in the future, and of the need for future psychiatric treatment of the specialist kind. Nothing of that kind is disclosed in this case. Taking account of all these matters, including the gross humiliation that was visited on this girl, I think an appropriate award in her favour would be $5,000. I will therefore make aD order that the respondent, Andrew Keith Challinger, pay to the applicant, Deborah Lee Borg, a sum of $5,000 by way of compensation for injuries suffered by her by reason of the three offences - sodomy, rape and indecent assault - of which he was convicted at the two trials I have mentioned. I also orGer that the respondent pay the applicant's costs of and incidental to this application. t::,wt, Printer, Old. 3 1, 10 20 ( ( 30 ( 40 ( 50 60 -- 3 of 3 --