Dcn v Rjs [2004] WADC 63

Amicus Curiae : Ms L E Christian appeared on behalf of the Chief Executive Officer of the Department of Justice

BAS v The Estate of NAS (Dec) [2000] WASCA 270

C v Assessor of Criminal Injuries Compensation [1999] WADC 145

LMC by her next friend The Public Trustee in and for the State of Western Australia v RJO [2002] WADC 147

Passaris v The Assessor of Criminal Injuries Compensation [2000] WADC 74

RES v IHS [2003] WADC 196

Sunderland v Curnack [2002] WASC 158

Turner v Assessor of Criminal Injuries Compensation [1999] WADC 48

A v D (1994) 11 WAR 481

B v W (1989) 6 SR (WA) 79

BJI v Edwards [2002] WADC 218

Blezard v Chief Executive Officer of the Ministry of Justice (2000) 23 SR (WA) 278

Grist v Leunig, unreported; DCt of WA; Library No 4757.9; 12 June 1995

Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980

HNR v GJF (Deceased) [2002] WADC 94

Jones v Macey [2000] WADC 101

K v P (1992) 8 SR (WA) 256

KB by her next friend GM [2003] WADC 204

M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992

Massie v Czepulkowski & Ors, unreported; SCt of WA; Library No 1917; 6 December 1976

MAI v Edwards [2002] WADC 219

MEM v CLF [2003] 32 SR (WA) 34

MSS v DWL [2000] WADC 1

MW v CW [2001] WADC 234

R v Forsythe [1972] 2 NSWLR 951

Re Carter, (1984) 4 SR (WA) 219

Re Karra, (1984) 2 SR (WA) 97

S v Neumann (1995) 14 WAR 452

W v N, unreported; DCt of WA; Library No 4281.5; 22 December 1994

X v Y, unreported; SCt of WA; Library No 960517; 13 September 1996

1 HH JACKSON DCJ: The applicant seeks an award of damages and costs against the respondent under the provisions of the Criminal Injuries (Compensation) Act 1970 and the 1976 amendments thereto.

2 The applicant was born in September 1968. Her mother later formed a relationship with, and subsequently married, the respondent. Her evidence, which was given on affidavit, is not challenged except as to relevance in some areas, although some of those same issues are also denied by the respondent through submissions, not evidence.

3 The applicant was in Grade 3 at school, at age 8 when the respondent first sexually abused her. The abuse commenced with fondling, rubbing and licking her genitalia and digital penetration, which then continued on a regular basis until she was 11-1/2 years old, although it diminished after she turned 11 years old. In time, the respondent had her masturbate him and penilely penetrated her.

4 The applicant disclosed the abuse to her mother when she was 14 years old and the family separated. In 2000, she reported the matter to police, following which the respondent was charged and convicted in the Supreme Court of a number of offences and sentenced to imprisonment.

5 Details of the convictions are important. He was convicted on Supreme Court Indictment 137/01 of three counts of unlawful and indecent dealing with a child between 1 January 1976 and 21 December 1976, two counts of unlawful and indecent dealing with a child between 2 September 1976 and 3 September 1978, two counts of unlawful and indecent dealing with a child between 1 January 1978 and 31 December 1978, one count of unlawful and indecent dealing with a child between 1 January 1979 and 31 December 1979 and one count of unlawful and indecent assault of a child between 3 September 1981 and 28 February 1983. He was sentenced to terms of imprisonment totalling five years four months. However, he was not convicted of four more counts on the Indictment being counts 1, 9, 10 and 11.

6 Three comments must be made. The first is that, as often occurs, the applicant was and is, unable to be more specific as to the dates of the various offences. The result is that some decision must be made as to the legislation relevant to the various particular offences.

7 The second is that the relevant offences would, since 1992, be classified rather differently. The particulars of the charges make it plain that in seven of the nine counts, the charges involved sexual penetration rather than merely indecent dealings.

8 The third is the need to consider the relevant legislative history.

9 The Criminal Injuries (Compensation) Act 1970 provided, in s 4, that:

"4. (1) Where a person is convicted of an offence, the court by which, or the judge before whom, the person was tried may, at any time after his conviction on the application of a person who has suffered injury in consequence of the commission of the offence, order that a sum, not exceeding two thousand dollars if the offence is an indictable offence, ... be paid by the person convicted out of his property to such other person, by way of compensation for injury suffered by that other person by reason of the commission of the offence."

10 In 1976, the legislation was amended, inter alia, by increasing the sum of $2,000 to $7,500.

11 In increasing the maximum sum payable, Parliament added s 4(2a) as follows:

"(2a) Where a person has suffered injury or loss ... in consequence of the commission of ... more than one offence, ... but the offences were committed at approximately the same time ... or the offences are otherwise related to each other, the court or judge shall not order that more than seven thousand five hundred dollars be paid in the aggregate in respect of ... all the offences, ..."

12 Parliament also added:

"6A. (1) Where, on application made to The District Court of Western Australia, a person satisfies the Court that he has suffered injury or loss in consequence of the commission of an offence and that no person has been tried with the commission of the offence, the Court may grant a certificate stating the sum to which he would have been entitled pursuant to an order under section 4 if the person or persons who committed the offence had been convicted of the offence and an order had been made under that section."

13 No application is made under s 6A.

14 Those changes came into force on 18 October 1976.

15 Initially, the fact that the respondent was tried in the Supreme Court was overlooked, but the Chief Justice has since indicated his agreement to this Court dealing with the application and formally remitted the proceedings to this Court for that purpose.

16 The next legislative change to note is that the Criminal Injuries Compensation Act 1982 came into effect on 1 January 1983. It provides for application to be made to the Assessor and (subject to the Act) for a maximum award of $15,000.

17 These legislative changes were not made to have retrospective effect and, therefore, now act arbitrarily.

18 The Chief Executive Officer argues that the maximum compensation that may be awarded is as follows, given the applicant's statement as to the dates of commission:

Indictment

Count Date of Offence Maximum Compensation

2 Between 01.01.76 $2,000 if on or before 17.10.76,

4 Between 01.01.76 $2,000 if on or before 17.10.76,

5 Between 02.09.76 $2,000 if on or before 17.10.76,

13 Between 02.09.81 $7,500 if on or before 31.12.82,

19 The maximum open to the court to award on this basis is therefore $45,000.

20 The respondent submits that the maximum amounts which can be awarded are:

1. With respect to offences 2 and 3, the amount of $2,000 in the aggregate;

2. With respect to offence 4, the amount of $2,000;

3. With respect to offences 5 and 6, the amount of $7,500 in the aggregate;

4. With respect to offences 7 and 8 the amount of $7,500 in the aggregate;

5. With respect to offence 12, the sum of $7,500; and

21 The basis on which this submission is made is that offences 2, 3 and 4 were committed between 1 January 1976 and 31 December 1976, and the amendment increasing the maximum award to $7,500 did not come into operation until October 1976, towards the end of the alleged period of time during which the respondent committed the offences. If count 13 took place after 1 January 1983, then the appropriate application should be made to the Assessor of Criminal Injuries Compensation pursuant to the 1982 Act (Criminal Injuries Compensation Act 1982) which came into operation on 1 January 1983. By this Act, the maximum amount was increased to $15,000. It is, therefore, the respondent's submission that the maximum amount which could be awarded to the plaintiff is $34,000.

22 Whilst the applicant's statements allege that the charges upon which the respondent was convicted were merely representative of his offending, the application is made only in respect of the matters of which the respondent was convicted. As is commonly and perhaps inevitably the case, there is little specific detail of the other offending and no specific evidence of the causal sequence. Indeed, some allegations by the appellant are denied by the respondent through Ms Keeley, although without evidence being called.

23 The applicant says in her affidavit of 19 June 2003 that:

"21. The offences that were committed upon me had a significant effect upon my life in many ways including the inability to trust authority or anyone with whom I had a relationship with, self harming behaviour, eating disorders, some form of dissociative identity disorder, low self esteem and depression.

22. On 25 January 2001, I received treatment as a result of the offences committed against me from a social worker, Ms Lanie Pianta at Warambre Community Health Centre. ...

23. I was subsequently referred to a counsellor, Ms Elisa Mladenovic at the Accacia Support Centre. ..."

24 The affidavit annexes reports from each.

25 The respondent raises two issues in respect of these matters. Ms Keeley correctly argues that the applicant must establish on the balance of probabilities, the fact of mental or nervous shock and the causal connection between that and the offences which occurred. That connection she argues though, can only be established by a psychiatrist.

26 The first is whether causation is established. The authorities show that the causal link should be real, significant, substantial but not that the offending has to be necessarily the only cause of the loss or injury.

27 The effects referred to in par 21 of the affidavit are set out in considerably more detail in a statement made 27 September 2001. None of this is disputed by evidence. I note that in sentencing the respondent, Auxiliary Justice White said:

"It is apparent from the victim impact statement that I have received that your conduct has caused her great distress. It has deprived her of a normal childhood and destroyed her capacity to enjoy a natural sexual relationship in her marriage.

...

The offences of which you have been convicted are very serious. They formed part of a pattern of abuse over a lengthy period and had a devastating effect upon a vulnerable child. ...

In determining a proper sentence, I shall take into account the aggravating features I have mentioned; namely, the long period of the offending, the very young age of the victim who was only about 8 years old when you began to molest her, the fact that you were in a position of authority and trust as her stepfather, a position which you have sadly abused. ..."

28 The respondent also raises the issue of the relevant expertise of each of Ms Pianta and Ms Mladenovic:

"The evidence of Lanie Pianta and Elisa Mladenovic is not proved to be expert evidence. Neither author establishes herself as an expert in a manner which entitles them to make the statements or give the opinions they have in relation to the effects of the assaults upon the plaintiff. This evidence should not be admitted."

29 I allowed the parties time for submission to me in writing of any relevant authorities on this issue. By letter of 17 December 2003, the appellant's counsel wrote advising of a number of decided cases in which non-psychiatric evidence had been admitted, whilst agreeing there had been no authoritative decision specifically considering the matter.

30 In a number of cases, such evidence as the applicant tenders has been received and accepted. The Chief Executive Officer submitted that "there have been instances where the court has awarded criminal injuries compensation for mental and nervous shock suffered by an applicant where the only evidence of that injury, in addition to the applicant's own evidence, was from a counsellor", citing Sunderland v Curnack [2002] WASC 158 at [11]- [13] and RES v IHS [2003] WADC 196 at [23]- [28]. See also for example, VAF v DWR [2003] WADC 153, However, in C v Assessor of Criminal Injuries Compensation [1999] WADC 145 at [38]- [41], the Court considered that a counsellor was not qualified to make a diagnosis of a medical and psychiatric condition, and in Turner v Assessor of Criminal Injuries Compensation [1999] WADC 48, although the appellant had evidence from two psychologists, the court found it notable that there was no expert opinion from a psychiatrist. The court took into account the fact that the appellant had not sought psychiatric treatment as a matter relevant to an assessment of the degree of injury suffered by the appellant. In WMP v REV [2003] WADC 81, also Muller DCJ received the evidence of a clinical psychologist.

31 My attention was also drawn during submissions to Passaris v The Assessor of Criminal Injuries Compensation [2000] WADC 74. That litigation however, seems to be concerned with the need for evidence explaining use of terms such as "post-traumatic stress disorder", its diagnostic criteria, sequelae, etc. That is not, I think, an issue here. In BAS v The Estate of NAS (Dec) [2000] WASCA 270, the applicant had tendered the reports of two sexual assault counsellors and of a clinical psychologist, as well as the applicant's own deposition. The Full Court of the Supreme Court referred to these reports as supporting her evidence without questioning their admissibility.

32 I incline to the view that the evidence of appropriately experienced and trained counsellors and social workers should be accepted as admissible in this field, as well as that of clinical psychologists and, of course, psychiatrists. All may have significant relevant knowledge and experience. Obviously, in a given case, questions of weight will be affected by experience, training and the like, and in a case of conflicting evidence, questions of judgment will arise. Even in the absence of conflicting evidence, courts are not bound to accept evidence tendered even by experts. But here, there is no conflicting evidence and the evidence given in the form of the reports is entirely consistent with the applicant's evidence, and with common sense and judicial experience. The spirit of criminal injuries compensation legislation and the paucity of psychiatric resources in remote and some regional areas of this State support my conclusion. I admit the evidence.

33 Ms Pianta reported:

"...

My role primarily then, has been one of supporting [the applicant] as a survivor of Past Sexual Abuse, into the healing process. This has involved listening, validating, believing, encouraging and supporting. Although the healing process has commenced for [the applicant], it still continues and will continue into the future. Undertaking legal action against the perpetrator of the sexual abuse, breaking her silence about her experience of sexual abuse and talking about her experience therapeutically are important steps. Additionally, [the applicant] actively participated and led local community action to obtain a specific Sexual Assault Service in this area. These are good indicators of beginning the healing after Past Sexual Abuse.

At the same time however, although [the applicant] has 'survived' Past Sexual Abuse, in that she is alive, it continues to significantly impact upon her life in many ways. The spectre of Past Sexual Abuse, is omnipresent for [the applicant]. It is reflected in most facets of her being and her everyday reality. These include: low self esteem and her view of herself; trust issues with most people who enter and/or who are part of her life; intimacy with her husband; her relationship with her two children; her relationships with friends and other people, intrusive flashbacks/memories of abusive events; disassociation; thoughts of self harm; and her psycho-social-emotional wellbeing in general.

[The applicant] has learned strategies to 'survive.' She has become adept at presenting an image to the world and to herself. This image allows for self-preservation and survival. The perception that people have of [the applicant] is that she is a confident, well functioning and happy person, mother, wife, businesswoman and local shire councillor. Whilst there is some enjoyment and satisfaction with her many activities, for [the applicant], it is important 'to keep busy.' It has become a well honed/well developed strategy that then allows very little time for 'thinking about' or 'being' [the applicant] and all that entails, including her experience of Past Sexual Abuse. The image, perception and associated strategies provide protection, safety and distance for [the applicant] - it has allowed her to survive and function.

The discrepancy between the image and [the applicant's] reality is real and impacts upon her life in real ways. As well as the indicators of the impact of Past Sexual Abuse for [the applicant] mentioned previously, [the applicant] often wants to withdraw, retreat or run away from her world and all that entails. Her children are often the reason she cites for not doing so. [The applicant] also often disassociates as a way of coping.

The long-term impact of Past Sexual Abuse upon adult survivors is well documented in numerous evidence-based research. That this abuse occurs for many children including [the applicant], at a vulnerable time, an age when the complexities of physical, psychological, emotional and social development are taking place, is significant.

My assessment is that the long-term affect upon [the applicant] of her experience of Past Sexual Abuse, is that she has suffered substantial trauma. Significantly, this includes the impact upon her psycho/social/emotional capacity to achieve her fullest potential, as a human being and all that encompasses.

This report and assessment is based on nine years of Social Work practice knowledge, my knowledge of the issue of sexual abuse/assault and the impact upon survivors, and therapeutic work with adult survivors of Past Sexual Abuse."

34 Most of Ms Mladenovic's report describes her discussions with the applicant and her observations of her. She concludes:

"In conclusion it becomes evident that after the sexual abuse [the applicant] experienced a great deal of trauma and loss. [The applicant] because of the abuse, experienced many of the behaviours identified in trauma victims, including symptomatology such as self-harming behaviour, eating disorders and perhaps some form of dissociative identity disorder which still seems to remain with her today."

35 Ms Christian for the Chief Executive Officer accepted that I could be satisfied by the evidence objected to by the respondent, that the applicant had suffered mental and nervous shock within the terms of the legislation and caused by the respondent's offending.

36 Apart from specific matters here discussed, the general principles to be adopted in assessment are well-established and not in dispute. They were set out in the Chief Executive Officer's submissions and I will not repeat them here.

37 Counsel for the Chief Executive Officer put it to me that, on the issue of causation, a difference of approach exists in this Court between, for example, VAF v DWR (supra) and LMC by her next friend The Public Trustee in and for the State of Western Australia v RJO [2002] WADC 147 on the one hand, and AJC v Lewis [2003] WACC 7 in which Martino DCJ ruled that:

"Where an applicant has been the victim of offences for which compensation or a certificate can be awarded ('compensable offences') and has also suffered injury or loss as a result of events for which compensation cannot be awarded the onus is on the applicant to prove that the compensable offences did contribute materially to the applicant's injury or loss. Those offences need not be the sole cause of the injury or loss: Bonnington Castings Ltd v Wardlow [1956] UKHL 1; [1956] AC 613; Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666.

If it is not possible to disentangle the consequences of non-compensable events from the consequences of compensable offences the applicant is entitled to compensation for the full injury and loss suffered if the applicant has established that the compensable offences did contribute materially to the applicant's injury or loss: Bonnington Casting Ltd v Wardlow (supra); Fagan v Crimes Compensation Tribunal (supra); Watts v Rake [1960] HCA 58; (1960) 108 CLR 158; Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164.

Where the evidence establishes that the non-compensable events had a propensity to cause the applicant injury or loss and did contribute to the injury or loss the award of compensation will be reduced to take account of that chance: Wilson v Peisley (1975) 7 ALR 571; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638."

38 In VAF v DWR (supra), Muller DCJ was concerned with a case in which the applicant had been separately sexually abused not only by the respondent, her father, but previously by another relative and subsequently, by a welfare worker. He took the view that causation of the mental and nervous shock by way of post-traumatic stress disorder suffered by the applicant had somehow to be apportioned. In the particular case however, the question became "academic" in light of the available maxima in damages for the offences of which the respondent had been convicted.

39 In LMC by her next friend The Public Trustee in and for the State of Western Australia v RJO (supra), Yeats DCJ had to deal with the case of an intellectually handicapped female who had reported a series of offences against her by a number of different males. Her Honour took a similar view, assessing the respondent as having caused one-half of the compensable loss suffered.

40 Reading the whole of the passage cited from AJC v Lewis (supra), I do not think the result is likely to be significantly different in most of the present type of cases.

41 In my view, causation of the alleged loss is established. I agree, with respect, that the effects of the abuse have been devastating to the applicant. In so finding, I am of course aware of the respondent's submissions that the evidence from the applicant includes statements which are inadmissible and irrelevant, and which were not the subject of findings of guilt by the respondent. Indeed, some of the matters raised by the applicant in her deposition and in her statement are irrelevant and therefore, technically inadmissible. Without dealing with them individually here, I simply confirm that I disregard them. Certainly, the applicant can describe matters such as her lifestyle, demeanours and her belief in the causal connection to abuse etc., but not herself give expert evidence thereof. The applicant's affidavits make no secret of the fact that she was, from the age of five years or six years, living in a house with her mother and her step-father, the respondent, in a home in which alcohol, violence and arguments were common.

42 Allowing for all those matters however, there can be no reason really to doubt that the applicant suffered real "mental and nervous shock" which has played a significant and ongoing part in her life.

43 I allow $34,000 on the basis that the offences probably occurred in the periods argued for by the respondent. That amount is so modest that the loss suffered would on any assessment exceed that maximum. I award costs to the applicant against the respondent.