SAY v AZ; ex parte A-G

SUPREME COURT OF QUEENSLAND

CITATION: SAY v AZ; ex parte A-G (Qld) [2006] QCA 462

PARTIES: SAY (applicant/appellant) v AZ (respondent/respondent) EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

FILE NO/S: Appeal No 5783 of 2006 / DC No 151 of 2006

DIVISION: Court of Appeal

PROCEEDING: Application for Leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Townsville

DELIVERED ON: 10 November 2006

DELIVERED AT: Brisbane

HEARING DATE: 20 September 2006

JUDGES: Holmes JA, Jones and Mullins JJ / Separate reasons for judgment of each member of the Court, / each concurring as to the orders made

ORDER: 1. Application for leave to appeal granted 2. Appeal allowed and order below set aside 3. Respondent to pay compensation of $42,750 to the applicant, together with her costs of the appeal

CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where appellant sought criminal compensation from respondent, her step-father, after he was convicted of one count of rape against her – where psychologist found that she suffered from post-traumatic stress disorder – where there was abuse prior to rape – where compensation reduced because learned judge found that other abuse was not taken into account in psychologist’s report – where there is more than one cause of injury – contribution of acts not subject of conviction to injury – relevance of common law approach – nature of acts and injury relevant to determination of criminal compensation / Criminal Code 1899 (Qld), s 663B / Criminal Offence Victims Act 1995 (Qld) / Criminal Offence Victims Regulation 1995 (Qld) / LMW v Nicholls [2004] QDC 118; DC 1660 of 2003, 11 May 2004, considered / MR v Eric Malcolm Webb [2001] QCA 113; Appeal No 4166 of 2000, 27 March 2001, considered / R v Jones; ex parte McClintock [1996] 1 Qd R 524, cited / HV v LN [2002] 1 Qd R 279; [2000] QCA 472, considered / R v Tiltman; ex parte Dawe, unreported, Lee J, SC No 324 of 1995, 22 June 1995, considered / Sanderson v Kajewski [2000] QSC 270; SC No 5114 of 2000, 12 July 2000, considered / Stannard v Lane [2000] QSC 86; SC No 2263 of 2000, 18 April 2000, considered

COUNSEL: A J Kimmins, with R W Frigo, for the applicant / No appearance for the respondent / K Mellifont, for the Attorney General, as amicus curiae

SOLICITORS: HQF Lawyers for the applicant / No appearance for the respondent / Crown Law for the Attorney-General

1. HOLMES JA:

The application for criminal compensation

The applicant seeks leave to appeal under s 118 of the District Court of Queensland Act 1967 from the judgment of a District Court judge on a criminal compensation application. The respondent to the application was her step-father, and she sought compensation in respect of his conviction of one count of rape; but, as is often the case, that offence occurred in a wider context. The applicant gave a statement to the police in which she said that the respondent had regularly touched her indecently from the time she was about 10, culminating in the rape when she was 14. An indictment was presented charging only the rape count, to which the respondent pleaded guilty.

2. The application for criminal compensation was supported by the opinion of a psychologist, to the effect that as a result of the rape the applicant suffered from post-traumatic stress disorder and other adverse consequences. The learned judge at first instance accepted the psychologist’s opinion that the applicant suffered from that condition and the additional adverse consequences so as to be entitled to compensation for nervous shock (in respect of the post-traumatic stress disorder) which he assessed at 30 per cent of the scheme maximum, and adverse impacts falling within s 1A of the Criminal Offence Victims Regulation 1995, which he assessed at 25 per cent. He allowed another two per cent for minor bruising and lacerations. But he found this flaw in the psychologist’s report: she had not dealt with the abuse of the applicant occurring before the rape. That was, his Honour said, a matter contributing to the post-traumatic stress disorder and the additional adverse impacts, and it required that the applicant’s compensation should be discounted. For that reason he reduced the compensation for her psychological injuries by 50 per cent, to 27.5 per cent of the scheme maximum. The applicant argues that that was an error.

3. The respondent did not appear on the application for leave to appeal. The applicant was represented by counsel. Counsel briefed by the Attorney-General also appeared, as amicus curiae, and gave considerable assistance, with an extensive review of cases dealing with the questions of causation and assessment in criminal compensation applications.

The statutory regime

4. The regime for payment of compensation for criminally-inflicted personal injury is to be found in pt 3 of the Criminal Offence Victims Act 1995. It establishes a scheme for payment of compensation for, among other things, injuries suffered by an applicant “caused by a personal offence committed against the applicant”.¹ Where someone is convicted on indictment of such an offence², or it is taken into account on sentence³, the applicant may seek an order “that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence”⁴ and the court may then make a compensation order “for an amount to be paid by the convicted person to the applicant because of the injury”.⁵

5. As to what is to be taken into account in determining compensation, s 25(7) provides as follows:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

Nowhere in pt 3 is there any more precise indication of how compensation is to be assessed when factors other than offences resulting in conviction, or taken into account on sentence, contribute to an applicant’s injury. (For brevity’s sake, I will from here refer to any such offence as “the relevant offence”.)

The Tiltman approach

6. Before the enactment of the Criminal Offence Victims Act, s 663B of the Criminal Code 1899 governed the payment of criminal compensation. It provided for “compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted”⁶, and it contained a subsection similar to s 25(7), requiring the court to have regard to any circumstances it considered relevant, including contributory behaviour by the applicant⁷. R v Tiltman; ex parte Dawe⁸ was a single judge decision under s 663B. There the applicant had been the victim of a number of sexual assaults, some of which were detailed in a schedule tendered under s 189 of the Penalties and Sentences Act 1992, and were taken into account on sentence, rather than resulting in convictions. Lee J concluded that no compensation could be paid in respect of any injury resulting from the schedule offences⁹. But all of the offences – those on the indictment and those in the schedule - had combined, in his Honour’s opinion, to cause a “single indivisible injury”.

7. Lee J identified two possible approaches: the court could assess an amount of compensation for the injury and then make a rough assessment of the contribution made to the injury by the conduct involved in the offences resulting in conviction. The other approach, adapted from the common law position in negligence, was to consider whether the offences resulting in conviction made a material contribution to the applicant’s injury; and, if so, to assess compensation in respect of the whole injury, unless the respondent were “able to separate the effects of the compensible and non-compensible conduct on the applicant with some reasonable measure of precision”¹⁰. That approach was to be preferred, Lee J concluded, and would apply whether the non-compensable cause of injury was “criminal or not or at the hands of the respondent or not”.

8. Lee J’s preference of a common law-based approach was consistent with the view taken earlier in R v Jones; ex parte McClintock¹¹ that compensation was to be “assessed in accordance with the ordinary principles of assessment of damages for personal injuries in civil cases”. The approach has been applied in other cases. But, of course, the 1995 eschews common law approaches to assessment of compensation. Subsections 22(3) and (4) are in these terms:

“(3) Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.

(4) The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.”

and s 25(8) provides:

“A decision on the amount that should be ordered to be paid under a compensation order -

(a)does not involve applying principles used to decide common law damages for personal injuries; and

(b)is to be decided by applying the principles mentioned in section 22(3) and (4).”

Criminal Offence Victims Act decisions and the Tiltman approach

9. Decisions under the Criminal Offence Victims Act dealing with the issue of compensation where there is more than one cause of a single injury are few. The careful research of counsel for the Attorney-General provided some first instance decisions. In Stannard v Lane¹⁴ Williams J (as he then was) was dealing with an application for compensation for assault, involving a blow to the head which caused a laceration, where the respondent had also been acquitted (presumably on a self-defence basis) of shooting the applicant in the abdomen and back. The medical reports dealt with the injuries resulting from the head blow and the shooting (post‑traumatic stress syndrome and severe headaches) as a whole.

10. Williams J proceeded on the basis that the Act required the applicant to establish the consequences flowing from the offence of which the respondent had been convicted. In this case, the compensation was limited to the injuries related to the blow to the head, which he found to be headaches of a limited duration. The exercise seems to have been one of segregating the effects of the offence, rather than any discounting of compensation to reflect the existence of other contributors. His Honour did not in this context suggest any onus on the respondent to demonstrate that the applicant’s continuing difficulties were not, or were not to any given extent, caused by the assault. He did however discount the award slightly, under s 25(7), to allow for the applicant’s behaviour, which had contributed to the respondent’s assault.

11. In Sanderson v Kajewski¹⁵ Thomas JA plainly adopted the first of the approaches identified and rejected by Lee J in Tiltman. The respondent was convicted of indecent dealing and carnal knowledge. His Honour found that the applicant had suffered from a period of post-traumatic stress disorder in which the sexual assaults had played a major part; but she had also had a number of other adverse experiences. It would be “unrealistic” to attribute all her problems to the offences. He went on to say:

“The aspects which I have some difficulty in attributing entirely to the offences are matters such as her own substance abuse, her offence and her promiscuity, although it is impossible to sort out precise degrees of causation. The approach I take is that the offences in question have had a substantial causative effect in the impacts of which complaint has been made but I also take into account the probability that some degree of problems would have emerged in any event.”¹⁶

Thomas JA arrived at what he considered an appropriate figure for compensation, allowing for that factor.

12. An appeal decision*, HV v LN*¹⁷, was not directly on the point at issue here, but it is of some relevance. That case concerned how compensation was to be assessed where the applicant had suffered injury as a result of offences, some of which had occurred during the life of the Code provisions for compensation and some after the enactment of the Criminal Offence Victims Act. The compensation available under the latter was considerably more. The judge at first instance had taken the view that he should regard 25 per cent of the injury as occurring under the Criminal Offence Victims Act, 75 per cent under the Code. The Court was urged instead to take the Tiltman approach of treating the injury as a whole, to be assessed under the Criminal Offence Victims Act, unless the respondent were able to separate out the effects of the offences occurring under the respective legislation. That submission was rejected, Thomas JA pointing out that it was “a little unrealistic to speak of the respondent separating out such effects in a jurisdiction where the proceedings are nearly always ex parte”. He observed that whereas under the Code, the courts had applied common law principles for the assessment of damages for personal injury, those principles had been expressly excluded from assessments under the Criminal Offence Victims Act. Of more significance, however, was the fact that s 46 of the Criminal Offence Victims Act specifically excluded pt 3 from application to injury suffered because of acts done before its commencement.

13. Although the case is not directly relevant, Thomas JA’s description of the commonsense approach to be taken to assessment is instructive:

“In the present situation I consider that an applicant is entitled to an assessment in respect of each period and that the courts must do the best they can in ascribing appropriate compensation in respect of each period. Where there is a combined effect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the effects attributed to each period and if no better suggestion appears, the length of the respective periods over which the offending conduct occurred may be used. In some cases medical evidence may show that the early offences had already produced a serious condition so that the later offences would be regarded as having merely caused minor aggravation of an already established condition, in which the greater part of the overall consequences would be properly ascribed to the earlier offending conduct, or vice versa. I do not think it beyond the ingenuity or expertise of the courts to make such assessments to meet the particular requirements of particular cases.”

14. It is worth mentioning MR v Eric Malcolm Webb¹⁸. There the appellant was a child who had sought compensation for emotional disturbance resulting from sexual offences committed on her by her grandfather. This Court, in discussing whether the award was too low, noted evidence that her difficulties were in part caused by her parents’ marital problems; by inference, accepting that as a relevant factor in arriving at a compensation amount.

The analysis in LMW v Nicholls

15. Counsel referred us also to the decision of McGill DCJ in LMW v Nicholls,¹⁹ which was of considerable assistance, because it involved the same situation as the present case. The applicant had been the victim of a number of sexual assaults, only some of which had resulted in charges and, in turn, convictions. There was this difference: the evidence there was that although the two sexual assaults of which the respondent was convicted made a material contribution to the applicant’s psychological injury, the uncharged acts were more significant in their effect.

16. While in the result I have reached a different conclusion from his Honour, I am indebted to his careful, lucid analysis of the legislation and the issues raised. He identified three possible approaches to assessment of compensation where an “undivided state of injury” is caused in part by the offences and in part by other matters; the latter including other conduct, criminal or not, by the respondent or other parties, other events and constitutional factors. The first, which in the event he preferred, reflected the common law approach to causation in tort: it was to compensate where the criminal conduct in question was a cause of the injury; and that compensation should, he said, be made without reduction to reflect the existence or strength of other causes. The second, which McGill DCJ readily discarded as inconsistent with the legislation, was to attempt a hypothetical assessment of what injury there would have been, had the applicant been subject only to the conduct resulting in the respondent’s conviction. The third was to award compensation only to the extent that the injury was caused by the criminal conduct leading to conviction, which would involve an assessment of the extent to which the compensable and non-compensable causes were each responsible for that state of injury.

17. His Honour gave a number of reasons for preferring the first approach, which he said, was the approach taken under the Code. Tiltman had been given at the time the Criminal Offence Victims Act was passed; if there were to be any change in the approach to causation from that taken under the Code, Parliament could have said as much. If the legislature had, more generally, intended to diverge from the common law by requiring apportionment on the basis of causation, it was necessary that that be said. Sections 22(3) and 25(8) of the Act did not achieve that result. There was a distinction between causation - whether an injury was compensable - and quantification of compensation. Those subsections were concerned with the latter; they required assessment in a way other than that used to determine common law damages, but it did not follow that the common law test for causation was not applicable.

18. His Honour also considered s 25(7). He gave three reasons for concluding that it did not envisage apportionment of damages according to cause in this context. First, because it referred to the amount “to be paid”, it was concerned with quantification rather than causation. Secondly, if it were accepted that the common law test applied, the contribution of other factors would not constitute a relevant matter to which the court must have regard. Thirdly, the reduction of compensation, where injury was caused by other conduct of the respondent of which he or she had not been convicted, was inherently unattractive. It would be different if it were possible to identify aspects of an injury specifically associated with something other than the offences; in that event, those aspects would have to be disregarded; but where it was demonstrated that conduct involved in the offences had materially contributed to the suffering of an injury, that was sufficient to render the injury wholly compensable.

The approach to compensation where other factors contribute to injury

22. The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

23. Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.

The exercise of discretion in this case

24. Returning to the facts of the present case, on my construction of the legislation, it was open to the learned judge at first instance to regard as relevant the prospect that the applicant’s condition was contributed to by conduct of the respondent constituting offences of which he was not convicted. But nowhere does his Honour explain why that factor warranted a reduction of 50 per cent in the compensation to be paid. The psychologist’s report, it is true, focused on the rape; but it does not seem that she was in fact oblivious to other offending behaviour. She notes that there were “ongoing sexual assault issues … not proceeded with” and refers to the applicant’s friend knowing of “the abuse”. That is not to say, of course, that she was briefed as to its details; but her conclusions as to the effect of the rape were at least drawn with the knowledge that there was a broader context to it. On the information contained in the applicant’s statement, which sets out other episodes of indecent touching, rape emerges as by far the most significant event. And his Honour does not seem to have considered that the significance of the earlier events having contributed to the applicant’s ultimate psychological state was very much diminished by the fact that they also were suffered at the hands of the respondent.

Conclusions

25. The 50 per cent reduction in the compensation allowed for psychological effects manifests, in my view, a miscarriage of the learned judge’s exercise of discretion. His decision should be set aside to that extent. Except on the question of how the respondent’s earlier behaviour might have contributed, there was no complaint as to his Honour’s findings of fact or his approach to arriving at percentages of the scheme maximum for the injuries. That is not surprising: the percentages his Honour arrived at for post-traumatic stress disorder and additional adverse impacts seem rather generous. But there seems no reason to interfere with his conclusions in this regard, so that the total percentage of the scheme maximum applicable to the applicant’s injuries, subject to any discounting in respect of the psychological injuries, remains at 57 per cent.

26. While having regard to the fact that earlier events are likely to have contributed to the applicant’s psychological injuries (although to a much lesser extent than the rape), two factors lead me to conclude that no alteration should be made to the percentages allowed: firstly, the uncharged acts were part of a continuing course of similar and reprehensible conduct by the respondent, of which the rape was the culmination; and secondly, the applicant as a child was powerless, both in that course of events and in what seems to have been a relatively arbitrary decision not to charge the respondent in respect of the earlier acts.

27. I would grant leave to appeal and allow the appeal, set aside the order below and order that the respondent pay compensation of $42,750 to the applicant, together with her costs of the appeal.

28. JONES J: I agree with the reasons of Holmes JA and the orders proposed by her Honour.

29. MULLINS J: I agree with Holmes JA.

Footnotes

1. Section 19(1)(a). ↩

2. Section 24(1)(a). ↩

3. Section 24(1)(b). ↩

4. Section 24(2). ↩

5. Section 24(3). ↩

6. Section 663B(1). ↩

7. Section 663B(2). ↩

8. Unreported, Lee J, [1995] QSC 345; S.C. No. 324 of 1995; 22 June 1995. ↩

9. There being no Code equivalent of s 24(1)(b) of the Criminal Offence Victims Act. ↩

10. Citing Middleton v The Melbourne Tramway and Omnibus Co Ltd (1913) 16 CLR 572; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164. ↩

11. [1996] 1 Qd R 524. ↩

12. At p 527. ↩

13. R. v. Beaton; ex parte Smee [1997] QSC 176; SC No 3928 of 1997, 1 October 1997; SAM v SAM [2001] QCA 12; Appeal No 10239 of 2000, 2 February 2001; Coconut v Coconut [2002] QSC 639; SC No 10969 of 2000, 13 November 2002; [2002] QSC 370; SC No 6570 of 2001, 13 November 2002 and [2004] QSC 475; SC No 264 of 2004, 23 December 2004.