AJH v LAM - [2018] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   AJH -v- LAM [2018] WADC 126
CORAM:   PETRUSA DCJ
HEARD:   15 AUGUST 2018
DELIVERED          :   11 OCTOBER 2018
FILE NO/S:   APP 57 of 2017
BETWEEN:   AJH
Appellant
AND
LAM
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram:   R GUTHRIE
File Number             :   [2017] WACIC 22

Catchwords:

Criminal injuries compensation - Appeal against award of assessor - Sufficient evidence of alleged offences or course of conduct - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr D Brand
Respondent	:	No appearance
Amicus Curiae	:	Ms K Dromey

Solicitors:

Appellant	:	Bradley Bayly Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor's Office

Case(s) referred to in decision(s):

AMS v Estate of KEG (Unreported, WADC, Library No 4577, 23 August 1995)
Green v Lee (1996) 17 SR (WA) 93
K v P (1992) 8 SR (WA) 256
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nominal Defendant v Owens (1978) 22 ALR 128
Puterangi [2017] WADC 168
Re Piggott [2017] WADC 150
Robinson [2017] WADC 18
W v M (Dec) [2000] WADC 248

PETRUSA DCJ:

On 3 July 2017, the assessor of Criminal Injuries Compensation awarded the appellant criminal injuries compensation in the sum of $18,585 pursuant to s 30 of the Criminal Injuries Compensation Act 2003 (WA) (the Act). This sum comprised $15,000 for injuries, $2,420 for report fees and a further $1,165 for future psychological counselling. This is an appeal from that decision on the basis that the award was inadequate.
The appellant's application for criminal injuries compensation arose out of a claim for compensation for an indecent assault which occurred in 1993. The nominated offender was LAM who was her mother's partner from the time she was 6 years old to when she was 15 years old. The relationship was brought to an end when the appellant's mother died.
LAM was convicted by his plea of guilty to a single count of indecent dealing with a de facto child. That proved offence involved LAM grabbing the appellant's breast as she walked past him as he sat with her mother at a table. LAM was dealt with on the basis that this was an isolated incident with the sentencing judge describing the offence as a 'one-off' that occurred against a family background involving 'years of dysfunctionality in the family situation, domestic intimidation and fear'.
The sentencing judge's comments were a recognition of the appellant's turbulent and difficult upbringing that resulted from having a mother, and sole involved parent, who was an alcoholic with illicit substance abuse issues and whose relationship with LAM was violent and abusive.
Despite the fact that LAM was convicted of only a single offence the appellant seeks compensation for other alleged offences, namely:
1.sexual abuse that is said to have been regularly perpetrated against her by LAM during that time and until she was 13 years old; and
2.other instances of physical assault.
The principle issues for determination in this appeal are:
1.Did one or more alleged offences occur?
2.What amount of compensation should be awarded for the injury or loss caused by the proved offence and if established, the alleged offences?
This is a hearing de novo and before considering the substantive issues I must decide whether the appellant should be granted an extension of time within which to lodge her application for compensation (s 9(1) of the Act)?

Extension of Time to Make the Application

The allegations made by the appellant all occurred before her fifteenth birthday.
The delay in bringing the application is a consequence of the fact that she was a child from a turbulent background who did not complain to police about any matters until about July 2014. The appellant's complaint was the result of having her memory stimulated by a conversation with a family friend.
Given these matters I consider that an extension of time should be granted.
The appellant is then entitled to compensation for the proved offence of indecent dealing of a de facto child. The next issue that must be determined is whether there are any other alleged offences for which she would be entitled to compensation.

Did One or More Alleged Offences Occur?

In support of her application that other alleged offences occurred the appellant has provided the following:
1.Her statements to police dated 21 July 2014 and 11 August 2016;
2.Victim impact statement dated 20 January 2015;
3.Affidavit of AJH sworn 31 July 2018;
4.Partially redacted healthcare records which record the appellant reporting abuse in 2015 and 2016.
I also note in addition to these materials I had the benefit of access to a copy of the file held by the Department of Child Protection (DCP).
The appellant did not clearly identify the particular aspects of the material upon which the court should find that other alleged offences occurred and for which the appellant is entitled to compensation. It is nonetheless submitted that there is sufficient evidence of alleged offences in two broad categories, namely:
1.Physical offending; and
2.Sexual offending.

The Law

In order to succeed the appellant must satisfy me on the balance of probabilities that any alleged offence/s occurred; (s 17(4)(a) of the Act).
In order to discharge the burden of proof the appellant must show that there are more than conflicting inferences which are equally probable, such that the choice between them would be a mere matter of conjecture: Nominal Defendant v Owens (1978) 22 ALR 128, 132.
The strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what you are seeking to prove: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 – 171.
The authorities make it clear though that in order to recover compensation an applicant must do more than merely assert that he or she was assaulted (sexually or otherwise) on a number of occasions. A reasonable degree of particularity of the alleged offences is required: K v P (1992) 8 SR (WA) 256, 257; W v M (Dec) [2000] WADC 248 [11].
The court must be satisfied that a series of alleged offences have been sufficiently particularised or that 'a course of conduct' has been demonstrated. There must be material from which a court can conclude that incidents of the kind described occurred on average a certain number of times over a particular period: W v M (Dec) [11].
Further it is for the appellant to negate any defences that may arise on the balance of probabilities: AMS v Estate of KEG (Unreported, WADC, Library No 4577, 23 August 1995); Green v Lee (1996) 17 SR (WA) 93, 97; Robinson [2017] WADC 18; Re Piggott [2017] WADC 150; Puterangi [2017] WADC 168.
With these principles in mind I turn to consider the evidence.

Evidence of Alleged Physical Offences

The only specific evidence of physical violence is outlined in the appellant's statement dated 21 July 2014. In that statement the appellant describes LAM:
1.Hitting her with a cane to the back of her thighs 4 – 6 times in the presence of her brother (pars 15 - 28); and
2.Pinning her to the floor on her back, poking her in the chest and yelling at her. As he yelled he was spitting on her (pars 32 ‑ 34).
This conduct may amount to one or other of two possible offences: common assault or indecent assault.
The incident involving the cane occurred when the appellant and her brother disobeyed the directions of their babysitter when they were out at a local supermarket. The babysitter left the appellant and her brother at the supermarket, returned to the family home and reported the matter to LAM. LAM then went and got the children and once home the act described occurred.
These circumstances suggest that LAM was using force by way of correction thereby giving rise to a defence pursuant to s 257 of the Criminal Code (WA).
There is only very limited information about the conduct of the appellant and her brother at the supermarket and no information about what the babysitter said to LAM. Further, the description of the instrument used and the harm caused (welts) is very generic and lacking detail about significant matters such as size, force or persistence of the injury. This lack of detail when considered in the context of a parent responding to conduct that led a babysitter to abandon young children at a supermarket is such that I cannot be satisfied on the balance of probabilities that LAM was not using force by way of correction.
Turning then to the second matter, there is again in my view a paucity of evidence such that I cannot be satisfied on the balance of probabilities that an offence occurred.
There is little by way of surrounding information including such matters as:
1.how the complainant came to be on the floor;
2.how she was 'pinned to the ground';
3.how long the incident lasted;
4.what was being said/yelled;
5.what did the appellant do in the lead up to this incident; and
6.what was the nature of the domestic dispute between LAM and the appellant's mother that preceded this incident, particularly as regards the conduct of LAM.
Given the combined effect of these deficiencies particularly in circumstances where the only evidence about the degree of force used is that at the time it was occurring the poking 'really hurt me' (appellant's statement 21 July 2014 par 34), it would be a matter of conjecture to find that an offence had occurred.
I am therefore not satisfied that either of the alleged offences of physical violence have been established on the balance of probabilities.
I turn now to the evidence of the alleged sexual offending.

Sexual Offending

The appellant submits that LAM is responsible for sexually offending against her from the age of 6 until aged 11 and then again at age 13.
The sum total of the evidence of sexual misconduct by LAM (as opposed to generalised statements about being sexually abused by him) contained in the material is as follows:
1.When she was 13 years old LAM knocked on the door of the bathroom when she was taking a shower. He said he wanted to wash his hands. Following pressure from him and her mother she opened the door and allowed him to come in. She said at this time he stood and stared at her and smirked (appellant's statement dated 21 July 2014, pars 56 – 64);
2.In 1992, when a friend named Crystal slept over and LAM came into the bedroom and stroked Crystal's leg as she slept. His hand slid towards her vagina, but Crystal moved and LAM left. The appellant reported this to the DCP shortly after it happened though nothing appears to have come from that (appellant's statement dated 21 July 2014, pars 39 – 50 and affidavit dated 31 July 2018, pars 56 - 61).
3.In her affidavit dated 31 July 2018 the appellant makes the following statements:
(a)'I recall being touched and fondled inappropriately by [LAM]' (par 54.1).
(b)'I also remember [LAM] lying on top of me' (par 54.1).
(c)'… recall [LAM] getting in bed with my friend Crystal and [LAM] groping my breast' (par 55).
(d)'I have visions of him on top of me holding me down and him touching and kissing me all over' (par 55).
(e)'I also remember him putting my hand on his penis' (par 55).
(f)'He often made suggestive moves and sat across from me making sure his genitals were in my vision' (par 75).
(g)'…he would drop the sarong in front of me, exposing his genitals. I asked him to cover himself up, he would ask with a smug look on his face why I was looking at him – making me feel like I was doing something wrong' (par 75).
These statements by the appellant do not give any degree of particularity let alone a reasonable degree of particularity. The conduct that is briefly described does, on its face, suggest sexual abuse. However, there are no details around when, where, how and how often these events occurred.
These matters are necessary in order to have some basis to conclude on the balance of probabilities that the alleged offending occurred. This is particularly so in a case where it is clear from the appellant's very first statement to police that her memory of any abuse she suffered at the hands of LAM is vague. She has repeated this same sentiment in her victim impact statement, her affidavit of 31 July 2018 and to the various medical experts she has consulted.
Further, she had no recollection of any sexual abuse by LAM until she spoke to 'a man named Brett' and then shortly after to a subsequent partner of LAM named 'Beth'. Both suggested things to her that led her to recall the proved offence and to believe that LAM had sexually abused her, though neither had any evidence of any abuse.
At its highest, 'Brett' said her mother believed that the appellant had been sexually abused because she had seen LAM in bed with the appellant and he 'had a guilty look on his face'. 'Beth' on the other hand said only that there was 'other stuff' but did not elaborate either at the time or since.
Following these conversations the appellant began to 'remember' aspects of abuse. The thrust of the complainant's recollection is encapsulated by her comments in the victim impact statement where she says:
My recollection of this offence has caused regular flashbacks and traumatize me and cause a great deal of emotional pain. I am frustrated this offence is the only one he admitted and that my memories of the others are distorted. From the age of 7 to 10 I have large portions of blocked memories concerning the offender that are surfacing and becoming more clear.
In her statement to police she says, 'I have started having flashes of [LAM] touching me but they are like faded images. Each day I am remembering new things'.
Whilst both these statements were made some years ago and the appellant has been receiving treatment, she is not better able to particularise any sexual abuse beyond what I have already outlined.
In circumstances where the appellant had no previous recollection of any sexual misconduct, did not complain of any sexual abuse during the course of her childhood - despite contact with DCP and a desire to have the accused out of her life - the risks of confabulation and/or suggestion are strong. This is particularly so when the appellant has been the victim of sexual and physical abuse at the hands of other men.
It is also somewhat puzzling that the appellant's concerns or memories were not triggered when she learnt that LAM had been found with and subsequently convicted of being in possession of child pornography.
The sparsity of detail in the appellant's material as to the nature and extent of any touching, the circumstances in which it occurred and the duration of it including any detail of particular occasions is such that I cannot be satisfied on the balance of probabilities that any prior sexual offence occurred or that there was a 'course of conduct'. The evidence falls far short of what is required. It would simply be guess work and quite wrong to find that there was sexual abuse and that it occurred on multiple occasions without being aware of the nature of the abuse and the circumstances in which it occurred.
I am therefore not satisfied that any alleged sexual offences have been proved on the balance of probabilities.
Before leaving this issue I want to say something about the medical reports that were provided. The appellant provided a number of expert reports from health care professionals she has consulted, namely:
1.Reports of consultant psychiatrist Dr Lawrence Blumberg dated 23 April 2015 and 2 August 2016;
2.Report of consultant psychiatrist Dr Danny Shub dated 30 July 2018;
3.Letter from psychologist Ms Ruth Heady dated 28 February 2015;
4.Letter from consultant psychiatrist Dr Subhash Bhargava dated 21 November 2015.
Each of these reports contains a conclusion or belief that the appellant is suffering from post-traumatic stress disorder. Each expresses the opinion that a material contributor to this disorder is that the appellant was 'sexually traumatised and abused at the age of 6 to age 11 and 13'.
It is clear the medical professionals who have dealt with the appellant have accepted any remarks made to them by her about sexual misconduct by LAM. None of these reports however provide any detail of specific occasions so do not assist in assessing whether there is sufficient evidence of sexual offending by LAM.
In saying this I do not suggest that the expert medical opinions are invalid. It is clear that the appellant has had a traumatic life not only during her childhood when her mother was alive. All of her subsequent personal relationships with men have been fraught with violence and sexual abuse. These relationships commenced when she was 15 years old.

Assessment of Compensation

I turn now to assess the amount of compensation payable for the proved offence. The maximum compensation payable for the proved offence is $50,000 (s 31 of the Act).
It is well settled that the appropriate method of assessing compensation is to fix a quantum by applying the ordinary tortious principles for assessment of damages: M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992).
In assessing the amount of compensation I must have regard solely to the injury suffered by the appellant as a consequence of that offence.
In this case it is clear from the medical reports that the appellant is suffering from significant injury that has had a significant effect on her life. However, it is equally clear that non-compensable events contributed, in large part, to this injury. The appellant submits that the proved offence has contributed materially to the appellant's injury and she is therefore entitled to compensation for the full injury and loss suffered.
This submission is principally based on the opinion of Dr Shub that, '…Ms Hayes' current psychiatric condition is directly associated with child sexual abuse, which occurred up to and including 1993' (Report of Dr Shub dated 30 July 2018, page 12). This was developed in argument and in effect was a submission that the recovery of the memory of the proved offence triggered the post-traumatic stress disorder and was therefore materially responsible for it.
I reject this submission as it misapprehends the appellant's situation. First, she clearly had ongoing and persistent mental health issues given her engagement with mental health services from at least age 21 if not from age 15. Next, a fair reading of the materials makes it clear that it was and is the memories of the alleged sexual abuse that have plagued the appellant rather than the memory of the proved offence.
I do not believe that the learned assessor's award for the proved offence is open to challenge as being inadequate. The assessor had available to him the victim impact statement and the original statement to police together with the two reports from Dr Blumberg and the letter from Ms Heady. Having reviewed these materials, together with the report of Dr Shub, I consider that the award of $15,000 together with the amount awarded for future psychological counselling is an appropriate award in this case and would not interfere with it.
Accordingly, the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MS
ASSOCIATE TO JUDGE PETRUSA
11 OCTOBER 2018