AM v PS

[2005] QSC 67

SUPREME COURT OF QUEENSLAND

CITATION:

AM v PS [2005] QSC 67

PARTIES:

AM
(applicant)
PS
(respondent)

FILE NO/S:

BS9873 of 2004

DIVISION:

Trial Division

PROCEEDING:

Originating application

DELIVERED ON:

6 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2005

JUDGE:

Mullins J

ORDER:

1.  The respondent pay to the applicant compensation in the sum of $22,000.
2.  The respondent pay the applicant’s costs of the application (excluding the costs of the hearing on 25 November 2004) to be assessed.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where respondent convicted of rape committed against the applicant – where applicant sustained post traumatic stress disorder and cuts and bruises – where applicant applied for compensation – assessment of compensation

Criminal Code, s 663AA(1), s 663B(1)

COUNSEL:

AJ Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey for the applicant

1. MULLINS J:The applicant seeks compensation under s 663B(1) of the Criminal Code for injuries sustained by her as a result of the offence of rape committed by the respondent against the applicant on 24 September 1988 for which the respondent was convicted after pleading guilty on 14 October 1988. 

1. The respondent was served with the application in November 2004 whilst serving a sentence at a correctional centre.  There was no appearance by the respondent on the original return date of the application of 25 November 2004.  On that day the application was adjourned to a date to be fixed by Atkinson J and a direction was made that no legal fees may be charged by any person to the applicant for the hearing on 25 November 2004.  The matter was re-listed for hearing on 10 March 2005 and there was no appearance by the respondent on that day.

The offence   

1. Whilst living in Mackay, the respondent was having a drink with friends after work at a local hotel on the date of the offence.  The respondent was a neighbour of the applicant.  The respondent offered to drive the applicant home.  The door handle had been removed from the front passenger’s door of the vehicle.  The respondent drove the vehicle off the road.  He gagged the applicant and tied her hands together, but the applicant managed to spit out the gag and untie the rope.  The respondent then struck the applicant repeatedly about the face and attempted to choke her.  He made the applicant remove her clothes and then raped her.  The applicant described the attack as lasting for a few hours and involving both vaginal and anal penetration.  After the respondent stopped attacking the applicant, he drove her to the home of one of her friends.  After receiving medical treatment, the applicant complained to the police.  Upon the respondent being charged, he indicated that he wished to plead guilty and an ex officio indictment was presented, enabling the conviction and sentence to proceed before Williams J (as he then was) at Mackay on 14 October 1988.  

The injuries

1. The applicant attempted suicide after complaining to the police.  She was hospitalised due to the severe bruising around her neck and the lacerations and bruises to her face and mouth.  Her eyes were swollen and bloodied.  These injuries are shown in the photographs obtained by the applicant’s solicitor from the police for the purpose of this application. 

1. The applicant has been fearful of the respondent and other men, since the attack.  She has suffered from nightmares.  She has suffered flashbacks of the attack and from panic attacks when she has been in various situations which have reminded her of the circumstances in which the respondent raped her.

1. For the purpose of this application the applicant was examined on 24 October 2003 by psychologist Mr Peter Stoker who provided a report dated 10 November 2003.  Apart from interviewing the applicant, Mr Stoker administered psychological testing.  Notwithstanding the lapse of time since the offence, Mr Stoker expressed the strong opinion that, as a result of the rape, the applicant has suffered and is suffering from a chronic post traumatic stress disorder which has been very debilitating in a number of areas in the applicant’s life, including her relationships, work, mobile lifestyle, health problems and an inability to care for her children after the offence. 

Decision

1. I am satisfied that the applicant has shown an entitlement to claim compensation for the post traumatic stress disorder which she sustained, as a result of the rape. The maximum amount that can be ordered for that type of injury which falls within the description of mental shock or nervous shock is $20,000: see s 663AA(1) of the Code.  I am also satisfied that the applicant sustained the cuts and bruising depicted in the photographs, as a result of the rape.  The compensation for that injury must be assessed in the same manner as an assessment for damages for personal injury.  There is no suggestion in the material that there was any long term consequence for the applicant, as a result of the cuts and bruising.  In those circumstances the compensation for that injury should be assessed at $2,000.

1. I find that there was no behaviour of the applicant which directly or indirectly contributed to the injuries suffered by her, as a result of the rape by the respondent. 

Orders

1. The following orders should be made:

1.The respondent pay to the applicant compensation in the sum of $22,000.

2.The respondent pay the applicant’s costs of the application (excluding the costs of the hearing on 25 November 2004) to be assessed.

1. The applicant’s solicitor and counsel must ensure that the direction made by Atkinson J on 25 November 2004 in relation to the non-charging of any fees to the applicant for the hearing on that day is complied with.