Cja v Clarke - [2002] WADC 265

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CJA -v- CLARKE [2002] WADC 265

CORAM: KENNEDY DCJ

HEARD: 6 DECEMBER 2002

DELIVERED : 19 DECEMBER 2002

FILE NO/S: CIV 69 of 2002

BETWEEN: CJA
Applicant
AND
JOHN ROLAND CLARKE
Respondent

Catchwords:

Criminal law - Criminal injuries compensation claim from sexual offences by respondent on applicant as a child - Nolle prosequi on one count - Whether there was "dismissal" of complaint

Legislation:

Criminal Injuries (Compensation) Act 1970

Result:

Award of $6,000 Certificate for $2,000

Representation:

Counsel:

Applicant:     Ms J Seif
Respondent:     No appearance
Amicus Curiae              :     Ms L E Christian appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Applicant:     Kott Gunning
Respondent:     No appearance
Amicus Curiae              :     State Crown Solicitor

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

Bull v Attorney General (NSW) (1913) 17 CLR 370
DL v Estate of AMR (2000) 26 SR (WA) 81
Mills v Meeking (1990) 169 CLR 214
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 67 ALJR 170

Case(s) also cited:

B v W (1989) 6 SR (WA) 79
B v S, unreported; SCt of WA Library No. 950223; 10 May 1995
Grist v Leunig, unreported; DCt of WA; 12 June 1995; Library No 4757.9
Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980
K v P (1992) 8 SR (WA) 256
KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983
Law v Austin (1999) 105 A Crim R 407
M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992
R v Forsythe (1972) 2 NSWLR 951
Re Carter (1984) 4 SR(WA) 219
Re Karra (1984) 2 SR (WA) 97
RSS v Estate of Phillips (2001) 26 SR (WA) 343

KENNEDY DCJ: The applicant applies for criminal injuries compensation pursuant to the Criminal Injuries (Compensation) Act 1970 in respect of four acts of indecent dealing upon her by the respondent. She further seeks a certificate in relation to such compensation as to one further act of indecent dealing upon her which she alleges was perpetrated by the respondent.
The respondent came before the Court on 1 June 2000 on the indictment containing the following counts:
1.On a date unknown between 26 October 1969 and 26 October 1970 at Balga, John Roland Clarke unlawfully and indecently dealt with a girl under the age of 13 years.
2.And further that on a date unknown between 26 October 1969 and 1 June 1972 at Balga, John Roland Clarke unlawfully and indecently dealt with a girl under the age of 13 years.
3.And further that on a date unknown between 26 October 1971 and 1 June 1972 at Balga, John Roland Clarke unlawfully and indecently dealt with a girl under the age of 13 years.
4.And further that on the same date and at the same place as in Count 3, John Roland Clarke unlawfully and indecently dealt with a girl under the age of 13 years.
5.And further that on a date unknown between 26 October 1971 and 1 June 1972 at Balga, John Roland Clarke unlawfully and indecently dealt with a girl under the age of 13 years.
The respondent was convicted of the first four counts on the indictment but the jury was unable to reach a verdict on the fifth count. As a result the Crown declined to proceed further on that count because it concluded that there was no public interest to have a re-trial on a single count and further considered that it was unlikely that a further penalty would be imposed in the event of a conviction. The Crown further took into account the complainant's preference not to testify a second time about the events the subject of that count. As a result the Crown tendered a nolle prosequi in relation to that outstanding count.
It is in relation to these matters that the applicant now seeks criminal injuries compensation. The applicant is unable to seek criminal injuries compensation in relation to count 1 on the indictment despite the fact that the respondent was convicted because the Act was not proclaimed until 17 November 1970 and was not assented to until 22 December 1971 and it can be seen that this was an act which occurred prior to the Act being assented to.
In relation to count 2 on the indictment there remains an issue as to whether I can be satisfied on the probabilities that this event occurred after 22 December 1971. In relation to count 5 there was of course no jury verdict. Subsequent Criminal Injuries (Compensation) Acts have been amended to make allowances for such an eventuality. The Criminal Injuries (Compensation) Act 1970 which governs this particular application is not as clear as the subsequent Acts and requires interpretation of s 6 of that Act which I will deal with shortly.
It is quite clear from the applicant's affidavit that there were more than five incidents of indecent dealing against her by the respondent. It is not possible to charge with more than those incidents to which an applicant can give specificity and with the elapse of time that becomes difficult.
According to the trial Judge remarks on sentencing the offences of which the respondent was convicted were as follows:
"During that time the complainant was a young girl between the ages of six and eight approximately. Counts 1 and 2 involved the complainant, as a result of [the respondent's] encouragement, placing her hands on a cardboard cylinder into which [the respondent] had inserted [his] penis and by movement of the cylinder masturbating [the respondent] to ejaculation. Counts 3 and 4 involved [the respondent] placing the complainant on [his] lap, fondling her nipples and pressing [his] erect penis against her genital area external to her clothing."
Attached to the applicant's affidavit is a psychiatric report from a psychiatrist Dr Donna Kippax who said inter alia:
"[The applicant] presented with a long standing history of an anxiety disorder exacerbated in the last six months by the finalisation of a stressful, but successful, legal action against the paedophile who had sexually molested her in childhood. There was also a history, dating back to pre-puberty of obsessive‑compulsive disorder ...
[The applicant] said her problem started in childhood when for a period of four years (aged five to nine) an adult male neighbour regularly and frequently molested her. He intimidated her by issuing threats of harm to herself or her parents. During this period she became very anxious; prone to nightmares, fearful of someone entering her room through the window, fearful of her parents dying and generally insecure. She also developed a number of checking and counting rituals before the age of nine …
Following the birth of her children … [the applicant] stated she became obsessively protective of them. She developed counting and checking rituals designed to ensure their well‑being. She has always known this behaviour is illogical (that is, alien to her sensible self-knowledge), but like any obsessional patient, anxiety can only be controlled by carrying out the necessary compulsions."
In diagnosis the psychiatrist said that the applicant was acutely anxious and weepy and generally her symptoms were consistent with obsessive-compulsive disorder which appeared to have started in the context of severe emotional stress in early childhood. Not all of this was caused by the sexual molestation but it certainly was a contributing factor and the psychiatrist said that she had misgivings about the applicant's long-term prognosis.
In all the circumstances it is quite clear that provided the law allows the applicant is entitled to compensation. Given that in 1970 the maximum compensation for each incident was $2,000 and therefore the maximum compensation the applicant could obtain here would be $8,000 it is quite obvious that she would be entitled to that maximum. The only issue is in relation to counts 2 and 5 as to her legal qualification for that.
As to count 2 the issue for me is whether this occurred after the Act was assented to. Compensation cannot be awarded for an offence that occurred prior to the commencement of the Act and it is for the applicant to establish on the balance of probabilities that the offence occurred during the period covered by the Act.
In order for the applicant to discharge the burden of proof she must show that there are more than conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1993) 67 ALJR 170.
The issue in relation to count 2 is whether I am satisfied on the probabilities that this occurred after the Act was assented to.
I have the statement of the applicant where she describes the first incident which has also been described by the sentencing Judge and that we know occurred before the Act was assented to. She then goes on to describe what we refer to as the second incident but may well not have been the second incident between these two where she says as follows:
"I remember another time John took me into the shed. I don't know exactly how old I was. It was some time after I turned six.
It all started off gradually and then John used to touch me and get me to touch him more and more often.
This time John did the same thing. He stood in the shed facing me, just inside the doorway. I was in the doorway threshold facing John."
She goes on then to describe the events.
It has been put for my consideration that because she has said "it was some time after I turned six" that plainly she does not mean some time after she turned seven and therefore that precludes compensation in relation to count 2. In the end I do not accept that because I accept the analysis of the whole of this part of the deposition given by the applicant's counsel and because the applicant herself has gone on to say that all of this started and increased gradually. Count 2 is obviously quite a time later than count 1 because the time specified in count 1 is between October 1969 and October 1970 whereas the date specified in count 2 is October 1969 and June 1972. It is apparent that what has happened there is that the prosecution have simply chosen the beginning date and then extended the date out at the end to allow for the fact that this occurred much later. I am satisfied on the probabilities that this occurred after the Act was assented too.
The next matter is count 5 where the jury were unable to reach a verdict. The relevant section of the Act is as follows:
"6.(1)On the acquittal of a person accused of an offence or the dismissal of a complaint or information against him, the court before which that person was, or would have been tried, may on application by a person claiming to be aggrieved by reason of the commission of the offence, grant a certificate stating the sum to which he would have been entitled pursuant to an order under section 4 if the accused person had been convicted of the offence and an order had been made under that section.
(2)A certificate shall not be granted under subsection (1) of this section if the sum referred to in that subsection would amount to less than one hundred dollars.
(3)The court shall not grant a certificate under this section, unless it is satisfied that the person claiming to be aggrieved has in fact suffered injury by reason of an offence committed by some other person.
(4)A person to whom a certificate has been granted under this section may make application in writing to the Under Secretary for payment to him of the sum specified in the certificate out of the Consolidated Revenue Fund."
In this matter I refer to the decision of his Honour Judge Blaxell in DL v Estate of AMR (2000) 26 SR (WA) 81 at 82 where in reference to the facts of that particular case where the respondent had died his Honour said:
"As the respondent was neither convicted nor acquitted of the offence allegedly committed prior to 18 October 1976, a certificate can only be granted under s 6 if there was 'the dismissal of a complaint or information against him'.
The reference in the section to an 'information' is confusing, but in my view that word should be construed as meaning an 'indictment' (that being the equivalent term for an indictment is used in some other common law jurisdictions). If s 6 is construed in a strict technical and narrow way it clearly does not allow a certificate to be granted in the present circumstances, as there was not any 'dismissal' in the formal sense. However, such a construction results in the obvious anomaly that, not withstanding the proceedings having been terminated, the court has no power to grant a certificate even if satisfied that there was an injury suffered by reason of the commission of the offence.
The preamble to the Act states that the general purpose and object of providing 'for the payment in certain circumstances of compensation to persons who suffer injury by reason of the commission of offences …'. Section 18 of the Interpretation Act 1984 (WA) requires that s 6 of the Act should be given a construction which will promote this general purpose and object. As was stated by Dawson J in the High Court in Mills v Meeking (1990) 169 CLR 214 at 235:
"The approach required by [s 18] needs no ambiguity or inconsistency; it allows a court to consider the purposes of an Act in determining whether there is more than one possible construction. Reference to the purposes may reveal that the draftsman has inadvertently overlooked something which he would have dealt with had his attention been drawn to it and if it is possible as a matter of construction to repair the defect, then this must be done."
Furthermore, the Act can be fairly described as being remedial in nature, and this being so the well known rule of statutory interpretation is that:
"…all such acts should be construed beneficially… This means, of course, not that the true signification of the provision should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow" (Isaacs J in Bull v Attorney General (NSW) (1913) 17 CLR 370 at 384).
Applying these general principles of interpretation it is my view that the word "dismissal" as it appears in s 6 of the Act should be construed very widely so as to encompass all means by which the relevant proceedings may have come to an end. It follows in my opinion that on a proper construction of s 6 a certificate can be granted in circumstances where proceedings were terminated as a result of the death of the accused."
In the case before me the matter actually went to trial and the jury were unable to reach a verdict. The prosecution then filed a nolle prosequi in the circumstances which I have earlier outlined.
When this Act was introduced into Parliament the second reading speech of the then Premier included the following remarks:
"Where a person suffers injury as a result of the criminal act of some other person, he will usually have a right to claim damages at law from the person responsible for his injuries. However, it often happens that those who commit acts of criminal violence are persons of no substance, and, consequently the injured party's right to claim damages is of no real value. Also, there is a significant number of cases in which the perpetrator of the criminal act goes unidentified, dies, or is for some other reason beyond the reach of the law. Thus it is that a perfectly innocent person may be left to endure suffering and disability - possibly permanent disability - without any adequate monetary compensation …
This is the problem which the present Bill is intended to meet …
There is also a provision that in the event of the acquittal of a person charged with a commission of an offence, by reason of which offence a person has been injured, the court before which the acquittal was made may grant the latter a certificate stating the sum of which he would have been awarded, pursuant to cl 4(1), had the person charged been convicted. There are provisions that no such certificate shall be granted … unless the court is satisfied that the injured person has indeed been the victim of criminal violence, and here members should refer to cl 6(3).
As to this last mentioned proviso, members should realise that the grant of such a certificate does not cast a slur on the person acquitted, but simply indicates a conviction on the part of the court that the applicant has been the victim of an offence committed by, and I quote, 'some other person'; that is, any person other than the claimant."
The complainant's deposition and affidavit are convincing and it is only necessary for me to be satisfied on the probabilities. On the probabilities it is highly improbable that of all the incidents that the applicant has related she would chose this one to be untruthful about. I am satisfied on the probabilities that this incident occurred and that the nolle prosequi in all the circumstances that I have outlined should be treated as a dismissal.
In all the circumstances the plaintiff is entitled to an award in the sum of $6,000 and is entitled to a certificate in the sum of a further $2,000.