"E" v "P"

[2001] WASC 333

"E" -v- "P" [2001] WASC 333

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 333
Case No:	MCR:42/2001	Heard:	28 AUGUST 2001
Coram:	HASLUCK J	Delivered:	10/12/01
No of pages:	22	Judgment Part:	1 of 1
Result:	Applications allowed
Category:	B
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Parties:	"E" "P" "T"
Catchwords:	Criminal injuries compensation Compensation claims concerning sexual offences for which the respondent was tried and convicted and claims for other offences Jurisdictional issue District Court held to have exclusive jurisdiction over latter claims Principles governing award of compensation Award of compensation to applicants
Legislation:	Criminal Injuries (Compensation) Act 1970 (WA), s 6A District Court Act 1969 (WA), s 42, s 76
Case References:	A v D (1994) 11 WAR 481 C v BC, unreported; SCt of WA; Library No 970287; 5 June 1997 Carter v Mallesons Stephen Jaques (1993) 11 WAR 159 KJH v Ram (Dec) (1996) 16 SR (WA) 133 Miller v Raye, unreported; SCt of WA; Library No 970688; 2 December 1997 MSS v DWL [2000] WADC 1 Newton v Welsh [2000] WASC 102 SP v Asplin [2001] WADC 135 Squires v Ebbett, unreported; DCt of WA (French DCJ); Library No D980045; 24 February 1998 APD v Teare-Williams [2000] WADC 19 B v S, unreported; SCt of WA; Library No 950223; 10 May 1995 B v W (1989) 6 SR (WA) 79 BMW v RLW, unreported; DCt of WA, Library No 4614; 23 August 1995 Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666 G v C, unreported; DCt of WA; Library No D990173; 23 June 1999 Glover v Van Den Ancker, unreported DCt of WA; Library No 4692; 20 June 1996 H v T (1995) 14 SR (WA) 332 K v P (1992) 8 SR (WA) 256 KAK v EE, unreported; DCt of WA; Library No D980280; 2 October 1998 KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983 M 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 MES v KG (1995) 12 SR (WA) 330 Re Carter (1984) 4 SR (WA) 219 Re Kiernan (1979) 1 SR (WA) 286 RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974 Seal v McKinnon, unreported; DCt of WA; Library No 4961; 21 June 1996 Sideris v Censori [1983] WAR 17 The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199 Trimble & Ors v Piggott (1995) 14 WAR 329 TRB v JD (Dec) [2001] WADC 220 Voss v Assessor, unreported DCt of WA; Library No 3829; 29 September 1993 W v M [2000] WADC 248 X v Y, unreported; SCt of WA; Library No 960517; 13 September 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : "E" -v- "P" [2001] WASC 333 CORAM : HASLUCK J HEARD : 28 AUGUST 2001 DELIVERED : 10 DECEMBER 2001 FILE NO/S : MCR 42 of 2001 BETWEEN : "E"

Applicant

AND

"P"
Respondent

FILE NO/S : MCR 43 of 2001 BETWEEN : "T"

Applicant

AND

"P"
Respondent

Catchwords:

Criminal injuries compensation - Compensation claims concerning sexual offences for which the respondent was tried and convicted and claims for other offences - Jurisdictional issue - District Court held to have exclusive jurisdiction over latter claims - Principles governing award of compensation - Award of compensation to applicants

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Legislation:

Criminal Injuries (Compensation) Act 1970 (WA), s 6A

District Court Act1969(WA), s 42, s 76

Result:

Applications allowed

Category: B

Representation:

MCR 42 of 2001

Counsel:

Applicant : Ms P J Giles
Respondent : No appearance

Amicus Curiae : Ms L J Dias

Solicitors:

Applicant : Ball & Co
Respondent : No appearance

Amicus Curiae : State Crown Solicitor

MCR 43 of 2001

Counsel:

Applicant : Ms P J Giles
Respondent : No appearance

Amicus Curiae : Ms L J Dias

Solicitors:

Applicant : Ball & Co
Respondent : No appearance

Amicus Curiae : State Crown Solicitor

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

A v D (1994) 11 WAR 481
C v BC, unreported; SCt of WA; Library No 970287; 5 June 1997
Carter v Mallesons Stephen Jaques (1993) 11 WAR 159
KJH v Ram (Dec) (1996) 16 SR (WA) 133
Miller v Raye, unreported; SCt of WA; Library No 970688; 2 December 1997
MSS v DWL [2000] WADC 1
Newton v Welsh [2000] WASC 102
SP v Asplin [2001] WADC 135
Squires v Ebbett, unreported; DCt of WA (French DCJ); Library No D980045; 24 February 1998

Case(s) also cited:

APD v Teare-Williams [2000] WADC 19
B v S, unreported; SCt of WA; Library No 950223; 10 May 1995
B v W (1989) 6 SR (WA) 79
BMW v RLW, unreported; DCt of WA, Library No 4614; 23 August 1995
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
G v C, unreported; DCt of WA; Library No D990173; 23 June 1999
Glover v Van Den Ancker, unreported DCt of WA; Library No 4692; 20 June 1996
H v T (1995) 14 SR (WA) 332
K v P (1992) 8 SR (WA) 256
KAK v EE, unreported; DCt of WA; Library No D980280; 2 October 1998
KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983
M 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
MES v KG (1995) 12 SR (WA) 330
Re Carter (1984) 4 SR (WA) 219
Re Kiernan (1979) 1 SR (WA) 286
RJE v Bandy, unreported; SCt of WA; Library No 5489; 31 May 1974
Seal v McKinnon, unreported; DCt of WA; Library No 4961; 21 June 1996
Sideris v Censori [1983] WAR 17
The Applicant v Larkin, Withnell and Wilkinson [1976] WAR 199
Trimble & Ors v Piggott (1995) 14 WAR 329


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TRB v JD (Dec) [2001] WADC 220
Voss v Assessor, unreported DCt of WA; Library No 3829; 29 September 1993
W v M [2000] WADC 248
X v Y, unreported; SCt of WA; Library No 960517; 13 September 1996

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1 HASLUCK J: These are two applications for criminal injuries compensation made pursuant to the Criminal Injuries (Compensation) Act 1970 (WA). The applicants seek compensation for offences committed against them by their grandfather. An application has been made for a suppression order. I consider that in the circumstances of the present case such an order should be made, and it is upon that basis that the older of the two applicants, being the applicant in MCR 42 of 2001, will be called "E" and her younger sister, being the applicant in MCR 43 of 2001, will be called "T". The respondent will be identified, where necessary, by the initial "P".

2 The applicant "E" is applying for compensation pursuant to s 4 of the Act for 17 offences for which the respondent was tried and convicted before the Supreme Court. These offences occurred on dates unknown between 1 January 1977 and 31 December 1980. Some of the offences involved an allegation on the indictment that the respondent being over the age of 21 years unlawfully and indecently dealt with the applicant, a girl under the age of 13 years. Some of the offences involved an allegation that the respondent unlawfully and indecently assaulted the applicant. There were counts of attempted incest.

3 This applicant also seeks compensation pursuant to s 6A of the Act for numerous offences committed against her by the respondent for which no person has been tried and convicted.

4 The younger applicant, "T", seeks compensation pursuant to s 4 of the Act in respect of 14 offences for which the respondent was tried and convicted. In this case, the offences occurred at Boyanup on dates unknown between 1 January 1977 and 31 December 1982. In each case, the allegation was that the respondent unlawfully and indecently assaulted the applicant.

5 This applicant also seeks compensation pursuant to s 6A of the Act for numerous offences committed against her by the respondent for which no person has been tried and convicted.

6 In order to understand the significance of the distinction between a claim for compensation pursuant to s 4 of the Act in respect of offences for which the respondent was tried and convicted and a claim for compensation pursuant to s 6A of the Act, it is necessary to look briefly at the provisions of the relevant legislation. I am also required to resolve a preliminary issue as to whether the Supreme Court has jurisdiction to deal with the claims for compensation advanced pursuant to s 6A of the Act.

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7 The Criminal Injuries (Compensation) Act 1970 (WA) was originally enacted when it came into operation by proclamation on 22 January 1971. It was then significantly amended in 1976, with the amending Act being proclaimed to come into operation on 18 October 1976.

8 I observe in passing that, as the offences the subject of the applications before me were all said to have been committed after 18 October 1976, I need not look at the effect of the legislation prior to that date. I should also mention, for the sake of completeness, that the Act was later repealed by the Criminal Injuries Compensation Act 1982, which came into operation on 1 January 1983. That Act has itself been replaced by the Criminal Injuries Compensation Act 1985. However, it will be apparent from the narrative to this point that I am essentially concerned with the effect of the legislation in the period between the amending statute of 1976 and the repeal which took effect on 1 January 1983, this being the period within which the offences the subject of the claims for compensation are said to have taken place.

9 By s 4(1) of the Act, as it was during the relevant period, where a person is convicted of an offence, the Court by which the person was tried may, at any time after his conviction on the application of a person who has suffered injury or loss in consequence of the commission of the offence, order that a sum not exceeding $7,500 be paid by the person convicted out of his property to such other person by way of compensation for the injury and loss suffered by that person by reason of the commission of the offence.

10 By s 5, a person who has obtained an order for compensation may make application for payment of compensation out of consolidated revenue.

11 The term "injury" is defined to mean bodily harm and includes pregnancy, mental shock and nervous shock. It is apparent from the language of s 4(1) that a causal link must be established because compensation can only be recovered where a person has suffered injury or loss "in consequence of" the commission of the offence.

12 In the present case, the convictions mentioned earlier were recorded against the respondent as a consequence of the presentation of an indictment in the Supreme Court and his plea of guilty to the relevant charges. It follows that the applicants are entitled to advance a claim for compensation in this Court pursuant to s 4 of the Act in respect of those offences. For ease of reference, where the context so permits, I will

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henceforth call the offences for which the respondent was tried and convicted the "s 4 offences".

13 Section 6A(1) as it was after the 1976 amendments reads as follows:

"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."

14 The difficulty that arises in the circumstances of the present case concerns the application of s 6A of the Act. As I have already noted, the Supreme Court has original jurisdiction in relation to the s 4 offences because s 4 provides expressly for a compensation order to be made by the court that convicted the offender. At a first glance, however, as to injury or loss suffered in consequence of the commission of an offence for which no person has been tried, s 6A appears to confer jurisdiction on the District Court of Western Australia.

15 Section 6A of the Act does not state explicitly that an application for compensation in such circumstances shall be made to the District Court, but the tenor of the language used in the statutory provision is to that effect. The provision clearly contemplates that an application will be made to the District Court and it is that court which has the power to grant a compensation certificate.

16 I was informed by counsel for the applicants that both applicants have made applications to the District Court pursuant to s 6A of the Act. Counsel therefore sought to overcome the jurisdictional difficulty by applying to have the s 6A applications to the District Court remitted from the District Court to the Supreme Court pursuant to s 76 of the District Court Act1969 (WA).

17 Section 76 of the District Court Act is in these terms:

"A Judge of the Supreme Court may, upon the application of any of the parties to an action or matter brought in the court, if he thinks fit, order that the action or matter be tried or heard in

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the Supreme Court sitting at such place as is specified in the order."

18 The applications and supporting papers were served on the respondent, but he did not appear to contest the claims. Counsel instructed by the Crown solicitor was granted leave to appear before the Court as amicus curiae. She submitted in regard to this aspect of the matter that the Supreme Court did not have jurisdiction to deal with the applications concerning the s 6A offences because it was quite clear from s 6A of the Act that the special statutory jurisdiction was vested in the District Court exclusively.

19 She went on to submit that the difficulty could not be overcome by remitting the applications in question from the District Court to the Supreme Court in the manner contended for by counsel for the applicants. She submitted that the power to remit a matter to the Supreme Court under s 76 of the District Court Act could only be exercised in circumstances where the Supreme Court had jurisdiction to try or hear the matter the subject of the remission. Section 76 could not be utilised as a means of conferring jurisdiction on the Supreme Court in respect of a matter which had been specifically entrusted to the District Court by the Act in question.

20 In the course of this debate, counsel on both sides referred to some recently decided cases bearing upon the jurisdictional issue.

21 In C v BC, unreported; SCt of WA; Library No 970287; 5 June 1997 applications were brought before Murray J concerning offences for which the respondent was convicted and two further alleged offences referred to on the same indictment in respect of which the jury was unable to agree upon a verdict. The Crown subsequently filed a nolle prosequi which terminated the proceedings upon indictment.

22 As to these latter offences, Murray J was satisfied that the respondent had not been "tried" for the offences within the meaning of s 6A(1), with the result that a question arose as to whether he could hear the application for compensation to the extent that it relied upon s 6A of the Act which, to use his Honour's words, "specifically confers jurisdiction upon the District Court".

23 After a careful review of the relevant considerations, his Honour concluded that he was at liberty to deal with the applications because applications under s 4 or s 6A of the Act could be regarded as applications in the criminal jurisdiction of the Supreme Court, bearing in mind that the

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Criminal Practice Rules provide for the procedure and evidentiary matters with respect to applications under the Act. He said that an application could be regarded as within the Supreme Court's jurisdiction in such circumstances because "it grows out of and is dependent upon the ordinary criminal jurisdiction of the court upon indictment" cfCarter v Mallesons Stephen Jaques (1993) 11 WAR 159.

24 It was obviously a material factor in the learned Judge's reasoning that the alleged offences giving rise to the s 6A claim for compensation had been the subject of an indictment, with the result that the criminal jurisdiction of the Supreme Court was enlivened. He took account of the fact that s 42 of the District Court Act provides that the criminal jurisdiction conferred on the District Court does not limit or diminish the jurisdiction of the Supreme Court as a court of criminal jurisdiction.

25 One notices immediately, however, that in the circumstances of the present case concerning the claims for compensation by applicants E and T, the s 6A applications relate to alleged offences on unspecified dates which have not been the subject of any indictment, either before the Supreme Court or the District Court.

26 In Miller v Raye, unreported; SCt of WA; Library No 970688; 2 December 1997, Murray J had occasion to revisit the issue. That case resembled the present situation in that the claims for compensation related to some matters that had been the subject of an indictment before the Supreme Court and to other incidents in respect of which no conviction had been recorded and, indeed, no charge laid or trial held.

27 Murray J observed in regard to the latter incidents that "the jurisdiction under s 6A is conferred directly upon the District Court of Western Australia and it is to that court which an application grounded in that section is required to be made". He went on to say this:

"The course of my dealing with all of them is a matter which has arisen before and the case of C & D v BC, unreported; SCt of WA; Library No 970287; 5 June 1997, was a case in which I had to deal with a similar problem, but there was a significant difference between the factual circumstances applicable in that case and those applicable here. There, after construing the provisions of the Supreme Court Act, I took the view that this Court had jurisdiction in respect of the matters which arose under the Criminal Injuries Compensation Act, s6A, because the jurisdiction of this Court was enlivened by the fact that an

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indictment had been presented in this Court, the matters had been tried in this Court, but the jury had disagreed and so no verdict was returned after trial. Before the matter might come on for retrial, the Crown had filed a nolle prosequi which effectively terminated the proceedings within the criminal jurisdiction of this Court.

However, in my view, the jurisdiction of this Court having been initiated, these matters, which were properly, I thought, to be seen as dependent upon the criminal jurisdiction of this Court, remained within the jurisdiction of this Court despite the power expressly conferred on the District Court to deal with them. I took that view having regard to the provisions of the Supreme Court Act 1935 (WA), s16, and the District Court of Western Australia Act 1969, s42(3) which provides that the criminal jurisdiction conferred on the District Court does not limit or diminish the jurisdiction of the Supreme Court as a court of criminal jurisdiction.

As I have said, however, this is not a case, I think, of that kind because here there is nothing in respect of the matters said to arise under the Criminal Injuries Compensation Act s6A to enliven the criminal jurisdiction of this Court. The appropriate course then, certainly in respect of those matters arising under s6A, is, in my view, that they be remitted to the District Court for hearing."

28 It emerges, then, from a consideration of these previously decided cases, that the District Court is thought to have exclusive jurisdiction in respect of an application pursuant to s 6A of the Act as to offences for which no person has been tried unless the criminal jurisdiction of the Supreme Court has been enlivened because the offences have been the subject of an indictment, albeit that no conviction eventuated. I consider that I am bound to follow this line of reasoning, with the result that, prima facie, in the circumstances of the present case, the s 6A applications must be remitted to the District Court.

29 Counsel for the applicants sought to distinguish the two previously decided cases I have just referred to by reminding me that, unlike the situation in those cases, there are, in the present case, applications before the District Court concerning the s 6A claims which can arguably be remitted to the Supreme Court pursuant to s 76 of the District Court Act.

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30 I have to say, however, that in my view the jurisdictional difficulty cannot be solved in this manner. I consider that the power to remit a matter to the Supreme Court under s 76 of the District Court Act assumes that the Supreme Court has jurisdiction to deal with the matter the subject of the prospective remission. A power to remit cannot be utilised as a means of expanding the jurisdiction of a court or of conferring a jurisdiction upon a court which it does not otherwise possess. It is clear from the reasoning of his Honour Murray J and from the language of s 6A of the Act that the jurisdiction to determine such claims has been vested in the District Court by express enactment.

31 Accordingly, I consider that I am not at liberty to deal with the applications pursuant to s 6A of the Act. I canvassed with counsel on both sides the course that should be followed if I arrived at such a conclusion. Both counsel seemed to accept that in such an event I should proceed to deal with the s 4 claims, with a view to avoiding delay, on the assumption that the applications under s 6A of the Act could be dealt with by the District Court in due course. I will proceed accordingly.

32 It will be convenient to look firstly at the situation of the applicant "E". I must begin by taking account of the sentencing remarks of the presiding Judge, his Honour Justice Scott, when convictions were recorded against the respondent, "P", on 12 August 1996 in respect of the indictment presented by the Crown prosecutor dated 5 August 1996.

33 His Honour noted that the respondent had pleaded guilty to an indictment containing 42 counts alleging various forms of sexual interference with four young girls, being the granddaughters of the respondent. Seventeen counts on the indictment related to offences committed against the applicant "E". "E's" age when the offences were committed ranged from nine to 13 years and took place at Boyanup, where the respondent resided in two houses.

34 His Honour went on to say that four of the 17 counts were offences of indecent dealing which occurred in the bathrooms of each of the respondent's Boyanup residences. A further eight counts relate to indecent assaults upon "E", most of which occurred while the respondent was walking his dog at the local oval. These offences involved masturbation, oral sex and penetration of the vagina by the respondent's penis and with a candle, such facts embracing the two counts of attempted incest contained in the indictment. The learned Judge then went on to describe the events giving rise to the further charges.

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35 His Honour summarised the situation by saying that over a period of 14 years the complainants were subjected to gross acts of sexual interference. What made these acts particularly traumatic for the victims was the fact that the respondent occupied a position of trust in respect of the children in question.

36 His Honour took account of the respondent's age of 79 years, his state of health and his lack of antecedents, that is to say, the lack of any criminal record. He also substantially discounted the sentence for the fast-track plea of guilty and the remorse shown by the respondent as evidenced in the video-recorded police interview. He proceeded to impose sentences for each of the counts with a number of the terms of imprisonment to be served concurrently. This meant that the total period of imprisonment was to be 9 years with eligibility for parole.

37 I pause to observe that in regard to the present application the principal issue for the Court is the extent to which the applicants have suffered loss and injury as a consequence of the s 4 offences. Accordingly, it is now necessary for me to look at the circumstances of the matter in greater detail from the point of view of the first applicant.

38 The applicant says in her supporting affidavit sworn 27 June 2001 that she could not remember exactly when the abuse started, but she recalls that in or about 1977 when she was 11 years old the respondent and her grandmother lived in a house in North Boyanup Road. Her parents and brothers and sisters lived in a caravan out the back of the house. It was in that setting that the events giving rise to the offences occurred when the respondent persuaded the applicant to go into the bathroom in the house and wash the respondent. In her affidavit she goes on to describe the circumstances of the offences in greater detail, including the sexual incidents which occurred when she went for walks with the respondent in order to exercise the dog. She went on to say this:

"13. It was on our walks in the park that the Respondent tried to find a secluded spot so no-one could see us. Once again I can't remember exactly when it happened but I remember I was about 13 years old. The Respondent undid his zip on his trousers and got me to pull his penis out and masturbate him until he ejaculated. He started to threaten me then as well saying that if I told anyone what happened, my parents would split up and I would go to jail. At first I just masturbated him but after a while he started to put his hands into my underpants and fondle my

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genitals. He then inserted his finger into my vagina. He was rough and it used to hurt. I told him that it hurt and he used to tell me it would be alright in a minute. I was quiet so he could get it over with. This happened almost every time I went for a walk with him.

14. Twice on our walks, the Respondent got me to perform oral sex on him. I remember that I had his penis in my mouth and he had hold of the back of my head. I was gagging. I felt like I was choking. I only did it twice I think because I couldn't do it and he never ejaculated into my mouth.

15. I was still 13 years old when the Respondent first tried to have intercourse with me. He got me to lay on my back on the grass. If it was wet, I would lay on his coat or something. He tried to insert his penis into my vagina. I don't know if it was because I was too tense but the Respondent was never able to get his penis in. He undid his pants and had an erect penis. He tried to make me loosen up a bit so that he could have intercourse with me. He performed oral sex on me and inserted his finger into my vagina. However he was still unable to get his penis in. As the Respondent still had an erection, I had to masturbate him until he ejaculated. This happened on numerous occasions but again I can't recall exactly how many because I think I just wanted to try and finish and try to forget about it."

39 The applicant went on to describe further sexual incidents which took place in the respondent's shed and in the respondent's bedroom, including acts of intercourse and attempted intercourse. The applicant went on to say that she never said anything about the abuse to anyone for a long time. It first came out in the open in about October 1994, when she was 28 years of age. The family members affected by the abuse had gradually discovered as a consequence of various conversational exchanges the extent of the respondent's misconduct and this led to a family meeting being held at which the respondent was confronted. He did not deny any of the allegations. As a consequence of some further misconduct by the respondent, allegedly involving another member of the family, a formal complaint was lodged with the police and police inquiries then led to formal charges being laid.
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40 The applicant said in her affidavit that the respondent's abuse had a huge impact on her life. As a young teenager, she could remember feeling under a lot of stress all the time. Her parents' sense of loyalty to the respondent and the applicant's grandmother made it more difficult for the applicant to say anything.

41 She said that she only went as far as completing year 9 at Bunbury Senior High School. She would have liked to have stayed on at school, but there was pressure on her at home to leave. At about the time she left school, her father was unsettled and wanting to return to England. She left school in November 1981 and went with her family to England in March 1982. It was at about this time that she told the respondent that he was to leave her alone. She was then 16 years old.

42 She said in her affidavit that she fell pregnant at the age of 17 years. Her son was born on 7 April 1984, but the relationship with the father of the child proved unstable. She formed a new relationship with the man who was destined to become her husband and returned to Australia in 1991, the rest of the family having already moved back in 1988. She went on to say that she sometimes had difficulties with the sexual side of her relationship with her husband and she attributes this to the respondent's misconduct. She eventually told her husband about the abuse she had experienced.

43 She said that she is very protective of her two daughters, presently aged 10 years and 8 years respectively, but she feels she is not approachable to them. She stopped work when she married her husband and since then has done various odd jobs, but is not really skilled in anything. She had no real health problems as a child or teenager, but her health declined after her grandmother approached her about the possibility of the respondent getting a royal pardon. It was about this time also that she developed asthma and began suffering panic attacks. She has also been receiving psychiatric treatment from Dr Main for a number of years.

44 The evidentiary materials before the Court included a psychiatric report dated 18 August 2000 prepared by Dr Roland Main. In summarising the patient's history, he said that she was referred to him by her general practitioner on 12 March 1999 due to depression, panic attacks and a significant past history. The applicant recalled problems of an emotional nature from as early as 1994 and described episodes of sexual abuse at the hands of her paternal grandfather from the ages of 11 to 16. She described a history of significant depression from around April 1998, including an irritable and low mood, problems with poor sleep, loss

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of weight, low energy levels, and difficulties concentrating. As a consequence of her irritability, she reported difficulties in her relationship with her children and her husband.

45 According to Dr Main, "E" presented as a tearful, somewhat overweight woman, who was initially very apprehensive. She relaxed a little as the interview progressed. Her speech was accelerated, but well-organised, and showed good modulation and expression. The content of her thinking revealed anxious and depressive themes, as well as ideas of significant anger, particularly towards her paternal grandparents. Her manner was anxious and depressed, although she retained good range and reactivity of affective responses. She was not suicidal. No psychotic features were observed. Her cognition was intact. She demonstrated good insight into her condition. Dr Main's diagnoses, according to the Diagnostic and Statistical Manual of Mental Disorders Version (v), were major depression and panic disorder without agoraphobia.

46 Dr Main went on to say that, as is the case of most psychiatric disorders, it is often not possible to directly attribute cause to any one particular event or trauma. Rather, it is accepted that psychological dysfunction is a manifestation of the interplay between vulnerability factors and current or recent stresses. In "E's" case, it was probable that there may be some genetic vulnerability, given her family history of psychiatric illness. In addition, it was highly likely that the abuse she had suffered as a child predisposed her to abnormal psychological reactions when faced with stressors in the present. He went on to say that in his view it would be highly unlikely that she would have developed the psychological problems for which she was treated if it were not for the fact that she had been abused as a child. In his opinion, she would remain vulnerable to episodes of anxiety and/or depression, perhaps on a lifelong basis. Whether she experiences further relapses of her psychiatric disorder will depend largely on the level of stress that she may face in the future, particularly stress of an emotional nature, or stress related to her previous abuse. His report contained various recommendations for treatment, including use of antidepressant medication.

47 The evidentiary materials included a medical report from the applicant's general practitioner affirming his belief that her present emotional difficulties were related to the history of past abuse.

48 The sentencing remarks of the learned trial Judge on 12 August 1996 also summarised the situation concerning the second applicant. The learned Judge noted that in regard to his granddaughter "T", the

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respondent had pleaded guilty to 14 counts of indecent assaults. He went on to say that "the facts of these assaults involved various incidents of masturbation, oral sex, fondling and insertion of your finger and a white candle into her vagina". One particularly disturbing assault occurred in the bathroom of the respondent's house when "T" was aged 7 years and the respondent attempted to enter her vagina from behind. This led to a penetration of the anus which left her with some bleeding.

49 The affidavit of "T" sworn 4 July 2001 asserted that she is presently 32 years old, having been born on 19 June 1969. She described the history of sexual abuse by the respondent who was eventually charged with 14 sexual offences against her occurring between 1 January 1977, when she was about 8 years old and 31 December 1982, when she was about 13 years old. The affidavit contains a more detailed account of the incidents in the bathroom mentioned by the sentencing Judge and to other incidents that took place in the respondent's shed, including the insertion of a candle in her vagina. She referred also to incidents that took place at the oval while the respondent was taking his dog for a walk. It was all of these incidents which resulted in criminal convictions against the respondent.

50 In her affidavit, she then went on to refer to certain other incidents of sexual abuse and to the circumstances that eventually led to charges being laid against the respondent.

51 The second applicant said further that she had no doubt that the abuse by the respondent had a huge impact on her life. As a child and as a teenager, she remembered carrying a great deal of stress and trying to carry on as if everything was normal. She never wanted to visit her grandparents, but her father had a strong sense of family and was very protective of them. She said that she loved school and wanted to be a teacher, but a review of her school reports in recent times suggested that she was not as attentive as she could have been. She did not have close friends and was always something of a loner.

52 The second applicant said that she finished her schooling in England at 5th year, close to her 16th birthday. She finished a youth training scheme at Lloyd's Bank and worked at a deli and fish and chip shop. She returned to Australia in 1988 and managed to get a job with the ANZ Bank, where she worked for 12 years. She finished up there at the end of 1999 in order to have a child, who was born on 27 December 1999. She had been living with the father of the child in a de facto relationship for a number of years and married him in December 2000. She told her

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husband of the abuse she suffered, but it was not something that was ever easily discussed. She now works part-time with a local credit union.

53 She said that she had her first sexual relationship with a boyfriend at the age of 20 years. In her view, the abuse she had suffered impacted on the sexual relationship with the man who eventually became her husband and from time to time she has experienced flash-backs to the abuse during sexual relations with her husband. She was unable to implicitly trust her husband and considers that this was probably the major contributor in the relationship eventually breaking down. She considers that she is over-protective of her child.

54 As to health matters, the applicant said that she was always sick as a child. Her bad health continued into adulthood and included bronchitis and constant colds and flus. Eventually her doctor suggested that her illnesses were stress-related and it was at that time she went to see a counsellor.

55 Additional evidentiary materials lodged in support of the application included a report from the counsellor in question dated 22 August 2000. This report affirmed that the applicant's first counselling appointment was in October 1991. At that time, the applicant was 22 years old and said that she had been constantly sick for the previous two years. Issues addressed were stress management with methods of relaxation and appropriate assertive communication being discussed. A month later, the applicant disclosed that she had been sexually abused by her paternal grandfather up to the age of 13 years. A number of consultations took place during the course of 1992. The applicant did not return for counselling until August 1996, at which time she said she was continually breaking down and sobbing when alone or over small issues. By that time, she was in a relationship with the man who eventually became her husband, and she was distressed by the fact that her grandfather had received a prison sentence of 9 years.

56 The counsellor said that she was not in a position to diagnose the applicant as suffering or having suffered from a recognisable psychological disorder. From her past experience of working with victims of sexual assault, and formal training in this area, she was able to state that it was likely that the applicant's low self-esteem, difficulties with expressing her feelings, relationship difficulties and stress symptoms were at least partially attributable to the sexual assault she suffered as a child at the hands of her paternal grandfather. She said further that it was likely the applicant would experience a return of the memories of the sexual

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abuse from time to time throughout her life and difficulties with managing stress and relationships.

57 The report of Dr Roland Main dated 7 March 2001 addressed the history of the patient, including reference to the counselling she had received from the counsellor mentioned earlier. According to Dr Main, the applicant presented as a thin, casually-dressed young woman. She was tearful throughout most of the assessment interviews, and was agitated. Her speech was mildly accelerated, particularly when discussing the break-up of her marriage. No formal thought disorder was observed. Her mood was depressed and angry, but she was not suicidal or homicidal. No psychotic features were elicited. Cognition was not impaired and her insight was good. The diagnoses were adjustment disorder with depressed and anxious mood. She was not thought to be suffering from a personality disorder.

58 Dr Main went on to say that in his opinion, the abuse that the applicant experienced was likely to have lifelong adverse effects on her life. The history of her recovery from the time that the abuse stopped, to the recent past when her marriage broke down, was indicative of the compensatory process that she had been able to adopt. She was inclined to throw herself into her work, both professionally and in her role as a mother. Her devotion to these parts of her life allows her to refocus on more positive issues and challenges. Unfortunately, as was evidenced by her reaction to the marital separation, this devotion overlies a continuing issue of vulnerability and sensitivity to loss and abuse. It was Dr Main's opinion that the applicant had previously used a coping strategy in dealing with the abuse from the respondent and that the applicant might not require prolonged ongoing therapy, but would be vulnerable to further episodes of mental disorders. Her previous counselling had, to a large extent, allowed her to deal with the effects of her abuse.

59 The evidentiary materials before me also included a report dated 31 August 2000 prepared by the applicant's general practitioner in which he speaks of having treated the applicant for various ailments since 1980 and of having referred her to Amanda Clarke for advice on stress management in 1991.

60 In dealing with the applications before me, I must take account of various principles that are to be found in the previously decided cases.

61 An application under s 4 of the Criminal Injuries Compensation Act requires proof of an injury (including mental and nervous shock) suffered

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by the applicant in consequence of the commission of the offences. It is sufficient to show, on the balance of probabilities, that the injury was a consequence of the commission of the offences. It is not necessary for the offences forming the subject of the application to be the sole cause of the injury: KJH v Ram (Dec) (1996) 16 SR (WA) 133.

62 A number of other considerations are referred to succinctly in the recently decided case of Newton v Welsh [2000] WASC 102, in which Miller J drew upon the reasoning reflected in previously decided cases. He observed that affidavits lodged in support of the claim are admissible pursuant to O XXC r 3(1) of the Criminal Practice Rules.

63 The cases recognise that a distinction needs to be drawn between a mere emotional reaction and something of a more enduring character which may, in both the legal sense and in common parlance, be described as an injury.

64 It is clear that, as long as the mental and nervous shock constituting injury is causally connected to the respondent's behaviour, the applicant is entitled to compensation. As I have already noted, it is unnecessary that the mental and nervous shock be characterised as constituting an injury be solely caused by the actions of the respondent.

65 The maximum compensation prescribed by the Act is merely a jurisdictional limit and is not reserved for the worst case. The correct approach to adopt in fixing the amount of compensation which is payable is to apply the ordinary tortious principles for assessment of damages, subject to the jurisdictional limit imposed by the Act. Miller J noted in Newton v Welsh (supra) that although there is authority for the proposition that principles of foreseeability and remoteness are not relevant to an assessment for compensation, under criminal injuries legislation the requirement that the injury must be in consequence of the offending precludes any compensation for injuries sustained by the applicant in other abusive relationships.

66 In assessing the amount of compensation which should be awarded, the Court must have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim.

67 It seems that the amendment to s 4 effected in 1976, by adding the power to award compensation for loss, entitles the applicant to compensation for past and future earnings and that the determination of

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future earnings will, in most cases, involve an assessment of earning capacity. Where there are multiple convictions the right of recovery arises on each such conviction: A v D (1994) 11 WAR 481 at 495.

68 I pause to observe that many of the previously decided cases are concerned with the compensation to be awarded in circumstances in which, in addition to the offences for which convictions were recorded, there were many more offences of a similar nature committed against the applicant. It will be recalled that, pursuant to s 6A of the Act, the District Court may award compensation for offences for which no person has been tried and convicted. For the time being, however, in light of the ruling I have made in regard to the jurisdictional issue, I must confine myself to the task of determining the appropriate amount of compensation for each applicant in respect of the s 4 offences referable to that applicant.

69 I am satisfied in regard to the applicant "E" that she has suffered injury in consequence of the 17 s 4 offences the subject of the indictment dated 5 August 1996. The nature of the injury is reflected in the report of Dr Main dated 18 August 2000. The symptoms are various but, in summary, her condition was diagnosed as major depression and panic disorder. I take account of the decided cases in holding that this is something of a more enduring character than an emotional reaction and can therefore be properly regarded as an injury.

70 I am satisfied also on the balance of probabilities that there is a causal link between the events comprising the relevant s 4 offences and the subject injury. The applicant affirms that the abuse has had "a huge impact on my life" and this is corroborated by the evidence of Dr Main, her general practitioner and her husband. The events took place many years ago and since then the applicant has been subjected to other pressures. It is difficult in the circumstances of this case to make any precise delineation between the effect of the events comprising the s 4 offences and the various events and allegations comprising the s 6A offences. It is apparent from the decided cases, however, that it is not necessary for the s 4 offences, being the offences the subject of the present application, to be the sole cause of the injury. The events comprising the s 4 offences were so severe and that, to my mind, the injury I have identified can properly be described as being suffered in consequence of the commission of those offences.

71 This applicant did not advance a claim for medical expenses or loss of earning capacity. The decided cases indicate that tortious principles are to be applied in fixing the amount of compensation subject to the

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jurisdictional limit of $7,500 for each offence and related provisions of the Act, including provision for aggregation where offences were committed at the same time. As to that latter aspect of the matter, I accept the Crown's contention that the maximum amount of compensation which could be awarded to this applicant for the 17 s 4 offences in circumstances where counts 12, 14 and 14 occurred on the same day as count 11 would be $105,000.

72 I must keep steadily in mind from my review of the decided cases that the amount is not to be fixed as a punishment or as an expression of sympathy for the victim. It follows that the Court must have regard solely to the injury suffered by the applicant. I am conscious, in the circumstances of the present case, that the injury complained of arises out of traumatic events and is an injury of a distressing kind. There is clear authority for an award to be calculated on the basis of the number of offences as it is considered that the right of recovery arises on the commission of each offence: Squires v Ebbett, unreported; DCt of WA (French DCJ); Library No D980045; 24 February 1998. It follows from earlier discussion that, in my view, the maximum of $7,500 should be awarded for each of the offences after allowance for aggregation. My view is reinforced when I compare the global figure thus determined by the reasoning and amounts allowed in comparable cases such as MSS v DWL [2000] WADC 1 and SP v Asplin [2001] WADC 135.

73 Against this background, I am of the view that the amount allowed to the applicant by way of compensation for the offences the subject of the present application will be the sum of $105,000.

74 I apply a similar line of reasoning to the case of the applicant "T". I am satisfied that an injury occurred as a consequence of the abuse in question and that, as the s 4 offences formed a significant part of the respondent's abuse of his granddaughter, the necessary causal link has been demonstrated. The nature of the injury is described in the report of Dr Main as an adjustment disorder with depressed and anxious mood as a result of which she will be vulnerable to further episodes of mental disorders. I therefore consider that compensation should be allowed to the applicant. The crucial question is the extent to which the applicant has suffered loss and injury as a consequence of the offences.

75 I digress briefly to say that in this case the applicant added to her claim for an award in the nature of general damages a further claim for past and future economic loss in the sum of $52,000. This part of the claim proceeded from the premise that she had aspirations and prospects

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of becoming a full-time independent school teacher which were thwarted by the respondent's misconduct. The claim under this heading was arrived at by contrasting the employment she actually obtained with the position of an independent school teacher and by bringing to account appropriate allowances for contingencies. I have to say that I am not satisfied on the evidence before me that the applicant was denied an opportunity of the kind contended for in consequence of the commission of the offences. The ambition to be a school teacher was not manifested in a specific form and various domestic events intervened which make it difficult to conclude that there is sufficient connection between the applicant's failure to become a school teacher and the misconduct of the respondent. Accordingly, I am not prepared to allow this part of the claim.

76 It was common ground at the hearing before me that, in this case, after making allowance for the aggregation of various counts, the statutory maximum allowable for the s 4 offences was $67,500, being 9 x $7,500. It follows from earlier discussion that I must take account of the applicant's marital problems and of the medical and psychological difficulties that have afflicted the applicant over a long period as detailed in the reports of her general practitioner, Amanda Clarke, and Dr Main. The applicant herself has described the stress "in trying to carry on a if everything was normal". I must keep steadily in mind that compensation cannot be awarded simply as a gesture of sympathy, but must be related to an injury or loss suffered in consequence of the commission of the offences. Nonetheless, I am satisfied in the circumstances of the present case that the injury is sufficiently severe to justify an award of the maximum amount allowable in respect of each offence.

77 Against this background, I consider that the sum of $67,500 should be awarded to the applicant "T" by way of compensation.

78 In summary, then, the applicant "E" will be awarded the sum of $105,000. The applicant "T" will be awarded the sum of $67,500. I will hear from the parties as to whether any further orders or directions are required.