EG (by his litigation guardian) v. SAZ

[2007] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

EG (by his litigation guardian) v SAZ [2007] QCA 122

PARTIES:

EG (by his litigation guardian EF)
(applicant)
v
SAZ
(respondent)

FILE NO/S:

Appeal No 9234 of 2006
DC No 238 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application – Civil
General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2007

JUDGES:

Jerrard JA, Cullinane and Jones JJ  Separate reasons for judgment of each member of the Court, each concurring as to the orders made.  

ORDER:

Refuse the extension of time and the grant of leave

CATCHWORDS:

CRIMINAL COMPENSATION – APPLICATION FOR EXTENSION OF TIME – APPLICATION FOR LEAVE TO APPEAL AGAINST AWARD OF CRIMINAL COMPENSATION – where the respondent was convicted of indecent dealing and permitting indecent dealing – where applicant was awarded criminal compensation of $12,000 for nervous and mental shock and adverse impacts of a sexual offence – whether the learned District Court Judge erred in his assessment of the amount of criminal compensation to be paid

Criminal Offence Victims Act1995 (Qld), schedule 1
Criminal Offence VictimsRegulation 1995 (Qld), s 1A

COUNSEL:

G Lynham for the appellant
No appearance for the respondent

SOLICITORS:

Purcell Taylor Lawyers for the appellant
No appearance for the respondent

1. JERRARD JA:  I respectfully agree with the reasons of Cullinane J, and with the orders that His Honour proposes.

1. CULLINANE J: In this matter the applicant seeks an extension of time within which to appeal and leave to appeal against a judgment of the District Court awarding EG (by his litigation guardian) $12,000 by way of criminal compensation under the Criminal Offence Victims Act1995 (Qld) as amended.

1. It appears that a notice of appeal was filed (on 24 October 2006) shortly after the judgment was delivered, however, the requirement to obtain leave was overlooked.  This was drawn to the attention of the solicitors for the applicant and on 11 January 2007 an application for an extension of time and an application for leave were prepared.

1. The respondent has played no part in the proceedings either before the District Court or in this court.

1. The respondent was convicted of one count of indecently dealing with the applicant and one count of permitting the applicant to indecently deal with him. Both of these offences were committed at Townsville on 10 November 2001.

1. The respondent pleaded guilty in the District Court at Townsville to these offences.

1. At the time of the commission of the offences, the applicant was 13 as was the respondent.  He and the respondent were classmates at school.

1. The applicant spent the night concerned sleeping over at the respondent's home.  In the course of the evening whilst they were lying on a mattress the respondent pulled the applicant's shorts and underpants down and inserted his penis into the applicant’s anus and moved it up and down. It appears that shortly after this the respondent told him that he had ejaculated whilst the offence was being committed.

1. A few minutes later the respondent sucked the applicant’s penis and then stood in front of the applicant and pulled the applicant onto him with his hands as a result of which the applicant's penis went into the respondent's anus.

1. The applicant has had some longstanding psychiatric and personality problems.

1. According to his mother the applicant suffers from a neuro-development disorder (anoxic brain injury) with some impairment of auditory, visual, spatial and processing capacities.  He takes a significant quantity of medication which apparently permits him to function well and enables him to sleep.

1. The applicant’s mother suggests in her affidavit that there has been some regression in the applicant’s condition since the events, with which we are concerned here.

1. There is a report from Dr Fisher who is a government medical officer and who examined the applicant.  His examination of the applicant's anus was equivocal.

1. There is also a report of a psychologist, Suzy Dormer.

1. The applicant placed great reliance upon this report contending that His Honour’s acceptance of the opinions contained in it must necessarily have resulted in a considerably higher award of compensation than that made, and that the exercise of assessing compensation under the Act had in some way miscarried.

1. The learned District Court Judge made an award for nervous and mental shock under item 32 of the schedule to the Act, that is, under the item dealing with moderate mental or nervous shock. He also made an allowance under s 1A of the Criminal Offence VictimsRegulation 1995 (Qld) for adverse impacts of a sexual offence which included a change of school and a sense of violation. For both of these he assessed compensation at $12,000.

1. The applicant emphasised before us what was said to be the severity of the child’s psychiatric condition as assessed by Ms Dormer. The appropriate heading under which mental and nervous shock should have been assessed on the applicant’s argument was severe.

1. However a reading of the psychologist’s report does not in my view, bear out the complaints made about His Honour’s assessment.  Indeed I think the applicant claims more of the psychologist’s report than a close reading of it would support.

1. The report of the psychologist included a number of responses to specific questions, which had been asked of her by the solicitors for the applicant.

1. When asked whether the applicant suffered by any psychiatric disabilities the report relates:

“From the results of the clinical interview and the trauma symptoms checklist for children, it is apparent that EG at this time is clinically depressed and anxious and has severe indicators of post traumatic stress and overt disassociation.  These symptoms and others as reported by EG and his mother EF are indicative of DSM – IB diagnostic criteria  4309.81 post traumatic stress disorder.”

1. She went on to relate that on the trauma symptoms checklist for children, the applicant presented in the clinically significant range in two of the ten scales and in the severe range in a further two scales.

1. The applicant has been, and in the psychologist’s opinion is still, severely negatively affected psychologically by the indecent dealings perpetrated by the respondent.

1. Whilst the psychologist was guarded in her opinion as to the likely future of the psychiatric problems suffered by the applicant, she thought it unlikely that a full recovery would occur and thought that he would be susceptible to setbacks given any further negative events. On balance it seems there were grounds for optimism on my reading of the report.

1. The learned District Court Judge in dealing with the consequences of the offences said (inter alia):

“It is said he has become extremely dependent on his parents and feels unable to go to public places or visit friends leading to a heightened sense of fear. There has been a sense of violation, a reduced perception of self worth and signs of post traumatic stress disorder.  According to the psychological report he will require some ongoing use of therapeutic support with a trusted counsellor.  He has been receiving that support.”

1. In my view these findings accurately reflect the opinion of the psychologist.

1. I do not overlook the fact that the psychologist expressed an opinion, that the part of the schedule to the Criminal Offence Victims Act to which she thought compensation fell to be assessed under, was the category of “sever” mental or nervous shock.  

1. This was of course His Honour’s task based upon the evidence which he had before him and his assessment of it.

1. I am not persuaded that there has been any error demonstrated in the way in which His Honour went about the assessment of criminal compensation in this matter.

1. The matter raises no point of principle or of general importance.

1. I would refuse the extension of time and the grant of leave.

1. JONES J: I have had the opportunity of reading the reasons for judgment of Cullinane J and agree with his reasons and the order proposed.