L v Tribe

[2003] QDC 450

DISTRICT COURT OF QUEENSLAND

CITATION:	L v Tribe [2003] QDC 450
PARTIES:	L Applicant v MICHAEL ALLAN TRIBE Respondent
FILE NO:	BD 2187/03
PROCEEDING:	Application for Criminal Compensation
DELIVERED ON:	21 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 August 2003
JUDGE:	O’Brien DCJ
ORDER:	That the respondent Michael Allan Tribe should pay to the applicant the sum of $19,500 by way of compensation for injuries suffered by her by reason of the offence of which he was convicted in the District Court of Brisbane on 15 November 2000.
CATCHWORDS:	CRIMINAL COMPENSATION – RAPE – MENTAL OR NERVOUS SHOCK – ADVERSE EFFECTS - where applicant has long history of psychiatric illness – whether adverse impacts “are not otherwise an injury under s20”
Julie v Atwell (2001) QCA 510
Criminal Offence Victims Act (Qld) 1995, s 20, Schedule 1 Criminal Offence Victims Regulations (Qld) 1995, reg 1A
COUNSEL:	Mrs G Payne (sol) for the applicant No appearance by the respondent
SOLICITORS:	Legal Aid Queensland for the applicant

1. This is an application for compensation brought pursuant to the provisions of the Criminal Offence Victims Act 1995. On 15 November 2000 the respondent, Michael Allan Tribe was found guilty by a jury in the District Court at Brisbane of an offence of rape. The present applicant was the complainant in respect of that offence and she now seeks compensation in respect of injuries allegedly suffered by her as a consequence of the commission of the offence.

2. The circumstances of the offence need not be recited in any detail. They involve the respondent, who was known to the applicant, having forceful sexual intercourse with her at her home on the night of 30 July 1999. The applicant gave evidence of these events at the trial before me in November of 2000 and I find no conduct on her part which contributed in any way to injuries suffered by her. The general circumstances of the offence are as set out in her statement to the police which is exhibited to her affidavit in these proceedings.

3. Fortunately for the applicant the physical injuries suffered by her were relatively minor. There is evidence however of a 2 mm laceration to the posterior fourchette and a 7.5 mm open laceration centrally to the perineum. The most serious consequences for the applicant were of a psychiatric nature. I have been greatly assisted in this case by a report I have from Dr Nigel Prior, Psychiatrist who considers that the applicant has suffered a post-traumatic stress disorder as a consequence of the commission of the offence.

4. A complicating feature in this case however is that the applicant has a long history of psychiatric illness and there is also evidence that there have been other events in her life, both before and after the subject offence, which have had an adverse impact upon her. These matters are referred to by Dr Prior as follows:

   “[L] reports that she experienced a previous rape at the age of 21 in 1988 when two unknown males raped her. In following this (sic) she became depressed, suicidal, began self-harming and experiencing nightmares. At this time she reported that she began to hear auditory hallucinations inside her head. She has had a long psychiatric history subsequently with admissions to the Royal Brisbane Hospital, Prince Charles Hospital and ongoing outpatient treatment at the Valley Community Mental Health Clinic. She has had multiple inpatient admission. She has been diagnosed with depression, post-traumatic stress disorder and a borderline personality disorder. She is on multiple medications and has out-patient follow-up with Dr Curson at the Valley Community Mental Health Clinic and has a Case Manager, Margaret Drynan. She also sees Dr Andrew Christensen on an outpatient basis for psychotherapy for her post-traumatic symptomology.”

   [5]      Dr Prior elsewhere notes that the applicant’s previous rape experience in 1988 led to her experiencing psychological trauma manifesting as depression, suicidal ideation, self harming behaviour, nightmares and auditory hallucinations. He reports that she is of low average intelligence and was unable to cope with this initial assault and deteriorated into a chronically impaired psychological state. Dr Prior states:

   “This most recent assault aggravated the pre-existing trauma escalating her distress from mild to moderate severity. She developed a full range of post-traumatic symptomology which has gradually diminished over time but has recently flared up due to the unwanted attention of another male in circumstances very similar to those in which she was assaulted in 1999. Her symptoms are long term. It is likely that with further treatment they will decrease into mild severity but will remain with her indefinitely … [L] has suffered pre-existing psychiatric, intellectual and medical and psychological conditions before this assault. Her family background is characterised by a breakdown of her parents’ relationship when she was aged two and subsequent abandonment by her mother. The latter is allegedly an alcoholic. Her father raised her with the help of her maternal grandparents which she characterised as a positive influence in her life. However at the age of 21 she was the victim of a rape by two males and this precipitated a psychological breakdown most likely a post-traumatic stress disorder with an effect on her subsequent personality functioning. She is of low average intelligence and was not able to cope with the trauma.

   She subsequently got into a relationship, had a child but was unable to care for this child and the latter was removed from her care. This further aggravated her distress. She has developed chronic self- harming behaviour, recurrent suicidal ideation, fragmentary hallucinations and marked dysfunction in her adult relationships. She displays personality dysfunction with borderline traits to her behaviour. In addition she has suffered from multiple medical problems including Marfans syndrome and epilepsy. All of these conditions have made her more vulnerable not only to the emergence of the post-traumatic stress disorder but also to being taken advantage of by others. She tends not to protect herself from harm, to become involved in inappropriate relationships and to lack the intellectual capacity to problem solve and remove herself from those relationships. However the symptomology described by [L] would not have arisen spontaneously without the assault. It has aggravated pre-existing symptomology from the first assault in 1998 but has also resulted in symptomology particular to this assault. Currently I would apportion her present distress as being 50 per cent related to this most recent trauma and the other 50 per cent relating to the pre- existing vulnerabilities both psychological, medical, and those stemming from the original assault.”

   [6]      Given her history of illness and psychological trauma, the applicant was clearly in a position of considerable psychological vulnerability at the time of this offence. This offence had the effect of escalating her pre-existing trauma from mild to moderate severity, although it would appear that her symptomology gradually diminished before being aggravated by the more recent unwanted attention of another male person. I accept that this incident had a considerable affect upon the applicant but in the circumstances it would, in my view, be unrealistic to attribute all of her problems to this one incident.

   [7]      The applicant has sought compensation for mental or nervous shock as specified in the table that is Schedule 1 to the Act as well as for the adverse effects of the incident in terms of Regulation 1A of the Criminal Offence Victims Regulations 1995. Although I accept that the applicant has suffered an injury which constitutes mental or nervous shock for the purposes of the legislation, I have some difficulty in accepting that the adverse impacts which she has suffered “are not otherwise an injury under s 20”. See Julie v Atwell (2001) QCA 510. Rather, those “adverse impacts” seem to be the very symptoms of her mental or nervous shock that is compensable under the Table. This conclusion is supported by the opinion of Dr Prior who refers to these adverse effects as follows:

   “The adverse impacts, which she has listed, are subsumed under the symptoms of a post-traumatic stress disorder. She has experienced a sense of violation feeling dirty because of what has happened and blaming herself for the assault. Her self esteem has suffered and she has experienced panic attacks. She is wary of boyfriends, avoidant of sexual relationships, fearful of sexual disease, increasingly vigilant and insecure and continues to experience flashbacks, nightmares and distressed mood. It has an impact on her relationships including that with her family and with her son. These are all part of the post-traumatic symptom profile and stem directly from the post-traumatic stress disorder.”

   [8]      Doing the best I can in the circumstances of this case I proposed to make an award of 25 per cent of the maximum or $18,750 in respect of the injury suffered by the applicant which amounts to mental or nervous shock for the purposes of the legislation. I propose to make a further award under item 1 of the Schedule of $750 in respect of the physical injuries suffered by her. In the result my order is that the respondent Michael Allan Tribe should pay to the applicant the sum of $19,500 by way of compensation for injuries suffered by her by reason of the offence for which the respondent was convicted in the District Court of Brisbane on 15 November