Motton v Jingle

[2000] QSC 434

SUPREME COURT OF QUEENSLAND

CITATION:

Motton v Jingle [2000] QSC 434

PARTIES:

MARJORIE ELVINA MOTTON
(applicant)
v
ALFRED PETER JINGLE
(respondent)

FILE NO:

6270 of 2000

DIVISION:

Trial Division

DELIVERED ON:

1 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2000

JUDGE:

Mullins J

ORDER:

1.  The respondent pay to the applicant the sum of $20,000 by way of compensation for the injury suffered by the applicant by reason of the offence of which the respondent was convicted on 30 June 1988.
2.  The respondent pay the applicant's costs of the application to be assessed.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – compensation for nervous shock – respondent convicted of sodomy – claim under s663B Criminal Code (Qld)

Criminal Code

COUNSEL:

A J Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey for the applicant

1. MULLINS J: On 20 July 2000 Marjorie Elvina Motton ("the applicant") filed an application seeking compensation pursuant to section 663B(1) of the Criminal Code for the injury she sustained as a result of the offence of sodomy committed between 1 March 1987 and 30 September 1987 at Weipa for which the respondent was convicted upon indictment on 30 June 1988.

1. Although served with the application, the respondent did not appear on the hearing of the application.   

1. The applicant was born on 13 February 1965 and was therefore approximately 22 years old when the offence was committed.  She had been in a sexual relationship with the respondent from approximately the age of 10 years.  The applicant describes the respondent as having been violent towards her.  He was charged with the offence of sodomy for which he was convicted after the applicant had made a complaint to police.  The respondent was also charged with another count of sodomy and one count of rape.  The Crown entered a nolle prosequi in relation to the latter two counts.

1. The respondent admitted during a police interview to having anal intercourse with the applicant about April 1987 without the consent of the applicant.

1. According to the applicant's affidavit, the subject offence was committed during a period of violence on the part of the respondent towards her which involved the other instances the subject of the charges which were not pursued. 

1. The applicant has been examined by psychiatrist Dr Ian Curtis for the purpose of this application.  In his report dated 3 August 2000, he sets out the difficulty in endeavouring to extract from the applicant details of the subject offence and the consequences for her, when her perception was that she was the subject of a severe multiple sexual attack of vaginal and anal rape by the respondent. 

1. The applicant told Dr Curtis that she was severely traumatised by what was done to her.  She was able to report to Dr Curtis that she could not move her bowels properly without pain for a year or two after being sodomised.  She conveyed to Dr Curtis that she felt at the time that the nervous shock which she suffered was severe. 

1. Dr Curtis concluded:

"In her mind, she combines the vaginal and the anal rapes.  If the judicial process requires that only the anal rape be considered, the severity of the psychological trauma of her being raped by this offender would not be diminished.  Her perception of the ferocity and the persistence of the attacks, and the sequelae including her anal discomfort and presumed incontinence for a number of years thereafter, remained, at a clinical level, a valid perception of her psychological trauma.  Her severe psychological trauma would have occurred regardless of the route of the significant sexual assault or the number of times that she was penetrated through whatever orifice.

She would have suffered an Acute Stress Disorder at the time of the index assault.  This disorder amounted to a severe nervous shock in the middle range of severe, for a period of at least a month.  It would appear that she then recovered progressively.  However, Ms Motton maintained that she continued to suffer from a depressive tendency of Depressive Dysthymia which had continued to the present day." 

1. On the basis of this opinion, the acute stress disorder from which the applicant suffered after the sodomy and the depressive dysthymia from which she continues to suffer can be attributed to the subject offence, notwithstanding that the applicant in her mind combined the circumstances of that offence with the other acts of violence committed against her by the respondent. 

1. Although it is clear from the applicant's affidavit that she has resentment about the failure of the Crown to proceed against the respondent with the other two charges, her treatment as a complainant and the social consequences for her in the community as a result of the respondent's being convicted of only one charge of sodomy and being given probation for that offence, those matters are not relevant to the assessment of the compensation and I have not taken them into account.

1. It is clear from the sentencing submissions and the applicant's affidavit that there was no behaviour on the part of the applicant which directly or indirectly contributed to the injury of nervous shock suffered by the applicant, as a result of the offence.

1. No claim is made by the applicant for economic loss of any kind or gratuitous nursing care. 

1. The applicant first consulted her solicitor when he was in Weipa in late 1999, because she wanted to find out what had happened in court in the prosecution of the respondent and why he did not go to prison.  This application was then brought after the applicant's solicitor was able to ascertain the details of the respondent's conviction.

1. The maximum compensation that can be awarded for nervous shock is $20,000:  section 663AA(1) of the Code.  As the compensation is assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil actions, I consider that an award for the psychiatric problems suffered by the applicant as a result of the sodomy would exceed $20,000.

1. I therefore order that the respondent pay to the applicant the sum of $20,000 by way of compensation for the injury suffered by the applicant by reason of the offence of which the respondent was convicted on 30 June 1988.  I also order that the respondent pay the applicant's costs of the application to be assessed.