Newton v Welsh

[2000] WASC 102

NEWTON -v- WELSH [2000] WASC 102

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 102
Case No:	MCS:82/1999	Heard:	17 APRIL 2000
Coram:	MILLER J	Delivered:	28/04/00
No of pages:	8	Judgment Part:	1 of 1
Result:	Applicant awarded $6,000
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Parties:	ALLISON JEAN NEWTON FREDERICK DAVID WELSH
Catchwords:	Criminal injuries compensation Post-traumatic stress disorder caused by rape and indecent assault Offences committed by mature-aged man against girl aged 13 and 14 years Principles of assessment Criminal Injuries (Compensation) Act 1970 Turns on own facts
Legislation:	Criminal Injuries (Compensation) Act 1970, s 4
Case References:	Broome v Broome, unreported; SCt of WA; Library No 980710; 14 December 1998 Law & Ors v Austin (1999) 105 A Crim R 407 Sideris v Censori [1983] WAR 17 B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995 B v W (1989) 6 SR (WA) 79 K v P (1992) 8 SR (WA) 256 O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February 1992

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : NEWTON -v- WELSH [2000] WASC 102 CORAM : MILLER J HEARD : 17 APRIL 2000 DELIVERED : 28 APRIL 2000 FILE NO/S : MCS 82 of 1999 BETWEEN : ALLISON JEAN NEWTON

Applicant

AND

FREDERICK DAVID WELSH
Respondent

Catchwords:

Criminal injuries compensation - Post-traumatic stress disorder caused by rape and indecent assault - Offences committed by mature-aged man against girl aged 13 and 14 years - Principles of assessment - Criminal Injuries (Compensation) Act 1970 - Turns on own facts

Legislation:

Criminal Injuries (Compensation) Act 1970, s 4

Result:

Applicant awarded $6,000

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Representation:

Counsel:

Applicant : Ms H Prince
Respondent : Ms S A Gaunt
Chief Executive Officer
of the Ministry of Justice : Ms C V M Barton

Solicitors:

Applicant : Julie Wager
Respondent : Sally Gaunt
Chief Executive Officer
of the Ministry of Justice : State Crown Solicitor

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

Broome v Broome, unreported; SCt of WA; Library No 980710; 14 December 1998
Law & Ors v Austin (1999) 105 A Crim R 407
Sideris v Censori [1983] WAR 17

Case(s) also cited:

B v S, unreported; SCt of WA (Murray J); Library No 950223; 10 May 1995
B v W (1989) 6 SR (WA) 79
K v P (1992) 8 SR (WA) 256
O v J, unreported; SCt of WA (Wallwork J); Library No 920027; 13 February 1992

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1 MILLER J: This is an application for criminal injuries compensation brought pursuant to the provisions of s 4 of the Criminal Injuries (Compensation) Act 1970 ("the Act"). This Act was proclaimed to take effect from 22 January 1971 and its provisions have no application to any offences committed before that date: Law & Ors v Austin (1999) 105 A Crim R 407. Under the provisions of s 4 of the Act, the maximum award of compensation which could be made to an applicant was $2,000 until 18 October 1976 when that maximum was lifted.

2 The respondent to the application is a 66-year-old pensioner who was a 37-38 year-old-butcher by occupation in 1971 and 1972. On 27 October 1997, a jury found him guilty of two counts of indecent assault and one of rape upon the applicant. The first count of unlawful and indecent assault alleged an offence on a date unknown between 11 June and 31 December 1971; the count of rape alleged an offence between the same dates; and the second offence of unlawful and indecent assault alleged an offence on a date unknown between 11 June and 31 December 1972. It follows that in relation to the first count of unlawful and indecent assault and the count of rape the applicant, who was born on 11 June 1958, was 13 years of age, and in relation to the second count of unlawful and indecent assault the applicant was 14 years of age. The respondent was convicted of three other offences of indecent dealing with a girl under the age of 13 years, but the dates upon which those offences occurred were between 11 June and 31 December 1969 and no compensation is recoverable in relation to them.

3 The respondent was sentenced to 6 years' imprisonment in relation to the offences of which he was convicted. The 6-year sentence was pronounced in respect of the offence of rape, which was count 7 on the indictment in relation to which the applicant seeks compensation under the provisions of the Act. In sentencing the respondent on 31 October 1997, Pidgeon J summarised the evidence at trial. His Honour pointed out that during the 1960s the respondent and his wife and family had gone to live in Daglish, where their house was near that of the Marriott family, of which the applicant was one of the children. Mrs Marriott was said to have been experiencing difficulties in bringing up a large family because of the attitude of her husband. The respondent did what he could to assist the family and, as a result, the Marriott children became friendly with the respondent's children so that on occasions the applicant was at the respondent's house.

4 In 1969, the respondent first committed an offence against the applicant and, in relation to the matters which are presently before the

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Court, it appears that the respondent committed offences against the applicant at his office, under the guise of recruiting the applicant to do typing for him. The applicant had gone to his office in the belief that she was required to do typing, but there the respondent took advantage of her and committed an act of rape upon her and, by way of preparation to that act, an offence of unlawful and indecent assault. The details of the offences are spelled out in a statement made by the applicant to police for the purpose of the criminal proceedings and it is unnecessary for me to refer to them in any detail. It is sufficient to say that the offence of unlawful and indecent assault involved the respondent exposing his penis to the applicant and forcing her to rub it; and the offence of rape, an act of sexual intercourse in which the applicant was placed on the office floor and the respondent there penetrated her. The second offence of unlawful and indecent assault occurred again at the office but this time a year later. On that occasion, the applicant was able to avoid sexual intercourse by convincing the respondent that she had her period, but the respondent again forced her to rub his penis.

5 In sentencing the respondent, Pidgeon J stressed the serious nature of the offences and particularly that of rape. His Honour pointed out that the offences had had a very serious effect on the applicant's life, which was only to be expected. As he put it:

"She has had to live with it in herself for most of the time and only recently has she come to be able to talk about it. She was not capable of handling your advances at the initial stages and your behaviour probably would have ruined her childhood and would have had significant effects thereafter."

Pidgeon J sentenced the respondent to 6 years' imprisonment for rape and 3 years' imprisonment for each of the other offences, but the sentences were ordered to be served concurrently.

6 In this application the applicant has sworn an affidavit which I have accepted in evidence (Criminal Practice Rules O XXC r 3(1)) attached to which are various exhibits, including the report of a clinical psychologist. In her affidavit, the applicant, who is now 40 years of age and married with two children, deposes to the fact that it was not until after the last offence committed by the respondent that she sought to complain to her mother about what had occurred. Unfortunately, her mother refused to accept that anything had happened, and the respondent thereafter made no further complaints. She became pregnant at the age of 16 years and married her then boyfriend. She had considerable difficulty with the sexual side of her marriage, with flashbacks to the respondent's conduct

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during sexual relations. Until about 1996 she was unable to speak to her husband about what had occurred. According to the applicant, she lived in fear of sexual abuse from the age of 11 years and was terrified of the respondent. She felt mistrust for her mother because her mother refused to believe her allegations. As a result, she had extreme difficulties during her teenage life. She was anxious to move out of the family home because of what had occurred and she is of the belief that she would never have married as young as she did had she been able to lead a normal teenage life unaffected by the sexual abuse she had suffered at the hands of the respondent. The applicant contends that she has suffered a lack of confidence throughout her lifetime and stuttered very badly from about the age of 11 until she was able to bring herself to speak to her husband about what had occurred to her. The trial process in 1997 caused her great distress and she now wishes to have psychological counselling, but she is prevented from doing so because of the prohibitive cost of $150 for every treatment session.

7 Karen Goodall-Smith, who is a qualified clinical psychologist, reported on 2 December 1998 that whilst it is difficult clearly to determine a diagnosis as to offences which occurred so long ago it is her clinical opinion that the applicant has suffered from post-traumatic stress disorder. The experience of flashbacks whenever she has sexual contact with her husband reinforces this diagnosis, but other symptoms of post-traumatic stress are difficult to assess because it has been so long since the sexual assaults and the applicant is considered to have integrated into her lifestyle the changes to her personality and thinking-pattern caused by the trauma. However, Ms Goodall-Smith is of the view that the applicant would benefit greatly from psychological treatment. She will have to work very hard at this treatment to be able to reverse her way of dealing with the sexual side of her relationship and deal with anger and her feelings towards the respondent, with the result that weekly visits for a minimum of four months would be required and, depending upon progress, treatment might be needed for several years, with sessions graduating to a fortnightly basis.

8 The respondent to the proceedings has filed an affidavit in which he contends that there is no substance to the applicant's contentions that she suffered any harm as a result of his conduct. He has deposed to the fact that the applicant was "sexually active at an early age with many males in the neighbourhood and was known to be easy" and he joins issue with the applicant's contention that she suffered from a stutter for a long period of her life. In support, the respondent has filed an affidavit sworn by one Peter Orlando Hall to the effect that between 1969 and 1972 he had sexual

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intercourse with the applicant on and off "at her suggestion" during which time he was aged between nine and 12 years and the applicant was aged between 11 and 14 years. He claims that the applicant was "very sexually active" at that time and he also contends that he never knew her to suffer from any stutter, although he recalls that her sister did.

9 In my view, the material contained within the affidavits of the respondent and Hall is irrelevant and therefore inadmissible. Whether or not the applicant at the age of 13 and 14 years was sexually promiscuous as alleged, the fact remains that she was raped and indecently assaulted by the respondent at that time. They were very serious offences committed by a mature man against a young girl aged 13 and 14 years. Their seriousness is reflected in the fact that the respondent was sentenced to imprisonment for 6 years' imprisonment in relation to them. Further, there is evidence from Ms Goodall-Smith that the condition of post-traumatic stress disorder presently exhibited by the applicant is a direct consequence of the respondent's criminal behaviour towards her. Whether or not the applicant had been in any way promiscuous with young boys of her own age would not bear upon that issue. There is no suggestion that she has any condition of post-traumatic stress disorder in consequence of any other sexual activity and nor would one expect there to be any such evidence. It is unfortunate for the applicant that this matter had to be aired in public whilst she was present in the courtroom, but I offer no criticism of counsel for the respondent in that regard. The question was not explored, nor did it need to be, and in the circumstances it is unnecessary to say anything more about it.

10 The principles upon which compensation is assessed under the Act were set out by me in Broome v Broome, unreported; SCt of WA; Library No 980710; 14 December 1998. For convenience, I repeat what I have there said:

"Compensation under the provisions of the Act is for 'injury' within the meaning of the definition contained in s3. The word 'injury' is defined to mean 'bodily harm, mental and nervous shock, and includes pregnancy'. There is no difficulty with the concept of compensation for bodily harm. Some difficulties have arisen in relation to the meaning of the words 'mental shock and nervous shock', but as to that, I respectfully adopt the following passage of Murray J in B v S, unreported; SCt of WA; Library No 950223; 10 May 1995.

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'That has long held to be a phrase of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. It has therefore been held 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: The Applicant v Larkin &Ors (sic) [1976] WAR 199 per Wickham J at 201. That view of the Act and the concept of 'injury' has often been applied since and, with respect, I adopt it for present purposes.'

I accept a number of propositions advanced by counsel for the Chief Executive Officer of the Ministry of Justice which were conveniently set out in counsel's helpful outline of submissions. They are:

(1) The maximum compensation prescribed by the Act is merely a jurisdictional limit and is not reserved for the worst case: KLH v Dennison, unreported; SCt of WA; Library No 5172; 6 December 1983.

(2) 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: M v J and J v J, unreported; SCt of WA; Library No 920598; 19 November 1992.

(3) 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: R v Forsythe (1972) 2 NSWLR 951; O v J, unreported; SCt of WA; Library No 920027; 13 February 1992."

11 I need only add reference to Sideris v Censori [1983] WAR 17, where Wallace J made it 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. It is unnecessary that the mental and nervous shock be solely caused by the actions of the respondent, although in this case there is no evidence to suggest any other

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cause. The only evidence is that of Ms Goodall-Smith to the effect that, difficult though it might be to reach a firm diagnosis, her opinion is that the post-traumatic stress disorder of the applicant (which clearly constitutes mental and nervous shock) is a direct result of the offences committed by the respondent.

12 In the circumstances of this case I have no difficulty in concluding that the applicant is entitled to the maximum payable under the Act for each of the offences of which the respondent was convicted. Were I not bound by the statutory maximum of $2,000 in each case, I would have assessed the applicant's entitlement as being well in excess of that sum, particularly in relation to the offence of rape. For these reasons, I made an award that the applicant should recover from the property of the respondent the sum of $6,000. These are the reasons for that decision.