Noble v Rosser

[2001] QSC 469

SUPREME COURT OF QUEENSLAND

CITATION:

Noble v Rosser [2001] QSC 469

PARTIES:

KAREN JOYCE NOBLE aka SEATON
(applicant)
v
BARRY JAMES ROSSER
(respondent)

FILE NO/S:

806 of 2001

DIVISION:

Supreme Court Trial Division

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

7 December 2001

DELIVERED AT:

Townsville

HEARING DATE:

3 December 2001

JUDGE:

Cullinane J

ORDER:

Applicant awarded the sum of $5,000 by way of compensation

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – DISPOSAL OF PRISONERS’ PROPERTY AND ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – application for compensation for consequences of attack upon applicant by respondent – where compensation falls to be assessed under s 663B(2) Criminal Code – where respondent convicted of attempted rape upon applicant – where consequences all fall under heading of nervous or mental shock

Criminal Code (Qld) s 663B(2)
WorkCover Queensland Act 1996

R v Chong ex parte Chong [2001] 2 Qd R 301

COUNSEL:

AJ Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey Solicitor for the applicant
No appearance for the respondent

1. The applicant seeks an order for compensation for the consequences of an attack upon her by the respondent on 11^th May 1984.  The respondent was convicted of attempted rape upon the applicant. 

1. The respondent took no part in the proceedings.

1. It is clear from the applicant’s account that she says that the respondent in fact effected penetration of her. The respondent denied penetration and pleaded guilty to attempted rape.  This was accepted and he was sentenced to two years imprisonment.  The application therefore proceeds upon the basis that the respondent attempted to rape the applicant.

1. Compensation falls to be assessed under s. 663B(2) of the Criminal Code which was then the operative legislation in respect of criminal compensation. The relevant prescribed maximum sum is that for which the WorkCover Queensland Act 1996 as amended presently provides. See R v Chong ex parte Chong [2001] 2 Qd R 301.

1. Following an argument with her boyfriend the applicant had been allowed to spend the night at the home of the respondent and his de facto wife who was a friend of the applicant.

1. She awoke when she felt what she believed to be someone having sexual intercourse with her.  At the time she believed it was her de facto husband.  Her lower clothing had been removed.  The respondent was lying behind her and she realised it was the respondent when she turned around.

1. There is a report of a psychologist, Mr Ryan. He assesses the applicant as suffering from chronic post traumatic stress disorder. He thinks that her prognosis is a good one but recommends that she have psychotherapy.  The condition fluctuates with periods of remission and periods of symptomatic severity.  The applicant speaks of feelings of shame and guilt and has some anxiety in relation to sexual relations.  She refers to a sense of violation and a feeling of insecurity.

1. Although the limitation period has long expired the respondent has not raised this and it is therefore to be ignored by the court.  See R v Chong (supra)

1. It is said that compensation has to be assessed in accordance with ordinary principles of assessment of damages in personal injury cases.  However there was a limitation in the case of mental or nervous shock of  $5,000 (See s.663A(A)1).  This was increased some months later to $20,000 but it is accepted that the relevant limit here is $5,000.

1. It is also accepted that there is no other separate and distinct head of compensation and that the consequences of the attack on the applicant all fall under the heading of nervous or mental shock.

1. I award the applicant the sum of $5,000 by way of compensation.