RE; DAY
[2012] WADC 162
•23 NOVEMBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: RE; DAY [2012] WADC 162
CORAM: SCOTT DCJ
HEARD: 3 & 23 OCTOBER 2012
DELIVERED : 23 NOVEMBER 2012
FILE NO/S: APP 3 of 2012
MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
IN THE MATTER of an Appeal by
BETWEEN: CAROLINE DAY
Appellant
ON APPEAL FROM:
Jurisdiction : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram :H L PORTER
File No :CI 000708 of 2002
Catchwords:
Appeal against refusal to make award - Alleged offence - No person charged - Regained memory of event asserted - Reliability - Lack of medical evidence
Legislation:
Criminal Injuries Compensation Act 2003 s 17, s 55
Result:
Appeal dismissed
Representation:
Counsel:
Appellant: In person
Amicus Curiae : Ms A E Johnson appeared on behalf of the Chief Executive Officer of the Department of the Attorney General
Solicitors:
Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
SCOTT DCJ:
History of application for compensation
On 8 May 2002, the appellant filed an application for criminal injuries compensation for (inter alia) injury suffered by her in consequence of the commission of alleged offences in 1992. The alleged offences were that she was raped by two men, namely Glen Wilson (Mr Wilson) and Vern Savage (Mr Savage).
Neither Mr Wilson nor Mr Savage was charged with the commission of any offence.
At the date upon which the appellant made her application, the Act in force was the Criminal Injuries Compensation Act 1985 (1985 Act). The application was made pursuant to s 12(1) of the 1985 Act.
By s 17 of the 1985 Act, the application was required to be made to the Chief Assessor not later then three years after the commission of the alleged offence to which the application related. The Chief Assessor was, by s 17(2), entitled to grant leave to a person to make an application after such period had expired.
On 23 February 2004, the Chief Assessor declined to extend time within which the appellant could submit her application.
By then, the Act in force was and is, the Criminal Injuries Compensation Act 2003 (2003 Act). By sch 2 of the 2003 Act the 1985 Act was repealed. Schedule 2 contained a number of transitional provisions.
By s 3 of the transitional provisions, if immediately before the commencement an application made under the 1985 Act was pending before the person who holds the office of Chief Assessor ... under that Act, then on commencement the application is to be dealt with by an assessor under the 2003 Act and that Act applies to and in relation to the application.
As a consequence the application the subject of this appeal is to be dealt with in accordance with the provisions of the 2003 Act.
By notice of appeal filed 18 January 2012, the appellant sought to appeal the decision of the Chief Assessor on the grounds that the Chief Assessor had by her decision of 23 February 2004, refused to make a compensation award.
Pursuant to s 55 of the 2003 Act, that appeal was required to be commenced within 21 days after the date of the decision of the Chief Assessor. Section 55(4) enables this court to allow an appeal to be commenced after that period if the court considers it just to do so.
The matter came before Commissioner Gething who, on 30 April 2012, relevantly made orders that:
1.The appeal notice be amended to the effect that the decision under review was the decision of the Chief Assessor dated 23 February 2004, declining to extend the time within which the application may be made.
2.The appellant be granted leave to commence the appeal out of time pursuant to s 55(4) of the 2003 Act.
3.The time within which the appellant may commence her application be extended to 15 May 2002.
Section 55(1) of the 2003 Act does not specifically make reference to a right of appeal against a determination not to extend time within which an application for compensation may be made. However, the legislation is enabling legislation the remedial purpose of which is to determine just compensation in appropriate circumstances. Consequently it is appropriate to treat this appeal as an appeal against the refusal by the Chief Assessor on 23 February 2004 to make a compensation award to the appellant.
Notwithstanding that there has not been any substantive assessment of the appellant's claim by the Chief Assessor, that assessment must now be undertaken in this appeal.
Section 17 of 2003 Act
Section 17 of the 2003 Act applies in circumstances where an alleged offence is committed but no person is charged.
A person who suffers injury as a consequence of the commission of an alleged offence may apply for compensation for that injury and any loss suffered.
By s 17(4) a compensation award must not be made unless this court is satisfied that the injury and any loss claimed by the appellant has occurred and did so as a consequence of the commission of an alleged offence.
For the appellant to be entitled to compensation, I would need to be satisfied, on the balance of probabilities, that:
(a)an offence was committed;
(b)the appellant suffered injury and/or loss; and
(c)the injury and/or loss suffered by the appellant occurred as a consequence of the commission of the alleged offence.
By s 38 of the 2003 Act, I must not make a compensation award in favour of the appellant if I am of the opinion that the appellant did not do any act or thing which he or she ought reasonably to have done to assist in the identification, apprehension or prosecution of the person or persons who committed the alleged offence.
Whether the offences alleged were committed
In this appeal, apart from the application and the court documents relating to the appeal, the appellant provided a number of materials contained in files which she had compiled being:
1.Statements by her.
2.Emails.
3.Communications with WA Police.
4.Communications with Queensland Police.
5.Reference material on sexual assault and repressed memory.
Oral evidence was given by the appellant on 23 and 31 October 2012, the appellant's general practitioner, Dr Andrew Davies, and Ms Frances Calderbank, a friend and in 2002, a neighbour of the appellant (Ms Calderbank).
The various statements and notes which had been prepared by the appellant from time to time which were included in the files provided by her were somewhat disjointed and difficult to follow.
However, during her oral evidence the appellant expanded on these materials. From those materials and her evidence the relevant matters can be summarised as follows:
•Throughout and from her teenage years the appellant suffered from melancholy. She did not seek any treatment for it.
•From approximately 1990 until 2004 she used Tryptanol nightly in order to sleep. She said that the effect of Tryptanol was to put her to sleep and she would not recall waking up during the night.
•For some years prior to 1992, the appellant had a relationship with Richard Price (Mr Price) from whom she developed herpes, genital warts and Chlamydia.
•Between September 1992 to approximately September 1993, she lived at 245/34 Peninsula Road, Maylands.
•During that period, Peter Stuke (Mr Stuke) was a tenant in her unit because she was too scared to live there alone as she was being troubled by a peeping tom who the police could not catch.
•In that period, she said that Mr Stuke's behaviour was getting weird. On one occasion, Mr Stuke was in the kitchen with a friend of his and said words to the effect that 'oh, if you put it in the milk, the cat won't remember anything because she doesn't drink the milk'. When that was said, she had no idea what it meant but on reflection it appeared to her that they were talking about drink spiking.
•In that period, Mr Price was coming and going in and out of her life.
•On one night she came home from Gobbles nightclub and there were four to five men on the lounge. She asked them what they were doing there, and they said that they were waiting for her. She said that she went to the phone and one of them then told her 'not really, we are waiting for Peter Stuke'.
•On another night, she saw the peeping tom and telephoned her friend, Ms Calderbank.
•On another night, she woke in the morning and had no memory.
•On another morning, she woke thinking that Mr Price had been in her room all night only to be told by Mr Stuke that it was not Mr Price in her room the night before.
•One morning she woke with physical symptoms which indicated to her that she had had sexual intercourse the night before. Although in a number of chronologies and statements which she has made the appellant said that this incident occurred in 1992 she said in evidence that it must have been in 1993.
•She said, in her evidence, that her first boyfriend used to force her to sleep with him and he would have sex with her for an hour during the course of which she would cry but he would not stop. The next day she would be physically aware of it because he had persisted for so long. She said that the symptoms she felt on this morning appeared similar.
•She said that there was no indication on any of her bed linen that she had had sex.
•She said that she went to Ms Calderbank's house and told Ms Calderbank that it felt exactly like sex but she had no memory of anything. Ms Calderbank asked her if she had had a shower and she told her that she had. Ms Calderbank told her that she should see a doctor.
•Ms Calderbank in evidence confirmed this conversation.
•She said that she did not see a doctor because she was sick of having to take her clothes off every month to be tested for herpes which Mr Price had previously given her.
•She said that she had been out dancing that night and, as was her usual custom, she would have been drinking alcohol. She said that she generally drank about a bottle of sparkling wine and was a regular drinker on Friday, Saturday and Sunday nights. She said she was not drunk that night. She said that she would have taken Tryptanol before she went to sleep.
•Two days later, Mr Stuke asked her if she was on the pill. He then said words to the effect that she was 'seeing different men'. The appellant said that she became annoyed and told Mr Stuke that 'talking to men at a bar is not the same as seeing them'. She thought that Mr Stuke appeared panicked. He said words to the effect that 'she should not mess with the big boys'.
•Later, on another day, Mr Price came over to her house and told her that Cassandra Oxenham was being drugged and raped by her drug associates, she did not remember anything and that they were going to keep doing it to her. The appellant said that she asked Mr Price why he did not report what was happening to Ms Oxenberg to the police and Mr Price told her that he was afraid of getting beaten up.
•The appellant said that she had no memory of that night. She said that she did not go to the police. She said that the reason was that she had called the police out three times about the peeping tom prior to Mr Stuke moving in but the police had not caught him. She said that she was a non-confrontational person, she was quiet and shy and she did not want to walk into a police station and talk to a stranger and tell the stranger that she did not have any memory of anything and that there had been sex. She said that she did not trust the police officers to take her seriously.
•She said that during the time that Mr Stuke was her flatmate, she had no friends around her at all and was completely on her own.
•The appellant said that between 1993 and 2002, she drifted. She said she would hold down a job for maybe six months and then she would burn out, and then she would go on sickness benefits. She would continually move accommodation. She said that she was completely isolated, without family and friends and that her father and her brother were both bullies.
•In late 1993 she went back to Queensland to her father's home and when she could not put up with her father's bullying, she went to Brisbane to live and then to Sydney. In 1996/1997 she lived in London.
•In 1998/1999, she relocated back to the Gold Coast and on one occasion when she was at Melba's Bar, a group of men told her that 'we know your brother' and so she left the club.
•She said that during this period between 1993 and 2002 she continually felt under stress from her transient lifestyle and the constant uncertainty as to her accommodation.
•On 29 November 2000 when she was living in Coolangatta she woke in the morning with blisters on her private parts. She said that the night before she took a Tryptanol. She went to sleep. She woke at one stage but there was no‑one else in the room and she went back to sleep. In various written statements she said that in the morning she woke with bruising between her legs. She said that she did not remember anything other than having a nightmare. In her evidence she said that she did not have bruising but blisters. She suspected that she had been raped but the only memory she had was having a nightmare.
•In 2001 she changed her name and appearance and moved into a beach house and lived in a granny flat at 9 Broadbeach Road Broadbeach, Queensland. She said that it was a big two story house that had been divided up into different units. Mr Wilson was living in the front unit, Mr Savage was living in the back unit and she lived in the granny flat.
•She said that she thought that Mr Wilson had been living there for some time. She thought she recognised them as being in the group of men who spoke to her at Melba's Bar in the Gold Coast a couple of years earlier.
•For the first month that she had been living in the granny flat she was trying to work out who was who. In the beginning she got Mr Wilson and Mr Savage's names mixed up because she did not know which one was which.
•She used to go to Gobbles nightclub most weekends and would see them there.
•She said that after she had been living there for about a month one of them said to her 'now you've met a Coffin Cheater'. She later found out that that man was Mr Savage.
•She said that before the morning upon which she woke with the memory that she had been raped by Mr Savage and Mr Wilson, she had been living in the granny flat for about a month.
Alleged regained memory
•In her application the appellant said that she regained her memory in August 2000. In a number of chronologies which she had forwarded to (inter alia) the Queensland and WA Police she referred to her memory being regained in August 2002. She said in evidence that she regained her memory after the incident on 29 November 2000. As a consequence that event could not have occurred in August 2000. In addition, she accepted that it could not have occurred in August 2002 because her application was made in May 2002. She said that it must have occurred sometime in 2001.
•The appellant said that one morning when she was living in the granny flat she woke with the memory of being drugged and raped by Mr Wilson and Mr Savage. She said the memory she had was that this occurred at the townhouse in Maylands. Her memory was that she had been woken by some men who had come into the room while she was asleep. The men wanted her to meet someone, who to her memory appeared to be a person called Brett Greenfield who she had known on the Gold Coast. She said that she since found out that he had been in Perth in the 1990s. She found out he was then locked up overnight in Perth.
She said that her memory was that Mr Greenfield said 'I'm not getting involved in this' and he walked out of her bedroom. She felt she was under the influence of something so that her cognitive ability was impaired. Mr Savage came into the room and refused to leave. He came onto the bed and had sex with her. She felt heavily sedated by a drug.
•She said that she would never sleep with someone whose name she did not know.
•Her memory was that Mr Savage left and then Mr Wilson came into the room and refused to leave. By that time she felt the drug was wearing off and she felt more fear. There was a lot more fear and the look on his (Mr Wilson's) face was a very strong memory. The look was a mixture of contempt and hate and she was scared.
•She said that she was saying 'no', but he would not leave. She turned her head to the side so she did not have to look at him and was praying to pass out. She said that she had a memory of Mr Wilson having sex with her. The only memory she then had after that was that they had gone.
•She said that she then had a memory of Mr Price walking into the room. She said that she told Mr Price 'two men have just been in here' and Mr Price said 'oh well, did you enjoy that?' She replied 'no I didn't' and Mr Price said 'well, you were drunk' and she said 'no I wasn't'. She said that Mr Price said 'well you must have taken something'. She said 'I didn't take anything' and he then said 'are you going to call the – do you want the police?' She said to Mr Price that she did (want to call the police) and then she was given something by Mr Price to calm her down. That is all the memory she said that she had.
•She said in evidence that the regained memory was not about the incident in November 2000 because she did not remember it being a nightmare. She said that the incident in Coolangatta was completely different from what happened at the Maylands unit because at Maylands she had no memory of anything. In Coolangatta she thought that it had been done to her (someone having sex with her) while she was asleep.
•She said that after this experience on this morning she had searched the internet and found out about date rape drugs and repressed memory. She said her view was that this is what appears to have happened to her.
She said that once her memory had come back and she knew that she had been raped, she became emotionally devastated. Over the last 10 years she has experienced panic attacks, difficulty in breathing and a great deal of anxiety. She has become hypervigilant such that she has kept a record of anyone who approaches her who appears suspicious, and about any sort of sexual harassment which she has experienced.
She said that what she experienced was not just a dream. It was far more vivid.
Dr Davies
Dr Davies is a general practitioner and has treated the appellant for a period of about seven years.
He said that over that period of time, she has presented with anxiety, hyper vigilance, depression and symptoms of fibromyalgia being generalised aches and pains which he said often run together with anxiety and depression.
He has a bachelor of medicine and a bachelor of surgery from the University of Western Australia and has a fellowship to the Royal Australian College of General Practitioners.
He has no qualifications in psychiatry or psychology. He has some interest in repressed memory, however, he has not specialised in that area.
He agreed that from materials he has read repressed and recalled memory is a concept in which there is significant controversy between psychiatrists. He agreed that the issue is a specialised area of psychiatry and/or psychology.
He said that in order to advance an opinion in a medical sense about the existence of repressed memory, the prospects of memory being recalled and the reliability of any memory that may have been repressed one would need to be a psychiatrist or psychologist with expertise in that area. It would also be necessary for the appellant to be properly examined and the matters raised by her considered before any opinion could reasonably be advanced.
Dr Davies concedes that he does not have that expertise.
The question as to whether on the evidence before me I could be satisfied that Mr Savage and/or Mr Wilson had sex with the appellant without her consent on the occasion to which she refers depends upon me being satisfied on the balance of probabilities that the images with which the appellant says she woke on the morning in or about 2001, constituted a reliable memory of what had happened in or about 1993.
I accept the appellant's evidence that on a morning in or about 2001 she woke with images which appeared to her to be Mr Savage and/or Mr Wilson having sex with her without her consent in her Maylands unit.
It seems to me likely that the images with which she woke were stark. Since then she has steadfastly believed that they could only be explicable on the basis that they were a memory of events which actually happened. Her inquiries via the internet have further convinced her of that fact. It might be that the longer the appellant has held that belief, the more entrenched that belief has become.
There is however no reliable expert evidence before me as to the likelihood that the images with which the appellant woke in or about 2001 were indeed a memory which she had of the events portrayed by them as opposed to, for example, a vivid dream. There is no expert evidence from which I might be able to form a view as to whether those images reliably depicted events which, to the appellant, they appeared to portray.
Nor is there evidence as to the effect that alcohol, Tryptanol and/or any so called date rape drug, may have on a consideration of these issues.
In a case such as this, without adequate expert evidence being adduced, I cannot be satisfied on the balance of probabilities that the appellant had a reliable memory of the alleged offences in 1993. On the evidence before me, I am not satisfied that the images with which she woke were in fact a reliable memory of events that had actually happened and as a consequence I am not satisfied that the offences alleged were committed against the appellant by Mr Savage and/or Mr Wilson.
Having reached this conclusion there is no need for me to deal with the balance of the matters about which I would need to be satisfied before any award of compensation could be made to the appellant.
In the circumstances the appeal is dismissed.
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