S v The State of South Australia and Yi Ji Chen No. Cicd-96-906 Judgment No. D3606

[1997] SADC 3606

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of Judge Burley Supreme Court Master

Hearing

16/04/97 to 17/04/97.

Catchwords

CRIMINAL LAW AND PROCEDURE Compensation - plaintiff raped by second defendant - twocounts - second defendant acupuncturist - treated plaintiff - post traumatic stress disorder - breakup of marriage

Materials Considered

• Beaumont v SA &; Wasgind (1990) 156 LSJS 479;
• SA v Bole (1994) 64 SASR 379, applied.

Representation

Plaintiff S:
Counsel: Mr Matthew MITCHELL - Solicitors: MATTHEW MITCHELL

Defendant State of South Australia:
Counsel: Mr B IKONOMOPOULOS - Solicitors: CROWN SOLICITOR

Defendant Yi Ji CHEN:
In Person

CICD-96-906

Judgment No. D3606

20 May 1997

(Criminal Injuries Compensation Division)

S v THE STATE OF SOUTH AUSTRALIA AND YI JI CHEN -

DISTRICT COURT ACTION NO. 906 of 1996

Judge Burley

Criminal Injuries Compensation

The plaintiff has applied for compensation in respect of injury arising from the offences of indecent assault and rape alleged to have been committed by the second defendant.At the trial Mr Mitchell appeared for the plaintiff andMr Ikonomopoulos for the first defendant, the State of South Australia.The second defendant, Mr Chen, appeared in person.

A copy of the information setting out the charges dealt with at the trial of the second defendant is exhibit P1.Exhibit P2 is a copy of the court record relating to the conviction of the second defendant in respect of two counts of rape referred to in the information.The second and fourth counts set out in the information disclose that the second defendant was charged on two counts of rape respectively on 9 and 18 May 1994 whereby the second defendant had vaginal sexual intercourse with the plaintiff without her consent contrary to the provisions of s48 of the Criminal Law Consolidation Act 1935. Neither exhibit supports the contention that the second defendant was charged and convicted of the offences of indecent assault in respect of the plaintiff.

The criminal trial proceeded in the District Court before a judge sitting without a jury.On 17 April 1996 verdicts of guilty on the two counts of rape contained in the information were entered and the second defendant was subsequently sentenced to a period of imprisonment.Pursuant to s8(1a)(a) of the Criminal Injuries Compensation Act 1978 (the Act), I am required to be satisfied beyond reasonable doubt as to the commission of the offences to which this application relates.In light of the contents of exhibits P1 and P2, and of the evidence of the plaintiff, I am satisfied beyond reasonable doubt:

1)that the second defendant was convicted of two counts of rape of the plaintiff as set out in the information; and

2)that the second defendant committed the two offences of rape which are the subject of this application for compensation.

In arriving at those conclusions I have taken into account the decision of Bishop DCJ in Beaumont v State of South Australia & Wasgind (1990) 156 LSJS
479.In particular, where the second defendant has protested during the hearing before me that he was wrongly convicted on the two counts of rape, I hold that it was not open to him to re-litigate in this Court the charges and subsequent conviction recorded in the previous criminal proceedings.

I turn to the assessment of the plaintiff's compensation.Section 7(1) of the Act enables the plaintiff to claim compensation.Section 7(8) of the Act applies and it is as follows:-

"In awarding compensation under this section, the court must observe the following rules;

(a) In relation to an application under sub-section (1) for compensation for injury, or an application under sub-section (2) for compensation for financial loss -

(i) where financial loss is to be compensated and the amount that would, but for this paragraph, be awarded for the financial loss exceeds $2,000, the amount awarded will, subject to sub-paragraph (iii), be $2,000 plus three quarters of the excess; and

(ii) where financial loss is to be compensated -

(A) the total non-financial loss must be assigned in numerical value on a scale running from 0 to 50 (the greater the severity of the non-financial loss, the greater the number); and

(B) the amount awarded will be the amount arrived at by multiplying the number so assigned by $1,000; and

(iii) in any case, where an amount arrived at to compensate financial loss, or the aggregate of amounts arrived at to compensate financial loss and non-financial loss, would, but for this paragraph, exceed $50,000, the amount awarded will be $50,000;"

I mention also s7(9) and 9(a) of the Act which require the Court to have regard to the factors referred to therein in assessing compensation.I am satisfied that neither of those sub-sections applies to the assessment of compensation in this case.

The plaintiff claims compensation for both financial and non-financial loss. She gave evidence and called in addition as witnesses her estranged husband, her general practitioner, Dr Howell, and a psychiatrist, Dr Marcia Fogarty. Neither of the defendants adduced any evidence.

The plaintiff is 43 years of age, was born in New South Wales and came to Adelaide as a teenager.She is qualified as a hairdresser.Her present marriage is her second marriage and there is one child of the relationship. She and her husband separated in January of this year.

The plaintiff identified the second respondent as the accused in the criminal trial at which she was called to give evidence in respect of, inter alia, the two charges of rape contained in the information, exhibit P1.

In 1994 she was experiencing problems in both lower legs from the ankle to the knee.She had consulted her general practitioner.She also consulted the second defendant who practised as an acupuncturist.

The evidence given by the plaintiff as to thetwo occasions on which she was raped by the second defendant is set out at pages 13 to 16 of the transcript. I accept the plaintiff's evidence as to what took place. Whilst there may have been differences between what she said of the relevant events before meand what she told the judge at the criminal trial, I formed the view that the plaintiff was endeavouring at the trial before me to tell the truth to the best of her recollection in what were difficult circumstances. I found the plaintiff to be an impressive witness who maintained her composure even when she came to be cross-examined by the second defendant. That questioning must have been an ordeal for her and I have no doubt that it has contributed to the effects of the psychological illness developed by her as a result of the offences, about which her general practitioner and Dr Fogarty gave evidence.

In summary, on the two occasions when the plaintiff attended at the second defendant's for acupuncture treatment in respect of pain experienced in her lower legs, the second defendant required her to remove all of her clothing and then pretended to give her a full bodily examination including, on each occasion, an internal examination which constituted the two offences of rape for which he was duly convicted.

When the plaintiff told her husband what had happened, he was angry with her and told her that she was foolish to allow such a thing to have happened. His lack of sympathy for her predicament continued and it adversely affected their relationship to the extent that in January of this year they separated. The plaintiff's husband gave evidence as to the deterioration in that relationship and I have no doubt that he told the truth in the witness box.It is obvious that he deeply regrets his lack of support for his wife.

The effect of the two offences upon the plaintiff is perhaps best summarized in the history taken by Dr Fogarty which is contained in her report of 26 November 1996 (exhibit 2D4).The factual substance of the history taken by Dr Fogarty was the subject of evidence by the plaintiff.I set out below the relevant parts of the history:

"[The plaintiff] stated that she had painful lower legs during 1994. This condition is sometimes known as 'restless legs'. In 1993, [the plaintiff] suffered a miscarriage after a six months pregnancy. During this pregnancy, she was confined to bed for several weeks and her legs became painful and swollen. She unsuccessfully tried various home remedies. Her local doctor referred her to a rheumatologist, also with no success. An acquaintance suggested acupuncture and recommended Mr Chen with whom she made an appointment in May 1994......

[The plaintiff] was born with aortic stenosis and had an initial operation at 25 years of age. The problem recurred and she underwent a second operation at the end of December 1994. She stated that she had had eight pregnancies, four of which miscarried in the last trimester. She felt that her body was more scarred than average because of all the surgery. She stated that during the examination with Mr Chen she had felt very embarrassed.She felt he was an old man who was inappropriately staring at her naked body. The majority of her interactions with doctors have been gynaecologists and she stated that they were always very proper in their examinations, providing a towel or sheet to cover her body.

Driving home following the appointment, she became increasingly upset and tearful as she realized that Mr Chen had taken advantage of her lack of knowledge about acupuncture treatments. She told her husband and his reply was 'how could you have been so stupid'.Her husband telephoned Mr Chen, cancelled her appointment and suggested that she report the incidents to the police, the Acupuncture Association or a Doctors' Board.The plaintiff believed that she had been 'stupid' embarrassed and she did not think that the police would believe her, believing that it would be her word against Mr Chen.She did not tellanyone else about it exceptto pass the message on to the woman who originally recommended Mr Chen .

Approximately a year later, in April 1995, the police contacted her and explained that other patients had difficulties with Mr Chen and they asked her to make a statement and attend court. The case took another year to come to trial. She stated that giving evidence in court was absolutely 'nerve racking'. Detective Bates was extremely understanding, compassionate and supportive and because of his encouragement she was able to persevere at the trial.

Effects of the assault

[The plaintiff] stated that since the assault she has lost trust in others. After open heart surgery in December 1994, she had six months off work.On returning to work she decided she would like to be a receptionist at a doctor's rooms.She applied for a position and was the successful applicant. She then discovered that this general practitioner worked from his own home and there would be time where she would be alone with him. After her experience with Mr Chen she elected not to take the job. She stated that now, when seeking medical assistance, she prefers to see a female practitioner in a big, busy clinic.

After the second assault she did not sleep for several days.Her sleep remains disturbed by nightmares and shestill often wakes up and sees Mr Chen's face staring at her. Since the assault she has had initialinsomnia such that it takes three hours to fall asleep and she tends to wake 4.00-5.00 am. Her general practitioner has prescribed sleeping tablets with no benefit.

When she experiences the flash-backs of seeing his face during the day, she has a panic attack whereby she feels extremely anxious and nauseous, her vision blurs, she has trouble concentrating, hyperventilates and experiences chest pains. These occur approximately three to four times per week and can be triggered by anything related to Mr Chen or seeingsomeone who is Chinese.

Her appetite has remained unchanged. She stated that she did not feel suicidal. She was frustrated that this had happened to herand thought that it must have been her fault so she kept it to herself apart from her husband and police. She finds it hard to remember every particular detail and finds it very painful to actively try to remember. She tries to keep busy and distracts herself from her thoughts.

She attended counselling on one occasion at the Norwich Centre but found it hard to talk about the assault so she did not re-attend. She feels detached, estranged and 'carrying around a lot of excess baggage'.She described herself as 'cranky' and impatient. She is hypervigilant and has an exaggerated startle response.

She states that her relationship with her husband became strained during this period. She felt that he did not understand and thought that it was her fault. She described how, as a couple, they became distant and she found his touch distressing. She believes that he did not understand or support her at the time when she needed that support. She still feels guilty, even though she can understand that it was not her fault. Her fifteen-year old son has left home and she considers that this was partly due to the strained relationship with her husband. He did not contact the family for three months and has only resumed contact in the last week [early August 1996]. He is now living in Sydney. She was very close to her son and misses him a great deal.

Personal history

[The plaintiff] has two children from her first marriage. After she left this marriage she was involved in another relationship that produced another son. She then married her current husband and they have a twelve-year old daughter. She and her husband wished to have a further child but unfortunately she was unable to carry her last four pregnancies. She was advised by her doctors not to have any further pregnancies and therefore underwent a tubal ligation. ....

Mental state examination

[The plaintiff] presented as a well groomed, well dressed woman who looked younger than her stated age. She was cooperative throughout the interview. She was anxious, agitated and at times tearful. The conversation was logical and sequential, and there was no evidence of formal thought disorders.Her affect was a little distressed and agitated. Cognitively she was intact and there were no perceptual disorders.

Assessment

[The plaintiff] is suffering from a post traumatic stress disorder and requires psychiatric intervention. I have strongly recommended that she undertake psychotherapy and anti-depressant medication from a qualified psychiatrist. [The plaintiff] stated that she would prefer a female therapist and I provided her with a list of names of appropriate therapists. ...."

The plaintiff's general practitioner, Dr C Howell, gave evidence which was in general consistent with that given by Dr Fogarty.I accept the evidence of Dr Fogarty and Dr Howell.

In committing these offences, the second defendant committed one of the worst offences that a person purporting to practise the healing art may commit. The plaintiff trusted the second defendant who took cynical advantage of her. She wrongly thought that some blame should attach to her and that state of mind was not assisted by her husband's attitude. She now realises that she was in no way to blame for the offences and that she was the innocent victim of the second defendant's not only criminal but also immoral behaviour. It is evident from her husband's evidence (and demeanour in the witness box) that he too has come to that realisation.

The question of the effect of the plaintiff's pre-existing psychological condition, particularly in relation to the miscarriages she had experienced, was raised as a factor which had to be taken into account. It was also submitted that the trouble that the plaintiff was having with her legs also bore upon the award of compensation. Whilst I accept that the latter submission is correct, I do not accept that the distress felt by the plaintiff in respect of past miscarriages was, by the time of the offences, having any bearing upon her psychological well-being.I do so because it was the evidence of the plaintiff that as a result of the offences, she went from being a happy person to a depressed and unhappy person.This was confirmed by her general practitioner and Dr Fogarty. However, I think it is appropriate to take into account when assessing the compensation that the plaintiff would have continued to suffer from pain in her legs for an indefinite period after the commission of the offence, but I also draw the inference that any discomfort that she did continue to suffer from her legs was completely subsumed by the depression and unhappiness that she experienced after the commission of the offences.

I will deal with the components of the compensation in the order followed by counsel for the plaintiff in his final address.

The plaintiff, at the time of the trial, had been on medication for approximately 12 months. She was continuing with this medication but it is not known for how long she will need to continue with the medication.The medication presently costs her approximately $15 a month. It seems to me that I should make an allowance for the cost of medication for a further 12 months. In all, I allow the sum of $360.00.

So far as non financial-loss is concerned, section 7(8)(a)(ii) of the Act is applicable. I must assign a numerical value on a scale from 0 - 50. According to the Full Court in SA v Bole (1994) 64 SASR 379, I must compare the non-financial loss suffered by the complainant with the worst possible loss that could be suffered as a result of any offence. In that case, Lander J with whom Cox and Prior JJ agreed, said (at page382):

"It seems to me that the appropriate procedure is to compare the non-financial losses suffered by the complainant against the worst possible non-financial loss that anyone could suffer as a victim of an offence.A paraplegic, for instance, or someone left with appallingpermanent scars. To that end, the circumstances of the offence, and indeed, the offence are not ordinarily relevant except in the sense that it qualifies the applicant for compensation under the Act.

The circumstances of the offence, however, can become relevant if the offence was committed in circumstances which would give rise to a claim for aggravated damages, or where the victim's conduct immediately surrounding the offence contributed directly or indirectly to the commission of the offence, or to the injury to the victim (section 7(9)(a))."

His Honour later said (at page 303):

"The procedure that has been adopted that requires a court to compare the sequelae of very serious offences with each other and requires a court to determine, for example, that one particular act of rape is not as serious as an other particular act. It may require a court to determine whether the rape of one gender is as serious as the rape of another gender and whether a particular sexual act which is performed on a victim is as serious as some other sexual act.

Those matters are extraordinarilysensitive and it may be difficult for the court to assess the relative seriousness of more sensitive crimes, without the court appearing to be itself insensitive to the victim's injuries. The procedure will require the most careful expression by the court such that a victim is not led into believingthat the court has treatedthat victim insensitively.However, those are matters with which the courts and judges will have to grapple."

Having referred to the circumstances of the commission of the offence and the effect that it had upon the victim in that case, His Honour said (at page 306):

"I believe, therefore, that the respondent would be entitled to have ascribed to her non-financial losses a number which reflects the substantial injuries she has suffered and the circumstances in which she suffered those injuries."

The latter passage cited above indicates that the court, in assessing compensation for non-financial loss, must take into account primarily the extent of the injuries sustained by the plaintiff but also the circumstances in whichthe injuries were sustained. The Full Court was of the view that in the circumstances of that case a numericalvalue of 12 was the appropriate value to assign. The psychological injuries sustained by the plaintiff in that case were more severe than those sustained by the plaintiff in this case. However, I think in their different ways, the circumstances of the two offences in this case and the one offence in Bole are similar insofar as the seriousness of the circumstances of the respective offences are concerned. In all the circumstances I consider that a numerical value of ten ought to be assigned which produces an award of compensation for non-financial loss amounting to $10,000.

The plaintiff also made a claim for financial loss arising from a restricted earningcapacity. It was concededby the plaintiff that she has not lost any actual time off work as a result of the offences, but she says, and I accept, that she is now limited in the type of employment which she may undertake. The limitation is that she can only be employed in a work environment where there are present a number of people. In other words, she feels nervous about being alone, for protracted periods, with a male employer or a fellow employee. In my view, this is a genuine limitation arising from the psychological illness experienced by her as a result of the commission of the offences. It is impossible to know how for long it may persist. In all the circumstances I think a modest award in that regard is appropriate, particularly because, to date,there has been no actual loss, and the loss in the future is only potential. I award the sum of $500.

There will be an order that the first defendant pay the plaintiff the total sum of $10,860. I will hear counsel as to costs.

Pursuant to section 7(11) of the Act I must give a certificate as to the second defendant's means and as to the ability of the plaintiff to recover damages from the second defendant. The second defendant was cross-examined as to his means. According to the second defendant (and no other evidence was adduced) he has no means and it follows that if the plaintiff had sued the defendant and obtained a judgement in damages against the second defendant, she would be able to recover nothing from him. Pursuant to section 7(11) of the Act I certify accordingly.

In Court 20 May 1997

1.Order against the defendants in favour of the plaintiff, that the sum of $10,860 be paid by way of compensation pursuant to the provisions of the Act to the plaintiff.

2.Order that the defendants pay the plaintiff's costs and disbursements fixed in all in the sum of $1,525for costs and $1,669 for disbursements.

3.Order that I give certificates as required by the provisions of the Act in terms of the final paragraph of my reasons published this day.