SAM v SAM

[2001] QCA 12

[2001] QCA 12

COURT OF APPEAL

McMURDO P
WILLIAMS JA
MACKENZIE J

Appeal No 10239 of 2000

SAMRespondent (Appellant)

and

SAMApplicant (Respondent)

BRISBANE

..DATE 02/02/2001

JUDGMENT

THE PRESIDENT: This is an application for leave to appeal under section 118 of the District Court Act 1967 from an order awarding the respondent $20,000 by way of criminal compensation under section 663B of the Criminal Code and costs.

The applicant, who is self-represented in this application, but who was represented by experienced counsel before the primary Judge, complains firstly that the Judge wrongly found that there was evidence that the offences of which the applicant had been convicted materially contributed to the injuries suffered by the complainant.

The applicant was convicted after a trial in April 1995 of one count of indecently dealing with the respondent in 1987 and one count of attempted incest upon her in 1989.  [The applicant took no point as to the delay in bringing the criminal compensation application before the primary Judge.]  He was acquitted on two counts of incest and the remaining counts on the six count indictment did not proceed to the jury for determination.

The respondent is the natural daughter of the applicant and was aged 10 and 12 when the offences were committed.  She is now almost 24.  The respondent's affidavit adopted her statement to police made when she was 16 years old in which she described a history of extensive sexual abuse of her by the applicant commencing when she was four years old.  This
incident related to a charge of incest on which the applicant was acquitted.  The respondent claimed that the applicant had sexual intercourse with her on a regular basis until she was aged 13. 

The facts of the two offences of which the applicant was convicted are as follows.  The applicant digitally penetrated the respondent's vagina whilst on a boat off Mossman; he pushed his finger in a long way and it hurt a lot; it was the only time she could remember him putting his finger into her vagina.  The second count of which he was convicted, attempted incest, occurred in the family home when the applicant attempted to have sexual intercourse with her but she successfully resisted.

The learned primary Judge noted that the respondent's affidavit referred briefly to the severe and distressing psychological symptoms that presently afflict her and she attributes her problems to the offences perpetrated against her by the applicant; she relates her problems to the whole history of sexual abuse at the hands of the applicant and does not isolate symptoms caused by the offences for which he was actually convicted.

His Honour also noted that the opinions expressed by the counsellor and psychiatrist are based on her history of long-term sexual abuse, including matters additional to the two offences of which the applicant was convicted.  The approach taken by the primary Judge, and accepted by the applicant's counsel, was whether the respondent had established on the balance of probabilities that the conduct of which the applicant was convicted had made a material contribution to the respondent's injuries even if it was not the sole or even the effective cause of such injury.

The argument posed before the primary Court, and relied on today, is that two isolated offences in an alleged nine year period of serious sexual abuse could not be said to be a material cause of psychological injury attributable on the evidence to the whole period of misconduct. 

The primary Judge rejected that argument adopting a commonsense approach to causation and concluded that the commission of two serious offences of sexual abuse by a natural father upon his daughter was a material contribution to her present psychological injury.  This approach, with respect, appears to be plainly right.

The applicant today complains about the format and reliability of the respondent's evidence in the application before the primary Judge but this applicant's experienced defence counsel did not object to that material, did not challenge any of the factual material presented, did not cross-examine any of the witnesses, and nor did he seek to place any contrary evidence before the Court.  The applicant has conceded that this was done for tactical reasons.  Although the applicant would now wish to resile from that conduct of the case, he has not demonstrated any reason why he should be permitted to do so. 

Finally the applicant has disputed, without any proper basis, the quantum of the award. 

There is nothing in the applicant's lengthy arguments that gives me reason to think that his Honour's decision is attended by sufficient doubt to warrant reconsideration by this Court or that there are reasonable prospects of a successful appeal.  I would refuse the application for leave to appeal.

WILLIAMS JA:  I agree.

MACKENZIE J:  I agree.

THE PRESIDENT:  The order is the application for leave to appeal is refused.

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