T v Beveridge
[2006] TASSC 79
•18 October 2006
[2006] TASSC 79
CITATION: T v Beveridge [2006] TASSC 79
PARTIES: T
v
BEVERIDGE, Wendy
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M132/2006
DELIVERED ON: 18 October 2006
DELIVERED AT: Launceston
HEARING DATE: 8 September 2006
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law – General matters – Other general matters – Other cases – Sum adjudged to be paid – Related victim claim – Post-traumatic stress disorder – Sexual misconduct against daughters.
R v Southee A9/1994, followed.
Aust Dig Criminal Law [107]
REPRESENTATION:
Counsel:
Applicant: S P Estcourt QC
Respondent: P Turner
Solicitors:
Applicant: Clerk Walker
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 79
Number of paragraphs: 26
Serial No 79/2006
File No M132/2006
T v WENDY BEVERIDGE
REASONS FOR JUDGMENT SLICER J
18 October 2006
The applicant is the mother of two children who had been subjected to physical and sexual misconduct in 2003 and 2005. A daughter, J, aged 16, afflicted with cerebral palsy, had been the victim of rape and violence at the hands of her then sexual partner. The second daughter, L, had engaged in consensual sexual activity involving a man aged 31. The applicant made a claim for compensation as a "related victim" in accordance with the Victims of Crime Assistance Act 1976 ("the Act").
The evidence of the examining paediatrician was that the then 13 year old daughter, L, had "missed her oral contraceptive pill for two days" and that other evidence established the elder had been, with the applicant's knowledge, involved in a sexual relationship with her assailant for some considerable time. The applicant had knowledge of the sexual activity, or knowledge of her daughters generally, although she contended, contrary to the statement to police by L, that the contraception was unrelated to sexual activity. The Tribunal was required to assess the effect on the applicant of the criminal misconduct committed against her daughters in the light of that evidence.
The Act, s4(4), providing for compensation for a related victim, relevantly states:
"(4) In respect of the death or injury of a person, compensation awarded under this Act may be awarded to a related victim in respect of any one or more of the following matters:
(a)expenses actually and reasonably incurred by the related victim as a result of his or her own injury;
(b)expenses actually and reasonably incurred by the related victim as a result of the death or injury of the primary victim;
(c)the cost of medical, psychological or counselling services which the Commissioner is satisfied the related victim will require in the future;
(d)…
(e)the pain and suffering of the related victim arising from his or her own injury."
The claim made by the applicant was particularised as:
"Counselling Costs:
T H – 8 sessions to date @ $120.00
$960.00
Details of any costs charged by a solicitor in respect to this application. $1,100.00
Details of any charges for obtaining medical or other reports required for this application.
T H, Psychologist
$550.00"
Her claim for general compensation was stated in the statutory form as:
"Psychological Injuries Sustained and the Symptoms Manifested thereto
· According to the applicants [sic] clinical psychologist, upon learning about the sexual assaults on her daughters, the applicant was depressed and overcome with guilt for not protecting her daughters. Their age and vulnerability caused a very negative stressful and emotional response to take place within the applicant. The applicant reported feeling unable to cope and felt suicidal.
· According to the 90 items symptom checklist that the applicant completed, her total score out of 360 was 213, which placed her in the highest 20% of the mentally distressed. She was diagnosed as suffering a severely extreme range of depression. She also suffers currently from Post Traumatic Stress Disorder and relationship conflicts with her immediate family members. She could be viewed as a suicide risk.
· The applicant also reported that her nerves and health have deteriorated as a direct result of learning about the sexual assaults on her daughters. She blames herself for not protecting both her daughters and being there for them. Many of the applicants [sic] psychological symptoms have increased as a result of the knowledge of the sexual assaults, however, some symptoms were present prior to the sexual assaults.
· According to [T H], the applicants [sic] clinical psychologist, it could be argued that there has been up to a 40% increase in the number and extent of psychological distress symptoms reported by the applicant. The symptoms can be clustered under the diagnosis of depression, Post Traumatic Stress Disorder and Anxiety/Panic Attacks.
· The applicant will require weekly treatment to reduce her symptoms and improve her coping skills for her role as parent. She presented in poor health."
No separate claims were made against either of the perpetrators of the criminal misconduct against the daughters.
The application was determined by the Commissioner following a hearing attended by the applicant and her counsel. Material relevant to the claim and assessment was provided by the applicant which included witness statements obtained by police, medical reports, and the psychological assessments prepared for the applicant by her treating and advising psychologist, Mr H.
The Commissioner, in her reasons for decision, recounted the history and basis of the claim, relevantly concluding:
"I further accept [Mr H's] opinion that she suffers from post-traumatic stress disorder, depression, anxiety and relationship conflicts with her immediate family members. There are also financial pressures and [the applicant] has control and discipline issues with her children. She also has many concerns over her immediate physical health. However, I do not accept that all or the majority of these are as a result of the criminal conduct involving her daughters. I therefore approach the assessment conservatively."
The Commissioner assessed the applicant's compensation as:
Pain and suffering $2,500
Legal fees and disbursements $1,320
Past medical and treatment expenses $1,320
Future medical expenses $960
$6,100
The maximum award permitted by the legislation is prescribed by the Victims of Crime Assistance Regulations 2000, reg4, which fixed a maximum award of $20,000, since the applicant's case came within the ambit of the Act, s6A.
The Act, s10, provides:
"A decision of the Commissioner under this Act is final and no appeal lies therefrom."
That provision was not repealed following the enactment of the Judicial Review Act 2000. Nor was the Act included in the Judicial Review Act, Sch1 (non-applicability) or Sch2 (non or limited review of decisions). Consistent with decisions such as Smith v Criminal Injuries Compensation Commissioner Rigby [2003] TASSC 124, R v Southee A9/1994 and Lark v Nolan [2006] TASSC 12, the respondent conceded that the Judicial Review Act permitted challenge to the decision. For the purpose of this application, the Court accepts that review is permitted, although it ought be borne in mind that Southee involved review by certiorari. In Southee, Cox J stated, at 2, that the Act, s10:
"… also provides that a decision of the Master under the Act is final and no appeal lies therefrom (s10). Of course, this does not preclude the supervisory jurisdiction of the Supreme Court by way of certiorari and mandamus."
Accepting for the purpose of these proceedings that the Judicial Review Act replicates the tests and remedies of certiorari, it does not follow that the Act, s10, has no relevance to a review of an award made under the statute.
Here there remains a significant difference between review and appeal. Prerogative relief was the remedy of a court possessing superior and inherent power to supervise or control inferior jurisdictions. The power, not dependent on statute, involved supervision of the conduct of inferior courts, not appellate review of a specific outcome. In Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, the High Court upheld the validity of the Migration Act 1958 (Cth), s474, against the Constitution, s75(v), since it did not purport to protect decisions which involved jurisdictional error. It does not follow that a decision said to be wrong by a party can be assailed on the same basis as is often permitted by legislation (R v Hickman; ex p Fox and Clinton (1945) 70 CLR 598; Project Blue Sky Inc (1998) 194 CLR 355; R v Coldham; ex p AWU (1983) 153 CLR 415). The categories of illegality, irrationality and procedural impropriety, as identified by Lord Diplock in Council of Civil Service Unions v Minister for The Civil Service [1985] 1 AC 374 remain separate paths to the control of inferior tribunals, administrative or otherwise. Nor should "irrationality" become confused with "unreasonable by comparison", as distinct from "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). The decision of the High Court in Plaintiff S157 (supra) did not alter those distinctions. In Tasmania, Parliament has abolished the prerogative writs of certiorari and mandamus. It has provided for power of control and review through enactment of the Judicial Review Act. Here the applicant relies on the on the Judicial Review Act, s17, which relevantly provides:
"(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision.
(2) The application may be made on any one or more of the following grounds:
…
(e)that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made."
together with s20(g) which provides:
"(20) In section 17(2)(e) and section 18(2)(e), a reference to an improper exercise of a power is taken to include –
…
(g)an exercise of a power that is so unreasonable that no reasonable person could so exercise the power."
The applicant seeks to show that the decision of the Tribunal was an "unreasonable … exercise of power" by contending that:
(1)The evidence showed significant injury to the applicant.
(2)The Tribunal ought not to have been constrained in its assessment by the statutory limit which could be awarded to a secondary victim.
(3)The award itself, especially when considered in the light of other comparable assessments, shows error within its own terms or by the combination of principles (1) and (2).
In New South Wales and South Australia, comparable legislative schemes have been interpreted in a manner equivalent to the ordinary principles of assessment of compensation (R v McDonald [1979] 1 NSWLR 451; In Re Poore (1973) 6 SASR 308) an approach followed in this jurisdiction in Southee (supra). In those cases the creation of an upper limit to an award by statute was held to be disjunctive from the process of assessment. A complication arises when there have been two crimes or offences which result in "mental or nervous shock". Differing methods of assessment were considered in the Supreme Court of Queensland in R v Tiltman; ex p Dawe [1995] QSC 345. In that case, Lee J, relying on an earlier decision of R v Bridge and Madams; ex parte Larkin [1989] 1 Qd R 554, adopted a line of reasoning consistent with that appeal to causation. In his reasons for judgment Lee J stated at 8 – 9:
"Equally, however, this is not a case in which the effects on the applicant of each of the offences to which the respondent pleaded guilty can be separated. As the evidence shows, they combined to cause a single indivisible injury. What then is the approach to be adopted by a Court faced with a case such as this, in which there is but one injury caused or materially contributed to by a multitude of circumstances, some of which are compensible and some of which are not?
One answer, it seems to me, is for the Court to assess an amount of compensation applicable to the total injury and then assess, in a broad and perhaps somewhat arbitrary way, the contribution which can fairly be said to have been made to that injury by the conduct involved in the offence or offences of which the respondent has been convicted. Although it may be an approach which does not produce an entirely satisfactory solution, it is nonetheless one which may be seen to be supported by certain authorities in other jurisdictions touching upon analogous though not identical legislation: see eg Application for Criminal Injuries Compensation No 69 of 1989 (1991) 103 FLR 297; C v C (1992-93) 111 FLR 467, 471; LMP v Collins (1993) 112 FLR 289, 310, although the two latter cases were concerned more with apportioning the assessed compensation amongst the separate offences than amongst separate causes.
The second possible approach derives some support from the position at common law. In a tortious action, if the defendant's negligent conduct combines with other innocent causes to produce a single indivisible injury it is sufficient to base a finding of causation if that conduct can be said have materially contributed to the total damage: Bonnington Castings Ltd v Wardlaw [1956] AC 613; The Commonwealth v Introvigne (1981-82) 150 CLR 258. It need not be the sole or even the effective cause. That test is, of course, but one manifestation applicable in some circumstances of the proposition that causation in fact 'is ultimately a matter of common sense': Fitzgerald v Penn (1954) 91 CLR 268, 277-8; March v Stramare (E & MH) Pty Ltd (1990-91) 171 CLR 506, 515-6. But unlike its alternative, on this approach if I were to find that the offences of which the respondent was convicted made a material contribution to the applicant's injury then, unless the respondent is able to separate the effects of the compensible and non-compensible conduct on the applicant with some reasonable measure of precision, the applicant is entitled to have his compensation assessed in respect of his whole injury: Middleton v The Melbourne Tramway & Omnibus Co Ltd (1913) 16 CLR 572; Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164. In a case such as this, however, that task would be nigh impossible.
On the whole, I think that it is the second approach which should be adopted. It is more in tune with tortious concepts of causation and therefore consistent with the principle that compensation should be assessed as nearly as possible as if one were assessing damages for personal injuries in a negligence action. Moreover, the first suggested approach is one which is necessarily reliant on a degree of speculation and guesswork by the court. In my opinion the arbitrariness and subjectivity of such an approach 'would involve such a substantial departure from the usual judicial role that it ought not be preferred if another view is reasonably open, as it is here': R v Jones at p7 per Fitzgerald P. On that basis, I find that the conduct of the respondent involved in the offences of which he was convicted materially contributed to the applicant's psychiatric injury as I have found it to be. As the compensation which I have assessed exceeds the prescribed maximum, I award the applicant that amount. I should add that my conclusion on this point would be the same whether the non-compensible cause of the injury was criminal or not or at the hands of the respondent or not. The applicable principle would be the same."
However the question of a causal relationship between an event, crime or offence, remains one of fact. In B v B [2004] WASC 6, Barker J stated the basis for assessment of "mental and nervous shock" in the following terms at pars12 – 15:
"The phrase 'mental and nervous shock' in this context has been considered on a number of occasions in this and other courts and 'should be given a wide and generous definition': Couper v Under Secretary for Law (1994) 12 SR(WA) 116 at 122 - 123 per Kennedy DCJ. Mental and nervous shock comprehends any malfunction of the person which can be said to be a consequence of the impact of the events constituting or associated with the commission of the offence on the mind or the nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA (Burt J); Library No 4012; 15 December 1980 at 5. In S v Neumann (1995) 14 WAR 452, at 461, Murray J stated
'The phrase "mental and nervous shock" was one 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 was therefore necessary ... to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and common parlance be described as an injury.'
In assessing compensation for the injury suffered, the Court applies the ordinary principles for assessment of damages for personal injury, subject to the jurisdictional limit (McD v Edwards, unreported; SCt of WA (Heenan J); Library No 970529; 10 October 1997, at 3) although, the limit does not provide a standard for the most serious offence against which other awards must be measured: S v Neumann (supra) at 463.
The applicant must also establish a causal relationship between the commission of the offences and the injury and loss for which compensation is sought: S v Neumann (supra) at 463. Section 4(1) of the amending Act refers to the applicant as a person 'who has suffered injury or loss in consequence of the commission of the offence'. The words 'or loss' were added by the 1976 amending Act. Mason and Wilson JJ, considering words of similar effect in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, at 673, said:
'There is no basis in the context of the Act itself for regarding the words as having a narrow operation. "The words are ordinary English words carrying no special or technical meaning. All that is required is a causal relationship ... Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause".'
Therefore, the compensation to be awarded to the applicant is for the injury and loss suffered by him by reason of the commission of the offences, bearing in mind, as I do, that in relation to the first seven offences, there is no capacity to make an award for 'loss' suffered, and the jurisdictional limit is much lower. On that basis I turn to consider the evidence before the Court."
The Tasmanian Parliament has addressed the basis of assessment in the wording of the Act, s4(3), which relevantly provides, in the case of a secondary victim, for the assessment of compensation in the terms:
"(3) In respect of the death or injury of a person, compensation awarded under this Act may be awarded to a secondary victim in respect of any one or more of the following matters:
(a) …;
(b)if the secondary victim is a parent, step-parent or guardian of the primary victim, expenses actually and reasonably incurred by the secondary victim as a result of the death or injury of the primary victim;
(c)the cost of medical, psychological or counselling services which the Commissioner is satisfied the secondary victim will require in the future;
(d)…;
(e)the pain and suffering of the secondary victim arising from his or her own injury;
(f)expenses reasonably incurred by the secondary victim in claiming compensation."
The pain and suffering must be that suffered by the applicant as a result of his or her own injury. Here the injury was claimed to be the occurrence of a "post-traumatic stress disorder". The injury is said to be the "impairment of … mental health" (the Act, s2(2)). But the Tribunal was required to consider other matters in relation to direct or indirect contribution to that injury. The Act, s5(3), provides:
"(3) In determining whether or not to make an award and, if so, the amount of the award, the Commissioner shall have regard to any behaviour, condition, attitude, or disposition of the victim that appears to him to have directly or indirectly contributed to the injury or death in relation to which the award is sought."
Here the Tribunal was required to consider evidence that:
(1)The elder daughter had been living in a sexual relationship with the offender for some 12 months before the occurrence of a criminal act. The relationship continued for some five months after the date of the sexual misconduct.
(2)The younger daughter provided the examining paediatrician, Dr Elizabeth Hallam, with a history which did not fully accord with that stated by the applicant. The reaction of the applicant as recounted to police in a statement made shortly after the disclosure of the misconduct showed proper concern for the interests of the child, but not a reaction equivalent to the sudden onset of trauma. Her reaction differed from that which she described to either the psychologist or provided to the Commissioner.
(3)Some of the evidence provided by the applicant in support of her application for compensation involved the conduct of the daughters.
(4)The psychological evidence showed the existence of a psychological history prior to the dates of the events said to have caused the injury. The misconduct involving the daughters occurred in September 2003 and January 2005, respectively. The first consultation with the consulting psychologist occurred in December 2005, after the commencement of the proceedings on 19 June 2005.
(5)There was evidence of significant trauma suffered by the applicant in many periods of her life before the events said to have caused injury.
The Tribunal was not required to accept that all of the symptoms, conditions and psychological health of the applicant were a consequence of the awareness of the sexual misconduct committed against her daughters. The Tribunal was required to consider "condition or disposition of" the applicant that appeared "to have directly or indirectly contributed to the injury … in respect of which the award is sought".
The conduct of that assessment could not be said to have been an exercise of power "that no reasonable person could so exercise". It might have been open to the Tribunal to have made a higher award for "pain and suffering". But the Tribunal was entitled to find, as a matter of fact, that it did "not accept that all or the majority of these [symptoms were] as a result of the criminal conduct involving her daughters".
The Tribunal was entitled to "approach the assessment conservatively". The applicant has not shown that there was no evidence (contrary to the opinion of the psychologist) which would justify the making of the award which was in fact made by the Tribunal.
None of the above is disparaging of the applicant. There was no doubt that she had been affected by the sexual misconduct committed against her daughters. There was no suggestion that she had not shown appropriate concern for the wellbeing of her daughters. But the Tribunal was required to make an assessment of injury and loss which were a consequence of those events.
The award, of itself, does not show an "improper use of power" or that the decision was "otherwise contrary to law".
The application is dismissed.
0
7
0