R v Nigel Herbert Wilkinson

IN THE SUPREME COURT
OF QUEENSLAND

No 9080 of 1998

Brisbane
Before the Hon Justice Atkinson
[Re Wilkinson]
IN THE MATTER of Chapter LXVA of the Criminal Code of Queensland
- and -
IN THE MATTER of R v NIGEL HERBERT WILKINSON
- and -
IN THE MATTER of an application for compensation by “X”
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 29 July 1999

CATCHWORDS: CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDER FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - COMPENSATION - QUEENSLAND - amount of order - offence committed in 1972 - whether right to compensation arose at the time injury suffered - whether subsequent legislative changes retrospectively affect amount of compensation to be awarded - effect of delay in bringing application.

Acts Interpretation Act 1954 s 20
Criminal Code ss 663A, 663B
Criminal Offence Victims Act 1995 s 46
Johnson v Perez (1988) 166 CLR 351
Re Kendall; ex parte Pink (unreported, Supreme Court of Queensland, de Jersey CJ, 11 September 1998)
Re Stratton and Crimes Compensation Tribunal (1986) 1 VAR 339
R v Anell; ex parte Anderson [1998] 2 Qd R 174
R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457
R v Johnson; re Burns and McKenzie (unreported, Supreme Court of Queensland, Mackenzie J, 14 April 1998)

Counsel:P Gaffney for the applicant
No appearance for the respondent

Solicitors:Legal Aid Office (Queensland) for the applicant
No appearance for the respondent

Hearing Date: 1 June 1999

IN THE SUPREME COURT
OF QUEENSLAND

No 9080 of 1998
Brisbane

Before the Hon Justice Atkinson

IN THE MATTER of Chapter LXVA of the Criminal Code of Queensland
- and -
IN THE MATTER of R v NIGEL HERBERT WILKINSON
- and -
IN THE MATTER of an application for compensation by “X”
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered 29 July 1999

On 28 September 1972, Nigel Wilkinson was found guilty by a jury of the attempted murder of the applicant, “X”. After an appeal by the Attorney-General to the Court of Criminal Appeal (as it then was) Mr Wilkinson’s sentence was increased on 14 February 1973 from 8 years’ imprisonment to 20 years’ imprisonment.
The circumstances of the offence were that on 26 February 1972 when “X” was only 21 she was raped by Mr Wilkinson who then attempted to strangle her. She was hospitalised in the Southport Hospital and then the Royal Brisbane Hospital. As part of the investigation of the offence she was required to identify her attacker. During the police interview with the respondent the police asked “X” to come into the room and detail her version of the circumstances in front of him. She gave evidence at the committal. After the committal she had a breakdown and was admitted to the psychiatric unit at the Royal Brisbane Hospital for a fortnight. She was then transferred to another psychiatric hospital from which she ran away and lived on the streets. She became extremely ill and was admitted as an involuntary patient to another psychiatric hospital for a number of months where she received drug and electroshock treatment. She descended into schizophrenia and continued to see psychiatrists for 18 months after her discharge from hospital. She sought and obtained employment in a clerical position but was only able to retain that position for six weeks and resigned on psychiatric advice. Since that time she has experienced difficulty in any work environment and has not been able to maintain a steady job except for one job which she held for 18 months.
Her personal life has been similarly affected in a devastating way because of her loss of trust and security. She married, but that relationship broke up. She still suffers from disturbed sleep and is reminded of the assault by triggers in her daily life. She experiences anxiety attacks.
In his sentencing remarks Mr Justice Lucas said:
“[O]n the indictment upon which you have been tried before me the jury has found, on what I regarded as overwhelming evidence, that you have been guilty of attempted murder consisting of a vicious and brutal assault on a defenceless girl, and as far as you were concerned she may have been dead when you left her, and the medical evidence is that she very nearly was, and the further medical evidence is that you inflicted mental as well as physical harm on her. Violence cannot be allowed to take hold in this community. It must be visited with substantial punishment. I have taken into account everything that your counsel said, but I am unable to find any extenuating circumstances in this case.”
On the appeal the Chief Justice delivering the judgment of the Court described the circumstances of the offence as follows:
“[T]he woman was beyond question raped by the respondent after she had been threatened with a knife.
When the two had got out of the car prior to the rape the respondent took with him a length of strong cord. After the rape the respondent placed his hands around her throat and proceeded to attempt to throttle her. Sufficient evidence appears that his purpose was to prevent the woman from giving information about the rape. There is also evidence that the cord referred to had been placed around her neck and drawn tight. She became unconscious before this was done, but that it was done is a clear inference from the medical evidence of marks on her neck. The attempted strangulation did not succeed but the circumstances leave no doubt that the death of the woman was the purpose of the respondent and that the purpose was not achieved only because the respondent believed it had been. He left her as dead, and the medical evidence shows that she was close to death.”
“X” had suffered grievous psychological damage as a result of these criminal offences. The immediate aftermath of the attack was to cause an acute psychotic episode resulting in hospitalisations both in Queensland and Victoria. The offences have also had a major long term impact on “X”’s capacity for trust which has affected her ability to deal appropriately with relations within the workplace, socially and intimately. She still has features consistent with post-traumatic stress disorder.
In support of her application, “X” filed a report by Dr Hacker, an eminent psychiatrist, who assessed “X”. Dr Hacker repeats the history given by “X” and says that after she was treated with electro convulsive therapy and major tranquillisers, “X” became manic. Her marriage lasted only three months. Dr Hacker’s diagnosis was as follows:
“1.It would appear that the attempted murder and rape occasioned an acute psychotic episode which occurred almost immediately after the event and resulted in hospitalisations in Brisbane, Parkville Psychiatric Unit, Royal Park and Larundel.
2.The long term effect of the rape and attempted murder appear to have been a major impact upon “X”’s capacity for trust which seems to have affected her ability to deal appropriately with relationships in the workplace, socially, and intimately. There are certainly currently described features of post traumatic stress disorder which “X” claimed is still in evidence, namely recurrent and intrusive distressing recollections and psychological reactivity on exposure to internal and external significant cues with persistent avoidance of issues associated with the trauma, marked personality change following the event, sleep disturbance and exaggerated startle response. These symptoms have persisted for many years but they appear to have been exacerbated during the period of reworking of the assault following “X”’s presentation to the Centre Against Sexual Assault some two years ago.
3.“X” also appeared to have some avoidant and paranoid features in her personality style, being very anxious about criticism or disapproval and feeling somewhat anxious about being accepted. Issues of trust remain very difficult for “X”, and she becomes preoccupied by doubt about trustworthiness of friends and people in the workplace. “X” believes that her personality changed dramatically after the assault and has not reverted to her previously more outgoing personality.”
What legislation governs this application?
Victim compensation schemes were introduced in legislation in the 1960s and 1970s to give effect to a growing global awareness of the plight of victims of crime.[1] The theoretical justification for such schemes was originally found in the writing of philosophers and social reformers such as Jeremy Bentham.[2] It is now generally accepted that provision of compensation to the victims of crime is socially and morally desirable as well as just. It may be doubted whether even the current levels of compensation able to be awarded achieve those ends.[3] As the Chief Justice remarked in Re Kendall; ex parte Pink:[4]
“There should be no argument in a civilised society but that innocent victims of crime should be fully and adequately compensated, so far as money can do so.”
When the schemes commenced, the quantum of compensation that could be awarded was very modest.
[1]Fry, M., “Justice for Victims” (1959) 8 Journal of Public Law 191; General Assembly of the United Nations (1985), Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power; see Davies, I.T., “Compensation for Criminal Injuries in Australia: A Proposal for Change in Queensland” (1991) 3 Bond LR 1.
[2]“The Works of Jeremy Bentham, Part II”, Edinburgh, William Tait, 1838, Principles of Penal Law, Part 1, Chapters 6-11.
[3]Barnett, E., “Criminal Offence Victims Act 1995 (Qld) - Some Observations” (1996) 12 QUTLJ 88 at 96-98.
[4]Unreported, Supreme Court of Queensland, de Jersey CJ, 11 September 1998.
As at the date of the offence and the date of the trial, applications for criminal compensation were governed by Chapter LXVA of the Criminal Code, introduced into the Criminal Code by the Criminal Code Amendment Act 1968. Section 663B(1) provided:
“Where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, may, in addition to any other sentence or order it may make, order him to pay the person aggrieved a sum not exceeding two thousand dollars by way of compensation for injury suffered by him by reason of the offence of which the offender is convicted.”
Part LXVA of the Criminal Code was amended by the Criminal Code and the Justices Amendment Act 1975 which commenced on 1 July 1975. Section 663A of the Criminal Code was amended by the inclusion of the following definition of “prescribed amount”:
“(a)where the offence in connexion with which the case arises is committed before the commencement of The Criminal Code and the Justices Act Amendment Act 1975, two thousand dollars;
(b)in all other cases, five thousand dollars.”
Section 663B(1) was then amended by omitting the words “two thousand dollars” and substituting the words “the prescribed amount”.
The next amendment was the Criminal Code Amendment Act 1984 which amended the meaning assigned to the term “prescribed amount” by omitting its previous meaning and substituting the following meaning:
“(a)where injury in connexion with which an application is made was suffered before the commencement of The Criminal Code Amendment Act 1984, $5,000;
(b)in all other cases save those that are the subject of particular reference in section 663AA, the amount for the time being specified in section 14(1)(C)(a) of the Workers’ Compensation Act 1916-1983 as varied from time to time pursuant to section 14E of that Act.”
The next significant change to the law regarding criminal compensation occurred with the introduction of the Criminal Offence Victims Act 1995 (Qld) which came into effect on 18 December 1995. Section 46 is the transitional provision and provides:
“Application of Act to previous acts and to subsequent acts and events
46.(1) Part 3 does not apply to injury suffered by anyone because of an act done before the commencement.
(2) If the Criminal Code, chapter 65A would have applied to an injury mentioned in subsection (1) if the chapter had not been omitted, the chapter applies to the injury as if the chapter had not been omitted.
(3) Part 3 applies only -
(a)for application under section 24 - to injury suffered because of a personal offence mentioned in section 24(1) that happens after the commencement; and
(b)for applications under section 33 - to injury suffered because of an act or personal offence mentioned in section 33(1) that happens after the commencement; and
(c)for applications under section 34 - to injury suffered when helping a police officer after the commencement; and
(d)for applications under section 35 - to an offence of murder or manslaughter that happens after the commencement.
(3) In this section -
“commencement” means the commencement of part 3.
“Criminal Code” means the Criminal Code that is set out in the Criminal Code Act 1899, schedule 1.”
Section 20 of the Acts Interpretation Act 1954 (Qld) means that the right to compensation or the liability to pay compensation which arose at the time the injury was suffered cannot be abrogated by an Act passed after those rights have come into existence, unless it is explicitly retrospective.[5]
[5]Re Stratton and Crimes Compensation Tribunal (1986) 1 VAR 339.
The effect of the legislation which applies to this is that compensation falls to be determined under chapter 65A of the Criminal Code as if it had not been repealed by s 45 of the Criminal Offence Victims Act 1995. Before its repeal, the prescribed amount which was the maximum compensation that could be awarded to anyone who was the victim of a crime committed prior to 1984 was $5,000.00. The maximum amount of compensation that “X” can be awarded is $5,000. This is considerably less than the amount that would be assessed by the court if damages were awarded on the common principles of the assessment of damages in tort for the personal injury suffered by her.
This is the plain meaning of the sections. The 1984 amendments were explicitly retrospective in increasing the maximum amount of compensation which could be awarded for injuries received prior to 1975. If, contrary to my view, there were any ambiguity in the meaning of the legislation then as it is remedial it should be given a benign construction.[6]
[6]R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457 at 458.
I find myself in apparent disagreement with a conclusion drawn by my colleagues in R v Johnson; re Burns and McKenzie[7] and R v Anell; ex parte Anderson[8] that, without more, the award is assessed according to the legislation as it stood at the time of the injuries but note that their Honours were not in those cases called upon to consider the effect of the 1984 Amendment Act, the terms of which are decisive in this case. There is in truth no disagreement as damages are generally assessed according to the law as at the date of injury unless between the date of injury and the date of the assessment, retrospective legislation is introduced which governs the damages which may be awarded for an injury suffered at an earlier time.
[7]Unreported, Supreme Court of Queensland, Mackenzie J, 14 April 1998.
[8][1998] 2 Qd R 174 at 184. Cf. In re Beni (1974) 9 SASR 253 at 255, 256; Johnson v Perez (1988) 166 CLR 351 at 355‑356.
Delay
The appropriate test to be applied to the question of delay in an application for criminal compensation was set out by de Jersey J (as his Honour then was) in R v Gudz; ex parte de la Cruz[9] where his Honour said:
“Where there has been delay or a long time, I should say, between the commission of the offence or the conviction and the application for compensation, one of course looks at two things in particular; one looks in any explanation for the delay first and second one looks at any consequences of the delay to the respondent in determining whether that prejudice should outweigh the benefit of making an award to the applicant.”[10]
[9]Unreported, Supreme Court of Queensland, 29 November 1995.
[10]See also Re: Pershouse, unreported, Supreme Court of Queensland, Wilson J, 30 April 1999.
Until 1987, “X” was unaware of any right she might have to make such an application. There is evidence from a clinical psychologist that the reasons for the delay are primarily the result of the impact of the crimes committed on “X”. “X” accepted the legal advice given to her in 1987 that the pay out she would receive was too low to be worth making an application and without the assistance of Legal Aid, she was unable to take the matter further. It was not until she attended further counselling sessions in 1995 that she was again encouraged to seek further legal advice. She sought advice from the Legal Aid Office and since then any delay has been caused by the various steps required to be taken by that office in their careful and thorough presentation of materials to the Court.
In this case the respondent did not appear on the hearing of the application and has made no submissions as to any prejudice he would suffer by the delay. It appears most likely that if any payment is made to the applicant it will be only if the Governor-in-Council is prepared to make an ex gratia payment.[11] The material filed in court shows that although the respondent was served with the application, he said he could not afford to pay any compensation due to extensive debts. An award of $5,000 now is worth considerably less than an award of $2,000 would have been worth in 1972, so there can be no relevant financial prejudice to the respondent or the State by the delay.
[11]The power to make ex gratia payments to victims of crime is the exercise of the prerogative power: R v Criminal Injuries Compensation Board; Ex Parte Lain [1967] 2 QB 864.
In this case the explanation for the delay is satisfactory in that the delay seems to be caused in a large part by the consequences of the injury suffered by “X” as a result of the powerlessness, shame and fear she suffered because of the crimes committed upon her and there is no relevant prejudice to the respondent which outweighs the benefit of making an award to “X”. This is so particularly when an award of criminal compensation serves to vindicate the applicant and is part of the public recognition, however inadequate, of the terrible wrong suffered by the applicant.
Conclusion
It is appropriate to award the applicant $5,000 which is the maximum amount that the court is able to award and order the respondent pay the costs,[12] of an incidental to the application to be taxed.
[12]R v Holder; ex parte Jenner [1988] Qd R 580.

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