Supreme Court

  • Gardiner v Doer [2022] QSC 188 (11 November 2022) – Queensland Supreme Court
    Civil claim for post-traumatic stress disorder’ – ‘Defendant acquitted at criminal trial’ – ‘Interference with the person’ – ‘Post traumatic stress disorder’ – ‘Tort law’ – ‘Trespass to the person’ – ‘What constitutes assault and/or battery

    Matter: civil claim for damages for assault/and or battery and post- traumatic stress disorder.

    Facts: The defendant was found not guilty at a criminal trial. The plaintiff then sued him in tort.

    The plaintiff and defendant had been married for 15 years and had two children together. The defendant had been verbally and physically abusive to the plaintiff. They had recently separated when the defendant told the plaintiff he would send someone to rape and sodomise her. That night, he broke into the house dressed in black including a black balaclava. He jumped on top of her, sat on her chest, covered her mouth, held her nose and started shoving the fingers of latex gloves into her mouth. She struggled and he forced her head off the couch and bumped her head on the tiled floor. He put cloth in her mouth and tape over it then did the same with her eyes. He started to tie her hands together with plastic bags. She struggled more and managed to pull off his mask. When he said that he would come for her family, he would burn down her mother’s house, he would come for her sister and that her family was evil, she recognised him as her husband the defendant. She called him by his name and after that the violence diminished.

    Held: Judgment for the plaintiff in the sum of $967,113.40

    Cooper J found the elements of the tort of battery made out [287]. Most of his judgment addressed the question of damages. His Honour included the following heads of damage in his assessment: General damages: $8,410; Past economic loss: $358,123; Interest on past economic loss: $58,302; Future economic loss: $343,081; Gratuitous services: $35,560; Special damages: $13,412.40; Interest on special damages: $1,899; Future special damages: $13,126, Aggravated damages: $50,000; Interest on aggravated damages: $17,600; Exemplary damages: $50,000: Interest on exemplary damages: $17,600 [389].

  • R v Peniamina (No 2) [2021] QSC 282 (25 October 2021) – Queensland Supreme Court
    Allegations of infidelity’ – ‘Children’ – ‘Manslaughter’ – ‘No prior convictions’ – ‘Partial defence of provocation’ – ‘Provocation’ – ‘Reasonable belief’ – ‘Sentencing’ – ‘Weapon

    Charges: Manslaughter x 1, Murder x 1.

    Proceedings: Sentencing.

    Facts: The male defendant was found guilty of manslaughter following jury retrial (his conviction for murder having been set aside by the High Court in Peniamina v The Queen [2020] HCA 47 (9 December 2020)). The defendant was in a relationship with the female victim for 16 years and the couple shared four school aged children. In 2020, the defendant confronted the victim with allegations of infidelity. When the victim denied these allegations, the defendant struck her, before stabbing her 29 times and hitting her head with a cement bollard which resulted in her death [14], [11]. During the assault, the victim had armed herself with a kitchen knife and cut the defendant’s hand when he attempted to disarm her. The jury found that this act provoked the defendant’s murderous intention [10], accepting the partial defence of provocation. The jury had also found that the defendant’s belief about the victim’s infidelity was reasonable [7].

    Decision and Reasoning: The defendant was sentenced to 16 years imprisonment, becoming eligible for parole after serving 80% of the sentence. Justice Davis declared that the offence was a serious violence offence and a domestic violence offence]. In sentencing, His Honour was guided by s 9 of the Penalties and Sentences Act 1992 (‘the Act’) and comparative cases [35]-[39]. His Honour noted the defendant’s early plea of guilty and genuine remorse [23], [25]. Due to the defendant’s lack of prior convictions, His Honour placed less importance on personal deterrence as a sentencing purpose [26]. His Honour took evidence of the defendant’s intention to kill his wife into account as a relevant sentencing consideration [40]-[41] and emphasised that domestic violence was an aggravating factor under s 10A of the Act.

  • Attorney-General for the State of Qld v Sagiba [2020] QSC 254 (21 August 2020) – Queensland Supreme Court
    Contravention of supervision order’ – ‘Sentencing orders

    Charges: Contravening supervision order x 5; Assault occasioning bodily harm x 1 (DFV offence); Deprivation of liberty x 1 (DFV offence).

    Proceedings: Contravention of supervision order.

    Facts: The respondent was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act (DPSOA). The applicant alleged the respondent contravened a supervision order and sought to extend the period of the supervision order. In early 2020, the respondent was reported to police for allegedly committing domestic violence. The respondent put his female domestic partner in a headlock, strangled and punched her, attempted to prevent her leaving the house and threatened to rape her. The respondent claimed he ‘did not commit an offence of a sexual nature’ on the basis that there was a sexual element to the latest offences, but they were not sexual offences. The psychiatric evidence was that the risk factors that were present when the original supervision order was made remain present.

    Issues: Whether adequate protection of the community can be ensured by the release of the respondent subject to a supervision order.

    Decision and reasoning: Supervision order extended for a further five years.

    The respondent has not demonstrated that the adequate protection of the community – specifically from the commission by the respondent of a ‘serious sexual offence’ – can be ensured by his release without him being subject to supervision.

  • Johnson v Parole Board of Queensland [2020] QSC 108 (11 May 2020) – Queensland Supreme Court
    Application for judicial review’ – ‘Attempted murder’ – ‘Good behaviour’ – ‘Improper exercise of power’ – ‘Murder’ – ‘Natural justice’ – ‘Parole application’ – ‘Physical violence and harm’ – ‘Rape’ – ‘Rehabilitation programs’ – ‘Stepchildren in the family’ – ‘Weapon

    Offences: Murder x 4; Attempted murder x 1; Rape x 1

    Proceedings: Application for judicial review

    Issue: Whether parole should be granted.

    Facts: The male applicant plead guilty to murdering his female partner and three of her four children from her earlier marriage. He also plead guilty to the attempted murder and the rape of the fourth child of that marriage. The applicant had used a hammer to inflict head injuries on the victims, and scalded the fourth child with boiling water. The fourth child was not found for five days and suffered permanent injuries. The applicant was convicted on all counts and sentenced to life imprisonment for the murder charges and 14 years’ imprisonment for the rape charge.

    After serving 13 years in custody, the applicant became eligible for parole. He made several applications for a parole order, but all were refused. The applicant applied for judicial review of the latest decision refusing parole, contending that the decision was affected by an improper exercise of power because: the refusal was unreasonable, the Parole Board failed to take relevant considerations into account, and the Board applied a rule or policy without regard to the merits of the case. The applicant also contended that there was a breach of the rules of natural justice.

    Held: The judge dismissed the applicant’s application for judicial review of the Parole Board’s decision. His Honour held that the Board’s decision, as evidenced by its statement of reasons, did not lack an evident and intelligible justification when all the relevant matters were considered, and therefore the decision was not unreasonable [35]. His Honour noted that "the Board is not compelled to grant parole to a prisoner who has served any particular length of timer in custody or in residential accommodation, who has completed any particular number (or all) of the available recommended rehabilitation programs or who has been of good behaviour for any particular length of time" [32] – what is important is whether the offender shows "internal change, in the sense of the development of an understanding by the offender of the pathways to offending, the triggers that lead along that path and the steps the offender can take …" [33]. In this case, the applicant had not, and still posed a risk to the community.

    His Honour also held that the Board did not fail to take a relevant consideration into account, namely a program completion report, as the Board expressly referred to extracts from this report in its statement of reasons [39]-[40]. Nor did the Board apply the policy asserted by the applicant (that the Board followed the commissioned psychiatric opinion without considering alternate views by other experts) inflexibly as the Board’s statement of reasons demonstrated that it considered alternate views of a range of other experts [42], [48].

    The judge further held that the Board’s decision was not affected by any breach of the rules of natural justice [55]. The applicant was invited to make submissions to the Board on multiple occasions, and no complaint was made that the applicant had inadequate time to effectively prepare [54].

  • R v Coman [2020] QSC 60 (3 April 2020) – Queensland Supreme Court
    Dangerous operation of a vehicle’ – ‘Female perpetrator’ – ‘History of abuse’ – ‘History of emotional abuse’ – ‘Judge only trial’ – ‘Manslaughter’ – ‘People affected by substance misuse’ – ‘People living in regional, rural and remote communities’ – ‘Perceived position of danger’ – ‘Victims as (alleged) perpetrators

    Offences: Manslaughter x 1; Dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance x 1.

    Case type: Judge only trial

    Facts: The female accused pleaded not guilty to manslaughter and the dangerous operation of a vehicle causing death whilst adversely affected by an intoxicating substance. The victim, her male fiancè, died of traumatic asphyxiation after the accused drove her motor vehicle over him as he lay on the ground. It was uncontroversial that the incident was preceded by an alcohol-fueled argument between the two parties. The accused felt threatened and decided to remove herself from what she believed to be a position of danger by attempting to drive away to a place of safety ([11]). The Crown alleged that the accused knew that the deceased was on the ground and deliberately drove her motor vehicle over the deceased, albeit without any intention to cause death or grievous bodily harm.

    At the close of the Crown case, the accused’s counsel made a no case submission with respect to the count of manslaughter. In particular, it was submitted that there was no evidence from which an inference of knowledge or intention could be made. Given the fact that there had been an unexplained deviation of the accused’s car from the driveway to the position where the victim’s body was found, the no case submission was unsuccessful. The accused then elected to give evidence, and claimed that the victim ran into her car as she was driving away from the house. Two defences were raised, namely, unforeseen consequence and one of extraordinary emergency or compulsion.

    Issue: Whether the accused was guilty of the offences charged.

    Held: Burns J considered the significant body of evidence regarding the victim’s relationship with his former wife, his subsequent partner and the accused. The accused and victim lived in a semi-rural town and had been in a relationship for approximately 2 years. Like the victim’s prior relationships, his relationship with the accused was marred by frequent and excessive alcohol consumption. As a result of his "chronic drinking problem", there were regular outbursts of anger, emotional abuse (including belittling accusations, vile language and intimidation), and, on occasion, actual violence ([18]).

    The accused was acquitted on the count of manslaughter. His Honour accepted the accused’s evidence as it was entirely consistent with the physical evidence found at the scene, as well as the nature and extent of the victim’s injuries ([36]), and found that she did not deliberately drive over the victim’s body ([52]). His Honour was also not satisfied beyond reasonable doubt that the accused substantially or significantly caused the victim’s death. The real and effective cause of his death was his decision to place himself in front of the accused’s moving car ([54]). The accused was also acquitted on the alternative count of dangerous operation of a vehicle ([65]).

  • R v Arumugam [2018] QSC 312 (14 December 2018) – Queensland Supreme Court
    Arranged marriage’ – ‘Domestic violence’ – ‘People from culturally and linguistically diverse backgrounds’ – ‘Physical violence and harm

    Charges: Murder x 1

    Facts: The offender met the victim, a Singaporean national living in Australia, through an arranged marriage website. The victim had reservations and formed another relationship. The offender threatened to kill himself if she did not marry him. The offender travelled to Australia from South Africa with the intention of killing the victim if she did not proceed with the arranged marriage. This was evidenced by a statement he made in South Africa to that effect. The offender stabbed the victim 32 times in a hotel room, and claimed that she asked him to kill her. The offender pleaded guilty to the charges. By doing so, he cooperated with the administration of justice because he saved the deceased’s family the trauma of a trial, as well as substantial court time and resources.

    Issues: Sentencing

    Decision and Reasoning: The offender was convicted of one count of murder, being a domestic violence offence, and was sentenced to life imprisonment. His Honour found that his conduct was planned and persistent ([20]), and involved a high degree of brutality and ferocity. Following his arrest, medical examinations found that, during his incarceration, he experienced periods of active psychosis, auditory hallucinations and paranoid and grandiose beliefs. Although the offender was diagnosed with schizotypal personality disorder, narcissistic personality disorder and borderline personality disorder, his Honour held that he was neither deprived nor impaired of full capacity at the relevant time.

  • R v Storie [2018] QSC 298 (30 November 2018) – Queensland Supreme Court
    Damaging property’ – ‘Physical violence and harm’ – ‘Protection orders

    Charges: Murder x 1; Burglary by breaking, in the night, whilst armed x 1; Entering premises, doing wilful damage x 1

    Facts: In the early hours of the morning, the offender drove to his ex-partner’s house. No one was home. He broke into the garage, slashed the front tyres of her car, stole a child’s bicycle and returned home. He later returned, entered her house and sliced her throat with a knife.

    Issues: Sentencing

    Decision and Reasoning: The offender was found guilty of ‘premeditated conduct of the very worst kind’ by taking the life of his former partner in a ‘brutal’ manner in circumstances where he was subject to a protection order ([4]). Eleven years prior he had been convicted of breaching a protection order that the victim had taken out. Premeditation was evidenced by numerous statements to the effect that his ex-partner would be ‘a dead woman’ and that the protection order would not stop him. The offender took active steps to dispose of the evidence of the murder, however later made admissions of his involvement in the victim’s death. Boddice J found that, by pleading guilty, he cooperated with the administration of justice because he saved the community the cost of a lengthy trial. He also facilitated the administration of justice by making extensive admissions to police after the discovery of the deceased’s body, which preserved police resources. He was convicted and sentenced to six years’ imprisonment for entering the premises and doing wilful damage, and to 10 years’ imprisonment for burglary by breaking, in the night, whilst armed.

  • R v Ney [2011] QSC Indictment No 597 of 2008 (8 March 2011) sentence - unreported – Queensland Supreme Court
    Diminished responsibility’ – ‘Expert evidence - psychiatrist - psychologist’ – ‘Manslaughter’ – ‘Post traumatic stress disorder

    Charge: Manslaughter

    Proceeding: Sentencing

    Facts: Ney killed her partner, Haynes, striking him in the head and face with an axe. Haynes was hospitalised and died two days later. Initially charged with murder she pleaded guilty to manslaughter. She was sentenced to nine years imprisonment - eligible for release on parole after serving three years. In sentencing Ney, Dick AJ referred to the reports of a psychologist (Dr Sundin) and a psychiatrist (Associate Professor Carolyn Quadrio):

    ‘As you know, I have been given a number of psychiatric and psychological reports. The prosecution tendered the report of Dr Josephine Sundin. Dr Sundin has come to the opinion that as a result of the multiple traumas you have suffered in your life since your young teenage years and the series of violent intimate relationships that you have endured since that time, and the fact that you have suffered physical, sexual and psychological abuse over a long period of time, you suffer chronic post-traumatic stress disorder and borderline personality disorder.

    The connection between those two matters is explained in her report and in other reports. Associate Professor Carolyn Quadrio, spells it out in her addendum report. She said, "Trauma and abuse have profound effects on mental processes and on psycho-social and psychological functions so that a disorganisation of personality occurs and leads to lasting disorder. Similarly, substance abuse which commonly develops in the context of adolescent trauma, also has a profound effect on mental and psycho-social processes and secondly, incapacitates the person so they are rendered highly vulnerable to further traumas and abuse thus creating a vicious cycle…

    I have been assisted by the addendum report of Associate Professor Quadrio where she says that, "At times, however, she returned when she may have been able to escape because she experienced him as someone who loved her. This is explained as traumatic attachment relationship. Further it is also the case that in chronic or complex post-traumatic stress disorder there is both paralysis of initiative whereby the person is greatly compromised in her capacity to take action and there are alterations in perception so they have difficulty perceiving themselves accurately or others and thus in perceiving the true nature of the relationship with an abuser."

    Later on she says, "If this psycho physiological disturbance is sustained over time and especially when it occurs in the crucial development years of childhood and adolescence, it eventually leads to disorganisation of personality, sustained hyper vigilance and hyper reactivity become chronic and irreversible."

    Further on, "The inability to leave can be explained, partly, as a manifestation of personality disturbance but it is also the case that in domestic violence a woman feels trapped and unable to leave and knows it is not safe to leave so she remains captive and experiences more abuse and trauma and undergoes more personality disorganisation."

    I have also noted from the report of Associate Professor Quadrio that those matters which are described as chronic or complex PTSD personality disorder with poly substance dependence or abuse, she says, "These disturbances reflected a lifetime of trauma, a highly chaotic and unsustainable lifestyle and both past and present intimate partner violence."
  • R v Falls, Coupe, Cummings-Creed & Hoare [2010] QSC (3 June 2010) summing up - unreported – Queensland Supreme Court
    Abused person’ – ‘Battered woman syndrome’ – ‘Expert evidence - psychiatrist’ – ‘Murder’ – ‘Self defence

    Charge: Murder.

    Result: Acquitted.

    Facts: In May 2006, the accused, Susan Falls, shot and killed her husband, Rodney Falls. Throughout their relationship, Susan Falls was subject to significant physical and emotional abuse. This included: numerous incidents of physical violence, beating one of the family’s dogs to death; numerous incidents of sexual violence and rape; threatening to kill her or harm the couple’s children. Susan Falls drugged the deceased and shot him twice as he dozed in a chair. She was charged with murder. Both self-defence, ss 271(2), 273 Criminal Code 1899 (Qld) and the defence of killing for preservation in an abusive domestic relationship, s 304B Criminal Code 1899 (Qld) were raised at trial. Two forensic psychiatrists (Dr Lawrence and Associate Professor Quadrio) were called by the defence and gave evidence about the history of violence and its effect on the offender. (Note Coupe, Cumming-Creed and Hoare were charged with being accessories to the murder but were also acquitted).

    Applegarth J, summing up (3 June 2010):

    ‘Evidence of what, for want of a better expression, is referred to as "battered woman syndrome", is admitted, not because battered woman syndrome is a disorder, or because battered woman syndrome is a defence. Battered woman syndrome isn't a defence. The fact that someone is battered for years doesn't automatically give them a defence. Whether they have a defence depends on whether they acted as they did in circumstances that the law provides is a defence.

    However, what is conveniently, and perhaps somewhat inaccurately, described as "battered woman syndrome" is relevant to legal defences.

    It doesn't have to be a psychological disorder to be relevant to behaviour and to the defences in this case. It's relevant to the mental state of Ms Falls, and whether she exhibited hyperarousal and other symptoms that are recognised in such cases.

    I won't repeat it. You will remember the evidence of Dr Lawrence and Associate Professor Quadrio about the mental state of persons who are subjected to prolonged abuse, their vigilance and so on. Associate Professor Quadrio summed it up pretty simply in saying they're “revved up all the time”.

    The behaviour of people, be they soldiers or civilians who are subjected to trauma, has been the subject of organised study. It's not every form of behaviour that is or needs to be the subject of expert evidence. Someone's grief reaction when a loved one dies, or the anxiety that most of us feel when we talk in public, or the anxiety that most people experience when they sit exams, these are things that are familiar to us because we might remember sitting exams or we've had children who sit exams. So we don't need expert evidence to tell us about how people become anxious in certain circumstances, when they're going for an exam or a driver's licence or something of that kind, that we all know about or most of us know about. But because battered wife syndrome is relatively rare it is a legitimate matter for expert evidence and it is the proper subject for expert evidence because, without the assistance of expert evidence, ordinary people who don't know or study these things, might find the behaviour perplexing, counterintuitive or unreasonable.

    It might seem odd why there would be a bond between the abuser and the abused. Why there might be, what Dr Lawrence referred to as, an ambivalent relationship, or what Associate Professor Quadrio referred to as a traumatic attachment. The behaviour of someone with a vulnerability because of past abuse who remains with their abuser.

    Dr Lawrence and Associate Professor Quadrio, who are experts in their field, were able to address what was described as the "cycle of violence". How, over time the situation worsens. How often it's the case that the abuser isolates the partner. The common symptoms of a variation in mental state. The loss of self-esteem. The belief that the person who is being abused is somehow at fault. The shame they feel when they return, contrary to the advice of police. The belief that in those circumstances the police won't help them again. The reasons they don't leave: children; lack of support; lack of financial support; threats to the woman; threats to people they love; threats over the custody of children.

    And apart from giving you evidence about those characteristics and observed behaviours, Dr Lawrence and Associate Professor Quadrio gave you evidence about the fact that victims of prolonged abuse can have quite correct perceptions as to the risks that are posed to them if they try to leave….

    Battered wife syndrome isn't a psychological disorder. As Dr Lawrence and Dr Quadrio explained it's a pattern of behaviours. It's been the subject of research, and it's a field of study by practitioners and scholars whose research and reports are open to contest, as you'd expect scientific inquiry and research to be in a proper field of scientific study.

    Dr Quadrio described how there is what she described as a "learned helplessness". How abused women are afraid to leave because they correctly assess that they're at risk. That there may have been past attempts to leave. She referred to the triggers that occur for a violent response. That the level of risk is perceived to increase or has in fact increased. Often there are threats to harm children, and the threats become specific in terms of how, when and where they will be carried out.