DEANNA SENICA v DISTRICT COURT OF NSW & ANOR [1999] NSWCA 428

New South Wales Court of Appeal CITATION : DEANNA SENICA v DISTRICT COURT OF NSW & ANOR [1999] NSWCA 428 FILE NUMBER(S) : CA 40597/99 HEARING DATE(S) : 12 November 1999 JUDGMENT DATE : 12 November 1999

PARTIES : DEANNA SENICA v DISTRICT COURT OF NEW SOUTH WALES & ANOR JUDGMENT OF : Mason P at 1; Handley JA at 26; Giles JA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6905/98 LOWER COURT JUDICIAL OFFICER : Delaney DCJ

Claimant: G C Jones COUNSEL : 1st Opponent: Submitting 2nd Opponent: C L Lonergan SOLICITORS : Claimant: Deanna Senica Opponent: I V Knight - Crown Solicitor CATCHWORDS : VICTIM'S COMPENSATION - Application for victim's compensation - Claim of sexual abuse leading to post traumatic stress disorder ; ADMINISTRATIVE LAW - Whether errors of law on the face of the record - Whether failure to apply s3(3)(b) of the Victim's Compensation Act 1987 - Whether failure to determine all questions of law pursuant to s77(1) of the District Court Act 1973 ACTS CITED : Victim's Compensation Act 1987 Victim's Compensation Act 1996 DECISION : Summons dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40597/99

MASON P HANDLEY JA GILES JA

Friday 12 November 1999

DEANNA SENICA v DISTRICT COURT OF NEW SOUTH WALES & ANOR JUDGMENT

1 MASON P: For about six months in 1989-1990 the claimant was subjected to repeated acts of sexual abuse by her mother and her mother's then partner Michael Carney. The claimant was thirteen at the time. The abuse and betrayal have left lasting and serious psychiatric scars which continue to impact upon the claimant's health, psyche, employability and general economic circumstances. 2 The claimant confided in her boyfriend in 1991 and through him became aware of the wrongness of conduct which her mother had effectively represented as normal. She reported the matter to the police but no action was taken at that stage. Following further physical abuse she left home. 3 On 23 November 1992 she attended Burwood police station and provided a detailed statement. Mr Carney was arrested soon after. He confessed and was charged with indecently assaulting a child under the age of sixteen years by a person in company. In February 1993 he was committed for sentence on his plea of guilty and he was later sentenced to twelve months imprisonment. The claimant's mother was arrested in Perth in August 1993. She certainly did not plead guilty. It was only after a fourth trial that she was convicted in April 1998 on a charge of indecent assault upon a child under 16 years by a person in authority. She was sentenced to a fixed term of fifteen months imprisonment. 4 On about 28 July 1993 the claimant filed two applications for compensation under the Victims' Compensation Act 1987 (the 1987 Act). The 1987 Act has now been repealed by the Victims' Compensation Act 1996 but the claimant's rights continue to be governed by the 1987 Act (see schedule 3 clause 3 of the Victims Compensation Act 1996). The applications filed in the Tribunal are almost identical in form. Each describes the "act of violence" as occurring at Bankstown between January and July 1989 and describes it in the following terms: "I was indecently assaulted by my mother and her boyfriend, Michael Carney when I was thirteen years old, for a period of approximately six months". 5 Each application describes the injuries and continuing disabilities as "psychological sequelae major depression post-traumatic stress disorder". 6 In each application the only expenses claimed are $820 for psychologists' fees. 7 The difference between the two applications lies in section 7 (court proceedings). In one application the information provided is: "Name(s) of accused: Michael Carney Court/location: Liverpool District Date: 26/8/93 Offence(s): Indecent assault on a child under 16 Current position/result: Sentenced to a fixed term of imprisonment for 12 months".