PARTIES: CARLA MARIA LEE
THE NORTHERN TERRITORY OF AUSTRALIA
DANIEL KENNETH DANKS
TITLE OF COURT: LOCAL COURT
JURISDICTION: Crimes Victims Assistance
FILE NO(s): 20207354 & 20207357
DELIVERED ON: 4 July 2003
DELIVERED AT: Darwin
HEARING DATE(s): 7 May 2003
DECISION OF: Mr Wallace
Crimes Victims Assistance – Evidence –
Causation of injury – Crimes (Victims Assistance Act) s 5 –
Offence not reported – failure of victim to assist Police -
Crimes (Victims Assistance Act) s 12
Plaintiff: J. Truman
Defendant: J. Johnson
Judgment category classification: B
Judgment ID number:  NTMC 034
Number of paragraphs: 29
IN THE LOCAL COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
CARLA MARIA LEE
THE NORTHERN TERRITORY OF AUSTRALIA
DANIEL KENNETH DANKS
REASONS FOR DECISION
(Delivered 4 July 2003)
Mr Wallace SM:
1. These are two applications for assistance pursuant to s 8 of the Crimes (Victims Assistance) Act (“The Act”). The Applicant Carla Maria Lee (“Ms Lee”) was at both relevant times working as cashier at the Jingili Food Store, a small suburban supermarket. The first matter, file 20207357, relates to an incident on 18 August 1999. The Application in that matter was filed, attached to an application for extension of time, on 9 May 2002, almost two years late were the provision of s 5 (1) requiring applications to be made within 12 months to be heeded, as they often are not. On 7 August 2002 Ms Monaghan, Judicial Registrar, extended the time for filing the Applications. Ms Monaghan ordered at the same time that service upon the alleged offender Daniel Danks (“Mr Danks” ) named as second respondent, be dispensed with. It was, by 7 August 2002, evident that Mr Danks was not going to be easily found. There were reasons to infer that he had left the Territory.
2. It is also the case the Mr Danks was not found guilty of any charge arising from the incident. Indeed on 13 July 2000, he was found not guilty of two charges: Going Armed in Public, and Armed with an Offensive Weapon. That being so, he had little to fear from the outcome of this Application. On the other hand, the Application having been brought so late, the Northern Territory of Australia, (“The Territory” ) named as the first respondent, had, I should think, little opportunity to explore the basis of Mr Danks’s acquittal. There was, I presume, no transcript of the hearing, and the tape recordings of proceedings are routinely erased (the tapes are re-used) 12 months after the hearing is completed. So the Territory had no practical access to Mr Danks and no way of accessing his evidence (if he gave any) at the hearing, nor of perusing the evidence of Ms Lee, if she gave any, which it is safe to assume she did. No affidavit material was filed on behalf of the Territory in relation to the application to extend time, and I have no way of knowing whether that application was at all strenuously opposed. Leave having been granted, I am left to decide the Application on the material before me. The material is, in the circumstances, very one-sided; practically uncontradicted. Even so, there are strangenesses about the material which make it difficult to decide, even on the balance of probabilities, what offence or offences occurred on 18 August 1999: what Mr Danks did. Similarly, the effluxion of time and the complexities of human life make it difficult to discern what the effects may have been on Ms Lee.
3. The second matter, 20207354, relates to an incident on 11 February 2000. Again, process was not filed until, 9 May 2002, about 16 months out of time. The Application (filed with an application for an extension of time) mistakenly dated that incident at 4 February 2000: an interlocutory amendment fixed that well before the hearing commenced before me. Mr Danks, as has been mentioned, could not be found to be served. Again, in respect of this incident. Mr Danks had little to fear from the outcome of these proceedings because he had not been charged with any offence arising out of it, let alone been found guilty. Again, the material is one-sided, and again there are strange aspects to that material.
4. Perhaps before going to the evidence in the matters I should note that the account of the first, 1999, incident was to me, a vaguely familiar story. I may have heard it on the course of a bail application by Mr Danks, but my strong suspicion is that I was the magistrate who presided over the hearing at which Mr Danks was found not guilty. If so, I am quite unable to remember the reasoning that led to his acquittal. Nor can I remember Mr Danks’s evidence at all, if he gave evidence. I can see no reason to disqualify myself from deciding these applications, and neither of the parties which appeared has asked me to.
THE 1999 INCIDENT
5. Here is Ms Lee’s account of this incident given in a statutory declaration – a police statement – declared on the same day, 18 August 1999: I have left the spelling and punctuation as it was:
“On Wednesday 18 August 1999 I was working at the Jingili Supermarket, behind the counter. I started work at 2pm and I usually work through until 9 pm. This is a family business.
At about 4:12pm a kid and a man walked into the shop together.
The kid had sandy blonde hair which was short, he was about 13 years old, white, I don’t know what he was wearing. He is a regular at our shop and I would recognise him again. The man had lots of earrings in his left ear and a little pony tail a the back of his head, he was a tanned white bloke. The man was wearing a dirty shirt and dark jeans.
As they came into the shop the big bloke had a big knife. It was about 30 cm long and it. was quite rusty, the kid was holding something else in his hand, I’m not too sure what.
The man showed me the knife by holding it up infront of himself. I was sitting down at this time away from the checkout counter closer to where you weigh the fruit and veg.
HS We gonna hold this shop up.
There was a short pause. I just looked at him. I thought he was mucking around as he was a bit drunk and he was with a regular customer. He put the knife down on the table where the checkout was and just the infront of where the lollies are.
HS Just mucking around.
I said something, I don’t recall what.
HS It’s not real anyway, we found it.
The man continued to look through his bag.
HS I’m gonna use my eftpos card now and it better work. If it doesn’t work then your in trouble.
When he said this the knife was on the table just beside him but his hands were in his bag, or feeling his pants. He looked at me and I could see in his eyes he was serious. I felt a bit suss then, and the kid looked scared.
IS You’d better put that knife away, if my brother see’s that on the camera he is not going to be very happy and he is probably gonna throw you out of the shop.
The kid said, oh don’t be stupid, and then took the knife outside
IS You have to spend a limit of $5.00
He bought a 2 litre milk, a rollo chocolate, a packet of tally ho papers and a freddo frog. He used his eftpos and it declined his transaction. He had already eaten the freddo frog and he was asking whether or not he could book it down. I said no and he kept on mumbling to himself in the shop.
Police arrived at this point and he saw them talking to the kid and he ran outside.
I did not give permission to anyone to threaten me with a knife. I became scared when he looked me in the eye and made a threat. Especially because the kid got scared too.”
6. The statutory declaration formed annexure A to an affidavit sworn by Ms Lee on 14 January 2003 and tendered in these proceedings. In the body of the affidavit itself, Ms Lee tells the same story from her 2003 viewpoint:
“3. This application relates to an incident that occurred at approximately 4pm on 18 August 1999. At that time I was employed as a shop assistant at the Jingili Food Store at Jingili.
4. On 18 August 1999 I was working at the front counter of the store when a boy and a man came into the shop together. The boy was about 13 years old and was Caucasian. He was a regular at the shop and was someone that I recognised. The man was someone I had never seen before and had lots of earrings in his left ear and a little ponytail at the back of his head. He was also Caucasian.
5. As they came into the shop I saw that the man had a 30cm long and it was quite rusty. The man showed me the knife by holding it up infront of himself.
6. At this point in time I was sitting down away from the checkout and closer to where the fruit and vegetable section was. The man said to me “we’re gonna hold this shop up”.
7. I just looked at the man and at first I thought that they were mucking around because he appeared to be under the influence of something and was with one of our regular customers who I could identify.
8. The man then put the knife down on the table where the checkout was and said ‘just mucking around”. I said something back to him but I don’t recall what it was. The man then said to me “it’s not real anyway, we found it”.
9. Despite what the man had said to me about just mucking around I was still scared. Although the knife was clearly rusty and quite old I was scared that he may use it upon me. The man then began to look through his bag. At this point in time he said “I’m gonna use my eftpos card now and it better work. If it doesn’t work then you’re in trouble”. When he said this the knife was on the table beside him. He looked right at me and seemed very serious this time. I was quite scared but in an attempt to get rid of him I said “you better put that knife away, if my brother sees that on the camera he is not going to be very happy and he is probably going to throw you out of the shop”. I was lying at this point in time but I didn’t know what else to do. I was scared that the man might use the knife on me. His eyes were very scary to me and at this point in time the boy also seemed to be quite scared of what was going to happen next.
10. The young boy then said “oh, don’t be stupid”. He then grabbed the knife and took it outside. Shortly thereafter the police arrived.
11. During this episode I seriously thought that my life was at risk. I was so relieved when the police arrived that I cried.
7. It seems to me that 2003 version (which has passed through the distorting medium of memory) describes a somewhat more definitely frightening experience than the 1999 statutory declaration version (which in its composition would have passed through the distorting medium of the police officer who drafted it). But clearly the affidavit has drawn upon the statutory declaration for much of its content and wording, and the difference is not great.
8. There is a third account of the matter, part of Ex 1, a police document in the form of an “NT Case Summary Report”. The author, who I cannot identify from the document, wrote (on 18/8/99):
“DANKS AND ACCOMPLICE(GOMMERS) ENTERED JINGILI SUPERMARKET, DANKS WAS CARRYING LARGE KNIFE IN PLAIN VIEW,PLACED KNIFE ON COUNTER AND HAD CONVERSATION WITH VICTIM RE HOLDING UP THE SUPERMARKET, ACCOMPL THEN GRABBED KNIFE AND LEFT VIA FRONT DOOR.
POLICE ARRIVED AND SPOKE TO ACCOMPL OUTSIDE WHILE DANKS WAS STILL INSIDE, DANKS SAW POLICE TALKING TO ACCOMPL AND RAN OUTSIDE WHERE HE WAS APPREHENDED. DANKS HAD 2 OUTSTANDING WOC, ARRESTED AND CONVEYED TO PMC. MEMBERS BELIEVE OFFENCES CONSTITUTE ATTEMPT ROBBERY BUT CIB DO NOT THEREFORE DANKS ONLY CHARGED WITH OFFENSIVE WEAPON.”
9. “WOC:” is, I think, a warrant of commitment. “PMC” is the Peter McAulay Centre otherwise known as Berrimah Police Complex. It is not evident how the CIB came to their opinion – perhaps from an interview with Mr Danks. (I cannot remember one at the hearing, if I was there.)
10. Such then, is the evidence of what Mr Danks did. His actions were ambiguous, his words indefinite of intention. Ms Lee in her statutory declaration gives an impression that, at the time of the incident she did not know whether she should be scared on Mr Danks or not. His acquittal on the charge that he “did go armed in public, namely armed with a knife, without lawful occasion and in such a manner as to cause fear to a person of reasonable firmness and courage”, is therefore not surprising, even before hearing evidence from Mr Danks, or listening to the recording of his interview, assuming those items to serve his interest. At this remove I cannot guess at the reason for his acquittal on the charge of carrying an offensive weapon. Perhaps there was some unexpected deficit in the Prosecution case viva voce. Perhaps Mr Danks came up with an excuse.
11. On the evidence that is before me I am satisfied, on the balance of probabilities, that Mr Danks did commit the offence of being Armed with an Offensive Weapon, namely a knife, and I cannot say that he had a satisfactory reason for being armed. I am not, however, satisfied that he has committed any other offence; of assault, or of attempted robbery, or of Going Armed in Public. There is simply too much doubt about his intention (or foresight) in relation to any species of assault and in respect of the Going Armed charge, I cannot find it more likely than not that a person of reasonable firmness and courage would have been caused fear by Mr Danks’s bizarre acts. Such a person would, in my view, have been likely to take the view that Mr Danks was probably acting the fool. The most such a person is likely to have felt is a mild anxiety, lest Danks be in earnest, unlikely as that would have seemed.
THE 2000 INCIDIENT
12. In her affidavit sworn 14 January 2003, Ms Lee describes the incident as follows:
“16. On this occasion I was again working as cashier at the Jingili Food Store at Jingili.
17. I saw the Second Respondent come to the front door of the food store with what I believed to be a pistol. He yelled from the closed front door to me and started calling me names and threatened to hurt me if I continued to press charges in relation to the incident that occurred on or about 18 August 1999.
18. At this point in time I became extremely upset. I was scared of the words and the threats that the Second Respondent was making towards me but also because I believed I had seen a pistol in his hand.
19. I telephoned the police immediately at the time of this incident and they arrived and found the Second Respondent on the premises. They did not find any weapons upon him though and therefore there were no charges laid in relation to the incident. I was informed by the police and verily believe that they spoke to the offender and warned him that if he continued to approach the shop at Jingili, or myself, that he would be charged with trespass and arrested.”
13. A more contemporary account, and the only other one before me is the police record, another NT Case Summary Report, made on 11/2/00, and written by I know not whom. It too forms part of Ex 1. In this instance I reproduce two parts of the form.
“Allegation / Incident Description:
COMPL REPORTS A MALE CAUCASIAN IN A SINGLET - CARRYING A KNIFE AND A GUN - COMPL IS AT THE SUPERMARKET WITH CHILDREN – HE’S COME IN THREATENING HER COMPL’S NAME IS CARLA. [entered by H5B] L01 search completed at 11/02/00 21:02:51 [entered by H5B)
IRC Further Information:
MEMBERS ATTENDED.DANIEL DANKS APPREHENDED ON O/S WARRANT OF APPREHENSION. APPEARS THAT COMPLAINANT HAS OVER-REACTED UPON SEEING DANKS WHO HAD ATTENDED AT THE SHOP APPROX. 1 MONTH AGO AND HAD THREATENED STAFF MEMBERS WITH A KNIFE. COMPLAINANT OBSERVED DANKS THROUGH THE LOCKED DOOR TO THE SHOP WHICH HAS SECURITY MESH AND STICKERS ALL OVER THE DOOR. COMPLAINANT’S VIEW OF DANKS WAS PARTIALLY OBSCURED. WHEN MEMBERS ATTENDED DANKS HAD HIS WALLET, A SET OF KEYS WITH A MINI-MAG LIGHT, AND MOBILE PHONE IN HIS RIGHT HAND WHICH AT A QUICK GLANCE COULD APPEAR THREATENING. DESPITE AN EXTENSIVE SEARCH, NO WEAPONS LOCATED WEREON DANKS, IN HIS VEHICLE, OR IN THE SURROUNDING AREA. ATTENDING MEMBERS SATISFIED THAT DANKS WAS NOT ARMED AT THE TIME OF THIS INCIDENT.
APPEARS AT THIS TIME NIL OFFENCE AS REPORTED. TRESPASS ISSUED ON DANKS NOT TO RETURN TO JINGILI SHOPS.
ALL IN ORDER.”
14. I note that there is nothing in that police report relating to Ms Lee’s statement in her affidavit that,
“...He yelled from the closed door to me and started calling me names and threatened to hurt me if I continued to press charges in relation to [ the 1999 incident ]... ”
I cannot believe that such an allegation, if made at the time, would not have been recorded and followed up by the police who attended. I also find it difficult to believe that, if words to that effect had been uttered by Mr Danks on that day, Ms Lee could have failed to report them to the police. I am not persuaded that Mr Danks said anything of the sort. If he did, it is more likely than not that Ms Lee did not inform the police of what he had said and in my opinion her failure to do that would fall within the meaning of the words in s 12 (b) or (c) the Act, which provides that:
“The Court shall not issue an assistance certificate –
(b) where the commission of the offence was not reported to a member of the Police Force within a reasonable time after the commission of the offence, unless it is satisfied that circumstances existed which prevented the reporting of the commission of the offence;
(c) where an applicant or victim has failed to assist the Police Force in the investigation or prosecution of the offence.”
15. In my judgement it is most likely that Ms Lee told the police no more than that Mr Danks was there with a gun. There was no gun, and that being so, what she told police did not disclose any offence. If Mr Danks had spoken such words ( of which I am not persuaded ), then by failing to inform the police of them Ms Lee has, in my view, either not reported the commission of the offence (which might be assault or some attempt to interfere with the course of justice) or failed to assist the police in the investigation.
16. Being not satisfied that the words were spoken, I am of the view that the author of the NT Case Summary Report was correct: there was no offence. If the words were spoken, s 12 prescribes that no assistance certificate issue in this case. I suppose it is also remotely possible that some words were spoken by Mr Danks, suggesting that the charges against him were baseless (he was, after all, acquitted) in a not unlawful way; and that Ms Lee misunderstood the tenor of those words as she had mistaken Mr Danks’s mobile phone, or mini-maglite torch, for a gun. In that scenario, Mr Danks would have committed no offence.
17. I should add that I set no store by the phrase” he’s come in threatening her” in the part of the Report headed “Allegation / Incident Description “ Whoever wrote that would be reporting what Ms Lee has said when she telephoned for police assistance. There is no way I can conclude that her report of threatening related to 2000 rather that 1999. Mr Danks did not enter the shop in the 2000 incident. I conclude that the receptionist has taken down an account than given by Ms Lee of the 1999 incident (as has the author of the section headed “IRC Further Information”). The claim in matter 20207354 must therefore be dismissed.
18. The two incidents combined to have serious consequential effects upon Ms Lee. In her affidavit of 14 January 2003 she writes:
“20. After this second incident I was absolutely terrified of the Second Respondent. I basically began to close in on myself in an attempt to try and block out what had happened. Many people who cared for me tried to get me to go to counselling but I thought that people that went to counselling were crazy and I wasn’t about to admit that I needed help.
21. Towards the end of the year 2000 things became extremely difficult for me and I struggled to keep control of my emotions. I would often cry for no reason and I found it very difficult to keep relationships. On 2 November 2000 my baby son was born. This gave me a great distraction as I was able to focus on my son rather than myself.
22. This avoidance was working very well until about March 2002 when I was followed in my vehicle by a person and I called the police. The incident of the car following me brought back the offences regarding the Second Respondent. I realised I wasn’t coping and I immediately sought counselling with a lady by the name of Martina at Centacare in Darwin. I attended two sessions with Martina but felt it wasn’t helping me.
23. After the incidents occurred I took some counselling. This was difficult at first because I found that the counsellors weren’t really giving me any information or assistance on how to get over what had happened to me. I therefore stopped going after a while.
24. Throughout this entire period I have had difficulties sleeping and have been over vigilant. I am also prone to crying for little or no reason. My relationship with my baby son’s father broke down in or about August 2000 because he said I was “too stressed and paranoid”.
25. The only time I sleep well is when I stay at my parents place. Even now, after such a long period after these incidents, I still find myself thinking about them quite often and it makes me very anxious and upset. I try and avoid going out just in case I see someone who looks like the Second Respondent. I am about to move in with my parents again because of my fears when living alone. I will rent my unit out as a result. “
19. In my opinion, if any or all of these consequences can be attributed to the effects of the two incidents, then it does not matter, for the purpose of the remaining claim, No.20207357, that no offence occurred in the 2000 incident. As I understand the term “as a result of that offence” in s 5 (1) of the Act the requisite causal link between the offence on the one hand, and the injury on the other, would be satisfactorily established in a case like this one, where a victim’s later sighting of the offender in an innocent context combines with memories of the offence to cause injury. Similarly, there is no theoretical difficulty in a case like this one where the actions of a third party – the vehicular follower in 2002 - stirs up the memories.
20. Having regard to the brief, ambiguous nature of the 1999 offence, it is nevertheless surprising that, with the addition of the 2000 incident and the 2002 incident (in which there was no suggestion that Mr Danks was involved) Ms Lee’s reactions should be so severe and so prolonged. A suggestion towards solving the puzzle comes from the report of Dr Barrie Kenny, Psychiatrist, dated 25 September 2002 and annexed to MS Lee’s affidavit of 14 January 2003. At p3 of that report Dr Kenny notes:
“She did say too that she thought that these incidents brought up bad memories from her past in Timor. She recalls that the Indonesians who came looking for her father on an occasion because they thought that he was a spy. She said that the Indonesian soldier came into the home and threatened her mother with the gun and shot their dog in front them.
She witnessed a person being shot and killed. She recalls that at the age of 6 witnessed a shooting in Deli [sic] and dead bodies after some sort of accident.
She said she had left those memories behind when she came to Australia but they came back after these and she has felt being insecure. (At this juncture she was tearful).”
In the “Opinion” section, later, on p 5 he adds:
“I do note though that she obviously had adverse experience during her early childhood in Timor. But she insists that she put those memories behind her when she came here, so she insists that she didn’t have any psychiatric problems up until the time of these two incidents.
But it’s quite clear that those incidents in Timor are in the background and I think do make their contribution to the development of her reaction to these two incidents.”
21. To the extent that previous traumas may render a victim unusually fragile, an offender must take the victim as he finds her.
22. Dr Kenny also mentions the matter raised in paragraph 24 of Ms Lees’s affidavit, of her partner, the father of her then unborn son, having left her “in or about August 2000 because he said I was too stressed and paranoid.”
23. On p 2 of his report, in an aside in the section of the report headed “The Incidents”, Dr Kenny notes:
“She thinks that she had fallen in [sic] pregnant about the time of the incident with the gun. Incidentally she said her partner left before she had her baby.”
Of that partner, in the section headed “Her Background”, Dr Kenny writes at p 4:
“She said she has been engaged in the past. She has had other relationships but she was in her last relationship for 3 and a half to 4 years. He is 42, a chef. It was a good relationship and they get on comfortably enough now and there remains a possibility that they might get back together if she can master her fears.
They have a son aged 22 months with whom she gets on well. She doesn’t have a partner at present. She would like to have someone there.”
24. And in the “Opinion” section, Dr Kenny again mentions the man at p6:
“She believed too that her ex-partner left because he couldn’t cope with the limitations on her life and her high level of anxiety after the second of the incidents”.
25. Ms Lee may well believe that, but I must say I am not persuaded. Human relations are complex things: the parties to a relation – and outsiders for that matter – are prone to seize upon a single, simple reason on excuse to explain the occurrence of events that more realistically have been brought on by a host of factors. A bald statement of events about Ms Lee’s partner leaving her is that, after being together for 3 or 4 years, he left her after she fell pregnant for the first time. I have no evidence from the man as to his reason for breaking off with her then. He may have done so mainly because of her anxieties or moodiness or timidity, but I am not persuaded that it is more likely than not that that was the reason, whatever he may have told Ms Lee.
26. In turn, the departure of Ms Lee’s partner, followed by the birth of her son, provide two events which could be expected radically to affect the emotional state of any woman. Thus when Ms Lee writes in paragraph 21 of her affidavit: “Towards then end of the year 2000 things became extremely difficult go for me and I struggled to keep control of my emotions...” This is hardly surprising coming from a pregnant woman whose partner has left her. Nor is it surprising that, as she goes on to say in the same paragraph, the birth of her son steadied her and gave her life a new focus. One would expect the birth to change things, for better or worse, quite a lot. In her case it seems that it changed them for the better.
27. On all the material before me I am satisfied that, as a result of the 1999 incident (abetted by the 2000 incident and the 2002 incident) Ms Lee has suffered mental distress and consequent loss of amenities of life. Whether Dr Kenny’s diagnosis of post traumatic stress disorder is the correct one does not really concern me. I am not satisfied that she suffered much at all immediately after the 1999 incident, but I am satisfied that she suffered acutely after the 2000 incident. I am not satisfied that her distress attributable to Mr Danks’s actions lasted very long at that time – it seems to me more likely than not that the strain of a collapsing relationship with her partner and the anxieties of being pregnant in that situation are better explanation of her problems in most of 2000. By her account the period after her son’s birth to March 2002 was not too bad. The 2002 incident renewed the acute suffering which continued until January 2003 at least. Dr Kenny’s prognosis is fairly optimistic, compared with those in similar cases. At p 8 of his report he writes:
“I think with the passage of time there will be progressive improvement in her symptoms - especially if and when she returns to work as her son gets little older - and she seemed to be motivated so to do. But I suspect that she will be left always a little more anxious, less secure in her environment that she had been otherwise. But I suspect that most of the symptoms of Post Traumatic Stress Disorder per se will probably gradually and progressively improve and she will not be left with significant long-term psychiatric impairment.”
28. Overall, I asses the amount of assistance in respect of pain and suffering, and mental distress, and loss of amenities of life, at $ 9,000. I am persuaded that Ms Lee will seek professional assistance as recommended by Dr Kenny, and I allow a further amount of assistance of $1,500 (taking the lower end of the range of fees Dr Kenny suggests) for that purpose. It may be that the psychologist or psychiatrist who treats Ms Lee may persuade her to try a course of medication, but on the material before me I doubt it, so I make no addition in respect of its cost.
29. Order that an assistance certificate issue certifying that the Territory shall pay the sum of $10,500 by way of assistance for the injury suffered by the applicant.
Dated this 4th day of July 2003.