One of the sad aspects of life on the Gold Coast is the prevalence of sexual assault, including alcohol & drug assisted sexual assault (ADASA). In fact, at a recent conference held at Jupiter’s Casino on the Gold Coast it was noted that we have the highest rate of ADASA in the country. It is also regrettable that law enforcement agencies have grappled to respond adequately to the problem of drink spiking. However, the Federal Government recently commissioned consultants for a national project on this growing problem and surveys have been published by both the Queensland University of Technology and Queensland Liquor Licencing as to incidences and reporting rates.

For over 13 years, MBA Lawyers has supported the Gold Coast Sexual Assault Support Service - www.stopsexualviolence.com

This summary covers 4 topic areas:-
1. Criminal Law;
2. Regulatory Law;
3. Criminal Compensation; and
4. Civil Law.

Criminal Law

Definition of Rape (which was extended 3 years ago) –
(a) Carnal knowledge without the other person’s consent,
(b) Penetration of the vulva, vagina or anus of the other person to any extent with a thing or part of the person’s body without the other person’s consent, or
(c) Penetration of the mouth of the other person to any extent with the person’s penis without the other person’s consent.

Consent is defined as meaning consent freely and voluntarily given by a person with the cognitive capacity to give the consent.
Naturally, a person’s consent is not freely given if it is obtained by force, false representation or mistaken belief.

The Court has also held that a person who is insensible due to alcohol is incapable of giving consent. Similarly, if the person is asleep, then they are incapable of deciding whether to consent or not.

Two different tests –
1. Beyond reasonable doubt (in criminal cases), and
2. Balance of probabilities – greater than 50% chance (civil cases).

Regulatory Law
Operators of Clubs and Restaurants are subject to Liquor Licensing requirements.

Specific criteria was endorsed last year by Liquor Licensing, following considerable lobbying to the Government (including submission by the Gold Coast Sexual Assault Support Service). Their criteria is now promoted to the Clubs and Restaurants on the Gold Coast as an expected code of practice.

More information on this point can be found at www.liquor.qld.gov.au.

Strictly, breaches would lead to fines and possible revocation of Liquor License for the operators of the Club.

Criminal Compensation
A person who has been the subject of a criminal offence, assault or a sexual assault may be entitled to apply for victims compensation.

If the offence occurred after 1995, the application for criminal compensation is governed by the Criminal Offence Victims Act of 1995 (COVA for short).

The COVA prescribes the approach to be taken and also sets out certain limitations on the amount that can be awarded for compensation.

If the offender is convicted, the victim can seek an Order for criminal compensation against the offender.

In the event that the offender does not have the means to pay the compensation Order, the victim can apply to the State Government for an ex-gratia payment.

Similarly, if the offender is unidentified or cannot be located after a period of time, the victim can apply directly to the Statement Government for an ex-gratia payment.

There are significant practical limitations in this system, in that it does not allow proper consideration of the impact of the assault on the victim. Generally speaking, it is a means of providing some monetary assistance, but for a value that is usually well-short of the true measure of the impact on the victim.

This information is meant as a summary only. If you would like more detailed information, please contact our Mitchell Clark. Just as an illustration, the compensation amount is calculated by reference to a Compensation Table which lists a variety of injury types and sets a percentage maximum that can be awarded.

The maximum payment is currently $75,000.00.

If the victim is claiming for mental or nervous shock, the upper limit allowable is 35% of the maximum. That is, 35% of $75,000.00, which is $25,500.00.

Civil Law
In this area, the law is clearly lagging behind the social situation.

Applying general legal principals, there is scope for the victim to make a civil claim for compensation against the operator of a club, where the victim was drugged within and as a result of activities that took place at the club.

How does this work?
Firstly, the victim has a clear legal entitlement to make a civil claim for compensation against the offender. This is a right that has long been recognised, and is based on compensation for assault.

In a civil claim, there is a much wider scope in relation to the assessment of the amount of compensation. The Court is permitted to take into account a wide range of factors which enable it to more closely provide compensation that matches the real impact on the victim’s life. Account can be made, for example, of loss of wages (if the victim was away from work for a period of time) and longer-term implications (such as the cost of future counselling, possible loss of wages, etc).

In this way, the amount of compensation from a civil claim can be considerably higher than the amount ordered under a criminal compensation claim. Where the victim has suffered a severe psychological reaction, the amount of compensation could be $300,000.00 whereas that same person under the criminal compensation scheme might be awarded $30,000.00.

The practical difficulty with the civil compensation claim is that it depends on recovering money from the offender.

If the offender cannot pay, then the victim is left to apply to the State Government for an ex-gratia payment. In such an application, the State Government does not take account of the amount of compensation ordered by the Court!

What about the victim making a civil claim against the operator of the Club?

Presently, this is unchartered territory. We are not aware of any Australian legal case specifically dealing with this point.

Generally, the operator of a Club owes a legal duty of care to take reasonable steps for the safety of the patrons of the Club.

How far does that duty extend?
There are some situations where the operator would (in our view) be clearly held responsible. For example, if there was evidence that the operator of the club was directly aware that one of his staff was administering a drug, within the club and took no preventative steps.

At the same time, there is no strict liability. That is, having evidence that the drug was administered on club premises not, on its own, prove negligence by the operator of the club.

The test is whether the operator has acted reasonably for the safety of patrons.

Theoretically, the owners responsibility extends to the selection and monitoring of staff however, there are practical difficulties with gathering sufficient evidence to prove that the operator of the club was at fault.

The operator’s duty extends to take in reasonable care to protect a patron from the criminal behaviour of another, and that could be the criminal behaviour of another patron.

As an example, there was a High Court case in 1998 where a female patron to a hotel had been accosted by young men in the parking area. She successfully sued the operator of the hotel. The Court said that in that case, it was reasonably foreseeable that the harassment of a single female patron leaving the hotel at closing time would occur. The Court said that the hotel operator should have provided security guards who would have deterred the young men from behaving in the way that they did. However, the key point from the Court decision is that the hotel operator will not be liable in respect to the acts of patrons unless the operator knew or ought to have known about some fact that required intervention in order to protect other patrons.

Interestingly, there was a case in NSW a couple of years ago involving responsibility of the host of a party where one of the guests at the party had been raped by another guest. The Court decided that the host had a legal duty of care to take reasonable care for the safety of the guests at the party, but there are certain limitations with that duty. Essentially, the duty will only arise where the host should have foreseen the danger and had a capacity to prevent it.

In the NSW case, the rape took place in a bathroom at the house where the party was going on. Although there was some debate about the facts, the Judge decided that the host had opened the door to the bathroom and in that way, should have known of the danger and then had a chance to prevent it.

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