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Forster, Christine --- "Old Scheme, Old Stories: A Case Note on Chong v Chong" [1999] IndigLawB 92; (1999) 4(25) Indigenous Law Bulletin 13

Old Scheme, Old Stories:
A Case Note on Chong v Chong

Chong v Chong

Queensland Supreme Court


Appeal from District ourt

De Jersey CJ, McMurdo P & Demark J

13 August 1999

by Christine Forster

The case of Chong v Chong[1] is a graphic illustration of the particular difficulties faced by victims of intra-familial abuse in accessing compensation within the Queensland statutory framework. Karen Chong, who was shot twice at point blank range from behind by her male partner, encountered extra hurdles in her claim for compensation because of her continuing relationship with the perpetrator. Moreover, the legal hurdles she faced obscured the impact of colonialism and culture in structuring and complicating her options within the legal process.

The Supreme Court of Queensland’s decision in Chong v Chong is refreshing in its rejection of familiar ideologies about the appropriate role of law in the ‘private’ sphere of the family. The three judges refused to accept Justice Robin’s suggestion in the District Court that the continued cohabitation by Karen Chong with her husband Bruce Chong, after he shot her in brutal circumstances, removed the plaintiff’s right to claim compensation under the Criminal Code 1899 (Qld) (‘the Criminal Code’). However, the final award of $25,000 is disappointingly low in relation to the extent of Karen Chong’s injuries, although entirely in accord with the generally low awards for injury which occurs in a familial context across all the Australian victims compensation schemes.[2] Furthermore, while the Supreme Court judges decided that the Limitation of Actions Act 1974 (Qld)[3] did not prevent an application for compensation, the Attorney General could still refuse to grant an ex gratia[4] payment on the basis that the application was lodged more than six years after the injuries occurred.

Statutory schemes to compensate victims of violent crime have existed in Australian jurisdictions since 1967.[5] Although all other jurisdictions adopted a discretionary model of awarding compensation,[6] Queensland alone utilised a tariff-based model[7] when the schemes were initially introduced.[8] The scheme originally formed part of the Criminal Code and incorporated into its compensation provisions the table of injuries attached to the Workers Compensation Act 1916 (Qld).[9] Nervous shock was identified in the Criminal Code as a separate harm with a prescribed limit of $20,000. The scheme was given separate statutory form in 1996 with the enactment of the Criminal Offence Victims Act. However, for injuries that occurred prior to the passing of the new Act, and such was the case for Karen Chong, the provisions of the Criminal Code continue to apply.

The Facts and Procedural History

Karen Chong received seventy pellet entry wounds on her buttocks, thighs, calves and feet after her husband Bruce Chong fired at her twice with a shotgun. The first shot hit Karen from behind in the right leg causing her to fall down while the second shot hit her in the left leg and buttocks as she lay on the ground. Chong then approached her, pointed the gun at her stomach and said ‘I’ll shoot you again, I’ll blow your guts away’. The shooting was sparked by Karen Chong’s decision to leave the family home. She had stayed away the previous night and on returning to collect money for airfares from a friend encountered Chong a few blocks from their home. She called out to him requesting some of her clothes but when she realised he ‘had a stick or something in his hand’ she tried to run. The incident was part of a cycle of domestic violence that spanned the entire 22-year duration of their relationship. At the time of the shooting, the Chongs had cohabited for fifteen years and had six children together.

Bruce Chong was jailed for six months after a conviction on one count of unlawful wounding in relation to the shootings. After Chong’s release on parole, the two continued to cohabitate until his death in late 1997. In 1998, nearly two years later, Karen Chong filed an application for compensation under s 663B of the Criminal Code.

In the District Court, Justice Robin refused to allow Karen Chong to proceed with her application for compensation on the basis that she had no valid cause of action after the death of Bruce Chong. Despite this initial finding, he proceeded to consider the case on its merits. After assessing her injuries at only $5,000 he noted that in his view the continued cohabitation of the Chongs was a significant factor that might prevent the validity of the award. Justice Robin was the same judge who sentenced Bruce Chong in the criminal court to only six months imprisonment for the shooting. At that time he commented that he was ‘sympathetic to the proposition that you did not intend the serious outcome that happened to your wife when you discharged the shotgun only about 50 feet away from her.’ Karen Chong subsequently appealed to the Supreme Court.

Right of Claimant to File an Application for Compensation after the Death of the Offender

The Criminal Code empowers the District and Supreme Courts to award state-funded compensation to a victim if an offender is convicted. In the first instance, the court makes an order against the offender up to the statutory maximum.[10] Once the initial order has been made, the claimant can apply to the Minister for the approval of the Governor in Council for the payment to be made ex-gratia from the state’s consolidated revenue.[11] Although the District Court held that Karen Chong could not pursue an application for compensation because there was no representative of Bruce Chong’s estate against whom the order could be made, the Supreme Court judges spent little time dismissing this finding.

The judges considered that a more pertinent point for their consideration was the application of the Limitation of Actions Act, which requires legal action to be initiated within six years of all the events necessary to constitute a cause of action having occurred. In this case, a potential cause of action for compensation arose on Bruce Chong’s conviction in February 1991. Karen Chong filed the application in October 1998, some two years after the expiry of the six-year period. However, because no representative of Bruce Chong’s estate pleaded the point, the Supreme Court held the application could proceed. The court did note that if Karen Chong subsequently applied for an ex gratia award pursuant to the making of the order for compensation, the Act could provide the Minister with legitimate grounds on which to refuse to issue the payment.

Continued Cohabitation of the Chongs after the Shootings

Once the preliminary issues were determined, the central issue in the appeal was whether the continued cohabitation of the Chongs after the shooting affected Karen Chong’s right to claim compensation. The Code requires the judge to consider any relevant circumstances, including:

whether the person aggrieved is or was a relative of the convicted person or was at the time of the commission of the offence living with the convicted person as his wife or her husband or as a member of the convicted person’s household.[12]

In reference to this section, the District Court judge concluded that this was an ‘unusual’ case because of the continued cohabitation of the Chongs and that:

there may be a case for rejecting the present application which may be seen as inviting judicial intervention in an inappropriate way between spouses whose relationships continue. If it were appropriate for one to compensate the other, one might expect that it will be worked out between them.

Inherent in this reasoning are several assumptions about the appropriate role of the law in familial contexts. First, the Judge suggests that the sanctity of family privacy makes any legal intervention into that realm inappropriate. As feminist theorists have pointed out, the law has a long history of intervening in and regulating the family but in particular and prescribed ways.[13] While legal actors claim that the law is confined in its scope to the public realm, leaving people free to pursue their own lives in the private realm, it in fact makes numerous assumptions about the social organisation of the family and enforces them in various ways. For example, laws relating to marriage, property, immigration, and social security regimes all maintain and support a nuclear family paradigm by penalising and excluding those who participate in other family forms. Even the very distinction between intervention and non-intervention is artificial. In many instances, non-intervention as surely supports existing familial structures as explicit intervention does.[14]

Secondly, he appears to assume that the relationship between the two parties is based on equality by suggesting that the violence of their relationship should be resolved through mutual negotiation and co-operation.[15] Such a suggestion completely overlooks both the immediate and long-term context in which the shooting occurred. Karen Chong had already spent fifteen years in a situation of ongoing family violence. She was shot from behind, apparently in response to her decision to leave the family home, as she attempted to flee. It is extraordinary to suggest that in these circumstances ‘resolution’ could lie in mutual negotiation.

Justice Robin’s comments, and indeed the very inclusion of the ‘family relationship’ provision in the legislation, imply that the presence of a familial relationship will somehow lessen the compensability of an injury. Such an assumption is contrary to research that illustrates that intra-familial injury often magnifies, rather than reduces, the level of harm suffered by victims. The breach of trust involved in familial abuse and the turning of the home, traditionally a place of sanctity, into a place of harm can cause devastating effects on victims.[16] Furthermore, the aim of such compensatory schemes is surely to provide for the needs of injured persons and not to pass moral judgment on the worthiness of any claimant to receive compensation.

The Supreme Court did not accept Justice Robin’s analysis of the circumstances surrounding the shooting. They firmly concluded that the continued cohabitation of Karen Chong with the offender did not affect her right to a claim for compensation for her ongoing injuries under the provisions of the Criminal Code. The court recognised the inequality between the two partners in the relationship and placed it in the broader context of family violence in our society generally. Importantly, they noted that there is no logical nexus between a continued cohabitation with the offender and a person’s right to compensation for the injuries they suffer.

‘Writing Out’ Karen Chong’s Aboriginality

While the judges of the Supreme Court recognised the power imbalance of violent relationships at no point do they acknowledge Karen Chong’s Aboriginality. Consequently they render this aspect of her identity invisible.[17] Such an approach is completely consistent with the purported objective and neutral approach of our legal system. Yet a deeper analysis reveals that Karen Chong’s Aboriginality is key to understanding the ‘cycle of domestic violence’ to which the judges refer. As Stubbs and Tolmie argue the options of Aboriginal women are significantly limited in the wider community.[18] Historically and currently, those structures which have been established or adapted to support victims of family violence, such as the police, welfare services and the criminal justice system, have repeatedly been the very institutions that have isolated and discriminated against Aboriginal people. It is unrealistic to expect Aboriginal women to view these services and facilities as places of refuge and support when caught in difficult circumstances within their communities. The poverty and extreme economic disadvantage faced by the indigenous population in general further intensifies the particular hurdles faced by Aboriginal women caught in violent relationships. Leaving requires the provision of services and resources which may be either difficult to access or simply not available.

Moreover, the family is a central and crucial institution in indigenous kinship structures. It has functioned historically as a site of resistance against white assimilationist policies by maintaining solidarity rather than fracturing family bonds. Any application of white norms and expectations on Aboriginal women surviving in violent situations risks ignoring the role of family and culture in their lives and the impact of colonialism in structuring their options. The importance of recognising the influence of these factors on a culture struggling to survive in rigid governmental regimes simply cannot be underestimated. These are some of many reasons, not canvassed in the judgments, which might compel Karen Chong to remain within her family and community environment rather than turning to the structures of the wider community for support.

The Award

The Supreme Court found in favour of Karen Chong and raised the provisional award of the District Court judge from $5,000 to $25,000. This consisted of $10,000 for nervous shock and $15,000 for the physical injuries Karen suffered. Although a considerable improvement on the original provisional award, the amount still falls well short of any kind of adequate compensation. Although compensation under the Code is one of solatium, in the sense that the statutory maximum prevents any real attempt to restore the victim to the position previously enjoyed, nevertheless the aim must surely be, as much as possible, to equate the level of harm to the level of award.

Karen continues to carry many of the pellets in her body including in the ‘labia of her perineum’ [sic] She is unable to stand for more than ten minutes because her feet and legs become sore such that she is significantly hindered in her daily functioning. This situation is likely to continue indefinitely. Initially diagnosed with post-traumatic stress syndrome she has now ‘settled’ into a Generalised Anxiety Disorder which leaves her feeling detached from others, unable to feel loved, plagued with a general sense of fear and constantly reliving the shootings.

The inadequacy of the Queensland framework to compensate victims in situations of ongoing familial abuse is particularly highlighted by the example of Karen Chong. In the first instance, an application for compensation can only proceed if an offender has been convicted. The need for a conviction, in light of the extraordinary low rate of successful police prosecutions for violence in a familial context,[19] means that many victims will never be compensated. Even when there is a conviction, the statutory provisions limit compensation to the effects of the offence for which the perpetrator is convicted. Thus, for Karen Chong the potentially devastating effects of the violent abuse that spanned the entire twenty-two years of their relationship are ignored. Even the brutal double shooting and the threat to ‘blow her guts away’ as she lay on the ground are reduced to one count of unlawful wounding. Finally, the prescribed list of possible compensable harms is so narrow as to force claimants to attempt to squeeze their injuries into the available categories. To succeed in a claim under the category of nervous shock for example, with its prescribed limit of $20,000, a claimant must provide evidence of a ‘recognisable psychiatric illness.’ Karen Chong was awarded $10,000 for the Anxiety Disorder she was diagnosed with but any other emotional harm she suffered is left uncompensated.

Having traversed all the limitations of the scheme to receive an order against the estate of Bruce Chong for $25,000, the Attorney-General may yet invoke the Limitation of Actions Act to prevent Karen Chong from receiving an ex gratia award from consolidated revenue regardless of the compelling reasons she could provide for the delay in making her application.

Christine Forster is a Pakhea woman from Aoteoroa/New Zealand who is currently an associate lecturer at the UNSW Law Faculty and Phd student at Sydney University Law School.

[1] (1999) Appeal No 11658 of 1998.

[2] CASA House, Just Tokens? A Report on the Experience of Victim Survivors of Sexual Assault when Making Applications for Crimes Compensation (1997).

[3] s 10(1)(d).

[4] Money given without legal compulsion. In this instance the term refers to the state meeting the cost of the order made against the offender.

[5] Criminal Injuries Compensation Act (NSW) 1967, Criminal Code Amendment Act (Qld) 1968, Criminal Injuries Compensation Act (SA) 1969, Criminal Injuries Compensation Act (WA) 1970, Criminal Injuries Compensation Act (Vic) 1972, Criminal Injuries Compensation Act (Tas) 1976, Criminal Injuries Compensation Act (ACT) 1983.

[6] This model provides a maximum award and the magistrate is left with a discretion to determine the particular amount.

[7] This model specifies a particular amount for each particular injury.

[8] NSW has since introduced a similar model. Criminal Injuries Compensation Act 1996 (NSW).

[9] Queensland has provided compensation for victims of crime as part of the sentencing procedure since the inception of the Criminal Code in 1899. Originally, the amount was discretionary and by the time the Code was amended to include a separate Chapter for compensation the amount had reached $5,000. Criminal Code Amendment Act 1984 (Qld).

[10] Criminal Code s 663B.

[11] Criminal Code s 663B.

[12] s 663B(1).

[13] See Katherine O’Donovan, Family Law Matters (1993).

[14] See Frances Olsen, ‘The Myth of State Intervention in the Family’ (1994) 18 University of Michigan Law Reform 835.

[15] See Linda Jurevic, who analyses the inappropriateness of viewing family violence as ‘mutual combat’ in ‘Between a Rock and a Hard Place: Women Victims of Domestic Violence and the Western Australian Criminal Injuries Act’ (1996) 3(2) Murdoch University Electronic Journal of Law.

[16] See generally Judith Herman, Trauma and Recovery (1992).

[17] Nitya Duclos discovered in ‘Diasappearing Women: Racial Minority Women in Human Rights Cases’ (1993) 6 Canadian Journal of Women and the Law 25 that the racial characteristics of both claimants and defendants were ignored in Canadian Human Rights Tribunals. She argued that the erasure of these characteristics served to deny the reality of the position of the inequality of racial minority women.

[18] See Julie Stubbs and Julia Tolmie, ‘Race, Gender and the Battered Woman Syndrome: An Australian Cases Study’ (1995) 8 Canadian Journal of Women and the Law 122.

[19] See Russell Hogg and David Brown who canvass a range of pertinent studies in Rethinking Law and Order (1998) 59-63.

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