Andrews v State of SA and Andrews No. Cicd-95-1107 Judgment No. D3479

[1996] SADC 3479

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lowrie

Hearing

09/08/96, 12/08/96.

Catchwords

CRIMINAL INJURIES COMPENSATION ACT Action on behalf of 11 year old boy whose father was convicted of murdering his mother's male friend when he was aged 5 and at time when his parents were separated.Allegation that plaintiff's depressive condition due to being advised of death of mother's friend and as well subsequent events. Finding depressive condition related to father's actions after commission of offence, including continually maintaining his innocence. Application dismissed.

Materials Considered

• Criminal Injuries Compensation Act s.7(1), s.8(1) and (1a), referred to.
• T v The State of South Australia and Another (1992) 59 SASR 278;
• Battista v Cooper (1976) 14 SASR 225;
• Delaney v Celon (1980) 24 SASR 443, considered.

Representation

Plaintiff DANIEL BRACEY ANDREWS (an infant by his next friend ROBYN LOUISE ANDREWS):
Counsel: MR C H COCKS - Solicitors: McLEAN &; CO

Defendant STATE OF SOUTH AUSTRALIA:
Counsel: MS L J KUDELKA - Solicitors: CROWN SOLICITOR'S OFFICE

Defendant SHANE ANDREWS:
No Attendance

CICD-95-1107

Judgment No. D3479

21 August 1996

(Criminal Injuries Compensation Division)

ANDREWS v STATE OF SA and ANOR

Criminal Injuries Compensation

Judge Lowrie

PLEADINGS

This is an action for Daniel Andrews by his guardian, his mother Robyn Andrews, against the State of South Australia and Shane Andrews, the husband of Robyn, the father of Daniel, seeking compensation for psychiatric injuries which Daniel has suffered following the murder by Shane of his mother's friend, Brian Lyden, on 21 February, 1991.Daniel was born on 7 August 1985.

The Crown have pleaded that there is insufficient evidence to prove a causal link between the commission of the offence and Daniel's psychiatric injuries.

BACKGROUND

Evidence

Mrs Andrews outlined how she first met Shane Andrews in 1981.Mrs Andrews was then aged 17 and Mr Andrew was aged 24.He had a child of a prior marriage. They were married in 1984.There were three children of her marriage, namely, Daniel born in 1985, Rebecca born in 1987 and Lauren born in 1990.

Mrs Andrews outlined the eventual difficulties and discord in their marriage and in February 1991 she advised Shane of her decision to separate.She outlined that there was no question of violence in their relationship but mainly it was her husband's irresponsibility in matters that forced her decision.

Prior to this time Mrs Andrews had known a person, Brian Lyden, for about nine months.Mr Lyden worked at Aberfoyle Park Primary School and was also a karate instructor.Mr Lyden taught Daniel karate and was friendly with both Mr and Mrs Andrews.It would appear in the weeks prior to February 1991, Mrs Andrews had formed a close relationship with Mr Lyden.

Mr and Mrs Andrews separated on 5 February, 1991.Over the next few weeks, Mrs Andrews became concerned for her own safety and protection as it was apparent that Shane was attending her house and grounds.

Mrs Andrews said she received a telephone call on 25 February, 1991, when her husband said he had just seen Brian shot.It appears that Mr Andrews was in fact arrested that night and charged with murder.The evidence against him was essentially circumstantial.At the trial Mrs Andrews was in the witness box for many days and, eventually, Mr Andrews was convicted of the murder of Mr Lyden.

Mrs Andrews was a very impressive lady who is obviously doing her best to cope with all these very tragic events and the effect on herself and the children. She outlined how, before the murder, Daniel was what she called a very happy, normal child, bright and outgoing with lots of friends.Daniel was aged 5 at the date of this offence.She said there was a bond between himself and his father and they were very close.From the various reports which were tendered by the psychologists and psychiatrist there is no doubt that at the age of 5 Daniel had a very close relationship with his father.

Mrs Andrews stated that, after Mr Andrews' conviction and sentence, he has sent a continual flow of letters, mainly in the form of poems, to his children and particularly Daniel.In these poems Mr Andrews continues to outline his love for his children and at times saying he has done nothing wrong.

Mrs Andrews said she had taken the children to visit their father at the Remand Centre before the trial and the children were told by their father that:

".... this mess would get cleared up because he didn't do it and, you know, it wasn't his fault so he'd be home soon once the police or whoever found out that it wasn't him."

After the trial was over Daniel was advised of the conviction and then returned to school.She said in those few months, Daniel became very withdrawn and described his condition as "daydreamy, used to stare out the window a lot" and has changed from a happy little boy to somebody, she said, who was "just waiting for his dad to come home".Mrs Andrews said Daniel's attention span became progressively worse and she said she eventually sought advice and was told then that Daniel had an attention deficit disorder.Mrs Andrews explained that she had seen many different people for different reasons about Daniel as it took some time for the counsellors to appreciate Daniel's problems.

Eventually Mrs Andrews said she was referred to a child psychiatrist, Dr Steve Allison who counselled Daniel.Mrs Andrews believes Daniel did benefit from counselling received as well as from assistance provided by a counsellor from the Victims of Crime Service.

Mrs Andrews said she noticed that at times Daniel would become very angry, slam doors, lock himself in his room and would yell and be in tears.Breaking his toys became a major problem as he became totally destructive with all of his toys.As a consequence, she now does not purchase toys for him as everything is wrecked.Mrs Andrews said that gradually Daniel's attitude towards her became progressively worse over the years.Daniel does not like being disciplined and has an attitude where he makes his own decisions without any interference.

Mrs Andrews said she received much assistance from her mother, Mrs Wills, who now lives at Victor Harbor and noticed that when Daniel is with his grandmother he has a much easier disposition.

Apart from the continual letters to Daniel, Mrs Andrews said there were telephone calls where she believes that her husband was focussing on Daniel. Daniel stays with Mr Andrews' parents once a month and also during school holidays.Mr Andrews is aware of when his parents have custody of their grandchildren and the telephone calls ensue.

Mrs Andrews' mother, Mrs Wills, also gave evidence.She said she remembered receiving a telephone call on 25 February, 1991, after which she went to her daughter's home.It was on that evening the children were told that Brian Lyden had been killed and that their father had been taken by police to be interviewed.

Mrs Wills said that she had always viewed Daniel as being a very normal 5 year old, a fun loving, happy child with a good relationship with his father.Mrs Wills said that, bearing in mind Daniel was only 5 at the time of the offence, she had real doubts as to whether he fully appreciated or comprehended what had occurred.However, she believed that until the end of the trial she did not really see any change in Daniel.If there was, he was perhaps quieter and more withdrawn.She remembered that he would say at that time, "My dad shot Brian, and he's in gaol".

Mrs Wills confirmed the traumatic effect that this tragic incident had on her daughter who despite this had always been a good mother to her children.

Mrs Wills said she was aware that after the trial Daniel was told that his father had been found guilty of murdering or "shooting" Brian and that his father was going away for a long period to gaol and would only be released when he was an adult.She said that after this she noticed a drastic change in Daniel.He became withdrawn, rebellious and a loner and she observed his tantrums.She said he seemed to have no concentration whatever and when staying with her if she asked him questions he would simply say "I don't want to talk about it".

Mrs Wills impressed me as a witness.She gave her evidence in a very quiet, sincere manner and took care in her choice of words, indeed, like her daughter. Naturally, she is a very concerned grandmother.

Mrs Wills was aware of Daniel being destructive with his toys.She says occasionally she is aware that there has been some contact with his father as Daniel would say "Dad says 'I love you lots and I miss you'".Mrs Wills believes that Daniel is immature for his age and "not like the other 11 year old boys that I know", and then added, "I think he's just a sad little boy".

Daniel has been seen by psychologists as well as a psychiatrist.He was first seen by Mr Fugler in June and July 1994.

Mr Fugler has accepted there was a close and loving relationship between Daniel and his father.He believed that as a result of the murder Daniel has suffered a "mild psychological dysfunction".

Mr Fugler said that, at 8 years of age, Daniel was sometimes very open and other times he would simply shut off.Mr Fugler outlined that one would naturally expect a child of 5 to experience difficulty expressing emotions of grief and depression.He said that Daniel had told him that he had trouble concentrating at school and he felt his performance had altered.He said:

"He had a lot of confusion and conflict about his father, because he knew the murder was wrong and he told me that he was angry with his father.But on the other hand, he was having a kind of separation - if you like almost like a grief response that he'd repressed...."

Mr Fugler said he did not believe Daniel really understood who was in the right and who was in the wrong.

Mr Fugler was not aware of the constant written communication that is occurring between Mr Andrews and his children, particularly Daniel.The representative letters were placed before him.Mr Fugler was also taken back and I remember his shaking his head and saying:

"To be quite honest, his father is not doing him any favours at all.All that he's doing is setting up a conflict situation for him."

He then said:-

"..... in some ways it's only his father is imposing a sense of guilt on the boy and further victimising him.If the boy has been told at some level, or understands at some level from his mother and others that his father was the perpetrator of the offence, that he's been found guilty in court.Then on the other hand his father is saying look, basically I didn't do it, I've been shafted here and (if) I hadn't been shafted I'd still be in the family and so on.Of course all that does for the child is create this huge conflict situation, and typically for children of his age, they either act out in some kind of dysfunctional way within the community, they might fire light or something like, or steal, or they get depressed."

An illustration of this correspondence is the letter of 21 July, 1991, with the drawing of the turtle and the second verse:

"I'm like the turtle, in some ways,

At the moment, I just count the days!

Hopefully, it won't be long,

After all, I've done nothing wrong!!"

Mr Fugler had read the recent report of Dr Fereday and he respected her diagnosis then that Daniel had a "dysthymic disorder".Mr Fugler said whatever it was called, the child was clearly depressed and while the father kept up his protestations he would continue to be depressed.Daniel's prognosis unfortunately looks extremely poor.

Mr Fugler said he could not agree with the statement that the death per se of Mr Lyden was the single causative factor in Daniel's depression.It did have an effect.The fact that his father was charged and the absent figure is a very significant factor.However, he felt Daniel's problems were a combination of these very specific factors.

Mr Fugler did note in his report that Daniel did speak freely about the death of Brian Lyden who he described as "my best friend and karate teacher", but then went on to say that he missed his father and had visited him in gaol and spoke fondly of him.

Mr Fugler was asked specifically by the Crown whether the overwhelming factor of his depression is the fact that his father had been convicted of murder and said:

"A. No, I think it's a combination.The conviction of murder itself, I don't actually - I mean I'm not even sure that he fully understands that, the father's absence because of the death of a friend, I think is very significant, yes.

Q.That, if I might put it that he's actually in prison for murder, and dad's not home any more, that's a significant factor for the boy.

A. Yes.

Q.And that dad is keeping on this conflict that he didn't do it.That Daniel sees him in gaol and there's that on-going conflict which is caused by his father, that's a significant factor in his on-going symptoms.

A. Well that, but it's also, you know I mean the boy has to deal with the fact that his father's a murderer.

Q.Yes and he gets teased at school because of that.

A. Yes, of course, I mean it would be constantly brought up I would have thought."

Rhonda Murrey, a psychologist, first saw Daniel in January 1995 for several hours and later in November 1995 a number of times.She said when he first presented he was very uncooperative and did not want to participate.He left and went and sat in the car with his mother's friend and then returned.She said when he came back he was in a different mood although still not willing to engage in any discussions about the issues.

On the second occasion she said she believed Daniel was interested in what was being discussed.

Ms Murrey said she had the opportunity to peruse the teaching reports as well as the results of discussions that had taken place between him and Dr Allison at CAMHS.However, she concluded that Daniel then had an "attention deficit disorder".She said Daniel did have all the classical symptoms of that and believed this flowed from the events which occurred when his father murdered Brian Lyden.She said she believed before this time he had been a bright active young boy with good skills, social skills, and naturally all the events which have flowed thereafter have resulted in this psychological impact on Daniel.

She was asked:

"Q. What are the factors in the description that I've given you that are likely to lead to a psychological impact on you.

A.I think that the issue of the child not knowing whether his father was responsible, or not responsible and over a period of time coming to believe that he was responsible, I think that there would be a chance of the child becoming quite confused about that sort of thing.I think that there would be some confusion in the relationship, you know, father's in prison and writing to the child and saying certain things to the child, I think would create a confusion in the child."

Ms Murrey pointed out that she had seen Daniel some five months before Dr Fereday and it appeared that Daniel was more cooperative with her than he had been with Ms Murrey.She was aware that Dr Fereday had diagnosed Daniel as having a dysthymic disorder and considered that their conclusions had a number of findings in common, but she certainly accepted Dr Fereday's diagnosis.

However, she agreed with Dr Fereday that Daniel's problems would be ongoing and were serious.

Dr Fereday gave evidence.She is a very experience child psychiatrist who attended both Robyn and Daniel in April of this year.She had also perused the reports of Ms Murrey and Mr Fugler.Dr Fereday concluded that Daniel had a dysthymic disorder which is part of an overall reactive depressive disorder.

Dr Fereday pointed out that Daniel had told her that he is always happy to see his father, but there was a problem because his father says that he loves him and spends most of the time talking about his mother and her present friend. Daniel admitted he knew why his father was in gaol, but said his father constantly denies committing the murder and claims to him that he should not be in gaol.

In a very detailed letter of Dr Fereday, which was tendered, she reported including a large segment of questions she had addressed to Daniel and which he had answered.That questioning described Daniel's concerns at that time. There was one mention as to the reason for his father committing murder and he said he felt "Brian was married" and "No, Dad had a good reason for doing it, but he shouldn't have done it".That interview does give an insight into Daniel and the reason for his present unhappiness and it is focussed on his father.He said, "I'll get over it when my Dad comes out".

The criteria for Dr Fereday's conclusion was that the child suffered depression for long periods of the day, irritability and mood swings lasting for a year or more.

Dr Fereday in her report concluded that:

".... this disorder is part of an overall reactive disorder secondary to father murdering mother's friend and himself being immediately arrested and since gaoled in an ongoing way such that he is unavailable to his son.Daniel misses his father badly and is in a quandary as to how to work out the conflicts that he has concerning his father in his own mind."

Dr Fereday believed that the disorder was having a far reaching effect on

Daniel's day-to-day life.Her concern was that the disorder, if anything, may get worse particularly with father proclaiming his innocence.Dr Fereday was of the view there was no evidence of these symptoms before his "father's imprisonment" and all his symptoms have followed that tragedy.Her final paragraph was very depressing when she said:

"Currently Daniel is depressed and rudderless and unable to easily be helped by any close member of his family.He feels bereft of his father and I believe that unless something is done for him his prognosis is poor and his depression will become more severe during adolescence, and include further expressions of his anger."

Dr Fereday was not aware of the nature of the letters that Mr Andrews keeps writing to Daniel professing his innocence and love in a poetic manner.Dr Fereday's reaction to the letters was one of annoyance that the boy should be receiving such mail and thus re-living his problems.She commented that, at times, it appears to be transferring some sort of guilt to the son.She said she felt annoyed when she read the letters.Indeed, she said, if she was the mother perhaps not from a psychiatric point of view she would feel so aggrieved that she would intervene and added "I don't think I would be taking the child to the gaol".

In summary it can be seen from such evidence that there was no doubt that, as a 5 year old child, Daniel was upset when being advised by his mother that his friend Brian had been shot by his father and that his father was being questioned by police.However, it would be difficult for a little boy aged 5 to fully understand the emotions of grief and depression as mentioned by Mr Fugler.

With the advancing years until the present time, the fact is that now, unfortunately, Daniel is a very depressed young boy for a variety of factors.

The significant factors are his father being charged and found guilty of murder and then being committed to gaol as well no doubt at that time by protestations of his innocence as well as his father's continued and ongoing assertions of innocence.

Ms Murrey who saw Daniel on two occasions, including at home, concluded:

"I think that the issue of the child not knowing whether his father was responsible, or not responsible and over a period of time coming to believe that he was responsible.I think that there would be a chance of the child becoming quite confused about that sort of thing.I think that there would be confusion in the relationship ...",

like all experts, as she had noted the close and loving relationship of father and son prior to the incidence.

When diagnosing a dysthymic disorder, which is a more serious condition than that as diagnosed by Ms Murrey, it was Dr Fereday's view that:

".... this disorder is part of an overall reactive disorder secondary to father murdering mother's friend and himself being immediately arrested and since gaoled in an ongoing way such that he is unavailable to his son.Daniel misses his father badly and is in a quandary as to how to work out the conflicts that he has concerning his father in his own mind."

CRIMINAL INJURIES COMPENSATION ACT

The Act is to provide compensation for injury and consequence of commission of offences."Victim" is defined by the Act as:

"'victim', in relation to an offence, means a person who suffers injury in consequence of the commission of the offence."

Section 7(1) defines a victim as:

"A victim of an offence may, within three years of the day on which the offence was committed, apply to the court for an order for compensation in respect of the injury arising from the offence."

Section 8, proof and evidence, states:

"(1) Subject to this section, any fact to be proved by a claimant in proceedings under this Act is sufficiently proved if it is proved on the balance of probabilities.

(1a) No order for compensation may be made (except by consent) on an application under this Act unless -

(a)the commission of the offence to which the application relates has been proved beyond reasonable doubt;

and

(b) a causal connection between the commission of the offence and the injury or death to which the application relates has been proved on the balance of probabilities."

Counsel for Daniel has pointed out that the victim, Brian Lyden, was in a relationship with Daniel's mother and, indeed, Daniel looked upon him as his friend, and as well was his karate teacher and Daniel's problems start from that incident because of the loss of his friend and all the other consequences followed directly from that initial effect or impact on Daniel.

Counsel for Daniel on the question of causation referred me to the case of T v The State of South Australia and Another .This was a claim when a woman sought compensation for injuries she had suffered by reason of the act of sexual intercourse on her son aged 11 by her defacto husband.The mother suffered stress and a number of psychological symptoms from the commission of the offence.It was held that the sorrow and grief which caused emotional distress and simply no more would be insufficient taken alone.Nevertheless, distress which in addition results in effecting a person's mental or psychological health is compensable.Reference was made to the early cases of Battista v Cooper , Delaney v CelonOlsson J pointed out that the condition does not require a court to conclude that the evidence establishes a recognisable psychiatric condition.What is essentially involved is a question of fact or degree which needs to be considered on a case by case basis.I was referred to the passage of Olsson J at page 288 when the learned judge said:

".... the court is required to do is to consider the situation of a claimant following a relevant criminal act and contrast it with that which preexisted the act in question .... if the practical effect of the relevant conduct has been to bring about a morbid situation in which there has been some more than transient deleterious effect upon a claimant's mental health and well being, so as adversely to affect that person's normal enjoyment of life beyond a situation of mere transient sorrow and grief, then, in the relevant sense, the person has sustained mental injury."

Counsel for Daniel, in effect, contended that one must look at the incident from the night of the murder and the subsequent "appalling conduct" of the father to the present time as aggravating Daniel's problems.He urged a finding that all of Daniel's injuries really flowed from being advised on the night that his father shot his friend Brian, and, consequently Daniel was, within the terms of section 7(1), a victim of the offence.

Counsel for the Crown did not dispute that Daniel was suffering severe depressive symptoms, and, clearly Daniel and his mother were deserving of much sympathy.

However, the Crown submitted that the plaintiff has not established a causal connection between the psychological symptoms and the commission of the offence.

Counsel for the Crown pointed out that the plaintiff's claim as pleaded is based on the psychological and psychiatric evidence that Daniel initially was suffering from an attention deficit disorder which has, in the passage of time, been overtaken by the more serious diagnosis of a dysthymic disorder with its far reaching effects.The Crown, in effect, argued that it was not the commission of the actual offence that has caused Daniel's problems but the developing events of his father's arrest, trial and conviction and, as is now apparent from the evidence, the father's ongoing behaviour since that time.

Counsel referred to the decision in Battista v Cooper (supra) an action where the mother and three children of the man who was murdered were victims of the offence and the causal connection established to entitle them to compensation. I was referred to the comments of Bray CJ at page 231 where the learned Chief Justice commented:

"In my opinion, an intentional tortfeasor is liable, not only for the injury caused directly to his victim, but to the injury indirectly caused to those connected with his victim or those witnessing the injury to the victim.I realise that the line must not be drawn too widely.Probably some element of foreseeability must still be present, but I think than an intentional tortfeasor, who must, ex hypothesi, be directing his mind to his act, ought to foresee the possibility of injury to a wider class of persons than those whom a court might find to have been within the reasonable foreseeability of the negligent driver of a car.It does not lie in the mouth of the murderer to say that he did not foresee and could not have been expected to foresee that his crime would cause injury from shock or other emotional cause to the children of his victim."

In this case the issue was raised as to whether persons other than the victim of the crime were entitled to compensation.There was authority that only a victim can claim.However, as is apparent from the above, that authority was not followed and the widow and children of the person murdered were held to be within the definition of victims under the Act and succeeded.The learned Chief Justice was of the view that a person who had an action in tort against the criminal wrongdoer should be regarded as a "victim" within this legislation.

The causative link between the distress that was suffered by the widow and children who were present when their husband and father was murdered and the commission of the crime is obviously evident, and, such persons are entitled to seek relief.

My difficulty, and reluctantly so, is to find that Daniel's dysthymic disorder is related to the loss of Brian Lyden.If that were the case the causal connection would be proved.The evidence before me is that Daniel missed his friend Brian.He was a very young child at the time.The initial events of the arrest of his father, the trial and conviction may not have had great effect on him, bearing in mind his tender age of 5, but as he has aged the impact of his father's acts, the anguish of his mother, the ongoing and deliberate actions of his father continually protesting his innocence have overtaken Daniel and one would expect his young mind is in turmoil.All these factors are totally disastrous to the well-being of Daniel and I, like the experts, am fearful of what may result on this very disturbed 11 year old boy.

Consequently with these findings I am most reluctant but obliged to find that the plaintiff has not established, on the balance of probabilities, that Daniel's condition is causally connected with the commission of the offence, and, accordingly, I dismiss the claim.

LATER IN COURT

H H publishes reasons for judgment.

Application dismissed.Both parties to pay their own costs.