Bober v State of South Australia - [2005] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application for Review)
BOBER v STATE OF SOUTH AUSTRALIA
Judgment of His Honour Judge Burley
29 April 2005
CRIMINAL LAW
Compensation for injuries - plaintiff sustained injuries on or around 3 August 2002 - Whether offence proved beyond reasonable doubt and corroborated pursuant to s8 of Criminal Injuries Compensation Act 1978 - Corroborative evidence established - Plaintiff assaulted twice on evening in question and on numerous times subsequent - Whether injuries sustained occurred as a result of an assault asserted in Statement of Claim - Injuries from first assault not compensable in this trial - Evidence of first assault admitted as to plaintiff's physical condition immediately prior to second assault - Injury sustained by plaintiff in second assault - Plaintiff suffered injuries to head, about both eyes, abrasion on the scalp, bruising to back and aggravation of psychological injury - Assessment of damages - no financial loss proven - Numerical value of 1 ascribed for non-financial loss pursuant to s7(8)(a)(ii) of Criminal Injuries Compensation Act 1978 - Compensation of $1000 awarded to plaintiff.
Herreen v South Australia [2001] SADC 133; Picken v SA and Pugliese (2002) 223 LSJS 466 ; Thompson v The State of SA (1995) SASC 5081.1; State of SA v Bole (1999) 183 LSJS 90; Forrester v SA (1996) D 3393 unreported; Ambridge v State of SA (1996) D 3503, considered.

BOBER v STATE OF SOUTH AUSTRALIA
[2005] SADC 35
JUDGMENT OF HIS HONOUR JUDGE BURLEY

The Plaintiff has applied for compensation pursuant to the provisions of the Criminal Injuries Compensation Act 1978 (the Act).
In his Statement of Claim he alleges that on about 3 August 2002 at Salisbury Highway, Salisbury he “was the victim of an offence of an assault occasioning actual bodily harm committed by a person or persons unknown”.
It is common ground that no one has been brought to trial in respect of the alleged assault. Consequently, the evidence of the Plaintiff as to the commission of the alleged offence must be supported in a material particular by corroborative evidence (Section 8 (1b) of the Act).
Although the Act has been replaced by the Victims of Crime Act 2001, the Criminal Injuries Compensation Act nevertheless applies. Paragraph 2 of Schedule 1 of the Victims of Crime Act provides that the Criminal Injuries Compensation Act applies to an application for compensation in respect of an injury arising from an offence committed before the commencement of the Victims of Crime Act. The latter Act came into operation on 1 January 2003.
The State of South Australia is the only Defendant named in the Summons. In paragraph 1 of the Defence, reliance is placed on Section 8 (1a) of the Act which provides:-
“(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 is proved beyond reasonable doubt; …”.
In paragraph 2 of the Defence reliance is placed on Section 8(1b) of the Act which provides –
“(1b)Where an order for compensation is sought in respect of an offence and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in material particular by corroborative evidence, is not sufficient to establish the commission of the offence.”
The Defendant denies the remaining allegations in the Statement of Claim.
Effectively the Defendant’s Defence is to put the Plaintiff to strict proof in relation to his claim. In particular, he must prove the commission of the offence beyond reasonable doubt and such proof must include corroborative evidence to the extent required by Section 8 (1b) of the Act. The other essentials of his claim are required to be proved on the balance of probabilities (ss.8(1) and (1a)(b) of the Act).
Although the Plaintiff was represented by a solicitor when the proceedings were issued in this Court, by the time the matter was called on for trial the Plaintiff had terminated the retainer between himself and his former solicitor. He therefore appeared in person throughout the trial.
At the commencement of the trial, I dealt with many subpoenas issued by the Plaintiff which were returnable at that time. Most of the returns on the subpoenas were dealt with expeditiously, but there was one application made by the Plaintiff in respect of the subpoenas directed to the Commissioner of Police which required evidence to be called. I therefore allowed the Plaintiff to pursue what I described to him as an ancillary application, the purpose of which was to determine whether or not the Commissioner of Police should be directed to provide further “forensic photographs” as sought by the Plaintiff. That application was refused and I published reasons for my refusal.
At the trial the Plaintiff called a number of witnesses: Dr Michael Notley, a general practitioner, Dr Edward Gorkic, a dental surgeon who is in charge of the South Australian Dental Service, Constable Justin Doherty who attended at the boarding house where the Plaintiff resided a few hours after the alleged assault, Senior Constable Preuss, who took photographs of the Plaintiff’s injuries several hours after the alleged assault, Dr Richard Ling a general practitioner, Dr Mario Penta an orthopaedic specialist and a Mr Mark Reid, a neuropsychologist. The Plaintiff gave evidence and he also tendered a great deal of documentary evidence to which I will refer where necessary.
Dr Penta gave evidence in relation to the Plaintiff’s injuries to his left leg. Because, for the reasons set out below, these injuries were not caused by the alleged assault, it is not necessary for me to review his evidence.
The only witness called by the defendant was Professor Goldney, a psychiatrist.
Before turning to the evidence I should mention some of the case law relating to section 8 of the Act. In Herreen v South Australia, an unreported decision delivered on 21 September 2001, Judgment No [2001] SADC 133, I said (at paragraph 38):
“In my view, subsections (1a) and (1b) of section 8 of the Act require the Court, in the case where the alleged offender had not been brought to trial, to undertake a two-fold process: first, the Court must ascertain whether or not the plaintiff has established the commission of an offence beyond reasonable doubt. This should be carried out by reference to all of the evidence adduced at trial. It is neither necessary nor appropriate to exclude from such a consideration any evidence which in itself might be characterised as corroborative evidence. Second, if the Court arrives at a conclusion that the commission of the offence has been established beyond reasonable doubt, the Court must next determine whether or not any finding that an offence has taken place is supported by corroborative evidence. If it is not, then the Court is statutorily precluded from being satisfied as to the commission of the offence. So viewed, it can be seen that the Court is required to take, in some respects, a somewhat artificial approach because, if it is on the one hand satisfied beyond reasonable doubt that an offence has been committed, it is nevertheless precluded from making such a finding unless the commission of the offence is supported by corroborative evidence.”
During the course of this case I have had occasion to revisit what I said in Herreen. I no longer think that the above passage is a correct exposition of the law. In my view s8(1a) (a) constitutes an overriding requirement that, on applications for compensation under the Act, the commission of the offence must be proved beyond reasonable doubt. Subsection (1b) then provides that, where no person has been brought to trial charged with the offence, the evidence of the plaintiff alone as to the commission of the offence is not sufficient unless the plaintiff’s evidence is supported in a material particular by corroborative evidence.
In order to give effect to these requirements, where no person has been brought to trial, the Court must ascertain whether or not the only evidence adduced as proof of the commission of the offence is that of the plaintiff. If the Court finds that the only evidence so adduced is that of the plaintiff and that there is no other evidence in support of the contention that an offence was committed, the plaintiff’s claim must fail because subsection 1(b) provides that the plaintiff’s evidence alone is not sufficient to establish the commission of the offence.
If however, where s.8(1b) applies, the Court concludes that there is other evidence that has been adduced relating to the commission of the offence, the Court must then determine whether such evidence constitutes the required corroborative evidence. The additional evidence must be corroborative of one or more elements of the alleged offence. If the Court determines that the additional evidence is corroborative to that extent, the Court must then determine whether or not, when all of the evidence relating to the commission of the alleged offence is taken as a whole, the commission of the alleged offence has been established beyond reasonable doubt.
I should add that, in my view, the requirements for corroborative evidence in a material particular is a minimum requirement. In other words, evidence of the commission of the offence, both direct and circumstantial, given by witnesses other than the plaintiff, may go well beyond corroborating a single material particular in relation to the alleged offence. Such direct evidence would be that of an eye-witness. It is also clear that the additional evidence must not be merely capable of being corroborative; it must be actually corroborative in a material particular.
As to the nature of corroborative evidence, I respectfully agree with Judge Smith’s remarks in Picken v SA and Pugliese, (2002) 223 LSJS 466, where His Honour said (at paragraph 24):
“Corroboration is some independent evidence which tends to confirm support or strengthen other evidence in the case in the sense that it renders the other evidence more probable; (see R v Kilbourne (1973) AC 729 at 758; R v Baskerville (1916) 2 KB 658 at 667). It is not necessary that the corroborative evidence by itself would establish, in this case for instance, the commission of the offence beyond reasonable doubt. The essence of corroborative evidence is that it tends to confirm or strengthen the other evidence; (see Doney v The Queen (1990) 171 CLR 207 at 211)”.
I turn now to the examination of the evidence given by the Plaintiff. He was born on 15 May 1959. He was therefore 43 years of age in August 2002. He said that on 3 August 2002 he attended the Eureka Tavern, which is located at Park Terrace, Salisbury. Although the Plaintiff referred to 3 August 2002, it is clear from other evidence that was adduced, to which I will refer, that he attended at the Eureka Tavern on 2 August 2002 and that the alleged assault referred to in paragraph 2 in the Statement of Claim if it did occur, must have taken place in the early hours of the morning of 3 August 2002.
The Plaintiff attended the Eureka Tavern to celebrate the eighteenth birthday of a daughter of the Plaintiff’s friend, Mr Travena.
The Plaintiff attended with Mr Travena, Mr Travena’s female companion and with Mr Travena’s daughter. At some time late on 2 August or early on 3 August they moved across the road to the Rockpool Saloon which apparently was a billiard hall. The Plaintiff played two games of eight ball. Mr Travena’s companion suggested that they all go to the Adelaide Casino. Mr Travena agreed but the Plaintiff declined. The Plaintiff said nothing else about the whereabouts of Mr Travena’s daughter at this stage, but his evidence was that Mr Travena and his companion left the Rockpool Saloon and the Plaintiff remained to finish his drink.
The Plaintiff then described the assault in the following terms (T.359/37):
“I was approached by a person who I can subsequently identify as the person in police photographs and he said to me ‘do you know who the Rebels are?’ I said to him and I pardon my language ‘I don’t give a fuck who you are. I take people as I find them’. I was then set upon by I estimate six individuals. I was dropped to the ground and thrown through a table such that my upper torso was on the table and my lower back and extremities were off the table.”
This was not the incident referred to in paragraph 2 of the Statement of Claim.
For some unexplained reason the plea was confined to a reference to an alleged assault of the Plaintiff which took place shortly after the incident in the Rockpool Saloon, somewhere along the Salisbury Highway. Exhibit P17 is a scale plan prepared by the Plaintiff of the area. During the course of his evidence he marked on the plan the point on the Salisbury Highway at which the second assault took place. The point made was some four hundred metres south-west of the Rockpool Saloon.
The plan also shows the boarding house at which the Plaintiff resided. That is about one hundred and twenty metres north-east of the point at which the second assault is alleged to have occurred.
Returning to the narrative, the Plaintiff said that security personnel at the Rockpool Saloon intervened to prevent the Plaintiff’s assailants from continuing to assault him. They did so on two occasions. He said that as he was leaving the Rockpool Saloon, the manager said to him that he should pay for the broken table. The Plaintiff felt threatened and agreed to pay for the table so that he could make his escape. He described the request on the manager’s part as “bizarre”.
It is not clear whether the events at the Rockpool Saloon and subsequently Salisbury Highway took place late on 2 August or early on 3 August. At the end of the day it does not make a great deal of difference.
It became apparent during the course of the Plaintiff’s evidence that he regarded the alleged assault at the Rockpool Saloon and the subsequent assault on Salisbury Highway as one incident and he sought to be compensated accordingly.
I suggested to the Plaintiff that he continue with his evidence so that I could understand the basis upon which he said the claim related to the incidents at the Rockpool Saloon and on Salisbury Highway.
As his evidence progressed, it became apparent that the incident he referred to in paragraph 2 of the Statement of Claim could not be said to include what had occurred at the Rockpool Saloon.
Paragraph 2 of the Statement of Claim refers only to one incident, that being on Salisbury Highway. The Rockpool Saloon is located nearby at Park Terrace. (T.361/22). Although the Plaintiff’s case was that only a very short time elapsed between the two alleged incidents, it is clear from his evidence that they were two separate and distinct assaults.
After some discussion about how the Plaintiff wished to proceed, I informed him that the Statement of Claim could only be reasonably read as referring to the second incident, namely the incident on Salisbury Highway. I informed him that if he wished to include the first incident at the Rockpool Saloon it would be necessary for him to apply for leave to amend the pleadings. I indicated to him that leave to amend would not automatically be given to him and that possible consequences of the amendment may be that the trial may be adjourned and he may have to pay the defendant’s costs thrown away in relation to the adjournment. I gave the Plaintiff some time to consider how he wished to proceed. The Plaintiff was able to consider his position overnight. On the following morning he informed me that he did not wish to apply for leave to amend and that he realised that, if he were found to be entitled to compensation, it would be limited to the injuries sustained in the second incident.
For the sake of completeness, I mention that evidence of the alleged assault at the Rockpool Saloon was admitted because it had a bearing upon what findings I would make as to the Plaintiff’s physical condition immediately prior to the second assault.
The Plaintiff also gave evidence of numerous other assaults by various assailants after 3 August 2002. He was thereby being completely candid about events both immediately prior to the alleged incident on Salisbury Highway and thereafter.
Returning to the narrative, having left the Rockpool Saloon, the Plaintiff walked along Salisbury Highway in a south-westerly direction to a shop called “Smokemart” to purchase a packet of cigarettes. This shop was located about 120 metres south-west of the boarding house where the Plaintiff lived. To return home from the shop, it was necessary for the Plaintiff to cross over Salisbury Highway. To do so he proceeded roughly in a northerly directly along Salisbury Highway.
On walking in a northerly direction he was near the intersection of Thomas Street and Salisbury Highway. He said (T.368/25):
“A pair of individuals became known to me by one of them screaming out ‘Hey mate, can I have a smoke?’ and I said ‘Yes, certainly you may have a cigarette’.”
I asked him whether or not the individual who called out was one of the persons who participated in the assault at the Rockpool Saloon. He said (T.369/4) he could not be certain. I then asked:
“Q.    At the time did you know the identity of either or both of those two persons.
A.     No. I do believe I observed the other individual at the Rockpool Tavern (sic) on a previous occasion”.
He continued (T369/21):
“A.    I proceeded to open a packet of cigarettes that I just purchased and these individuals came towards me, and I stupidly just thought that it was a bloke bumming a cigarette from me. It was not. The larger of the two other individuals grabbed me from behind and held me whilst the other one began to punch me repeatedly. I attempted to kick him away. I was then thrown to the ground and kicked repeatedly by both individuals, I believe, and then they disengaged”.
Constable Doherty, in his evidence, referred to being told of the presence of a woman with the two men. No mention of this was made in his notes. I do not think anything turns on this discrepancy.
The Plaintiff believed that the injuries that he received at the Rockpool Saloon included a fracture to the transverse process of his spine at the L4 level and a haemoarthrosis to his hip. As to the latter injury, he said that one of his assailants at the Rockpool Saloon grabbed and severely wrenched his leg. (T.369/36). He did not think that he received any injuries to the head at the Rockpool Saloon.
The injuries he recalls having sustained as a result of the Salisbury Highway incident included cuts and abrasions to the head, an injury to his left knee and bruising and abrasions to his back.
The Plaintiff found it difficult to be completely precise about what injuries he sustained in respect of each of the two incidents. Although there must be proof beyond reasonable doubt of the commission of the alleged offence, the standard of proof with respect to causation of injuries is on the balance of probabilities. Assuming for the moment, without deciding, that there were two assaults as alleged by the Plaintiff in the early hours of the morning of 3 August 2002, it seems to me to be more likely than not that the fracture to the vertebrae at L4 and the hip and knee injuries were sustained in the first incident and that the head injuries and bruising to the back were sustained in the second incident. The head injuries were consistent with a cut over the right eye which had to be sutured. There was another cut or abrasion over the left eye and an abrasion to the scalp above the left temple beyond the hairline.

Photographs of these injuries, taken by the witness, Senior Constable Preuss shortly after 9.40 am on 3 August 2002, show the head and bodily injuries. They are contained in the Exhibits P8, P9, P10 and P13.
The injuries about the Plaintiff’s eyes, including the depiction of swelling and the bloodshot appearance of the eyes, indicate to me that the Plaintiff sustained substantial blows on each side of the head. That they were substantial was the evidence of Dr Notley when shown the relevant photographs. Such an opinion is consistent with the views expressed by the Dr Ling, the Plaintiff’s general practitioner at the time.
The Plaintiff said that at the time of the assault he was robbed of his mobile phone, a quantity of cash, a packet of cigarettes and a cigarette lighter. If such a contention is made out the alleged offence is robbery rather than assault. Paragraph 2 of the Statement of Claim refers to “an offence of an assault occasioning actual bodily harm”. I think that the pleading correctly represents the Plaintiff’s position, if only because there is no corroborative evidence to support an allegation that the Plaintiff was robbed as opposed to being assaulted. Corroboration is required because the only evidence as to the commission of the offence of robbery is that of the Plaintiff. I understood the Plaintiff to assert that, because his mobile phone was found some time after the offence in the possession of another person, that constituted corroboration of the offence of robbery. Such a contention cannot be accepted because the finding of the mobile phone in the possession of another says nothing about the manner in which the Plaintiff lost possession of the mobile phone. Put another way, finding the mobile phone in the possession of another is equally consistent with the Plaintiff having mislaid the mobile phone. Be that as it may, it will be necessary in due course to determine whether corroborative evidence is necessary in relation to the alleged assault and, if so, whether such corroborative evidence has been adduced.
There was no corroborative evidence in relation to the Plaintiff’s allegation that he was robbed of a sum of money, the cigarettes and a cigarette lighter.
Returning again to the narrative, the Plaintiff’s assailants stopped kicking the Plaintiff and made their way across Salisbury Highway. The Plaintiff attempted to follow them (T.376/379) to see whether they got into a car. The Plaintiff said that as he did so, the larger of the two individuals “produced a knife and began to come at me with that, screaming such things as ‘you’re fucked’, ‘I’m going to stick you’, ‘we know where you live’, ‘you’re at 123’, things like that and I was then going backwards as quickly as I could whilst maintaining visual contact with the individuals because I didn’t want to get stabbed from behind”.
The Plaintiff then walked to the boarding house at 123 Salisbury Highway where he resided. He telephoned the police who attended the premises a short while later. It was common ground that Constables Doherty and Cowper attended.
Constable Doherty took a statement from the Plaintiff. He was called to give evidence by the Plaintiff. The Plaintiff also wished to call Constable Cowper but it was apparent that she has since resigned from the police force and the Plaintiff was not able to ascertain her present whereabouts. I draw no adverse inference relating to the Plaintiff’s inability to call the former Constable Cowper.
The Plaintiff thought that the police officers attended within twenty minutes of him having telephoned. Constable Doherty said in evidence that, according to his notes, he and Constable Cowper attended at 1.08 am on 3 August 2002. Constable Doherty observed injuries to the head of the Plaintiff and said that those injuries were consistent with the photographic evidence tendered as part of the Plaintiff’s case.
The Plaintiff said that he provided brief details to the police about what had occurred. It was apparent from Constable Doherty’s evidence that he took a statement from the Plaintiff which he recorded in his notebook. The notes are Exhibit D16. The details provided by the Plaintiff are substantially the same as the evidence he gave in court as to the incident that occurred on the Salisbury Highway. However, Constable Doherty recorded that “they [the offenders] did not demand any money or property’. There is no reference in Constable Doherty’s notes to anything having been taken from the Plaintiff by his assailants.
The notes did however contain a description of each of the two assailants and a statement by the Plaintiff that he had seen one of them at the Rockpool Saloon and that he would be able to recognise him again.
There was no mention in the notes of an incident at the Rockpool Saloon. In his evidence, the Plaintiff said that he had a conversation with the police officers whilst they were conveying him from his boarding house to hospital. (T395/11). The Plaintiff said that on the way to the hospital he told them of the incident at the Rockpool Saloon. He said that he had a conversation with those two police officers similar to the conversation that he had with Dr Ling when he saw him on 6 August. Dr Ling’s report is Exhibit P12. In it he stated:-
“Mr Bober presented on consultation on 6 August 2002. He was allegedly assaulted by two individuals at around 1.00 am on the 3 August 2002. He was allegedly punched, kicked and threatened with a knife. He was apparently taken to the Lyell McEwin Health Service by the Police where he received treatment’.
That description in Dr Ling’s reports seems to me to relate only to the incident on Salisbury Highway. He refers only to two individuals whereas there were up to six individuals involved, according to the Plaintiff, in the incident at the Rockpool Saloon. Dr Ling’s report refers first to the Plaintiff being punched, kicked and threatened with a knife. The Rockpool Saloon incident may have involved him being punched, but he was not kicked, nor was he threatened with a knife. In addition the Plaintiff noted that he could not recall having told Dr Ling about the alleged incident at the Rockpool Saloon (T.407/5).
In my view, the Plaintiff is mistaken in his recollection that he made an additional complaint to the police officers when being conveyed in the police vehicle to the Lyell McEwin Hospital. I have no doubt that had he made such complaint it would have been noted by either Constable Doherty or Constable Cowper. Constable Doherty had no recollection of such a conversation. I do not know what Constable Cowper would have said as to this because the Plaintiff was unable to call her as a witness.
When at the hospital, the Plaintiff was seen by a doctor who sutured the cut above his right eye. He said he was given a tetanus injection. The Plaintiff then left the hospital and walked home, a distance of some four kilometres. He said that as he walked home he was dizzy and in considerable pain. I should mention that the Plaintiff contended that he was concussed by the injuries he received to the head during the second incident on Salisbury Highway. However, the notes of Lyell McEwin Hospital record that according to the Glasgow Coma Scale, he had a full level of consciousness. I do not accept that the Plaintiff was in a concussed state when he was at the hospital.
The Plaintiff recalled that when he got home he went to bed; the next thing he knew he was awoken in the morning when another police officer, Constable Preuss, attended. Constable Preuss took a number of photographs of the Plaintiff shortly after 9.40 am on 3 August 2002. These are the photographs previously referred to.
In addition to the photographs tendered in evidence, the Plaintiff said that Constable Preuss took a photograph or photographs of the injury to his left hip and buttock. The evidence taken on the ancillary application was admitted at the trial. I have already ruled, on the ancillary application relating to one of the subpoenas directed to the Commissioner of Police, that no such photographs were taken by Constable Preuss and that the Plaintiff’s recollection was mistaken. I adhere to that conclusion.
I turn now to the question of the application of the principles relating to s.8 of the Act to the facts of this case. As previously stated, if compensation is to be awarded to the Plaintiff it may only be awarded in respect of the offence pleaded in paragraph 2 of the Statement of Claim.
A consideration of all of the evidence produced at the trial makes it clear that the only direct evidence as to the commission of the offence referred to in paragraph 2 of the Statement of Claim is that of the Plaintiff himself. It is therefore necessary for him to adduce corroborative evidence in respect of one or more of the elements of the assault pleaded in paragraph 2 of the Statement of Claim.
The most immediate evidence capable of being within that category is the evidence of Constable Doherty as to the observations he made in relation to cuts and abrasions on the Plaintiff’s head at the time that he saw him. If there was an assault, he observed the injuries within three quarters of an hour of the commission of the offence.
I think it is significant that Constable Doherty recognised that the photographs shown to him when he gave evidence displayed the type of head injury that he observed when he saw the Plaintiff in the early hours of the morning of 3 August. It is evidence that the time between his observations and the taking of the photographs, shortly after 9.40 am on the same day, the condition of the Plaintiff had not materially changed, at least as far as injuries to his head were concerned. It may be that he did not see the abrasion above the hair line to the left of the Plaintiff’s head, but that injury was minor in any event. He was able to observe the more important injuries around both of the Plaintiff’s eyes. In my view, the fact that he observed those injuries such a short time after the alleged incident is said to have occurred is corroborative of the fact that an assault took place.
I bear in mind that the medical practitioners, Dr Notley, Dr Ling and Dr Penta were all of the view that the head injuries might also be consistent with the Plaintiff having been involved in a motor vehicle accident, or a fall, but that does not prevent Mr Doherty’s evidence from being corroborative. I do not think that the decision of the Supreme Court in Thompson v The State of South Australia an unreported decision delivered 8 June 1995, Judgment No. S5081.1, applies to this case. In Thompson, the Plaintiff had no recollection as to how he came to sustain an injury to the head in the early hours of the morning of 3 April 1993. In recounting the facts, King CJ, said (at page 1):
“His last recollection is of walking in a westerly direction along the southern footpath in North Terrace and of seeing headlights of motor vehicles coming in his direction. He could see the Newmarket Hotel on the south eastern corner of the junction of West Terrace and North Terrace.
Shortly after 1.00 am he was seen by a passing motorist lying in the gutter on the southern side of North Terrace in the approximate location in which he last remembers walking …
The appellant gave evidence that he had no recollection of how he came to be injured and that his first recollection after the incident is being in hospital and of being asked to sign a consent form for emergency surgery.”
The Full Court agreed with the trial judge’s determination that the Plaintiff had not proved the commission of an offence beyond reasonable doubt. The sustaining of the head injury was found by the trial judge to be consistent with accidental cause and consequently, where the Plaintiff had no recollection himself, it could not be said that the offence was established beyond reasonable doubt. The Court did not have to consider corroborative evidence. That is not the case here.
In this case, I accept that the Plaintiff was set upon by two men as he alleged when he was on his way home from having purchased a packet of cigarettes. The pleaded offence is assault occasioning actual bodily harm. Leaving aside questions of corroboration, the evidence given by the Plaintiff, if accepted in its entirety, would be proof of each of the elements of that offence. In those circumstances the detection of the injuries consistent with an assault shortly after the occasion upon which it is alleged to have happened is capable of being corroborative as required by s.8(1b) of the Act. Thompson’s case is not authority for the proposition that evidence of injuries cannot be corroborative where those injuries are consistent with another cause. That is because in Thompson the court was not dealing with what constituted corroborative evidence; it dealt with whether or not the Plaintiff had proved the case beyond reasonable doubt. It was found by the trial judge, and the Full Court agreed, that the evidence of the Plaintiff in that case was not capable of proving the occurrence of the offence beyond reasonable doubt. I think it is important to bear in mind that the corroborative evidence need not be probative of the commission of the offence by itself. As Judge Smith said in Picken (supra), it is sufficient that it tends to confirm, support or strengthen the other evidence.
It was submitted by Mr Lines, Counsel for the Crown, that I should not accept the Plaintiff’s evidence as reliable because he was inconsistent in material ways and, in addition, if I accept the evidence of Professor Goldney who was called by the Plaintiff, he suffers from a personality disorder which would tend to cause him to exaggerate and distort what occurred at the relevant time. Mr Reid, the neuropsychologist who was called by the Plaintiff, did not agree with Professor Goldney. He was of the view that, given what Professor Goldney had been informed of in relation to the Plaintiff in forming his opinion it was necessary to make further investigations and question the Plaintiff more deeply before drawing conclusions one way or the other as to whether or not he suffered a personality disorder.
Mr Reid had not been provided with all the information that Professor Goldney had. He stated in this report and in his evidence that he relied solely upon the history taken from the Plaintiff and that his opinions were formed solely by reference to that. He came to the view that the Plaintiff suffered from a post-traumatic stress disorder. However, having become aware of the additional information which was provided to Professor Goldney, he allowed for the fact that his diagnosis may be inaccurate, depending upon what further information was obtained.
For the purposes of determining the reliability of the evidence of the Plaintiff it is necessary for me to take into account the whole of the evidence given by the Plaintiff during the course of the trial and his demeanour, in addition to the respective opinions expressed by Professor Goldney and Mr Reid.
I should add that Professor Goldney said that he accepted that the incidents described by the Plaintiff took place, but he was concerned they might have been exaggerated or distorted by the Plaintiff because of his personality disorder.
I have had the opportunity of observing the Plaintiff over a period of eight days. It is clear to me that he has been greatly upset by the events of 3 August 2002 and the subsequent assaults and harassment which he says he has been subject to ever since. He has a grievance against the police because he perceives, wrongly in my view, that the police did not properly investigate his various complaints. He also considers that the medical treatment received by him has been inadequate. He did not regard the advice and assistance that he obtained from his former solicitor as being helpful.
During the course of the trial, when I was dealing with the subpoenas issued by the Plaintiff, it became apparent that he thought there was a conspiracy between the Commissioner of Police and the Crown Solicitors Office to withhold evidence from him. There was no doubt in my mind that such a belief on the Plaintiff’s part was misconceived.
In addition, during the course of the trial the Plaintiff continually attempted to use the trial process as a means by which he could publicly vent his concern, annoyance and anger, in respect of his perception of the conduct of the police, the Crown Solicitor, his former solicitor and various medical practitioners.
I formed the view that the Plaintiff genuinely believes what he has said in his evidence, but he has been unable to make an objective assessment of his position. I think this stems from the type of personality disorder which Professor Goldney pointed to in his report and during his evidence. To that extent I accept his opinions as to the Plaintiff’s psychological state and as to its duration.
His report is Exhibit D21. At page 11 of the report he said:
“[The Plaintiff] has a long standing personality disorder with schizotypal and paranoid features”.
The effect of Mr Reid’s evidence was that he was not in a position to draw such conclusions without further enquiry and investigation. He therefore allows for the possibility that the Plaintiff may have and may have had a personality disorder of the type described by Professor Goldney.
I prefer the evidence of Professor Goldney and I do so principally because the concerns expressed by Professor Goldney (in his report and in his evidence) are entirely consistent with the demeanour of the Plaintiff during the course of a relatively lengthy trial. As a result, I have formed the view that I should exercise great caution when dealing with the Plaintiff’s evidence. His evidence displays a mixture of reality and unreality and, to the extent that it is possible, I must endeavour to separate the two.
Bearing in mind my assessment of the Plaintiff’s reliability as set out above, I set out my findings in relation to the events of 3 August 2002.
As to the incident that occurred at the Rockpool Saloon I find that on 3 August 2002 an incident took place prior to the incident on Salisbury Highway shortly after midnight. During the course of that incident, the Plaintiff was taken hold of by a number of people and thrown onto a tabletop such that his back was injured. The specific injury was a transverse fracture to the spine at the L4 level. In addition, his left leg was severely wrenched causing injury to the knee and left hip joint. I do not accept that the Plaintiff’s left leg was dislocated at the hip. There is no medical evidence to support such contention. Dr Notley’s evidence (T.111/1 et seq) is to the contrary.
I mention specifically that my findings in relation to this incident have been reached on the balance of probabilities. The events at the Rockpool Saloon cannot be subject of a claim for compensation because the pleading is confined to an alleged later incident. Nevertheless, the circumstances of the first incident at the Rockpool Saloon are relevant because they establish the Plaintiff’s physical condition immediately before the alleged assault on Salisbury Highway. I consider that this category of evidence comes within s.8(1a) (b) of the Act which relates to proof of the causal connection between the commission of the offence and the injury suffered.
As to the second incident, which occurred on Salisbury Highway, I accept the Plaintiff’s evidence that he was set upon by two men shortly after the occurrence of the assault at the Rockpool Saloon. The Plaintiff’s evidence is not consistent as to whether or not one or both of the men who assaulted the Plaintiff on the Salisbury Highway were also involved in the Rockpool Saloon incident. I am not in a position to make a finding beyond reasonable doubt in that regard, if only because there is no evidence corroborating the identity of the offenders. Nevertheless, I accept the Plaintiff’s evidence that he was hit about the head, thrown to the ground and kicked whilst he was on the ground. Those events, constitute the assault occasioning actual bodily harm. I find that the Plaintiff’s version of that assault has been corroborated by the evidence of Constable Doherty when he observed the injuries to the Plaintiff’s head, probably within about three quarters of an hour of the occurrence of the assault.

I find, on the balance of probabilities, that after the assault just described and after the offenders had withdrawn, one of them threatened the Plaintiff with a knife and made verbal threats including the threat implicit in the statement that they knew where the Plaintiff resided. I consider that the lesser burden of proof is applicable to these events subsequent to the assault on the Salisbury Highway because, even if the actions of the offender constituted an offence, it was not one which was the subject of this claim for compensation.
Based on the Plaintiff’s description of what occurred during the incident on Salisbury Highway and the photographs taken by Senior Constable Preuss later in the morning, I find on the balance of probabilities, that the assault caused the injuries to the Plaintiff’s head, namely those injuries about both of his eyes and an abrasion behind the hairline on the scalp. There was also bruising to his back which was caused when he was being kicked by his assailants whilst on the ground.
I specifically exclude as having been caused by the incident on Salisbury Highway, the injuries to the Plaintiff’s left knee, left hip and buttock and the broken vertebra at the L4 level. As I said, I think that those injuries were caused in the Rockpool Saloon incident.
The Plaintiff gave a great deal of evidence about subsequent events when he said that he was subjected to further assaults. It was clear from his evidence that he thought that he was being targeted by a member or members of a bikie gang, with whom, he said, his landlord was associated. He also referred to several incidents with other occupants of the boarding house where fights ensued. He said that on one occasion he warded off an attack by threatening his assailant with a rifle. On another occasion he said he was attacked with a spade in his bedroom at the boarding house. On another occasion he said he was beaten with an axe handle. It is neither necessary nor possible for me to make any specific findings about these various incidents. The threats that arise from them are very real to the Plaintiff, but I have no means of knowing the extent, if any, to which there is any factual basis to the various incidents he has referred to.
The Plaintiff has produced no evidence of loss other than non-financial loss. This must be assessed by assigning a numerical value on a scale running from 0 to 50 and by multiplying the number by $1,000 (s.7(8)(a)(ii).).
In order to assign a numerical value I must compare the loss suffered by the Plaintiff against the worst possible non-financial loss that anyone could suffer as a victim of an offence: State of SA v Bole (1995) 183 LSJS 90 at 93. This was the approach taken by Judge Lee in Forrester v SA, an unreported decision delivered on 28 February 1996, Judgment No. D3393.
It is apparent from Forrester and from the decision of Judge Lunn in Ambridge v The State of SA, an unreported decision delivered on 14 November 1996, Judgment No. D3503, that injuries sustained in a physical assault do not necessarily lead to an assignment of a number greater than one. If a number less than one is to be assigned, then, by s.7(10) of the Act, an order for compensation may not be made.
S.7(1) of the Act refers to an application “for an order for compensation in respect of the injury arising from the offence”. I take that to mean compensation for financial and non-financial loss so that s.7(8)(a)(i) applies to a claim for financial loss under s.7(1) and s.7(8)(a)(ii) applies to a claim for non-financial loss under s.7(1).
Although the Plaintiff claimed financial loss consisting of loss of income, he called no evidence setting out past earnings. He said that he has not been in employment since 3 August 2002. It appears, although it is by no means clear, that the Plaintiff attributes the fact that he has not been in employment since 3 August 2002 to the assault referred to in paragraph 2 of the Statement of Claim. It seems, but again it is not clear, that he has adopted that position because he has had to accept, during the course of the trial, my ruling that his claim for compensation is limited to the incident referred to in paragraph 2 of the Statement of Claim.
There are several reasons why the claim for loss of income cannot be allowed: first, it is clear that for several years prior to the accident the Plaintiff had for the most part been unemployed. There were one or two incidents of work as a draftsman but these were only of very short duration and could not be said to be indicative of a continuous work history. Second, the medical evidence does not permit an assessment to be made of the extent to which, if any, the incident on Salisbury Highway caused injuries which precluded him from gainful employment. It is possible that, had the Plaintiff been in employment on 3 August 2002, he would not have been able to return to work for perhaps a week, but there is no evidence before me which even remotely suggests that, but for the assault, the Plaintiff would have had gainful employment available to him in the week following the assault. Third, the injuries sustained at the Rockpool Saloon were far more serious than those sustained in respect of the incident on Salisbury Highway. The long term inability to work after 3 August 2002 could only be attributed to the incident at the Rockpool Saloon and the subsequent incidents, to the extent that they occurred, after 3 August 2002. For these reasons no allowance may be made to compensate the Plaintiff for financial loss.
In relation to the Plaintiff’s claim for non-economic loss, as I have already mentioned, the nature and extent of the injuries sustained by the Plaintiff were not of a lasting nature. The Plaintiff saw his general practitioner, Dr Ling, on 6 August, having remained at home for a few days in an attempt to recover. It is to be recalled that the Plaintiff did not disclose to Dr Ling that there were two incidents on 3 August and consequently the injuries and symptoms noted by him have to be looked at by reference to injuries respectively suffered and sustained in the Rockpool Saloon incident and the Salisbury Highway incident. In his report, and in his evidence, Dr Ling dealt with the physical injuries attributable to the Salisbury Highway incident, namely injuries to the head and back. He also referred to injuries to the left knee and left hip and left buttock. These were injuries received in the Rockpool Saloon incident.
Mr Reid in his report, took a history from the Plaintiff which included reference to the Rockpool Saloon incident and to the incident on Salisbury Highway. He formed the view that the Plaintiff had sustained a generalised anxiety disorder, which might partially be attributed to the events of 3 August 2002. He did not differentiate between the Rockpool Saloon incident and the Salisbury Highway incident and it is therefore impossible to tell whether the one incident was more predominant than the other. In addition to that, Professor Goldney was of the view that the anger and the desire for revenge expressed by the Plaintiff to Dr Ling as is evident from P12, was quite inconsistent with him suffering from a generalised anxiety disorder. I think the evidence of Professor Goldney is more compelling for the reasons given when dealing with the reliability of the Plaintiff’s evidence. I therefore do not consider that the Plaintiff suffered a generalised anxiety disorder as a result of or substantially as a result of the Salisbury Highway incident.
As I have said, it is apparent from such cases as Ambridge and Forrester (supra) that injuries sustained in an assault would not necessarily give rise to an assignment of a numerical value of one or more. In Forrester, the physical injuries were not as bad as the injuries sustained by the Plaintiff as a result of the Salisbury Highway incident but there was an anxiety factor relating to whether or not the assailant had some communicable disease at the time of the assault. In Ambridge, the physical injuries were on a par with the added factor that a clear case had been made out for aggravated damages. In this case, I do not consider that aggravated damages are applicable. However, I consider that the Plaintiff has sustained an aggravation of a psychological injury as well as a physical injury as a result of the assault. I have found that the Plaintiff had a pre-existing personality disorder of the type described by Professor Goldney. The fact of the assault on Salisbury Highway would have been particularly injurious, from a psychological point of view, to the Plaintiff. It is this additional factor which, in my view, permits a numerical value of one to be assigned.
I previously mentioned that the Plaintiff called a dental surgeon, a Dr Gorkic. He provided by way of subpoena the file kept by the South Australian Dental Service. The Plaintiff has had repairs to one of the teeth in his lower jaw which he said had been damaged as the result of one of the incidents on 3 August 2002. It is apparent from Dr Ling’s evidence that no complaint was made by the Plaintiff about a tooth injury when the Plaintiff first saw him after the incident on 6 August 2002. He also saw him on 12 August 2002 and no mention was made of an injured tooth, although when Dr Ling saw the Plaintiff on 2 September he complained of a broken tooth.
A letter of 2 October 2003 from Dr Gorkic to the Plaintiff’s former solicitor is Exhibit P7. It is apparent from that letter that on 6 September 2002 the Plaintiff was seen at the Dental Service and that a damaged tooth was repaired on that day. It was Dr Gorkic’s view that the tooth may have been broken as a result of trauma to the jaw but it was also consistent with the fact that the Plaintiff was in the habit of grinding his teeth. At the end of the day, I do not think much turns on the question of whether or not this was an injury sustained either on the first or the second incident of 3 August 2002. If it had been sustained in the second assault which took place on Salisbury Highway it would make little difference to the Plaintiff’s condition and hardly figures in the assessment of damages.
For the above reasons I hold that the Plaintiff is entitled to compensation pursuant to s.7(1) of the Act in respect of the injuries received by him from the assault referred to in paragraph 2 of the Statement of Claim. The amount of compensation to be awarded is $1,000. I will hear the parties as to costs.
Pursuant to s.7(11)(b) of the Act I certify that the Plaintiff has not received any payments in respect of the injuries sustained by him from the assault referred to in paragraph 2 of the Statement of Claim and I further certify that if he were to exhaust all other available remedies he would not be likely to receive any payment in respect of those injuries.