Dean v State of SA & Dean No. Dccic-03-422

[2004] SADC 28

DEAN v STATE OF SA & DEAN
[2004] SADC 28

Judge Lowrie
Criminal Injuries Compensation

1. The plaintiff is a young man born on 31 July 1985 and seeks compensation, which he alleged flowed from witnessing a violent incident that occurred between his parents on 10 June 1999 when he was then aged 13 years. The plaintiff initially sued by his next friend, his mother, Catherine Joan Markos formerly Dean, and named the State of South Australia as the first defendant and his father, Michael William Dean, as the second defendant.

2. The plaintiff alleged on the evening of the incident that his father attended at their house uninvited and he witnessed his father’s violence towards his mother. The second defendant was subsequently convicted on 18 May 2000 of common assault on his former wife and damaging property and received a 28-day imprisonment sentence, which was suspended on stated conditions.

3. The State of South Australia entered a defence to the claim as instituted by the plaintiff. It appears negotiations have occurred and the State has appeared but not taken an active part in these proceedings.

4. The second defendant filed a defence and phrased the same in the following terms:

   ·     “I was found guilty on my version of the facts.

   ·     I was invited in to the house.

   ·     An argument developt between me and my former wife,

   ·     During which she threatened to call police. I pulled the phone hand set from her hand damaging the phone.

   ·     My former wife them came at me, I pushed her away she was not injured.

   ·     At no time did Robert witness any of the above incidences.”

5. The matter came on for hearing on 5 February 2004 when counsel represented both the plaintiff and the first defendant and Mr Dean appeared in person.

6. The plaintiff, his mother, psychiatrist, Dr Raeside, and the second defendant gave evidence.

7. The evidence was in short compass. The plaintiff confirmed his date of birth. He is now 18. He confirmed that his father was the second defendant, and he had not seen his father for approximately three years. He thought that his parents separated when he was aged approximately seven. There were other children of this marriage. He confirmed that his mother has remarried his stepfather, Grant Markos.

8. He recalled the incident in question. He said at that time his stepfather was at work and he recalled waking up and hearing his mother screaming. He got out of bed and walked to the kitchen and saw his father with his left hand around his mother’s neck. She yelled at him to “go and get help”. He said his father then confronted him in the passage and said to him “what’s this I hear about you having been sucking some guys cock”. He said he did not say anything and was able to leave the premises and ran into a neighbour’s house. He believed that the neighbour contacted the police. He did not see his father again that night. He said he was terrified by this ordeal.

9. The plaintiff said he had seen his father drunk on prior occasions and felt on this night he “smelt drunk”. He said prior to this incident he had some contact with his father, but has not seen him since the incident, nor does he want contact with his father.

10. The plaintiff outlined that some three months earlier he was involved in a sexual incident at the Elizabeth shopping centre where a security guard made certain observations of his conduct. After that incident he undertook counselling. Up until this time he believed his attendance at school was good, but, after the incident he had some difficulties.

11. He also confirmed that in October 1999 he was involved in an incident when he met a person with the surname of Hayter. He said Mr Hayter was a much older man. He met him in the toilets at the Adelaide train station at a time when he had “taken off from home because I was not happy there because of reasons”. In effect, he had run away from home. He said he then stayed with Mr Hayter for approximately three months including an interstate trip when a number of sexual offences were committed on him. Subsequently Mr Hayter was dealt with in the District Court for his criminal conduct.

12. The plaintiff did not expand on the reasons for his leaving home other than there was some suggestion, which he denied, that he was using drugs. However, in his opinion, he felt it best at that time that he should leave the family home.

13. He confirmed that he had seen Dr Raeside and he had made full disclosure to him of his past and all of these incidents.

14. His father asked Robert a number of questions particularly about his observations of the incident on this night with his mother. Robert maintained his observations of the incident from the passage and then the leaving of the home. Mr Dean placed before his son statements that he had given to police about the incident as well as material, which had been spoken or placed before a counsellor in the Family Court. Clearly, there has been a significant dispute between Mr Dean and Mrs Markos in the Family Court, no doubt involving access to the children and possibly other matters.

15. Questions were also directed to Robert by his father about a subsequent incident when Robert alleged his father had threatened him when he was driving a car in the area.

16. Notwithstanding these questions, Robert maintained that he had observed the violence directed to his mother.

17. Mrs Markos was called and outlined the nature of the incident with her former husband. She confirmed that at that time she was living with Mr Markos and he was absent from the home. She said her husband arrived and she invited him in. She thought it was about 9.45pm when he arrived. She said at that time she was sitting in the lounge and heard voices and a car door slam. She thought it was her older son returning home. There was a knock on the screen door and she assumed it was her son. She went to the door and then she met her former husband. She said she asked him what he was doing and he said he wanted to talk about their sons. It was apparent to her that he had been drinking, as he smelt of alcohol and had a beer in his hand.

18. She said she asked him to leave but he put his foot in the door and came into the house. She said at this stage there was no restraining order current between herself and her former husband. She said he came into the lounge and wanted to know what was occurring with their sons. She said he had been given information about an incident and certainly a sexual incident involving Robert. She said he then wanted to see the girls and she said they were in bed and asked him to leave. He then walked down the hallway, and turned on the light where the girls were asleep. She followed him and turned off the light and asked him to again leave and then said if he would not she would “ring the cops”.

19. She said he became angry and, in the kitchen, grabbed her arm and throat and pushed her against the cupboard and she screamed. She said the time of the incident seemed like an eternity. She said Robert came out of his room and observed her. She told him to go next door and ring the police. As Mr Dean was leaving she grabbed the back of his shirt and told Robert to run. She said she was really scared and crying and terrified by the conduct. She said in this fracas the telephone had been pulled from the phone. She said she was pregnant at the time and received bruising to her upper arm, throat and ribs and the following day she attended the Lyell McEwin Hospital and a report of this attendance was tendered.

20. She confirmed that Robert had received counselling and would not talk about the incident. He became more withdrawn and started skipping school, which was not like him in the past. She felt he had changed and was “just not her son” after this incident.

21. She outlined that after this incident she obtained a domestic violence order directed to the second defendant and as well there has been the ongoing Family Court proceedings. However, as the children have become older these matters have resolved. Apparently none of the children desire access to their father.

22. Mr Dean directed a number of questions to his former wife about the nature of the incident but she did not resile from her description of the nature of his aggressive acts on this night.

23. Dr Raeside, the well-qualified psychiatrist, outlined that in January 2003 he had a consultation with Robert and subsequently prepared a detailed letter of report outlining the consultation and his opinion. Dr Raeside dealt with all of the past issues in the life of this young man and the various unsettling incidents. He confirmed that following the first incident the plaintiff commenced counselling because of the nature of his depression and the issues arising from that incident. It is apparent from Dr Raeside’s report that the plaintiff’s mental state was much more severely affected by the subsequent sexual assaults.

24. Dr Raeside felt on the information from his interview that he believed the plaintiff had experienced an adjustment disorder by witnessing this assault. However, following the series of sexual assaults he developed a posttraumatic stress disorder re-experiencing the trauma through dreams, intrusive memories and occasional flashbacks as well as being distrustful and anxious about others. He confirmed that the plaintiff had undergone some general counselling over the last few years and felt there was now a measure of stabilisation in his current state. He did not necessarily recommend any further specific treatment.

25. Dr Raeside commented and confirmed in his evidence that:

    “Mr Dean’s description of the offence was consistent with my observations of him. I believe that his condition has currently stabilised. I would apportion the respective impact of the traumas to the evolution of Mr Dean’s mental disorders as such:

    ·Sexual assault at Elizabeth City Centro - 10%

    ·Witnessing assault by his father upon his mother - 15%

    ·Series of sexual assaults by William Hayter - 75%”

26. In his evidence Dr Raeside commented about this assessment and although commenting on the difficult nature of these types of apportionments, added that he dislikes assigning percentages to a number of disturbing events in a person’s life but, in effect, this was his assessment of the situation in this young man’s life..

27. Mr Dean gave evidence and particularly in detail of the incident in question. He said he had been to cricket practise on this evening, and then attended the hotel and on hearing a suggestion of sexual conduct involving his son walked from the hotel at Elizabeth South to the house at Elizabeth East which he thought was a good 30 minute walk. He said during the walk he had a beer, a stubbie, and drank approximately half of it in the walk to the house. He confirmed that his former wife opened the door and there was then a discussion in the lounge and a request to leave. He said he wanted to have a look at the girls, and turned on their light in their room. Catherine turned it off. He said they then went into the kitchen and she said she was calling the police. He said:

    “So I said ‘I just want to have a quick look at the girls and then I’ll go’, so I went and had a look at the girls, turned the light on, she turned the light off. She went and said ‘I’m calling the police’. She went into the kitchen, picked up the phone. I went to sort of like grab the phone and hang it up or something and we struggled, the phone came out. She had the phone because I let go - as soon as the phone came out I let go of the phone, she had the phone sort of like this (INDICATES) and I thought she was going to come at me with the phone, so I just pushed her away from me like that (INDICATES), turned away and left the building. As I was leaving the building -“

28. He said as he was leaving Robert came out of his bedroom and he asked him:

    “What’s going on Robert, with this bloke at the shops?’ and he said “It wasn’t me, it was him doing it to me’ and I said, ‘Well what’s going on?’ and then Cathy said, “Robert, go next door and ring the police’. At that point I exited the building and left.”

29. In cross-examination, plaintiff’s counsel placed before Mr Dean much written material from the Family Court proceedings where Mr Dean had deposed to this incident and such depositions were slightly at odds with his evidence before me. In those proceedings he had said a friend dropped him that night at Mrs Markos’ house. This would be consistent with Mrs Markos’ evidence of hearing a car. However, he said that was a mistake in the retyping of his material from his diary by a friend. He maintained the nature of his conduct with his former wife on this night

    FINDINGS

30. The evidence of the plaintiff was in very brief terms. However, Mrs Markos’s evidence was consistent with the material from the Family Court. I would accept her version of the events of this evening of this violent confrontation with her former husband. I have little doubt that he had been drinking on this evening and may well account for his actions getting out of control.

31. I find there was a violent confrontation on this evening between Mr Dean and Mrs Markos instigated solely by Mr Dean following his uninvited attendance at the house. The actions were sufficiently violent for her to seek medical attention to the obvious abrasions to her body. These abrasions flowed from the forceful grabbing and holding by the second defendant. However, fortunately he desisted in these actions and left the property.

32. There had obviously been an unfortunate and difficult matrimonial break-up between the parties. However, this was the first instance where this type of violence had occurred. As I said, it may well be that the second defendant’s consumption of alcohol contributed to his loss of control of his actions on this night.

33. In any event, I accept that it was a violent incident witnessed by a 13 year old, obviously a young man who clearly at that time had had some developing difficulties in his personal life. Perhaps he had a somewhat fragile personality at the time of the incident because of the developing issues in his personal life. I accept his mother’s evidence of his withdrawn and disturbed nature following the incident. However, there is little doubt that the, what I will call the “Hayter incidents” caused this young man’s fairly minimal problems then existing to become serious. One can only hope, as Dr Raeside said, that with the counselling he has received his problems have to some extent stabilised.

34. The plaintiff is entitled to receive compensation under this Act and in all the circumstances I propose to allot the numeral 3 and award the sum of $3,000 compensation to him.

35. The position is as follows:

Compensation	$3,000.00
Counsel fees	550.00
Solicitor’s fees	742.50
Disbursements
Summons	60.00
Service	99.00
Dr C Raeside’s report	495.00
Counsel opinion	550.00
Photocopying	230.00
Binding of copy documents	22.49
Dr Raeside’s court attendance fee	330.00
Trial hearing fees	485.00
GST component in relation to photocopying	23.00	2,294.49
TOTAL	$6,586.99

1. I make an award of $6,586 against the defendants.