Foster v State of SA No. DCCIV-96-760 Judgment No. D3766

[1998] SADC 3971

ANTHONY FOSTER v THE STATE OF SOUTH AUSTRALIA

Criminal Injuries Compensation

Judge Lunn

Background

At about 1am on New Years Day 1996 the plaintiff was in a disco room on the first floor of the Crown Hotel at Victor Harbour.  As a result of some incident there he suffered a broken left jaw and some other less serious injuries.  He alleged these resulted from some person or persons unknown having assaulted him.  He now sues the State of South Australia under the Criminal Injuries Compensation Act 1978 (“the Act”) for compensation for his injuries.

The evidence

The plaintiff himself was the only witness who was present at the time of the alleged assault.  While there were numerous persons present in the disco room at the time the plaintiff is not aware of their identities.  He alleged that some bouncers at the hotel were involved.  Some weeks later the police spoke to some of the security staff who denied any knowledge of the incident and they were unable to ascertain the identities of the other security staff who were working at the time.  The police inquiries, such as they were, did not reveal any other witnesses to the incident.  Accordingly, in this trial the plaintiff’s evidence about what actually occurred in the alleged assaults stands alone.

The plaintiff also called his father and a friend, Reuben Walker, who saw him shortly after he incurred the broken jaw.  I accept their evidence.  The defendant called Constable Bell who had investigated the incident.  I do not accept her evidence that she spoke to the plaintiff by telephone in mid to late January 1996 and I make no findings concerning her allegations of the plaintiff’s alleged intoxication when she first saw him at about 2-2.30am on 1 January 1996.  Otherwise I accept her evidence.

The only medical evidence was the tendering by consent of a number of medical reports.  There was no evidence from any doctor or nurse who saw the plaintiff at the South Coast Hospital on 1 January 1996 before he was transferred to the Flinders Medical Centre later that day.

The plaintiff’s evidence

I have had considerable difficulty in assessing how reliable the plaintiff’s evidence was about what occurred in the alleged assaults.  He claims to have been hit from behind without prior warning on the left hand side of his head by someone whom he did not see.  He says he immediately fell to the floor and as a result of the blow and/or striking the floor he became unconscious.  He does not know for how long he was unconscious, but when he next regained consciousness he was at the top of a set of metal back stairs leading from the outside disco room down to footpath alongside the hotel.  He says he was then surrounded by three or four bouncers one of whom was holding onto his right arm.  This was about fifteen feet from where he had been standing immediately before he says he was hit.  Presumably, he had been unconscious for a sufficient period for him either to have been carried, or staggered, that distance to the landing at the top of the stairs.  He stated that the bouncer who had hold of his arm turned him around and pushed him and he then fell and rolled down thirty or forty steps to the ground during which he says he was again knocked out.  He regained consciousness near the base of the stairs, but again he cannot say for how long he was then unconscious.

There is no reference in the reports of the Flinders Medical Centre about him having been knocked unconscious.  Those medical reports are confined to the jaw injury.  Some of the later medical reports ascribe some of the plaintiff’s continuing symptoms to a post-concussion syndrome, but there is no evidence of any contemporaneous medical diagnosis of concussion.

It is common place in trials involving head injuries and concussion for expert medical evidence to be given about victims having suffered retrograde amnesia or the like which affects their ability to recollect subsequently what occurred immediately before the head injury was inflicted, but here I have no evidence whatsoever on this topic.  While I can take judicial notice of the possibility of the plaintiff having suffered some form of retrograde amnesia, I am in a quandary as to how far that can be relied upon in the absence of expert evidence about it in this case.

A similar problem arises in relation to Constable Bell’s observations at about 2am of various signs about the plaintiff, such as slightly slurred speech, unsteadiness on his feet and watery and bloodshot eyes, and as to whether they could have been attributable to symptoms of concussion or the like rather than intoxication from alcohol.  Again this is frequently the subject of expert evidence, but none has been adduced in this case.  I can take judicial notice that there may be some similarity in the symptoms of concussion and intoxication, but in the absence of evidence in this case I cannot take it very far.

Rather than incur the expense and delay of reopening the trial and inviting evidence on these topics I consider that the action can be properly resolved without making any actual findings about the plaintiff’s evidence.  Even if the plaintiff’s story is substantially accepted, he cannot succeed in law on his claim under the Act.  Accordingly, I proceed to deal with the matter on the plaintiff’s evidence at its face value, but without making any finding that it is correct.

Two assaults

The plaintiff’s claim was pleaded, and presented, as if he had been the victim of a single offence of assault.  However, as I pointed out in the course of the trial, on the evidence, such as it is, there are clearly two separate offences of assault alleged.  The first is the blow to the side of the face by some unknown assailant (“the first assault”) and the second is him being pushed by the bouncer at the top of the landing to the back stairs which he says caused him to fall down those stairs (“the second assault”).  The assailant in the second assault is identified as someone whom the plaintiff believed, presumably from his mode of dress, to be a bouncer, but there is nothing whatsoever in the evidence to suggest that it was that bouncer, or someone acting in concert with him, who perpetrated the first assault.  After the event the plaintiff told some people that he had been assaulted by bouncers at the hotel, but it is equivocal whether he was there referring only to the second assault.  In any event he said nothing in his evidence to suggest that it was a bouncer who had hit him on the side of the face.  The plaintiff is entitled to pursue claims under the Act based on each of the two assaults, although it was not suggested that they did not constitute a single incident for the purposes of Section 9(2) of the Act.

Which assault caused the broken jaw?

There was no medical evidence pointing to what type of force or blow might have caused the broken jaw.  Again the only evidence on the topic is that of the plaintiff.  Prima facie, it might seem that as the fracture was in the region of the blow in the first assault that blow would have been likely to have caused it.  However, the other evidence dispels that inference.  In answer to a question in cross examination concerning the first assault -

“Q.... You don’t recall how hard the blow connected, do you?”

the plaintiff answered -

“A.... Not really hard.”

He was not sure whether he was knocked out in the first assault by the blow itself or by subsequently hitting the floor.  Therefore, there can be no substantial inference that the blow to the side of his face in the first assault was forceful enough to have broken the jaw.  He said nothing about his symptoms at the time he regained consciousness at the landing at the top of the back stairs to suggest that he then had any symptoms of a broken jaw.  He said he could not recollect whether he struck his jaw in rolling down the steps after the second assault, but he conceded that it was possible.  If he had so struck his jaw on a metal step, that could well have broken it.  To have been knocked unconscious in falling down the stairs it seems that he must have hit his head on something.  On the evidence, such as it is, I find on the balance of probabilities that the broken jaw occurred as a result of the second assault, and not of the first assault.

Proof of the first assault

......... The plaintiff said in his evidence that someone from behind had king hit him to the jaw with a clenched fist.  That was speculation on his part as he neither saw nor heard anything associated with the blow before it was struck.  The admissible evidence can be no more than that the plaintiff was hit by something that felt like a human fist, but it may have been by something else.  Merely to establish that the plaintiff was hit is not enough to prove a criminal offence of assault.  It must also be proved that the blow was an intentional act by the striker: Thompson v State of SA, Full Court, 8/6/95, Jud No S5081, unreported.  There is no evidence from which the state of mind of the striker can be deduced.  While in some cases the nature of the blow itself may give rise to an inference that it was intentional and hostile (eg Chester v State of SA (1996) 188 LSJS 475), here there is nothing of that kind. As the blow was “not really hard”, and did not break the jaw, there is at least a reasonable possibility that in a room where there were a substantial number of people, some of whom were almost certainly substantially intoxicated, there reasonably could have been a possible innocent explanation for the blow. While a finding on the balance of probabilities may be different, the evidence does not prove beyond reasonable doubt, as is required by s8(1a)(a) of the Act, that the necessary mental element of the offence of assault has been proved beyond reasonable doubt. In other words, if X had been charged with the assault on say a bald admission by him that he had come into contact with the plaintiff, but he had said no more than that, and the only other evidence was that of the plaintiff, clearly there would be an acquittal in the criminal court as the necessary mental element for an assault would not have been proved against.

Corroboration for the first assault

......... Even if the plaintiff could prove the first assault beyond reasonable doubt he would still fail because his evidence of the commission of that offence was not supported in a material particular by any corroborative evidence as is required by s8(1b) of the Act.  As the broken jaw is not shown on the balance of probabilities to be causally related to the first assault, the fact of that injury cannot be corroboration.  There is no other evidence which could possibly be corroboration for the first assault.

Proof the second assault

......... The actus reus of this alleged offence is the bouncer on the landing to the back stairs applying force to the plaintiff in turning him around and pushing him.  The plaintiff did not say how hard he was so pushed.  The inference from his evidence about falling after he was pushed is that as a result of the push, and in his debilitated, and possibly intoxicated, state he then lost his balance and fell and rolled down the stairs rather than a direct result of the push was to propel him down the stairs.  Accordingly, the broken jaw only resulted indirectly from the push and was apparently neither intended nor expected by the bouncer who pushed him.  Therefore the severity of the assault cannot be deduced from the fact of a broken jaw having resulted from it.

......... There is little evidence about the mental state of the bouncer who turned the plaintiff around and pushed him.  The only thing which the plaintiff heard said was, “He’s OK”, which was not a declaration of hostile intent.  I find that the incident at about 11.30pm of someone being evicted by the bouncers at the top of the stairs did not relate to the plaintiff, and in any event Constable Bell’s evidence of it was only hearsay and was not admissible to prove its truth.

......... The plaintiff said in cross examination that he “would have been escorted to the steps by the bouncers”.  As he was unconscious at the time he presumably did not see it, but from what he did remember occurring at the top of the stairs he apparently inferred that he had been “escorted” by the bouncers.  The fact that the bouncer who had hold of his arm first turned him around before he pushed him also suggests that the bouncer may have been evicting him from the premises for some reason which is not apparent on the evidence.  The actions of the bouncers collectively at the top of the stairs is not particularly consistent with them believing, for good reason or not, that the plaintiff had been an innocent victim of an unprovoked and violent assault very shortly beforehand.  There is some likelihood on the evidence that the bouncers subjectively believed that they were exercising their lawful right to evict the plaintiff from the hotel premises.  They were entitled to use reasonable force on the plaintiff to accomplish this.  As the issue of lawful excuse has been raised by inference from the other evidence the onus is on the plaintiff to exclude beyond reasonable doubt any possibility that the bouncer in turning him around and pushing him was doing no more than applying such reasonable force to him as was necessary in the circumstances to effect his eviction.  While a finding on the balance of probabilities may be different, the plaintiff has not excluded this possibility beyond reasonable doubt.  Accordingly, he has not sufficiently proved the commission of the offence of the second assault.

Corroboration for the second assault

......... Even if the plaintiff had proved the second assault to the requisite degree he could not succeed under the Act in respect of it because his evidence of it was not supported in a material particular by corroborative evidence as is required by s8(1b) of the Act.  The only possible corroborative evidence was that his jaw had been broken as a result of the offence.  However, as this was only an indirect consequence of the push, it is not independent circumstantial evidence that the degree of force applied was so great that it made it unlikely that the bouncer was only using reasonable force in evicting the plaintiff.  It is also quite possible that the plaintiff could have fallen down the stairs and broken his jaw even if he had not been pushed by the bouncer because he was not in control of his balance either as a result of head injuries received in the first assault and/or of any intoxication.  I was referred to numerous cases where the nature of the injuries suffered had been treated as corroboration, but they each turn on their own facts: Field v Gent (1996) 67 SASR 122; Chester v State of SA (above); Gagliardi v State of SA (1988) 147 LSJS 126; Howie v State of SA (1989) 152 LSJS 230; Steinhauser v State of SA (1986) 128 LSJS 4; Marshall v State of SA (1987) 136 LSJS 12; Jones v State of SA (1985) 125 LSJS 469. Corroboration from the injuries received is corroboration by circumstantial evidence which depends upon what, if any, inference can be properly drawn from the whole of the evidence, including that of the injuries, which would independently support the plaintiff’s evidence of a crime being committed in a material particular.

Alleged failure to cooperate with the police

......... I reject the defendant’s plea that the plaintiff failed without good reason to cooperate properly with the police in the conduct of their investigations into the assaults.  Shortly after the incidents the plaintiff reported the circumstances as far as he knew them to the police: Chester v State of SA (above).  He did not attend to give a further statement on the next day as requested by Constable Bell because by then he was an in-patient in the Flinders Medical Centre.  On 4 January 1996 his jaws were wired together which made speaking very difficult.  His medical condition constituted “good reason” for him not making a full statement to the police earlier than he did.  It was unfortunate that the police were not aware that he had been admitted to the Flinders Medical Centre and did not therefore know to attend there to get a statement from him earlier, but that was not the fault of the plaintiff.

Conclusion

......... Accordingly, the plaintiff’s claim must be dismissed.  If my decision should be reversed on appeal, there may be an application to reopen the evidence to deal with the issues mentioned earlier relevant to the plaintiff’s credibility.  As there is a possibility of the medical evidence being reopened it is inappropriate for me to deal with the issue of what the amount of compensation would have been if the plaintiff had proved the offences beyond reasonable doubt and had sufficiently corroborated his evidence.  There will be judgment for the defendant.