Mavromoustakis v State of SA & Iacovou No. Cicd-98-883, Cicd-98-884 Judgment No. D70

[1999] SADC 70

E & P MAVROMOUSTAKIS v STATE OF SA and IACOVOU

[1999] SADC 70

Judge Lowrie
Criminal Injuries

1 The plaintiffs claim compensation under the Criminal Injuries Compensation Act 1978 against the first defendant, the State of South Australia, and the second defendant, Panos Iacovou, for psychological injuries they allege they suffered in late 1995 as a result of certain correspondence directed by the second defendant to the plaintiffs’ mother, their next friend, Aphrodite Mavromoustakis.
2 The second defendant was, on 7 November, 1996, convicted in the Adelaide Magistrates Court of using the postal service in an offensive manner.
3 When this matter came on for hearing on 21 May, 1999, both the plaintiffs and the State were represented, and, the second defendant appeared in person.
4 Mrs Mavromoustakis gave evidence as well as a psychiatrist, Dr David Bertram, who had examined the infant plaintiffs in December 1997, and, at that time diagnosed them as suffering from a form of anxiety disorder as a result of the correspondence directed to their mother.
5 The second defendant gave evidence in support of his detailed defence and also a lengthy document which really was an extension of many matters stated in his defence. That document bears the date "Mon. 25-1-1999".
6 I took into account not only the matters in his defence, but also the matters in that handwritten document and his own evidence, and, endeavoured to assist him in his cross-examination, both of the next friend and Dr Bertram.
7 Mrs Mavromoustakis confirmed that she is the next friend and the mother of the plaintiffs, Evie who was born on 15 October, 1985, and is now 13, and at the time of the offending was aged 9, and Peggy who was born on 8 June, 1990, and is presently aged 8, and at the time of the offending was aged 4.
8 Mrs Mavromoustakis said that she is now 39, was born in Cyprus and came to Australia in approximately 1989. She was married but subsequently separated from her husband in about 1990-1991 and her divorce was finalised in 1994. She has custody of the two children of that marriage.
9 Mrs Mavromoustakis outlined that in February 1995 she commenced English classes at a time when she was living at Ingle Farm. She described the nature of the class structure and how she sat alongside the second defendant in these classes. There were approximately 20 students in the class. She said in this classroom atmosphere normal discussions occurred including the fact, when asked, that she said she was divorced and lived with her two children. Mrs Mavromoustakis said that although she sat next to the second defendant in this class, she had never revealed her residential address although it may have been obvious to him from written material on her desk. Mrs Mavromoustakis said at this stage she lived with her daughters and they were both well settled and attending school. She never had any difficulties in their upbringing.
10 Mrs Mavromoustakis described how she started receiving mail including one package which contained a snake, ladies underpants and a tea towel inscribed with a calendar and written on the undergarments were the words "kiss me here". She said it was a toy snake. Cards were sent to her with a dracula type person depicted. She said she received something in the order of 50 cards, but, particularly remembers the packet with the snake, indecent type photographs of topless women with comments like "this is you" and one depicting a coffin containing reference to her vagina. Needless to say this continuing flood of correspondence caused her distress and she reported the same to the police.
11 Mrs Mavromoustakis said she was also getting messages on her answering machine, at times silence and sometimes Greek music and this would happen every day. She remembered on one occasion the line was "open" and she tried asking the person to speak up, but obtained no satisfaction.
12 Mrs Mavromoustakis said like herself the girls became very distraught and security conscious, particularly the oldest, and each night endeavoured to secure the house. Their sleeping patterns became most disturbed. She said she involved her father and members of her family to sleep at her home because of the ongoing letters.
13 She said prior to October 1995, she became aware that it was the second defendant who was the author of these letters, cards and parcels. She said a conversation occurred and he said "if it is me what’s going to happen"? and, she explained that her brother was going to kill him. He then directed questions about compensation requesting that the matter not be revealed to their teachers. Mrs Mavromoustakis said she told him "I don’t want anything. The only thing I want you to do is to stop doing what you are doing now". She said after that she did receive some cards in Greek, and, sleeplessness and concerns still occurred.
14 Eventually, because of these ongoing problems, she left the Ingle Farm address in October 1995 and moved to a new house. She obtained a silent telephone number. She said she believed the girls benefited from this move as particularly they now have their privacy.
15 She was subsequently aware that the police had caused the second defendant to be prosecuted and he pleaded guilty to sending offending material through the postal service. She said in this time she endeavoured to protect the girls as well as she could by getting mail from the letterbox rather than them collecting it but sometimes she was not able to do this.
16 Mrs Mavromoustakis confirmed that she became very anxious and depressed because of this ongoing harassment. She sought legal advice. She recalled taking her daughters, Evie and Peggy, to see Dr Bertram in December 1997 and explained to him the background and their ongoing problems.
17 I asked her:
"Q.  It is May 1999 now. What is Evie like now.
A.    It’s much better now.
Q.    What about the other little girl, how is she now, all right.
A.    Yes, she is still better. They are both still better, but, of course, they have still got the fear and they still want to come and sleep with me.
Q.    You haven’t seen this man since mid 1999. You have seen him in court occasionally.
MS DAVEY:   1995.
HIS HONOUR
Q.    You haven’t seen him since 1995, only in court.
A.    Correct."
18 Dr Bertram attended and confirmed that he had examined both girls in December 1997. He confirmed that Evie suffered psychological difficulties because of the nature of the postal offences committed against her mother. In his detailed report he was of the opinion that Evie had suffered an anxiety disorder because of the ongoing nature of the correspondence and also indirectly because of the effect it had on her mother, namely, a chronic anxiety disorder. He said her symptoms of anxiety had been consistent since 1995 to that time and probably continued for an indefinite period. However, he viewed her condition at that time as stable.
19 In his evidence in court he felt that with all these matters being resolved the child should recover within a six month period.
20 Dr Bertram was of a similar view with the child, Peggy, the younger child. The intensity of the anxiety was not as intense as with the elder daughter.
21 The second defendant gave evidence and repeated many of the allegations that he had raised in his defence and the letter of 20 April, 1999. He confirmed that he had sent approximately 50 letters, but many of them, paraphrasing his evidence, had no sexual overtones. However, he accepted that the postpak did contain sexually explicit material. No doubt that was the basis of his plea of guilty in the Magistrates Court. Clearly, he was endeavouring to establish and, indeed, as was the position, that he did not intend his actions to in any way harm the infant plaintiffs.
22 I endeavoured to explain to him the principles of the Criminal Injuries Compensation Act that the relevant matter is the commission of the crime and damages flowing from that conviction.
23 I have no doubt in accepting the evidence of Mrs Mavromoustakis and Dr Bertram. It was a very unsettling time for the infant plaintiffs in 1995 and no doubt continued in 1996. Since that time clearly their condition has been abating and within a short time I believe both children will resolve their anxiety problems.
24 In all the circumstances I propose to allot the following. As to the plaintiff, Evie Mavromoustakis, I allot the numeral 4 which I consequently award the sum of $4,000 compensation, and in regard to the plaintiff, Peggy Mavromoustakis, I allot the numeral 3 which consequently translates into an award of $3,000.
25 I fix disbursements and costs as follows:
Evie Mavromoustakis     Damages $4,000.00
       Disbursements 1,345.15
       Costs     1,325.00
              $6,670.15

Peggy Mavromoustakis Damages $3,000.00
       Disbursements 1,245.15
       Costs     1,325.00
              $5,570.15

26 I publish my reasons as of this day. If any matters require attention I give the parties liberty to apply.