Puric v State of South Australia - [2008] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PURIC v STATE OF SOUTH AUSTRALIA
[2008] SADC 82
Judgment of His Honour Judge Boylan
27 June 2008
CRIMINAL LAW
Compensation for injury. Applicant seeking compensation for injuries sustained in a fight. Issue: has an offence of assault been proved beyond reasonable doubt? Held, applicant so unreliable that no offence proved. Claim dismissed.
Victims of Crime Act 2001 s.22(2); Criminal Law Consolidation Act 1935 s.15, referred to.
Jones v Durkel (1958) 101 CLR 298, considered.

PURIC v STATE OF SOUTH AUSTRALIA
[2008] SADC 82

This is a claim for compensation pursuant to The Victims of Crime Act 2001.
In the early hours of the morning of the 31^st of October 2005, Branko Puric was injured in a fight outside the Serbian Club at Hindmarsh. He claims that the person or persons who caused his injuries did so while committing an assault upon him and that he is, therefore, entitled to compensation as a victim of crime.
Puric reported to the police that he had been assaulted and police officers made inquiries which included interviewing some witnesses. But no charges were ever laid, the police being of the opinion that there was insufficient evidence for prosecution. Accordingly there has been no criminal trial and no court has yet been called upon to decide whether or not any offence was committed. Puric cannot be awarded compensation unless a court is satisfied beyond reasonable doubt that an offence of assault was committed against him.[1] That means that he cannot succeed unless I am satisfied beyond reasonable doubt that such an offence was committed. Because Puric’s evidence and that of the two other witnesses who were present is so unreliable, I am not so satisfied and Puric’s claim fails.
[1] Victims of Crime Act 2001; s.22(2)
I heard three account of the events outside the Club. I shall deal with each of them after setting out a few undisputed matters.
Puric is a 47 year old Serbian man who came to Australia in 1995. In Serbia he had worked as a policeman and as a prison officer. He had various jobs in Australia. In 1997 he was working as a roof trusser when he suffered injuries to his back and neck. He received work-cover payments until his claim was finally settled in November 2000. As a result of those physical injuries he also suffered from, and was treated for, depression.
Puric suffered further injuries in the fight outside the Club. There is no doubt that he suffered a broken cheekbone. For that injury he required surgery, namely, the fixing of a plate. That surgery was not ultimately successful and the plate was removed. Puric continues to suffer on account of the injury to his cheekbone. He suffers pain and, owing to associated damage to his nose, sometimes has difficulty breathing. He may need further surgery. He also suffered injury to his ribs but it is not possible to know if any of them was actually broken.
Puric’s general practitioner gave evidence that a very large degree of force would have been required to fracture the cheekbone. The injury is consistent with Puric’s having been punched or kicked. It is also consistent with a fall, but whether or not the injury could have been so caused would depend very much upon the mechanism of the fall. It is not possible that Puric suffered all of the injuries which he sustained in the fight simply by falling over.
I turn now to the accounts of the events outside the Club and begin with Puric’s account.
Puric and his friend Dejan Nikolic arrived at the Serbian Club at about 7.30 or 8 p.m. on the 30 October 2005. While there, Puric drank up to five whiskys with coca cola. About his sobriety when the events began, he said, variously, that he was “not drunk”, “in a good mood”, “maybe a little bit drunk”.
At about 1.00 a.m. he went outside and saw Nikolic arguing with a group of men. Puric went over to the group, intending to calm them down. A man named Djuro Radinovic abused Puric by calling him what I understand to be the Serbian equivalent of a “mother fucker”. Radinovic then backed Puric into a wall where, owing to his wearing new and slippery shoes, Puric fell to the ground. A number of men then kicked him. Nikolic intervened, giving Puric the chance to get up. He did so and walked away. Nikolic fought with other men before leaving the area. Puric remained outside, waiting for Nikolic to reappear. After a few minutes, Radinovic re-appeared, approached Puric and punched him twice in the face. Puric fell to the ground and a number of men kicked him. The incident ended when Puric heard one of those men say “Stop! We’ll kill him”. Puric left and went by taxi to the Royal Adelaide Hospital. He presented himself there at 1.37 a.m. A blood alcohol test produced a reading of 0.101 grams of alcohol per 100 millilitres of blood.
Djuro Radinovic and his younger friend Miodrag Vjestica told other stories.
Radinovic is 40. He is a big man and, apparently, fit and strong. He, too, had spent the evening at the Serbian Club. Between arriving there at about 7.30 p.m. and the fight outside, he had drunk “up to five beers and up to four vodka cruisers”. At about 1.00 a.m., he went outside to make sure that a friend of his who had been causing trouble had left the premises. Radinovic saw a car travel the wrong way down a one-way street and pull up outside the Club. The car stopped with the driver’s door next to the footpath. The driver was Ms Gorana Sinikovic, Miodrag Vjestica’s girlfriend. Radinovic saw Gorana get out of the car and shut the door. Branko Puric and Dejan Nikolic approached her. Puric was saying “Well, look at this cunt. Look at that mini skirt”. Radinovic walked up to them and told Puric that he should be ashamed of himself, that Puric was old enough to be Ms Sinikovic’s grandfather. Puric replied by saying “Fuck your mother”. Puric then swung at Radinovic as if to hit him. Radinovic responded by hitting Puric a number of times. Puric and Nikolic then fought with Radinovic and Vjestica. During the fight, Radinovic suffered two broken teeth. He does not know who it was who struck the blow that caused his teeth to break. While Radinovic was still fighting, now with Nikolic, he saw Puric hit a man named Medic who was coming out of the Club and who had not been involved in any earlier fight. When the fight was over, Nikolic went home.
Vjestica’s account is similar to Radinovic’s but concerningly different in some details. Vjestica is the youngest of the men. He is 27 and a bus driver. He arrived at the Club at about 9.30 or 10 p.m. and had had less to drink than the others. He had had only two or three drinks as he was to drive home. He was also to drive buses the following day. He told me that he stopped drinking before midnight. At about 1.00 a.m., he went outside to see if his girlfriend Gorana Sinikovic had brought the car so that they could take Vjestica’s drunken brother home. Vjestica saw Ms Sinikovic stop the car. He then saw Puric and Nikolic walk towards it. Ms Sinikovic opened the door and Puric began to pull her out of the car. Puric and Nikolic appeared to Vjestica to be drunk. Vjestica went up to the car. Puric and Nikolic pushed him against the car. Djuro Radinovic then intervened, saying words to the effect “How can you say such things? She could be your daughter”. Puric told Radinovic to “fuck his mother”. Nikolic then pushed Radinovic up against a wall whereupon Puric began to punch Radinovic. Vjestica then pulled Puric away and began to punch Nikolic, hitting him two or three times. Vjestica then felt Puric punching the back of his head so he hit Puric once or twice. He also kicked him once or twice. Onlookers then broke up the fight. Vjestica did not say whether or not Puric was on the ground when he was kicked.
As to their accounts of the events outside the Club, not only did the three men tell different stories, all were singularly unimpressive in the witness box. They were often reluctant to answer questions at all, were often evasive in their answers and were argumentative with counsel. I am satisfied that none of them told me the whole truth and that none of them tried to do so. Each gave evidence tailored to suit his purposes. I am satisfied, however, that a couple of matters have been proved. I find that Puric, Nikolic and Radinovic were significantly affected by alcohol. Radinovic’s own evidence supports that conclusion. I accept Vjestica’s evidence about Puric’s and Nikolic’s being affected by alcohol. His evidence with respect to Puric is supported by the results of the blood alcohol test. I am also satisfied, and I find, that the fight began because Puric and Nikolic behaved improperly towards the young woman. That part, at least, of the evidence of Radinovic and Vjestica has the ring of truth to it. That latter finding makes one aspect of Puric’s evidence especially telling. He insisted that there was no incident involving a young woman. I am satisfied that he was being deliberately untruthful about that. His repeated denials of the incident cause me to be very wary indeed of the rest of his evidence about the events outside the Club.
Owing to the unreliability of those three main witnesses, I am unable to come to any conclusion from their evidence about what actually happened. Other evidence which I would have expected to hear was not forthcoming. One of the participants, Nikolic, was not called, nor was Ms Sinikovic. There was an explanation for Nikolic’s absence: he could not be found when attempts were made to serve him with a subpoena. There was no explanation for Ms Sinikovic’s absence. She was plainly in the respondent’s “camp”. I must not, of course, speculate upon what she might have said and I am not prepared to draw any inference adverse to the respondent’s case on account of her absence. I should only do that if there was some ground in the evidence for my drawing an inference favourable to Puric. If I were able to do that, then the absence of the young woman might be a ground for my being more confident about drawing such an inference.[2] For the reasons which I have given, I can draw no inference favourable to Puric.
[2] Jones v Durkel (1958) 101CLR 298.
In summary, because none of Puric, Radinovic or Vjestica has told me the truth, or even tried to tell me the truth, I am unable to make any findings about the facts which led up to Puric’s suffering his injuries. Therefore, I am not satisfied beyond reasonable doubt that an offence of assault occurred. But in deference to Mr Mitchell’s valiant arguments for his client, I add a little more.
Mr Mitchell’s first submission was that Puric was the victim of an unprovoked assault. I reject that submission because, as I have said, I do not believe he has told me the truth about how the fight began. Next, Mr Mitchell argued that there can be no doubt that Puric was treated violently. I accept that submission: the injuries corroborated such violence. Mr Mitchell then asks me to look at the severity of the injuries and the relative ages, weight and health of the participants. He says that, even if I accept that Puric provoked the violence (and I do), then the response to it constituted an assault. I do not accept that submission because, again, I do not know what happened. Mr Mitchell went further and argued that, even if the man or men who caused Puric’s injuries were justified in acting in self defence, the response was excessive. I do not accept that submission; yet again, because I do not know what happened. There may be cases where the severity of an injury may be sufficient to negate self defence – a bullet wound or a stab wound, for example. But this is not such a case. Without making findings of fact I am unable to decide whether or not action possibly taken in self defence was excessive. To put it another way, I cannot apply the self defence provisions of Section 15 of the Criminal Law Consolidation Act 1935 in a factual vacuum.
Accordingly, I dismiss Puric’s claim.
In other circumstances it would be my duty, even though I have dismissed the claim, to assess the damages should another court find that I have been wrong in dismissing it. But this case it different. There are too many possible permutations. It is not, in my view, desirable that I should make various assessments on the basis of various permutations. I shall not do so.
The claim is dismissed.