An Application Under the Criminal Injuries Compensation Act 1983 Ronald Ashenden [1995] ACTSC 68 (10 July 1995)

SUPREME COURT OF THE ACT

AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983
RONALD ASHENDEN
No. CIC73 of 1992
Number of pages - 14
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

CATCHWORDS

Criminal Injuries Compensation - Assault - charge of recklessly inflicting grievous bodily harm - DPP declined to proceed - Causation of Injury - Entitlement to compensation.

HEARING

CANBERRA, 4 May 1995
10:7:1995

Counsel for the Applicant: Mr A. Bradbury

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for the Territory: Mr R. Bayliss

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. An award of compensation be made to the applicant in the sum of $50,528.50.

DECISION

MASTER A. HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 7 February 1991 Neville Galvin was committed by the Magistrate's Court for trial in this Court on a charge that on 17 June 1990 he recklessly did inflict grievous bodily harm on the applicant. On that same day his brother, Keith Galvin, elected to have a similar charge determined summarily. On the evidence before him, the learned magistrate entertained a real doubt about Keith Galvin's guilt, and discharged him. The Director of Public Prosecutions later declined to proceed with the charge against Neville Galvin.

3. The charges, and this application, arose out of an incident that occurred on 18 June 1990 at Ainslie Village, where the applicant was living. As a result of an assault either by one or both the Galvin brothers or of a fall, the applicant suffered a fractured skull and brain damage, leaving him with right sided hemiparesis and epilepsy.

4. On 2 June 1994 an interim award of compensation in the sum of $1400 was made by me. The making of that award was not then opposed by counsel for the Territory, but it was made without any detailed investigation of the circumstances that gave rise to the plaintiff's injuries. The purpose of making the award was to provide funds to enable medical experts to advise whether the present condition of the applicant was due to the incident or to his preexisting condition. It is clear from the reports obtained, especially from Dr. Bleasel, neurosurgeon, and Jennifer Batchelor, neuropsychologist, that his disabilities and incapacity do result from the incident rather than from any preexisting condition. I do not regard the making of that interim award as precluding me from the necessity of deciding now whether the injuries resulted from the assault or not.

5. Before the incident he had a long history of alcohol dependence and a past history of brucellosis and seizures. Nevertheless, counsel for the Territory conceded, and I am quite satisfied, that if the injuries that the applicant received were the result of an assault, an award of the maximum permitted by the legislation is required.

6. On the hearing of the application for an interim award, the whole file relating to the proceedings against Neville Galvin was admitted in evidence. On the hearing of this application for a final award, statements by 3 witnesses and of police investigations and records of interviews with Neville Galvin were tendered, together with the transcript of the argument before and the reasons for decision of the learned magistrate. Nevertheless I think that both applications are part of the one proceeding, and that I should have regard to the whole of the evidence tendered on both occasions. That includes the whole of the evidence given before the learned magistrate.

7. On this application the affidavit evidence of the applicant about the incident was as follows:
"On 18 June I went to my room at Ainslie Village with a woman friend

named Robyn. I had only just met her and was going to my room to
change prior to us going out together. Two men tried to get her to
go to their room and I wasn't standing for that. There was a bit of
an argument between me and the two men. They grabbed hold of Robyn
and I walked up to them and said 'leave her alone'. I can vaguely
remember the men beating my head against the toilet bowl and can
remember seeing a hand on the door knob. They locked the door when
they beat me. I don't remember anything else. I was knocked out."

8. He did not give evidence in the proceedings before the Magistrate's Court.

9. An outline of Neville Galvin's version of the events of that evening may be gleaned from the records of interview between Constable Rice and Neville Galvin. When asked whether he could tell anything about an assault on the applicant at Ainslie Village he stated that the assault took place because of the applicant's behaviour towards a girl. Galvin said that he had told the applicant to leave her alone. The applicant had hit him in the mouth and told him to mind his own business, and a fight then started between them in the applicant's bedroom. His brother Kevin had been present. After the fight he had seen blood coming from the applicant's nose and mouth. In a later interview he said that his brother had then taken the applicant to the toilet to help him clean up. When they had come back from the toilet the applicant had looked worse than when he left the room. His brother had told him that the applicant had been washing his hands in the toilet and had fallen over and hit his head on the toilet bowl.

10. It is necessary to bear in mind the difference between the decision that I must make and the decisions that the learned magistrate had to make. This Court has jurisdiction to determine this application because in respect of the "relevant offence" Neville Galvin was committed for trial in this Court (Criminal Injuries Compensation Act 1983, s.11(1)). The application is in respect of a "prescribed injury". A prescribed injury means an injury sustained as a result of the criminal conduct of another person (s.4(1)). I do not think that it follows that I must find that Neville Galvin was guilty of the precise crime with which he was charged. It is sufficient that he was guilty of some criminal conduct, which caused injury to the applicant. For example, if I were to find that the applicant received his injuries as a result of a common assault committed by Neville Galvin, his committal for trial on a charge of recklessly inflicting grievous bodily harm on the applicant would be a relevant offence, sufficient to attract the jurisdiction of the Court.

11. Next, by s.8, I need be satisfied that the relevant injury is a prescribed injury only on the balance of probabilities.

12. In the course of giving his reasons for finding a prima facie case against the two Galvins, the learned magistrate accurately described the task with which he was faced, and reviewed the evidence. It is convenient to set out in full what he said. I respectfully agree with his analysis of the evidence, in the light of the decision that he had to make.

"I will deal with each case separately. I will deal first with the
case in respect to Keith James Galvin. Mr Keith James Galvin is
charged that he, in Australian Capital Territory on 17 June 1990,
recklessly did inflict grievous bodily harm on Ronald James
Ashenden. It is clear on the evidence in relation to Mr Keith Galvin
that, in the ACT on 17 June 1990, Ronald James Ashenden in fact
suffered grievous bodily harm. The elements necessary to be proved
by the prosecution in respect of Mr Keith Galvin are, that the
injuries to Mr Ashenden resulted from some act performed by Mr
Galvin. Secondly, that he performed that act or acts recklessly.
A couple of preliminary matters which I will discuss. Firstly, at
this stage I am considering a submission by the defendant that he
ought not be committed for trial. The applicable test is to be
applied as that set out in section 91B. That is, am I of the
opinion, having regard to all the evidence before me, that the
evidence is capable of satisfying a reasonable jury, properly
instructed, beyond reasonable doubt that the defendant has committed
an indictable offence. In considering the evidence for the purposes
of section 91, I am required to have regard to the evidence which
represents a prosecution case as highest. And I ask myself the
question whether the evidence treated in that way is capable of
satisfying a reasonable jury, properly instructed, that the
defendant is guilty beyond reasonable doubt. I am not entitled at
this stage to consider whether I am or would be satisfied as to the
defendant's guilt beyond reasonable doubt. Nor am I entitled to
form any view at this stage as to whether or not any or part of the
evidence should be accepted or rejected on the basis of credit or to
resolve conflicts that exist on the evidence.

The second point I would make is, although the committal hearing in
respect of Keith Galvin has proceeded as a joint hearing with that
relating to Neville Galvin, it is clear that I may not consider
anything said to the police by Neville Galvin and related to the
court by the police as evidence for or against Keith Galvin. That
evidence must be completely ignored. That, in this case perhaps,
leads to some artificiality in the process one has to take, but that
is the process I am required to take.
The case against Keith Galvin, as presented by the prosecution, is
that while taking Ronald Ashenden to the toilet, and while in the
toilet with Ronald Ashenden, he assaulted Ronald Ashenden in some
way which resulted in him bleeding profusely and suffering other
injuries. The evidence which can be regarded as evidence against
Keith Galvin comes firstly from Thelma Joyce Hurst. Her evidence was
that she saw Mr Galvin and Ronald Ashenden together in the hallway
outside Mr Ashenden's flat. Mr Galvin was then taking Mr Ashenden to
the toilet and appeared to be supporting Mr Ashenden by the left
arm. Both men went to the toilet together. Mr Ashenden at that time
appeared all right to Mrs Hurst. She saw no sign of bruising and no
blood. She said she could see Mr Ashenden's face very clearly and
said that she had a short conversation in which, in answers to
inquiry, "How are you?", Ronald Ashenden said, "Good".
Her evidence was that the two men went to the toilet, and the door
of the toilet was shut with both men inside and that they remained
in there for some five to ten minutes. Shortly after that she heard
them return to Mr Ashenden's flat. She then went to the toilet and
saw a quantity of blood on the floor, toilet bowl and up the walls.
She then had a conversation through the doorway in which Robyn Maris
said, in the defendant's presence, "He fell", referring to Mr
Ashenden. Shortly after, she saw Mr Ashenden in his flat with blood
all over him.

The evidence of Alfred Joseph Hurst was - and the only aspect of his
evidence which may possibly be regarded as evidence against Mr Keith
Galvin is his evidence as to seeing blood in the toilet after the
defendant and Mr Galvin had returned to the flat. This, at its
highest, corroborates Mrs Hurst's evidence of seeing blood in the
toilet. The remainder of his evidence can, I think, be said to point
towards the defendant's innocence.
MR HELMAN: Sorry, your Worship, the remaining points to - - -
HIS WORSHIP: Can, I think, be said to point towards the defendant's
innocence. The next witness was Raymond Ceely who arrived at Mr
Ashenden's room shortly after having been called there by some of
the residents. He saw Mr Ashenden lying on the bed with the left
side of his head swollen and his left eye closed. Keith Galvin was
present in the room and he says there were no other males present.
He asked, he says, Ronald Ashenden, "Do you take alcoholic
seizures?" and Ronald Ashenden replied, "Yes". On his evidence this
was said in the presence of Mr Keith Galvin. He then said he asked
Mr Keith Galvin, "Do you know what happened?" and he did not answer.
Mr Ceely then left, went to the toilet and saw blood on the floor,
returned and then again asked Mr Galvin if he knew anything and the
reply from Mr Galvin was no, he did not know.
It is clear, however, the person that Mr Ceely refers to as Keith
Galvin was not Keith Galvin and that he was mistaken. In my view
this is an aspect which could not be left to a jury without
direction as the obvious mistake made by the witness having regard
to all the other evidence. The prosecution case is that Keith Galvin
had left the scene by the time that Mr Ceely had arrived. The
evidence of conversation in the presence, and with, Keith Galvin
must therefore be regarded, for the present purposes, as evidence
against Neville Galvin, not Keith Galvin. The same can be said of
the evidence of Handra Gladys Truesdale.

Harold Ingham gave evidence and he confirmed blood on the floor of
the toilet and the toilet bowl and really said nothing much more
that might implicate Keith Galvin. Robyn Maris gave evidence and it
was clear, again in her case, that she was mistaken as to her
courtroom identification and Keith and Neville Galvin. However, it
is clear from her evidence that the person who had been living with
Ronald Ashenden for some three weeks, and which I think is clear on
all the evidence and clearly accepted on all sides, was Keith Galvin
and that his brother was the one who, on her evidence, punched
Ronald Ashenden. This is the prosecution case, as I said, and all
other evidence confirms this. Therefore, as with Mr Ceely, and
evidence concerning the punching of Ronald Ashenden in the flat must
be considered as evidence against Neville Galvin, not Keith Galvin.
On this basis the only evidence given by Robyn Maris which can be
regarded as potential evidence against Keith Galvin is her seeing
the blood in the toilet and evidence of the statements made by
Neville Galvin, in Keith Galvin's presence; that Ron had fallen over
in the toilet, as well as her statement through the door to Thelma
Hurst that Ron had taken an alcoholic seizure. These may or may not
amount to admissions by Keith Galvin because of his - through
silence and failure to refute. Whether they amount to some sort of
admission or not is purely a jury question.
There is medical evidence, but I think it can be said that the
medical evidence is of no assistance in trying to determine how Mr
Ashenden sustained his injuries. Dr Newcombe in effect says that the
injury (sic) sustained are consistent with a fall against the toilet
bowl, are consistent with an assault of some sort, or are consistent
with assault by thrusting of the head against the toilet bowl, but
he expressly said he is unable to distinguish which mechanism is
more likely. Dr Bistrop is not able to assist.

There is also evidence against Keith Galvin in the form of
admissions made in the records of interview with the police. In his
first record of interview on 22 July 1990 he admitted being in a
flat with Ronald Ashenden, his brother, Neville and Robyn Maris. He
denied taking Mr Ashenden to the toilet. He said that Mr Ashenden
went to the toilet on his own. He said he went to the toilet after
Mr Ashenden and it was then that he saw blood on the floor and that
he left the Ainslie Village shortly after the incident and Canberra
shortly after, that night.
In his record of interview 19 September 1990 he admitted being
present in the flat. He admitted lying to Detective Collins about
taking Mr Ashenden to the toilet. He in fact admitted taking Mr
Ashenden to the toilet and he admitted that after he took Mr
Ashenden back to the flat, he left Ainslie Village and Canberra. He
does make other statements in that record of interview which are of
a self-serving nature, including the fact that the toilet door
remained open at all times, that Mr Ashenden did not fall over in
the toilet. He did not see Mr Ashenden strike his head at all and
that Mr Ashenden was bringing blood up out of his mouth whilst he
was in the toilet and that the injury resulted from Mr Neville
Galvin punching Mr Ashenden.
The case against Keith Galvin is one which is purely circumstantial.
At its highest the following circumstantial facts from which the
prosecution says inferences of guilt may be drawn. One, Keith Galvin
accompanied Ronald Ashenden to the toilet and was in the toilet with
him with the door closed. Two, Ronald Ashenden had no apparent
injury just prior to entering the toilet and was not bleeding.
Three, shortly after Keith Galvin left the toilet with Ronald
Ashenden a lot of blood was seen in the toilet. Four, shortly after
returning to the flat with Ronald Ashenden, Mr Ashenden was observed
to have suffered injury to his face and was bleeding. Five, by lying
to Detective Collins he displayed a consciousness of guilt as to
what had gone on in the toilet and six, by leaving the scene the way
he did, he displayed, again, a consciousness of guilt.

The prosecution case, of course, must rely heavily upon the evidence
of Thelma Hurst to the effect that there was no sign of injury or
blood on Ronald Ashenden before he went into the toilet. As I said,
it is not my function at this stage to consider whether she's a
reliable witness or is to be believed or not. Unless I could
conclude that her evidence is so unreliable or contradictory, which
I do not find myself able to do at this stage, I must proceed on the
basis of this evidence which could be accepted by the jury. In view
of her evidence it is open to infer that Ronald Ashenden suffered
some injury or injuries in the toilet. These injuries may have been
sustained accidentally or as a result of an assault by Mr Keith
Galvin.
Without more evidence, I do not think that a reasonable jury,
properly instructed, could be satisfied beyond reasonable doubt that
Keith Galvin assaulted Ronald Ashenden in the toilet. However, in
view of the evidence of the defendant's departure from the scene
shortly after the incident and his lies to Detective Collins, it
would be open to a jury to conclude that the defendant displayed a
consciousness of guilt or some consciousness guilt in relation to
what happened in the toilet. And in my view it would be open to a
jury to conclude, taking the prosecution case at its highest, that
Ronald Ashenden had sustained his injuries in the toilet at the
hands of Keith Galvin.
If the jury were to so conclude, I am of opinion that it could also
conclude on the evidence that whatever form the assault took it was
such that Keith Galvin would have realised that it might possibly
result in physical harm to Ronald Ashenden and nevertheless
proceeded with the assault. On this aspect I proceed on the basis
that the test of recklessness for the purposes of this particular
provision requires a finding that the defendant had some foresight
or adverted to the fact that his act might cause physical harm to
some person albeit of a minor character. Put in another way, that
there was a realisation of the possibility that physical harm might
result, but he nevertheless proceeded to act.

It is clear on the authorities that the test is not as high as a
probability as discussed in Crobbs case. The case of Queen v Coleman
(1919) 90 NSWLR 467, in my view, decides that and considers or
decides the test in Crabb is one that should be applied only in
cases of murder and that in cases of this sort the test is simply of
realisation of possibility that physical harm might result. And it
is also clear that the realisation need not be a realisation of
possibility of grievous bodily harm, but simply of some physical
harm and the authority for that - that proposition seems to be well
supported by the decisions of Queen v Cunningham (1957) 2 QB 396,
Queen v Mowatt (1968) 1 QB 421 and Queen v Lovett (1975) VR 488.
Taking that test then, I say I'm satisfied that it would be open to
a jury to conclude on the evidence that whatever form the assault
took it was such that Keith Galvin would have realised that it might
possibly result in physical harm to Ronald Ashenden, but
nevertheless proceeded with the assault. Whilst the case against
Keith Galvin may not necessarily be described as strong, that is not
the issue I have to determine. In my view, the evidence of the
prosecution, taken at its highest, is capable of satisfying a jury
beyond reasonable doubt, that the defendant committed the offence
charged.
In arriving at that conclusion I followed the approach advocated in
the Attorney-General's Reference No.1 of 1983 (1983) 2 VR 410 which
is set out in the following passage from the judgment, pages 415 and
416, and I'll just read that passage:
'The question whether the Crown has ultimately excluded every
reasonable hypothesis consistent with innocence is a question
of fact ... is no more than application to that class of case
of the requirement for the case be proved beyond reasonable
doubt.'
I have noted what his Honour, Mr Justice Priestley has said on this
subject in Saffron v DPP (1989) 16 NSWLR 397, but I am of the view
that whether or not every reasonable hypothesis consistent with
innocence has been excluded, or whether on the evidence it is
possible to construct a reasonable hypothesis consistent with
innocence, is ultimately a jury question and that at a prima facie
stage, the possibility or even probability that a jury will find a
reasonable hypothesis consistent with innocence, is not to be
considered. What is to be considered is whether the prosecution's
circumstantial evidence taken at its highest, which seems to me must
mean the exclusion of any reasonable hypothesis consistent with
innocence, is capable of supporting inferences which the prosecution
says should be drawn.

I note also in that judgment the Chief Justice, Mr Justice Gleeson,
would tend not to support Mr Justice Priestley's tentative views on
that aspect. Accordingly, as I say, I find that a reasonable jury,
properly instructed, could be satisfied beyond reasonable doubt that
Mr Keith Galvin committed the offence charged.
In relation to Mr Neville Galvin the evidence is somewhat different.
Without finding it necessary to traverse the evidence in any detail,
it is clear that he has made admissions to the police of punching Mr
Ashenden several times. It is clear from his own admissions that Mr
Ashenden was bleeding shortly after that and that that resulted in
him being taken to the toilet by his brother. There is also evidence
from Mr Alfred Hurst that at the time Mr Ashenden left the flat with
Mr Keith Galvin and was being taken to the toilet, he was bleeding.
There is also the evidence, again taken at its highest, of Robyn
Maris that she saw the defendant, Neville Galvin, punching Mr
Ashenden whilst he was on the bed and whilst he had at least a
bleeding nose and was bleeding from around the mouth.
Taking that evidence, and I say taken again at its highest, although
there is in Mr Galvin's record of interview the issue of
self-defence raised, it seems to me that there is sufficient
evidence there to support the charge. And for the purposes of the
test I am applying there is some suggestion from the authorities
that where the issue of self-defence arises on materials before the
court, whether it be by way of cross-examination or as in this case
self-serving statements in the record of interview, that one should
not find a prima facie case in the absence of evidence from the
Crown which has led to rebut self-defence, and there's a discussion
of that in Wardhouse v Gilmore (1988) 12 NSWLR.

However, in my view, there is evidence in this case led by the
prosecution which tends to rebut the defence of self-defence coming
from Robyn Maris, which is evidence that she saw Mr Galvin punching
Mr Ashenden whilst he was on a bed and that Mr Ashenden was doing
nothing to retaliate or in any way punching Mr Galvin other than to
cover up his face. I say, having to treat the evidence against the
two defendants separately results in almost a very artificial sort
of approach, but taking that approach, it is my view that there is
sufficient evidence or evidence which would be capable of supporting
a finding by a jury beyond reasonable doubt that Neville Galvin
assaulted Ronald Ashenden in the flat. That he was bleeding shortly
after that and was seen to be bleeding when he left the flat. That
he was subsequently found to have suffered severe injuries that
amount to grievous bodily harm and that by punching Mr Ashenden, Mr
Neville Galvin must have realised that there was possibility that he
may render or occasion some physical harm to Mr Ashenden and
nevertheless took the risk and proceeded with his conduct.
Accordingly, in relation to Neville Galvin, I find that the evidence
before me is capable of satisfying a reasonable jury, properly
instructed, of the defendant's guilt of the offence charged beyond
reasonable doubt and in both cases I find a prima facie case."

13. Mr. Keith Galvin then elected to be tried summarily, while Mr. Neville Galvin was committed for trial. I think that it follows that, in order to found an award under this Act, I must be satisfied on the balance of probabilities that it was the assault by Mr. Neville Galvin that caused the applicant's injuries, and not an assault by Mr. Keith Galvin.

14. I am comfortably satisfied that Neville Galvin did commit an unjustified assault upon the applicant in the bedroom. It is quite clear to me that, even if it were accepted that the applicant had punched him, what he then proceeded to do went far beyond any justifiable self defence. It is also clear that the applicant was injured in that assault. However it must also be decided whether those injuries caused his present disabilities, or whether his present condition is the result of either a fall or a further assault by Keith Galvin in the toilet.

15. When Sister Burdack, a nurse at Royal Canberra Hospital, was admitting the applicant he told her that he fell in the bathroom, and that he had an epileptic fit. He appeared to her to be confused, at least about the day of the week. He later lost consciousness.

16. On 23 June 1992 the applicant was interviewed in Queensland by police. His recollection of events two years before was confused, as is illustrated by the following passage:

"Q86 Right, do you remember having a drink in your room, drinking
in your room.
A No I can't but I think we would've had it there.
Q87 Do you remember what happened -
A I can't remember having a drink there.
Q88 Do you remember talking to Keith in your room.
A Beg yours.
Q89 Do you remember talking to Keith in your room.
A Yeah vaguely but I was talking to him ah, in the corridor and
I'm getting mixed up a bit with me, with the room and the corridor.
Q90 Right.
A I think, I'm not sure because ah -
Q91 Do you remember having an argument with Keith at all.
A I do remember a spat at all with the both of them. Both these
chaps; Keith and another chap and they were putting rubbish on
Robin. Now whether that was, started off in my room, went out into
the corridor. Might have been, went just out in the corridor in
front of ... (INAUDIBLE) room, be there somewhere. And ah, I told
em they'd have to leave or something or leave her alone or
something then I went back into the, either went into the toilet
or went into the, me room and I went in the toilet and then I went
to me room. And that was only early in afternoon and it wasn't,
wasn't late, wasn't late at night.
Q92 Do you remember what time, still -
A No, on dusk, about, I suppose about six or something or sometime
around there. I don't know what time it would be. Might've been
earlier than that.

Q93 Do you remember being hit inside the room. Do you remember
being pushed on the bed or hit inside the room.
A I remember going onto the bed but I don't know whether I was hit
to go onto the bed or pushed or, I can ... (INAUDIBLE) remember
flopping on the bed.
Q94 Backwards or frontwards.
A I think it was backwards that way and, and the bed caught me at
the back of me knees and I had to go back onto the bed.
Q95 And what happened after that.
A Oh, hm?
Q96 Do you remember what happened after that, after you fell on the
bed.
A Ah, I went out of the room for some reason.
Q97 How much had you been drinking now.
A Probably to the toilet or something like that. I don't know.
Q98 You been drinking a fair bit.
A Beg yours.
Q99 Had you been drinking a fair bit. Were you drunk.
A No I wasn't drunk. I, no I wasn't drunk but I can't remember
things about it and no, I wasn't drunk. I can remember the, like
I said ah, in the corridor or in the room two of em standing there
and Robin was sort of half way between me and them and they's given
her ... (INAUDIBLE) words and things and I told them to get or
something like that, along them lines. ... (INAUDIBLE) Robin I
think got, Robin got upset a little bit so I walked towards them a
bit. I don't remember much about it after that. That might've been
after I went to the toilet ... (INAUDIBLE).

17. He did however say that he could remember the toilet seat and his head going towards it. After a discussion about the locking of the toilet door, his answers continued:

"Q140 Alright and do you remember when you were in this toilet you
said earlier you remembered your head hitting the bowl.
A No I don't remember the head, me head hitting the bowl but I, I
can remember somethin, saying, 'Oh no me head's going to hit the
bowl', and I can see the edge of the bowl ah, standing in front of
the bowl I can see the left, right hand side of the bowl coming up
and me head coming towards it all over the side of it.
Q141 Right, whereabouts on your head did you hit.
A On my forehead I think.
Q142 You, you show us your forehead.
A ... (INAUDIBLE)
Q143 Point to where it hit your head. Can you point to where it,
where you hit your head.
A Did I?
Q144 Can you point with your finger where you hit your head.
A I, I've got a feeling it was the ears somewhere not on me
forehead. I, I'm not sure. ... (INAUDIBLE) I ah, look I nearly
see it hitting a couple of times but whether someone was pushing
me head and either had hold of it and they were pushing me head
and I think it might have been a couple of times somehow -
Q145 How do you know that someone was pushing your head.
A 'Cause I was trying to push away from the toilet bowl and then
I couldn't push away, you know, something was, someone was
pushing me forward in, into the toilet bowl.
Q146 Well how do you know that. Could you feel their hand. Could
you feel it on your head.
A Yeah, on me head ... (INAUDIBLE) but I don't know whether he had
hold of me head in two hands or just one hand and slammed it into
the toilet bowl. I don't know really if he done it twice of
... (INAUDIBLE) whether it was one hand or two hands.

Q147 But you remember trying to lift your head up and you couldn't
lift it up.
A Yeah. I can remember trying to get out of there, get back in and
find out ... (INAUDIBLE). I don't know what happened after that
though.
Q148 Were you pretty drunk then. Could you have fallen over on the
toilet.
A No, no, no. I wouldn't have fallen over or anything.
Q149 Now you definitely remember somebody holding your head.
A Yes, someone was holding me head. They were pushing it onto the
edge of the toilet bowl. Onto the edge of the toilet bowl like
... (INAUDIBLE). Not into, not into the toilet bowl, on the side ...
Q150 Was it a hard push.
A Beg yours.
Q151 Were they pushing hard.
A Oh yeah I couldn't push against them ... (INAUDIBLE) someone was
pushing me head pretty hard and pretty quickly.
Q152 Do you remember falling over after that.
A Ah, no I remember going down between, between the toilet and the
wall. I think I can remember trying to get me feet underneath so I
could get back up again but I couldn't and that's all I can
remember. I don't remember going out of there.

18. In my opinion, in the light of the condition of the applicant both before and after he received his injuries, it would be most unsafe to place any weight upon his recollection.

19. On the issue of an assault by Keith Galvin in the toilet, I find the analysis of the evidence by the learned magistrate most helpful, when he was deciding on his guilt or innocence. I set out his remarks in full (as transcribed):

"Well, the proceedings have reached a stage where I may require to
determine whether I am satisfied beyond reasonable doubt that the
defendant is guilty of the offences charged, and the onus to satisfy
me beyond reasonable doubt remains at all times on the prosecution.
As I said earlier, the case against Keith Galvin rests very much
entirely on circumstantial evidence and I have already discussed the
circumstantial facts - or the evidence - of which the prosecution
says an inference can be drawn, and should be drawn, beyond
reasonable doubt that whilst in the toilet with Mr Ashenden, Mr
Galvin in some way assaulted him, resulting in the injuries that he
suffered.
As I said earlier, it seems to be the prosecution case must rest
largely - against Mr Keith Galvin - on the evidence of Thelma Joyce
Hurst. There being a quite - or a very apparent and diametrically
opposed evidence coming - an apparent conflict on the evidence
between what Mrs Hurst said she saw in relation to Mr Ashenden when
he came out of the flat and what her husband, Alfred Hurst, saw when
he saw Mr Ashenden come out of the flat.
What I said in my earlier reasons was that I could not at that stage
reach the point of saying that her evidence was so unreliable and so
contradictory that the jury could not accept it, but at this stage I
am in a position of, in effect, putting myself in the place of a
jury and asking myself the question, "Can I be satisfied? Can I
accept her evidence?", and if I accept her evidence does it then
lead to the inferences which the prosecution says I should draw.
Mrs Hurst was quite firm in the evidence she gave in relation to the
aspect of not seeing any injuries on Mr Ashenden or bleeding on him
when he came out of the flat with Mr Galvin, but I can say though
that in observing her giving her evidence and in the manner she gave
her evidence that one couldn't help feeling that some reservations
about relying on her were matters which were put to her in
cross-examination as to things she had said to the police which
differed to what she was saying in court. These weren't of any great
moment, but they did show that she had previously given some
inconsistent statements.

She did say, as Mr Helman said, that Mr Ashenden only drank a little
bit, in effect, and to use her words, "He didn't consume much
alcohol at all", which clearly, on all the other evidence that's
before me, cannot be right. That tends to lead to wondering about
her motives and whether her recollection is in any coloured by some
sort of loyalty towards Mr Ashenden. but, as I say, her evidence was
quite contrary to what her husband said. He said, and he was pressed
on this several times, he, himself, wasn't of course, what one might
describe as a patently reliable witness. There were certain aspects
on the way in which he gave his evidence which again caused one to
have some reservations about his reliability, but he maintained
throughout that when Mr Ashenden came out of the flat with Mr Galvin
he was bleeding.
His evidence of course tends to be more consistent with the evidence
of - or the statements made by Mr Galvin to the police when he
ultimately admitted that he'd taken Mr Ashenden to the toilet, to
the effect that he was bleeding, he took him to the toilet to assist
him to go to the toilet because he was bleeding, and the bleeding
had resulted from an assault by his brother, Neville. That at no
time did Mr Ashenden fall in the toilet, or in any way strike
himself against any objects in the toilet.
It's not of any great assistance to look to other witnesses to try
and resolve the conflict between the two Hursts. Robyn Maris is
really of no assistance in that regard. Her evidence, although she
appeared in giving her evidence, to be a witness who was reliable in
giving her evidence from - based on a good recollection - the fact
must be that she is mistaken in the sequence of events because all
the other evidence in the case points to her having cleaned the
toilet well after any incidents involving Mr Ashenden and some stage
after the other residents had come to the flat and started to make
inquiries.

One must remember of course that she, unlike the two Hursts, had
drunk a great deal of alcohol that day, and by her own admission had
been drinking heavily all week. And having - knowing that, one must
really have reservations about her ability to now recall, or even a
few days later recall, the sequence of events and exactly what
happened. One could only imagine what she recalls is a jumble of
things, of incidents recall at some stage, but with very little
capacity to put them into sequence, or even identify people.
Another glaring aspect of her unreliability is the firmness with
which she identified Mr Neville Galvin in court as being Keith
Galvin, when clearly, there was no question that Mr Helman's client,
Mr Keith Galvin, was the person who had been staying with Mr Ronald
Ashenden and was the person who was sitting on the single bed. One
is then left with attempting to try and reconcile the - or try and
resolve the evidence between the two Hursts. That is, was Mr
Ashenden bleeding before he went to the toilet, or was he not
bleeding before he went to the toilet.
One other aspect - one other witness who perhaps does assist in the
resolution of the conflict is Mr Ceely, who although gave evidence
that Mr Hurst at times tend to put things out of sequence, did in
the end say something to the effect that you could generally rely on
him being accurate. I'm just trying to find that. In effect, he
said, "Alf knows what he's saying".
Considering all the evidence, I tend to prefer the version given by
Mr Alfred Hurst. It's certainly more consistent with the version
given by the defendant to the police, albeit, self-serving, but in
my view it seems to me to be the more probable situation, bearing in
mind, as I say, that - I will withdraw that.
I think it is the more probable position, having regard to all the
other evidence, if one were to proceed on the basis that Mrs Hurst
is correct, in that there was no blood on Mr Ashenden before he went
to the toilet. The question one has to ask is, "Why would Mr Keith
Galvin be assisting him at all to go to the toilet?", unless
he - the answer to that might be that Mr Ashenden was so affected by
alcohol that he needed assistance, but in my view, the more probable
scenario is that he needed assistance because he had been injured
through an assault by Neville Galvin, consistent with what Mr Keith
Galvin has said to the police.

But even assuming for a moment that Thelma Hurst's version is
correct, one then is lead to consider what happened in the toilet,
or might have happened in the toilet. There was no direct evidence
of what happened in the toilet, certainly no admissions by Mr Keith
Galvin if anything happened in the toilet, and whatever evidence he
does give, self-serving though it is, is that nothing happened in
the toilet; Mr Ashenden didn't fall or in any other way strike
himself, and that the bleeding that took place was bleeding that
resulted from injuries he had earlier sustained as a result of an
assault by Neville Galvin.
There are various possibilities that raise themselves in relation to
what might have happened in the toilet and how the blood happened to
have been found there. One possibility, which I think is a
reasonable hypothesis on the evidence, is that Neville Galvin
assaulted Mr Ashenden, and whilst he perhaps did not bleed
immediately, bearing in mind that the bleeding is said to have come
largely from a laceration inside his mouth, that by the time he got
to the toilet the bleeding had built up in his mouth to such an
extent that he started to splutter blood in the way that Keith
Galvin has described it to the police.
That would be consistent with Thelma Hurst not seeing blood. As I
say, the build up was such that it didn't emit from Mr Ashenden's
mouth until he got to the toilet and then of course Thelma Hurst
would not have seen any blood.
That scenario would also be consistent with Thelma Hurst's evidence
that she saw no bruising. Because, again, it's my view a reasonable
hypothesis that Mr Ashenden was assaulted by Mr Neville Galvin, he
was taken to the toilet by Keith Galvin, and that in that period of
time that he was at the toilet he started the profuse bleeding and
also the injury to his eyes and the swelling and bruising then came
up. There is evidence from Dr Newcombe that because of a particular
condition that was suffered by Mr Ashenden, that is a low platelet
count. The result would be that bleeding was more likely and that
the facial trauma and swelling may have been more apparent than it
would have been in someone with a normal platelet count.
It seems to me that raises as a reasonable hypothesis the bruising
that came up - perhaps came up suddenly - in the period of time that
he was in the toilet and before he had returned to the bedroom. That
again would perhaps explain why Thelma Hurst would not see any
apparent injuries on Mr Ashenden, assuming that she was really in a
position to make such an observation and even turn her mind to
making such observations.

Another possible scenario is that whilst in the toilet Mr Ashenden
has taken some sort of turn, even an alcoholic seizure, or simply a
collapse as a result of an earlier assault upon him, but has somehow
fallen and struck his head on the - or his face on the toilet, or
some other part of the toilet block and has resulted in injuries to
his face and the bleeding.
In the absence of any direct evidence as to what took place in the
toilet, one is really left with speculation as to what might have
taken place. Ultimately whether one accepts Thelma Hurst's evidence,
or not, it seems to me that there must be reasonably hypothesis,
consistent with innocence, arising on the evidence. In that
situation I am simply bound to find the defendant not guilty.
Of course, if one disregards Thelma Hurst's evidence and accepts
Alfred Hurst's evidence, the finding which I would prefer to make if
it was necessary, then of course it's all the more probable that
nothing happened in the toilet and that any injuries sustained by Mr
Ashenden had been sustained prior to him leaving the flat with Mr
Keith Galvin, and of course there's no part of the prosecution's
case that Keith Galvin did anything to Mr Ashenden within the flat.
There is the remaining aspect of circumstantial evidence relating to
the flight of the defendant to the scene and his lies to the police,
which perhaps could be said to raise some consciousness of guilt. In
my view again there is a reasonable hypothesis consistent with
innocence in relation to that aspect of the circumstantial evidence,
and that is, that Mr Galvin was simply taken - afraid to get
involved. He said he was on a good behaviour bond for assault on his
wife so he was concerned not to get involved in the assault, or in
any way being implicated with it. That seems to me that that would
be, on the evidence before me, is not an unreasonable hypothesis and
is one consistent with innocence.
Looking at the evidence therefore as a totality, I'm left with a
very real doubt as to the defendant's guilt, and accordingly I find
the offence not proved."

20. Although I do not have the advantage enjoyed by the learned magistrate of observing the various witnesses as they gave their evidence, I find myself coming to the same conclusions as he did, from reading the transcript. Addressing the issue which I must determine, I do not think that the applicant suffered any additional injury in the toilet, and that the assault by Neville Galvin was the sole cause of his injuries.

21. I therefore award $50,000 to the applicant for his pain and suffering.

22. The expenses claimed for bringing the application are listed at paragraph 27 of the applicant's affidavit. I do not think that items (j), (k) or (l) are allowable.

23. The balance totals $1,928.50.

24. Taking into account the interim award, I make a final award of compensation to the applicant of $50,528.50.