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Man acquitted of DFV assault ordered to pay almost $1m damages

A man acquitted on criminal charges over a home invasion and violent attack on his estranged wife as she slept almost a decade ago has been ordered to pay her nearly $1 million in damages.

Brisbane Supreme Court Justice Sean Cooper last week ordered the man to pay his estranged wife of 15 years and the mother of his two children $967,113.40, over an assault at her Ashmore home on the Gold Coast on 10 December 2013.

The court was told police had charged the man – who was at the time the subject of a domestic violence order – with numerous criminal offences arising out the alleged violent assault on his wife, but was subsequently found not guilty on all counts by a District Court jury.

While the man and his former wife are named in the published Supreme Court decision, QLS Proctor has opted to identify them only by their initials.

Justice Cooper, in a 46-page decision delivered on 11 November, said the man (JKD) and the plaintiff (CMG) had been married for 15 years, but had separated shortly before the assault occurred in late 2013.

“(CMG) claims that the assault took place early (in) the morning … and says that (JKD) broke into her home while she was sleeping and physically attacked her,” Justice Cooper said. “(JKD) denies that the alleged assault described by (CMG) occurred at all or, if such an incident did occur, that he was not involved in it.”

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The court was told the couple commenced a relationship in August 1996, began living together the following year and became parents to two children in 2001 and 2006.

Justice Cooper noted both parties gave varying accounts about the breakdown of their relationship, which included various allegations of domestic abuse and physical violence culminating in the issuing of CMG with a temporary protection order in October 2013.

“(CMG) described her marriage to (JKD) as being happy at the beginning but said that the relationship began to deteriorate in around 2004,” he said. “(JKD) said the relationship began to deteriorate at an earlier time, in 2000.

“At the time of the alleged (2013) assault (CMG) and (JKD) were married but had recently separated. After their separation, (CMG) continued to live in their matrimonial home.

“In this proceeding (CMG) seeks damages in respect of an assault upon her by (JKD).”

Under Queensland law the standard of proof required to convict a person of a criminal offence is guilt beyond a reasonable doubt.

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Beyond reasonable doubt is the highest burden of proof in the judicial system, and a jury of JKD’s peers found the prosecution did not achieve that standard to convict him of any crime against CMG at his trial.

However, in Queensland’s civil court jurisdiction, a lesser standard of proof is required – namely on the balance of probabilities.

Justice Cooper said critical issues for determination during the civil proceedings were whether the home invasion and assault of CMG actually occurred; if it did, was JKD the assailant; and, the amount of damages to be awarded if JKD was found liable for the alleged assault.

During an eight-day hearing between 22 August and 7 September 2022, the court received testimony from both CMG and JKD, as well as from the couple’s children and evidence and statements obtained by police during their criminal investigation into the home invasion/assault.

CMG, in her account of the assault, said she was awoken by someone breaking into her Ashmore residence and then attacked by a man as she screamed.

“At the time (CMG) woke it was dark outside. The lounge room was dimly lit by the lights on the Christmas tree, a dimmer light and the television,” Justice Cooper said.

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“Upon waking, (CMG) sat up … looked into the kitchen and saw a man wearing dark clothing and a black balaclava mask. (CMG) screamed as loudly as she could. This caused the man to run towards (her and the protracted assault ensued).”

CMG said she “began to recognise” JKD as the assailant from the “way he sat hunched over” and made verbal threats about harming her family.

Justice Cooper noted: “This was confirmed when the man said to (CMG) that he was coming for her family, he was going to burn her mother’s house down, that he was coming for (CMG’s) sisters and that (her) family was evil. It was at that moment … that she realised the man who had attacked her was (JKD).

“Upon that realisation, (CMG) said words to the effect of: ‘The jig is up.’ She referred to (JKD) by his name. From that point, the violence of the assault diminished.”

JKD gave evidence he was with his sons at the time of the incident at a residence in Burleigh Heads he’d moved into after the separation.

CMG applied for damages on the basis the assault caused her ongoing post-traumatic stress disorder.

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Justice Cooper, in ruling in favour of CMG, said: “Although I have referred to the attack on (CMG) as the ‘assault’, in legal terms it is properly characterised as a battery.

“The tort of assault is founded upon the creation of an imminent fear of unlawful conduct. No physical contact is required. A battery requires physical contact.

“The elements of battery are: an intentional or negligent act by the defendant; that immediately or directly caused physical contact with the plaintiff; and such contact was offensive, in that it was likely to cause injury or affront.

“Each of these elements is established based on my finding that (JKD) broke into (the premises) and attacked (CMG) in the manner described above. Accordingly, JKD is liable to (CMG) in the tort of battery.”

CMG’s total award of $967,113.40 included $358,123 for past economic loss, $50,000 each for aggravated and exemplary damages and $343,081 for future economic loss.

Read the decision.

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