NSWNSWCATAD

BFV v Commissioner of Victims Rights

[2014] NSWCATAD 170

NCAT Administrative and Equal Opportunity|2014-05-09

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NCAT Administrative and Equal Opportunity

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2014-05-09

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Judgment (8 paragraphs)

[1]

reasons for decision 1BFV has applied for administrative review of a Review Decision order made by the Senior Assessor as the Delegate of the Commissioner of Victims Rights ('the Commissioner") on 19 February 2014 pursuant to section 51 of the Victims Rights and Support Act 2013 ("VRSA"). That decision affirmed the decision of the Assessor (Client Claims) dated 10 December 2013 to dismiss the Application for Statutory Compensation pursuant to section 25 (3) of the VRSA. The Review Decision was made pursuant to section 49 of the VRSA.

[2]

Background 2BFV's application is based upon matters application concerning an alleged assault which occurred at his dwelling in Seven Hills in Sydney on 28 April 2012 whereby police officers allegedly assaulted BFV whilst attempting to arrest one of his tenants. 3In respect of the allegation outlined at paragraph 2 (above), BFV lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 10 January 2013. That application sought statutory compensation for the compensable injury of a Chronic Psychological Disorder that is disabling. 4BFV was not represented in his claim initially before the Assessor, or on Internal Review and is not represented in respect of these proceedings before the Tribunal. 5The application was to be determined in accordance with the provisions of Parts 1 and 2 of the Victims Support and Rehabilitation Act 1996, with an award to be determined on the available evidence establishing that on the balance of probabilities BFV was the victim of an act of violence being - violent conduct against the person apparently in the course of the commission of a criminal offence resulting in injury to the applicant. 6On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 (VRSA "the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). 7The victims compensation scheme was therefore changed by the Parliament in June 2013. As a result the matter was now to be determined under the provisions of the VRSA. Rather than claiming the compensable injury of Chronic Psychological Disorder, BFV could now apply for a Category 3 or Category 4 recognition payment under Division 5 of the VRSA and Victims Support under Division 6 of the VRSA. 8As BFV's application had not been determined prior to 4 June 2013, contrary to the mattes outlined in paragraph 3 (above), BYZ's application was now dealt with under the new provisions of the VRSA. 9On 10 December 2013 the Assessor (Client Claims) issued a Notice of Decision pursuant to section 43 of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms: In Part 3 of the application, the applicant submitted: 'The applicant became involved in an altercation between two of his neighbours. The Police were involved an he was assaulted by Police'. [sic] The applicant alleges the Police were the perpetrators of violence towards him. ... The applicant first pushed the police officer that was attempting to execute an arrest on the co-accused. He also wrestled and kicked police. At all times he was trying to resist. The shocking truth of this incident is that the applicant was not involved in the initial incident that leads to the co-accused arrest. Rather, he decided that he would prevent Police officers from performing their duties and to inflict harm on them. At one stage, it took a number of police officers to restrain the applicant. The co-accused also hit an officer over the head with a phone. .... I am satisfied the applicant was an aggressor in this incident. The applicant lodged numerous police complaints regarding police conduct after the incident, but was unsubstantiated and went no further. ........ The use of force by police officers in the incident was lawful and therefore, it cannot be submitted the actions by the police acted outside of 'reasonable force'. I am satisfied the applicant was the perpetrator of the violent conduct against the Police. Based on the evidence, the applicant cannot meet the test that he is a primary victim of an act of violence pursuant to section 19 and 20 of the Act. ..... As I have not found an act of violence established, the claim is dismissed. 10On 6 January 2014 BFV wrote to the Commissioner for Victims Rights requesting an Internal Review in accordance with section 49 of the VRSA. 11On 19 February 2014 the Senior Assessor issued a Notice of Decision pursuant to section 49 (5) (b) of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms: ..... I note the original decision found that an act of violence was not established. .... Essentially the review principally concerns whether an act of violence is established. ... I note extensive submissions the applicant has made concerning the events that transpired on the day in question and in particular the lengthy history of tenancy disputes he has encountered. I note that there has been an ongoing dispute between the applicant and his neighbour that has resulted in many applications before the Consumer, Trader and Tenancy Tribunal. .... The applicant details that he became involved in an altercation between two of his neighbours. Police were involved and the applicant was assaulted by police. .... Police attempted to arrest the co offender but were stopped by the applicant. Police detail that the applicant pushed police and wrestled and kicked police in an attempt to stop police from arresting the offender. Police detail that the applicant acted extremely violently towards them. Police needed to call for backup. The applicant and the co-accused were eventually subdued. I note that the applicant was charged with assault officer in the execution of duty, resist officer in the execution of duty and wilfully obstruct officer in the execution of their duty. I note that the applicant was dealt with under the provisions of s32 (3) (a) of the Mental Health (Forensic Provisions) Act when matters were determined at Fairfield Local Court. ... I note that the applicant was charged with serious offences arising from events that took place on the 28th April 2012. I further note the different and higher standard of proof that applies in the criminal jurisdiction. Taking into account the version of the incident contained in the police report and charges brought against the applicant and the findings of the Fairfield Local Court I consider that the police version of events should be accepted. In the circumstances I cannot be satisfied on the balance of probabilities that the applicant has been the victim of an act of violence. As an act of violence is not established the application must be dismissed. 12On 19 March 2014 BFV appealed to the Tribunal under the provisions of section 51 of the VRSA. Having regard to service, and the provisions of the Administrative Decisions Review Act 1997 BFV's application was received within time. 13The ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 (on 1 January 2014) and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 14Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 15These matters modify aspects of the conduct of this appeal, especially in respect of some of the matters outlined at Paragraph 6 (above).

Consideration 42The issue concerning the resolution of the criminal proceedings against BFV is of some relevance to this matter and BFV's evidence at hearing. BFV's criminal charges were dealt with by the Local Court on the ninth occasion. All three charges were ultimately dealt with under the provisions of section 33 (3) (a) of the Mental Health (Forensic Provisions) Act 1990. This was on the basis of an application by BFV (and Mrs X's) legal representative. The Solicitor had either received instructions or formed the view that on the basis of the available material it was necessary to seek that order. 43The relevant provisions provide as follows: Mental Health (Forensic Provisions) Act 1990 No 10 32 Persons suffering from mental illness or condition (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both, or (c) unconditionally. (Emphasis added) 44An order made under these provisions is neither a conviction nor an acquittal of the criminal charge. Whilst it is unclear as to whether the charges were dealt with conditionally or unconditionally (under section 32 (3) (a) ), it is fair to say that the Magistrate formed the view (on application) that BFV was suffering a mental illness at the time of the incident, but was not a mentally ill person. And having regard to the provisions provided by the legislature, and having regard to the available material in respect of the charges, decided to proceed under that provision. 45When one has regard to the police evidence, BFV's own evidence, and the medical evidence, the injuries appear consistent with the behaviour described by police and to some extent BFV. Due to the behaviour of BFV on 28 April 2012, and the behaviour of Mrs X at that time, it appears on my assessment of all of the available evidence that police were acting within their powers and lawful authority. The Respondent took the Tribunal to various pieces of relevant case law on the issue of police powers, arrest, reasonable force, reasonable suspicion and other matters relating to whether their primary purpose and subsequent purposes in their dealings with Mrs X and BFV were lawful. Those cases obviously assist the Respondent's position, albeit in slightly different facts (as will usually be the case). Having considered those matters in conjunction with my understanding of police powers indicates that police acted within their authority, both in arresting Mrs X, and in restraining and ultimately arresting BFV while he was deemed to be hindering police. 46BFV provided a large volume of material to the Tribunal and the Commissioner in first instance. In respect of the material provided to the Tribunal, the instances of lodgement are outlined above at paragraph 22. Most of this material is irrelevant to BFV's victims compensation claim. The material includes multiple copies of Residential Tenancy matters relating to orders of the Tribunal concerning back rent, a daily habitation fee, Garnishee Orders and other matters relating to the civil dispute between Mr Y (as tenant) and BFV (as landlord). On my assessment it is of no probative or evidentiary value in respect of BFV's claim before this Tribunal. 47Additionally, of no relevance is the material provided by BFV and Mrs X concerning the background and circumstances to the alleged assault by Mrs X on Mr Y. That matter is only relevant in establishing the lawfulness (or otherwise) of the police attendance to arrest Mrs O on the evening of 28 April 2012. 48The onus is on BFV to prove the allegations of act of violence on the balance of probabilities. While the onus on the appellant is the civil standard of the balance of probabilities the following statements of the High Court in Reifek v McElroy (1965) 112CLR 517 at 521-522 apply: The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support a conviction upon a criminal charge. I note that the above test was formulated in adversarial proceedings, unlike applications and appeals for awards of statutory compensation. 49The term 'act of violence' is outlined at section 19 of the VRSA. Victims Rights and Support Act 2013 No 37 19 Meaning of "act of violence" (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. 50I note that the term 'offence' as it appears in section 19 (1) (a) of the VRSA, is no longer defined under that Act, unlike the equivalent provision of the former Victims Support and Rehabilitation Act 1996. In that Act, the term 'offence' was defined by the Dictionary to the Act as meaning 'criminal offence'. 51I note that BFV was charged with a number of criminal offences. However no proceedings arose or were otherwise commenced against police officers. I also note that various complaints have been made to the relevant bodies tasked with dealing with complaints concerning Police including the NSW Ombudsman's Office and the Police Integrity Commission. Those bodies have the power to assess various allegations of misconduct and criminality concerning New South Wales Police Officers and where they deem it in the public interest, commence an investigation of the allegations. In some instances investigations lead to sustained findings and referral of matters to the Director of Public Prosecutions for the consideration of the preferring of appropriate charges. 52Whilst I am not suggesting that BFV (or the ordinary member of the public) would have been in a position to ensure that police officers could have been brought before a court on a criminal charge, what I am establishing is that the utility of those matters appears to have been considered by the relevant authorities, mainly due to BFV's bringing these matters to their attention. Clearly the ability of BFV to mount such a claim, or have others consider such a situation concerning police would have been complicated by the fact that police immediately brought a number of charges, (including serious charges), against BFV. 53I have considered all of the material that BFV has given in evidence, and his written notations (where relevant to the alleged assault on him), and have paid particular attention to the medical evidence, which might assist in in some way on the issue of whether the force was commensurate, or reasonable and necessary in the circumstances. 54I have considered these injuries in the context of the matters in the police evidence, and bearing in mind the level of force being used by BFV, the circumstances that the force was used, and the number of officers who necessarily became involved, I am satisfied that the injuries (severe as they seem in part especially having regard to the age of BFV at the time), are consistent with what may have transpired in accordance with the police evidence. 55The rib injuries are of concern, especially in the context of the age of BFV when considered purely in a medical context as a patient. However when the evidence is considered in its totality, the cause and context of those injuries are unremarkable. Alarming as they may seem in the first instance, on my assessment those injuries are consistent with the matters outlined in the police statements concerning the incident. 56Having considered all of the evidence and material in this matter, I am not satisfied on the balance of probabilities that BFV was the victim of an act of violence in accordance with section 19 (1) of the VRSA. 57As a result the application for review must be dismissed.