(1979) 46 FLR 409
Haoui v R [2008] NSWCCA 209
Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28
Source
Original judgment source is linked above.
Catchwords
(1979) 46 FLR 409
Haoui v R [2008] NSWCCA 209
Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28
Judgment (6 paragraphs)
[1]
reasons for decision
BQG 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 11 December 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 23 September 2014 to make a recognition payment under category D, pursuant to section 35 (4) of the VRSA. The Review Decision was made pursuant to section 49 of the VRSA.
The basis of the application for review by the Tribunal concerns whether BQG is eligible for a more favourable recognition payment in the nature of category C, pursuant to section 35 (3) of the VRSA.
[2]
Background
BQG claims statutory compensation by way of an application lodged in June 2012, in which she alleged that she had suffered various compensable injuries as the result of an assaults by a person whom she was in a relationship with between 1999 and 2000 in the State of New South Wales.
I note that BQG was represented by the Wirringa Baiya Aboriginal Women's Legal Centre before the compensation assessor (Client claims), and on Internal Review and continues to be represented for her subsequent appeal.
A number of other claims were lodged by BQG but those matters do not concern the material threshold (and appeal) issues in this application, being act of violence and eligibility for a particular award, grant or payment.
In respect of the allegation outlined at paragraph 3 (above), BQG lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 12 June 2012. That application sought statutory compensation for the compensable injury of a Chronic Psychological Disorder that is serious disabling which arose as a direct result of the assaults by the perpetrator.
As the claim was lodged outside of the two year limitation period provided for under the old Act, leave to extend the limitation period was sought, and given by the Director's delegate in accordance with section 26 of the old Act.
The 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 BQG 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.
On 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"). The ADT was abolished with the commencement of the Civil and Administrative Tribunal Act 2013, which provided for the creation of the NSW Civil and Administrative Tribunal (NCAT). References to the Tribunal in the VRSA from 1 January 2014 refer to NCAT.
The 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 that was seriously disabling, BQG could now apply for a Category of recognition payment 3 or Category 4 recognition payment under Division 5 of the VRSA.
As BQG's application had not been determined prior to 4 June 2013, contrary to the matters outlined in paragraph 3 (above), BQG's application was now dealt with under the new provisions of the VRSA.
On 23 September 2014 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:
From assessing the totality and nature of the evidence on file in this instance, I am satisfied that on the balance of probabilities, the applicant was a victim of and sustained injury as a result of the domestic violence, during the subject period and therefore an act of violence is established pursuant to section 19 of the Act consisting of a series of related acts.
The applicant is claiming a category C recognition payment for grievous bodily harm. The content of the evidence provided, however does not establish injury of that very serious nature.
A Category D recognition payment is justified in the instance.
…….
Recognition payments under section 35 and 36 of the Act are payable to primary victims of particular types of acts of violence. Following consideration of the applicant's original application for statutory compensation and the available evidence, it is my view that the applicant is eligible for a recognition payment in relation to the following category under section 35.
A category D recognition payment is a payment given in respect of an act of violence involving the following:
(d) an assault (not resulting in grievous bodily harm).
On 31 October 2014 BQG's Solicitors wrote to the Commissioner for Victims Rights requesting an Internal Review in accordance with section 49 of the VRSA.
On 11 December 2014 the Senior Assessor issued a Notice of Review Decision pursuant to section 49 (5) (b) of the VRSA under the delegated Authority of the Commissioner. The decision reached the same conclusions as that of the original decision maker, namely that BQG was the victim of an act of violence, there were no adverse issues relating to her behaviour or eligibility to make a claim, and that the evidence established a Category D recognition payment (rather than Category C payments as pleaded). The relevant part of that decision was, in (inter alia) the following terms:
The grounds of review are detailed in the above correspondence. In summary it is submitted that the Assessor erred in not finding that the applicant's injuries amounted to 'grievous bodily harm'.
…...
A category D recognition payment is payable under section 36 (1) (e) of the Act and, pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under category D is $1500.00.
I note the submissions addressing the applicant's eligibility for a higher category of recognition payment, with particular reference to R v O'Conner. However having considered the evidence as outlined above and addressed in the submissions, I do not consider that the circumstances or established injuries elevate the category of recognition payment to an 'Assault resulting in grievous bodily harm'. 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.
The Senior Assessor approved the payment of a Category D recognition payment in the amount of $1,500.00 which was in practical terms the same outcome as the original decision.
Matters commenced under the old Act but not finally determined at the commencement of the VRSA were eligible to be considered for a special grant of victims support (in the sum of $5,000.00) if they were awarded a recognition payment, and had initially lodged their claim under the old Act, within the statutory limitation period. In accordance with the provisions of the VRSA and the decision in BFO v Commissioner of Victims Rights [2014] NSWCATAD 175, BQG is ineligible for a special grant of victims support because she lodged her initial claim out of time and was given leave to proceed by the Director (as per paragraph 7 - above).
[3]
Administrative Review
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.
On 22 December 2014 BQG 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.
As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal. On 13 March 2015 the matter came before me for hearing. By consent I received an application from the Solicitor for the Respondent that the matter be determined on the papers.
[4]
Applicants Evidence and Submissions
The Applicant filed a large volume of material with the Tribunal. On 24 February 2015 a bundle was received which contained:
the two previous decisions (Assessor Client Claims and Senior Assessor),
Submissions before the Assessors (both first instance and internal review),
The application to the Tribunal,
Copies of statutory declarations of BQG and police records which were before the Assessors,
Eight further items being media articles, academic studies, government reports, Hansard extracts, Appeal Court decisions, Government program policy documents.
All of the Applicant's evidence and submissions were (understandably) focused towards the submission that due to the extent, nature, circumstances and impact of the Applicant's injuries, the Tribunal should interpret those injuries as satisfying evidence of grievous bodily harm.
In support of this submission, the Applicant submitted that the Tribunal should apply a broad interpretation of 'grievous bodily harm' in s35 (3) (c ) of the VRSA be applied. They also submitted that a broader definition than the existing criminal case law and the inadequate and incomplete definition in s18 of the Act, which only; 'includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm,' should apply.
I have considered all of the material lodged by the Applicant through her Solicitors with the Tribunal, even though I may not refer to all of it specifically in these reasons.
[5]
Respondents Evidence and Submissions
The Respondent's submissions focused on the construction of the VRSA and how the Act should be applied to the evidence.
[6]
Consideration
Much of the focus of this review / appeal concerns the appropriate meaning that should attach to the words, grievous bodily harm.
Taking the criminal definition of the offence as set out in the Crimes Act 1900 the following is apparent:
Grievous Bodily Harm Section 4 (1) provides that "grievous bodily harm" includes any permanent or serious disfiguring of the person. Grievous bodily harm requires that the injury be a really serious one, but does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening: Haoui v R [2008] NSWCCA 209. :Grievous bodily harm" in s 4(1) includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm (see R v King (2003) 59 NSWLR 472; and any grievous bodily disease.
(Butterworths Criminal practice and Procedure 115,079)
The Australian Concise Oxford Dictionary (Third Edition) defines the word 'grievous' and then the term 'grievous bodily harm'. Grievous is defined as:
'(of pain etc), severe. 2. Causing grief or suffering. 3. Injurious. 4. Flagrant, heinous.
Grievous bodily harm is then defined as:
'grievous bodily harm Law serious injury inflicted intentionally on a person.'
The Macquarie Dictionary (Third Edition) defines the word 'grievous' and separately the term 'grievous bodily harm'. Grievous is defined as:
1. Causing grief or sorrow 2. Flagrant; atrocious; a grievous fault.
Grievous bodily harm is then defined as:
'grievous bodily harm noun the crime of directly causing a grievous injury to the body of a person with or without a weapon.'
The Butterworth's Concise Australian Legal Dictionary (Second Edition) defines the legal term 'grievous bodily harm'. It is defined as:
Abbr - GBH Bodily injury of a really serious kind: R v Sergi [1974] VR 1;R v Blevins (1988) 48 SASR 65. At common law the expression has no fixed legal meaning and should be left to the jury to interpret in accordance with the ordinary current meaning of the words: Director of Public Prosecutions (Vic) v Miller [1951] VLR 346; R v Perks (1986) 41 SASR 355; 20 A Crim R 201.
The approach to statutory interpretation concerning the meaning and application of words when considering beneficial schemes was previously addressed by me in the decision of BFO (which deals with the same legislative matrix concerning an old Act application and a VRSA determination). BFO v Commissioner of Victims Rights [2014] NSWCATAD 175
At paragraph 62 of that decision I examined this issue, and then went on to look at the 'conflicts' between the provisions of the old act and the VRSA, which in my view, is a relevant factor relating to the availability of specific remedies to BQG in this application.
62 A general authority for the correct approach to take in such instances, arises in the case of Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that Case Brennan CJ noted the following:
69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71.Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".
63. Whilst it is fair to observe that there are a small number of conflicts within both the VRSA and the old Act as well as conflicts between those Acts, the predominant observation that I make is that those conflicts seek to limit rather than exclude recovery for victims of violent crime.
64. In Statutory Interpretation In Australia (5th Edition Pearce and Geddes) the issue of beneficial legislation is addressed. (pg 15)
Remedial or Beneficial Acts The courts have adopted the broad approach that where an Act is curing some 'mischief' or is granting a benefit to a person, the Act should be construed generously to ensure that the mischief is remedied or that the person is not denied the promised benefit. ..... What does cause difficulty is where a remedial Act seeks to achieve its end by proscribing certain conduct under a threat of a penalty. The Act can then be classified either as remedial or penal, thereby attracting different approaches.'
In order to view the language of the instrument (in this case the VRSA) as a whole, it is necessary to reproduce some sections of that Act in this decision.
The object of the Part of the VRSA which gives rise to the recognition payments (Part 4) is found at section 17 of the VRSA.
Part 4 is titled 'Victims Support Scheme'.
17 Object of Part
The object of this Part is to establish a scheme for the provision of support for victims of acts of violence.
Section 18 of the VRSA provides for a number of definitions relevant to victim support (including recognition payments).
18 Definitions
In this Act:
………..
grievous bodily harm includes the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm.
injury means actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.
Section 34 of the VRSA (which is contained within Part 4) goes on to define certain terms, including the term 'recognition payment' as part of victims support.
34 Definitions
In this Division:
category of recognition payment means a category of recognition payment described in section 35.
……………….
recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.
I note that the specific term 'grievous bodily harm' is part defined in section 18 of the VRSA. That definition is in identical terms to the second prong of the definition of grievous bodily harm as referred to in the Crimes Act 1900 following the decision in R v King (2003) 59 NSWLR 472. I also note that term 'injury' is also defined in section 18 of the VRSA, and includes a reference to the words 'grievous bodily harm' without further particularising them, (except for the earlier definition as to the expanded meaning of the grievous bodily harm term in section 18).
Whilst the words grievous bodily harm are not expanded upon other than the extension arising from the decision in R v King, it seems on that basis, that is a reference in the definitions, that 'grievous bodily harm' is different to 'actual bodily harm' or 'psychological or psychiatric harm' as defined in section 18 of the VRSA.
Under the old Act, the equivalent provision to section 18 and other definitions, was the 'Dictionary' which followed schedule 4 of that Act. Physical injuries were not largely defined in the old Act, as there was a table of Compensable Injuries which specified hundreds of particular injuries and their level of impairment or disability by medical evidence contrasted with a version of a table of maims. (The Table to Schedule 1 of the old Act). Only injuries by reference to the circumstances of the act of violence in accordance with section 11 of the old Act (such as sexual assault, domestic violence) were further defined. Additionally psychological injuries were also further particularised by way of a definitive descriptor in both the Table and the clauses to Schedule 1 of the old Act.
Section 65 of the old Act did provide for Guidelines issued by the Chairperson of the former Tribunal, which sought to clarify aspects of the legislation and the appropriate approach to be taken by decision makers in first instance. One Guideline issued on 22 December 2006 dealt with the meaning of the definition of injury under the old Act. Whilst that Guideline examined the applicable case law and standard of evidence required to make a positive finding, it dealt primarily with 'actual bodily harm' in so far as it related to physical or psychological harm. Grievous bodily harm was not considered.
I have considered the Applicant's submissions in some detail. I note the matters pertaining to section 33 of the Crimes Act. I accept (for the purposes of this determination) many of the matters submitted on behalf of the Applicant. Whilst some of the matters relating to the actions of the perpetrator towards others (such as police officers, the manner of driving etc), are illustrative of the perpetrators general level of criminality, those submissions do not assist me. In my view they do not assist in establishing anything in respect of whether the appropriate recognition payment arising from the act of violence was considered and awarded.
The broad submissions in respect of the seriousness and both the potential and real long term impacts of domestic violence on victims are noted. In my view that material should be considered largely uncontroversial, as it should be clearly understood what the impacts of domestic violence and violence against women and vulnerable persons are generally. The issue is whether this type of trauma (irrespective of whether a claimant has multiple / related claims such as BQG), constitutes grievous bodily harm for the purpose of a victim support payment. Whilst the submissions are well made, when one has regard to the objects of the VRSA, and the observations that I have made concerning whether the violence and its evidentiary impact constitute an assault constituting grievous bodily harm, the evidence is less clear.
In respect of the broad submissions concerning domestic violence, unfortunately, compelling as they are, in the absence of specific evidence relating to BQG, I am unable to link those matters to the provisions of sections 18, 19, 20, 23, 26, 34, 35, 36, 38, 39 and 40 of the Victims Rights and Support Act 2013. Those matters therefore do not assist the Applicant's case.
On my assessment of the physical evidence in respect of this specific claim, the evidence does not in my view relate to something constituting grievous bodily harm on either a statutory or common law definition. I also note the matters raised by the Respondent in respect of the case of Haoui v R [2008] NSWCCA 209, and that deciding whether harm relates to a particular type of harm (such as 'grievous bodily harm') is a question of fact, in effect for the decision maker as funder of fact.
I do not agree with the general proposition that the recognition payment type is specifically linked to the types of charges (if any) preferred against a specific perpetrator. Many claims are lodged (and succeed) irrespective of whether an offender is identified or prosecuted. Recognition payments are given in respect of an act of violence. Section 35 (3) states:
(3) A category C recognition payment is a payment given in respect of an act of violence involving any of the following:
(a) a sexual assault other than one referred to in subsection (2) (b),
(b) an attempted sexual assault resulting in serious bodily injury,
(c) an assault resulting in grievous bodily harm,
(d) physical assault of a child that is one of a series of related acts.
I note the reference to the words 'resulting in' in respect of 35 (3) (c ). Section 35 (4) states:
(4) A category D recognition payment is a payment given in respect of an act of violence involving any of the following:
(a) an indecent assault,
(b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b),
(c) a robbery involving violence,
(d) an assault (not resulting in grievous bodily harm).
It would appear that under the VRSA, the level of recognition payments are on the one hand tied to the nature of the assault / offence, such as sexual assaults, robberies with violence, indecent assaults, physical assault of a class of victim (eg: a child) etc.
However for any assault which does not fall into one of the descriptors as outlined in section 35, then it appears that for these other assaults, the impact on the victims well-being, or put another way, the level / extent of the injury inflicted upon them, such as referred to in sections 35 (3) (c ) and 35 (4) (d), becomes the relevant consideration. I note in particular the words 'resulting in grievous bodily harm', as they appear in section 35 (3) (c ) and 'not resulting in grievous bodily harm' as they appear in section 35 (4) (d).
On this analysis the 'impact' on the victim becomes a question of fact based on evidence and material before the decision maker.
On the evidence and material before me, it would appear that the specific evidence to the requisite standard does not establish grievous bodily harm on any specific set of definitions. The relevant evidence is essentially the same as what was before the decision maker in first instance, and the Senior Assessor on review. When giving the words their ordinary meaning, following the comments in Project Blue Sky v Australia Broadcasting Authority, and having examined the general meanings (and the specific definition from the Crimes Act) In my view the evidence does not establish grievous bodily harm under the definitions as set out at paragraphs 26 - 29 (above).
I find that there is an insufficient weight of evidence to satisfy a Crimes Act definition or a common law definition of grievous bodily harm, on the evidence and material before me in respect of the injury arising as a direct result from the act of violence which is the subject of this specific claim.
I note that under the old Act, it would appear that the relevant range of award for this claim was in the realm of an award for the 'offence based injury' of domestic violence (as per schedule 1 Clause 7A of the old Act). Under the Table to the old Act such an award attracted the sum of $7,500- $10,000 by way of statutory compensation. However that remedy was removed by the amendments to the scheme in June 2013. I make these observations purely due to the final submission of BQG's solicitors that the current award of $1,500.00 ….. is grossly inadequate for a victim of the type of violence she experienced.
It follows that the correct and preferable decision is to affirm the decision of the administrator (Commission for Victims Rights).
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 02 April 2015