BRH has applied for administrative review of a Review Decision made by the Delegate of the Commissioner of Victims Rights. The basis of the application for review by the Tribunal concerns whether BRH is eligible for a recognition payment based on the available evidence, and whether the decision of the administrator is contrary to the weight of evidence. For the reasons outlined below the Tribunal finds that the evidence is sufficient to establish that BRH was the victim of an act of violence, and is entitled to a recognition payment, and a special grant from the Victims Support Fund.
[2]
Background
BRH 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") dated 23 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 25 July 2014 to dismiss the application for a recognition payment, pursuant to section 35 of the VRSA. The Review Decision was made pursuant to section 49 of the VRSA.
BRH claims statutory compensation by way of an application lodged in November 2008, 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 1995 and 2008 in the State of New South Wales.
I note that BRH has at all times been legally represented, and was represented by a private practitioner before the assessor (Client claims), then represented by Legal Aid (NSW) on Internal Review and is now represented by the Macarthur Legal Centre for her appeal to the Tribunal.
In respect of the allegation outlined at paragraph 3 (above), BRH lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 6 November 2008. 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.
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 BRH 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 as BRH's application had not been determined prior to 4 June 2013, 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, BRH could now apply for a Category of recognition payment under Division 5 of the VRSA.
On 25 July 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:
8. In addition to the application form, and the content of the Primary claim, I have considered the police reports on file which reflect a number of reports and AVO's having been taken out to protect the applicant. I also note the applicant was charged with Use of Carriage Services to Menace and Harass /Offend, in relation to the de facto (the alleged offender). The applicant pleaded guilty to this charge.
9. The police evidence generally reflects constant fighting and abuse on the part of the applicant and the offender. There were no court proceeding against the alleged offender.
10. In order to successfully establish an act of violence pursuant to s19 & 20 of the Act; and to qualify for a recognition payment, the applicant must prove that injuries resulted from the alleged acts of violence. At least one form of medical evidence must be provided to Victims Services. I note that no such evidence is on file.
11. I also note that counselling with Authorised Report Writers were approved by Victims Services, on 21 September, 2008 & 7 September, 2009. The evidence shows that the applicant did not attend these appointments.
12. Furthermore, letters were issued to the applicant's solicitor on 3 February, 201 & 1 may, 2014, calling for medical evidence of injuries sustained as a result of the claimed act of violence. No such evidence has been received in relation to this.
13. Based on the very limited information which has been submitted, I am not satisfied to the requisite standard, that an act of violence is established.
14. As I have not found an act of violence established, the claim is dismissed.
BRH applied for an internal review of the decision, and on 23 December 2014 Senior Assessor as delegate of the Commissioner issued a Notice of Review decision under section 49 of the Act. The decision was, in (inter alia) the following terms:
12. In addition to the application form, I have considered the police reports, court information, AVO documentation, medical evidence, submissions, and other documents on the applicant's file.
13. Police CPOS reports have been obtained, indicating police intervention in relation to domestic incidents involving the applicant and the alleged offender from 2006 to 2008.
14. I do not consider that the available reports support the applicant's claim. The applicant is listed as the 'person of interest' in the majority of the reports.
15. There is a reference to previous domestic violence and the existence of an AVO in approximately 2001, however this information is inconclusive.
16. This appears to be the only evidence addressing the period prior to 2006.
17. The reports frequently refer to the sending of messages by the applicant to the alleged offender of a harassing and threatening nature.
18. I note that the applicant was charged in relation to a series of 64 messages sent in January 2008. A facts sheet from the relevant court proceedings describes messages of a highly threatening and offensive nature.
19. According to the information from Campbelltown Local Court, the applicant pled guilty to the offence of 'Use carriage service to menace / harass / offend' and was placed on a bond.
20. This appears to be the only criminal charge arising from the period of domestic violence.
21. According to a report from police, dated 6 May 2009, separate AVO's were granted for the protection of the applicant and the offender, naming each as the defendant on the other's order for two years, from September 2008.
22. I note that the issue of relevant evidence of injury was raised in the original decision and note the content of the report of Psychologist, Ms Lynette Toms, which has been submitted for the review.
23. This report refers to a "background of emotional abuse" from the applicant's ex-partner. I do not consider that this history is sufficient to overcome the adverse content of the police and court evidence, which appears to establish only the verbal abuse of the alleged offender by the applicant.
24. I am therefore not satisfied in regard to the objective weight of Ms Toms diagnosis and do not agree with the submission that the report provides incontrovertible evidence in support of the applicant's claim.
On 11 February 2015 BRH filed an application with the Tribunal for administrative review. Under the relevant provisions, the time for filing the application for administrative review expired at the close of business 9 February 2015. Whilst the application has been date stamped by the Tribunal on 11 February 2015, the application is signed 2 February 2015. In addition a Notice of Representation by a Legal Practitioner form dated 2 February 2015 was received and stamped by the Tribunal on 6 February 2015. On this basis (and in the absence of any submission to the contrary by the respondent), I deem that the application was received within the time provided by Rule 23 (3) (b) of the Civil and Administrative Tribunal Rules 2013.
[3]
Administrative Review
It appears that a significant amount of the Administrator's decisions focused on whether the applicant had engaged in behaviour which met the criteria of perpetrator rather than victim. This appears to have arisen due to the material which the Commissioner of Victims Rights obtained from the Commissioner of Police. It appears that this information was obtained by the Commissioner of Victims Rights of their own motion, in that on 31 August 2009 NSW Police provided Victims Services with vetted COPS Events of five Event numbers.
In each of the five Events BRH is referred to as a 'person of interest', in addition to being nominated as 'Victim 1' in one Event and the 'person reporting' in two Events. This situation has arisen whereby it appears that BRH (or her then solicitors) were unable to obtain any information from NSW Police which might go beyond the five Events received by Victims Services. Whilst there is no evidence that the solicitors initially obtained police material directly, there is evidence that they specified the details of police / court matters (favourable to their client) which Victims Services could request. However, either due to the absence of sufficient favourable material, (and a possible consideration of adverse material), BRH's initial application (and internal review) were dismissed.
It appears that whilst there was evidence that might establish BRH as the victim of an act of violence, the administrator placed significant weight on the adverse (and apparently incomplete) police material, such as to outweigh or rebut the medical evidence. Paragraph 23 of the decision dated 23 December 2014 (when considering the medical report), provides the following summary:
I do not consider that this history is sufficient to overcome the adverse content of the police and court evidence, which appears to only establish the verbal abuse of the alleged offender by the applicant.
BRH's solicitors filed fresh evidence with the application for administrative review. That evidence comprised a statutory declaration from BRH declared 3 February 2015. In addition BRH's solicitors wrote to the Tribunal on 5 April 2005 advising that they were seeking to obtain further evidence in support of BRH's application, being medical evidence, and material from the Commissioner of Police. That later material was being sought by an application under the Government Information (Public Access) Act 2009 (the GIPA Act).
When the material was eventually obtained in late July, the parties by consent requested that the matter be heard on the papers. As neither party wished to make further submissions and the matter involved the consideration of written material, I reserved on 31 July 2015, and considered the matter on the material filed at that time.
[4]
Evidence
BRH supplied the following evidence:
Application for Compensation Declared 17 October 2008.
Application for Counselling declared 20 October 2008.
Police vetted material obtained by Victims Services.
Further police material obtained under the GIPA Act.
Statutory Declaration of BRH declared 3 February 2015.
Report by Psychologist dated 26 November 2014.
Women's Health Centre attendance records.
The respondent filed the section 58 documents which comprised the first three matters at paragraph 17 above, copies of the decisions of the assessors, and correspondence between BRH's solicitors and Victims Services / Commissioner Victims rights.
[5]
Consideration
Whilst it is clear that both BRH and her then partner lived in a volatile and sometimes violent relationship, the evidence indicates that both parties came to police attention at various times. Significantly, whilst there is evidence of BRH harassing and communicating with the other party in a problematic and at times hostile manner, those matters do not amount to assaults (or deemed assaults). In the absence of any civil process such as an Apprehended Violence Order or similar being in place, or if such an order was in place, evidence of a breach or alleged breach which would then involve a criminal matter, BRH's alleged behaviour does not (on the evidence before me) constitute an act of violence against the other party.
On such an assessment, it is difficult to ascertain how BRH's own conduct might amount to anything involving behaviour which might invoke section 25 (3) of the VRSA.
25 Persons not eligible for support
(3) Offenders
A person is not eligible to receive victims support in respect of an act of violence if it occurred while the person was engaged in behaviour constituting an offence.
If relevant, BRH's behaviour might warrant consideration under section 44 of the VRSA.
44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment
(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim.
Section 44 of the VRSA is a mandatory consideration in all matters whereby an act of violence is established and a grant, payment or award from the Fund is contemplated.
When viewing the evidence, there is clearly independent evidence of both actual physical bodily harm and psychological harm being suffered by BRH. In respect of the physical injuries, it is clear from the Police sighting of the injuries, that BRH sustained injuries to her hands by the perpetrator. Whilst police opine that the injuries are self - defence, they would appear to arise from BRH defending herself from a physical attack by the perpetrator. Whether the attack was provoked by BRH's spitting does not obviate the provisions of section 19 (1) of the VRSA. It might (if relevant) raise an issue under section 44 (1) (a) of the VRSA.
In BRH's statutory declaration of 3 February 2015, there is evidence of an assault. The evidence being that her partner punched here approximately ten times, kicker her whilst she was on the ground, and that she contacted police and consulted a doctor. Whilst BRH does not provide any medical evidence (from the Doctor) in respect of that incident, she does declare details of the practice, and her own description of the injuries.
The evidence provided on behalf of BRH indicates that interim protection orders (in the nature of Apprehended Violence Orders) were issued in February and March 1999. These orders appear to have been issued in the absence of complaints of contact, harassment, intimidation, stalking, or technical breaches of existing orders restricting or prohibiting the behaviour of the person to whom the order relates. In that regard they appear to have been issued on the basis of other complaints (potentially in the nature of assaults and / or future concerns) about the behaviour of the other party. This is contrasted with the evidence of the various orders issued against BRH to protect the other party. In those matters, it is clear that there is evidence of BRH's unsolicited contact, verbal abuse, nuisance calls, and multiple instances amounting to harassment.
The evidence is not precise on the matters outlined at paragraph 25 (above) however in summary BRH's partner obtained orders against BRH due to verbal and similar behaviour, whereas there is no evidence establishing the basis for BRH's protection orders either way. In my view, having regard to the matters referred to in the statutory declaration, the application form, and independent observations recorded in the Police material, it is open to infer that BRH's protection orders related to complaints concerning assaults where she (for unknown reasons) requested no further action.
In this regard I find that BRH's evidence is cogent, it does not appear to be exaggerated or fanciful, nor does there appear to be any basis for not accepting it as credible. Importantly BRH does not resile from the matters that could be viewed as adverse to her.
In that regard, there is no evidence to indicate that on the basis of the matters set out in her claim section 25 (3) of the VRSA should apply. There is no evidence that for the matters claimed, BRH's behaviour was sufficient to be considered criminal, so as to disentitle her to victims support, or raise an issue whereby the prosecution would be unable to negate the other party's potential defence of 'self -defence'. In that regard I find that section 25 (3) does not apply.
Having regard to all of the matters considered above, I make a finding that BRH is the victim of an act of violence within the meaning of section 19 (1) of the Victims Rights and Support Act 2013, and is eligible for victims support.
As set out at paragraphs 21 and 22 (above), a consideration of the matters pertaining to the behaviour of the applicant, are a mandatory consideration under the VRSA, for all claims where eligibility is established as a precondition (by traversing sections 19 and 25 of the VRSA).
In my view the provisions of section 44 (1) (a) are relevant considerations for this claim. The evidence clearly establishes that BRH and here then partner / father of their child) were in a volatile and somewhat dangerous and dysfunctional relationship. In addition there is evidence that at times one or the other party abused alcohol and recreational drugs and this contributed to the various altercations and behavioural outbursts, which might constitute violent conduct. There is evidence of well in excess of a dozen police attendances over the period of the relationship, with police often being contacted by witnesses and third parties.
However I note the summary from the psychologist where she opines that (BRH)'s 'symptoms are consistent with those of a person who has been a victim of protracted domestic violence.' (Psychologist report dated 26 November 2014).
Having regard to the evidence that BRH tenders in support of her claim, I note the drug and alcohol abuse and that in some instances it is present when matters involve police intervention. Whilst not condoning any aspect of acts of violence which BRH endured, I believe that having regard to the totality of the adverse material, and noting that BRH has been clearly on notice by the two decisions of the administrator, and having had regard to BRH's legal submissions on this issue, some application of section 44 should apply.
However because of the circumstances of the domestic violence, the evidence of BRH, and her solicitor's submissions, in my view the section should have minimal application (s-44 (1) (a). For the same reasons however, I make no adverse findings concerning section 44 (1) (b) - (g) inclusive.
There will a reduction in any recognition payment by the amount of 10%in accordance with the provisions of section 44 (1) (a) of the Victims Rights and Support Act 2013.
As BRH is entitled to a recognition payment, and as the claim was lodged under the Victims Support and Rehabilitation Act 1996, BRH is may be assessed as to whether she is eligible for a special grant of victims support.
I note that the claim was lodged within two years of the conclusion of the act of violence in October 2008, being registered on 6 November 2008. In this regard the provisions of Clause 5 of Schedule 2 of the VRSA apply and BRH is eligible for a special grant payable from the Victims Support Fund.
5 Applications for compensation under statutory compensation scheme
(1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
(2) The applicant concerned is eligible for victims support under the Scheme comprising approved counselling services or a recognition payment, or both.
(3) The applicant concerned is not eligible for victims support under the Scheme comprising financial assistance for immediate needs or financial assistance for economic loss. However, if the application would, if it had been made for victims support referred to in section 26 (1) (b) or (c) of this Act, have been duly lodged in accordance with this Act within the prescribed period, the applicant is eligible for a special grant of $5,000 payable from the Victims Support Fund.
(4) In subclause (3):
prescribed period means:
(a) the period of 2 years after the act of violence in respect of which the application is made was committed (the relevant act of violence), or
(b) if the victim concerned was a child when the relevant act of violence was committed - within 2 years after the child reaches 18 years of age.
(5) Any application determined under subclause (1) is taken to have been determined as an application for victims support under this Act.
(6) The amount determined to be payable to the applicant under this clause is to be reduced by the amount of any interim award of statutory compensation made to the applicant under section 33 of the repealed Act.
(7) The applicant is not required to refund any part of an interim award of statutory compensation made to the applicant under section 33 of the repealed Act that is more than the amount determined to be payable under this clause.
(Emphasis added)
Having regard to the wording of clause 5 of Schedule 2, and section 44 (1) of the VRSA, in my view any reduction under section 44 would only apply to a recognition payment, or financial support.
The term 'Victims Support' is defined in section 18 of the VRSA.
victims support means support in the form of approved counselling services, financial support or a recognition payment under the Scheme.
Section 30 of the VRSA is concerned with financial assistance. Having considered section 30 of the VRSA, and the terms of clauses 7 - 12 (inclusive) of the Victims Rights and Support Regulation 2013, it is clear that financial support takes the form of the financial assistance referred to and particularised in the clauses.
Due to the absence of the words: financial assistance, victims support or recognition payment, from Clause 5 of Schedule 2 of the VRSA, it appears that the 'special grant' does not constitute a form of Victims Support.
There is further authority for the special grant to be given 'unconditionally' subject to satisfying the strict requirements of clause 5. In the case of BFO v Commissioner of Victims rights 2014 NSWCATAD 175 I addressed the issue of the giving of a special grant from the Victims Support Fund. At paragraph 42:
42. It is clear from the wording of the clause, that the provisions of Clause 5 only apply to claims which were lodged under the old Act, but determined in the first instance under the new Act. I infer this from the wording of the Schedule, and the words 'statutory compensation scheme' as they appear in the clause. In addition, with the wholesale repeal of the old Act (but for the provisions relating to sections 36-38 as set out in Clause 16 of the Victims Support Regulation 2013 - "the Regulation"), Clause 5 both enlivens the retrospectivity of the VRSA to existing claims, but also provides the only legal power to consider those pending applications.
43. Clause 5 (2) provides that the pending matters become eligible for victims support under the new scheme in the nature of approved counselling services, a recognition payment or both. The first passage of Clause 5 (3) however prevents such pre-existing or pending matters from receiving victims support in the nature of financial assistance for immediate needs or financial assistance for economic loss.
44. The second passage of Clause 5 (3) provides for the issue under consideration in BFO's appeal. That is the 'special grant'. On one reading of subclause 3, the special grant could be considered to be offered in lieu of financial assistance for immediate needs or economic loss. I make this point because the Regulation makes provisions for financial assistance for immediate needs in the same amount. ($5,000). Economic loss is calculated slightly differently from immediate assistance.
45. However, notwithstanding those amounts, as the 'special grant' appears unconditional (as long as an applicant is a victim of an act of violence and had lodged their claim within 2 years of the incident or before their 20th birthday), on one analysis the grant could be considered to offset the limited award available under the new Act, due to the claim not being determined prior to 4 June 2013. This offset may be because the recognition payments are in the main lower than the former compensation for compensable injury, and that these claims are prohibited from the financial support set out in Clause 8 of the Regulation.
43. In addition to examining the acts and regulations that apply to the current and former schemes, I have examined the Hansard records and amendment instruments of the VRSA when it was before the Parliament.
47. Mr Brad Hazzard MP on behalf of the then Attorney General gave the second reading speech in the Legislative Assembly on 7 May 2013. The relevant commentary in respect of the Clause is as follows:
The Victims Compensation Scheme will be closed immediately. All existing claims that have not yet been finalised will be transferred to the Victims Support Scheme. This will provide a speedier resolution for victims with existing claims, who will be able to seek counselling and a recognition payment right away plus an additional payment of $5,000, provided they lodged their claim within two years of the incident or of turning 18 if they were a child at the time. This will enable the contingent liability to be addressed expeditiously.
Therefore the reduction under section 44 (1) (a) will only apply to the recognition payment.
[6]
Conclusion
Having regard to all of the evidence submitted by BRH, I assess that BRH is eligible for a recognition payment in the nature of a Category D recognition payment for a series of related acts that constitute an act of violence being an assault (not resulting in grievous bodily harm). The medical evidence does not establish physical or psychological injuries which would satisfy the criteria of Grievous Bodily Harm, as set out in BQG v Commissioner of Victims Rights [2015] NSWCATAD 63.
It follows that the correct and preferable decision is to set aside the decision of the administrator, and make the following orders.
[7]
Orders
1. The decision of the Senior Assessor is set aside.
2. The applicant is eligible for a Category D recognition payment reduced by 10% pursuant to section 44 (1) (a) (payable in the sum of $1,350.00)
3. The applicant is eligible for a special grant payable from the Victims Support Fund in accordance with Schedule 2 Clause 5. (Payable in the sum of $5,000.00)
4. Disbursements are awarded in the sum of $30.00
5. Costs are awarded in the sum of $500.00
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
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Decision last updated: 27 August 2015