In this matter, Mr Charles Clow ("the Applicant") has made an Application for Administrative Review of a Restitution Order made on 23 August 2016, by the Delegate of the Commissioner of Victims Rights ("the Commissioner") upon internal review, which varied the amount payable under a Provisional Order for Restitution dated 28 May 2016. That order was made pursuant to s 64 of the Victims Rights and Support Act 2013 ("VRSA").
On 12 September 2011, the victim made an Application for Compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 ("the old Act"), in which she alleged that she had been the victim of an assault that was committed by the Applicant on 17 August 2011. The victim claimed compensation for the compensable injury of "Disease or medical illness lasting 6 to 13 weeks".
The Police COPS Event report indicates that on 17 August 2011, the victim reported the act of violence that allegedly occurred that day. As a result of the Police investigation the Applicant was charged with one count of assault occasioning actual bodily harm and one count of knowingly driving a vehicle in a manner that menaces.
[2]
Award of victims support to the victim
On 7 May 2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by VRSA and cl 5(1) of sch 2 of VRSA set out the following saving and transitional provision:
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(1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
On 12 November 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D Recognition Payment pursuant to s 35 (4) (d) of VRSA in the sum of $1,500 and a special grant pursuant to sch 2, cl 5 (3) of VRSA in the sum of $5,000). The Reasons for Decision indicated, relevantly:
6. The applicant was driving her car in Banora Point when she got into an argument with another driver (the offender).
7. The applicant approached the offender's car and was arguing with the offender when the offender hit the applicant to her face with his car door.
8. The incident was reported to police and investigated. I note that the offender was convicted of assault occasioning actual bodily harm.
9. I have viewed the police report on file. While no medical reports have been provided the findings contained in the police report and the conviction against the offender on the balance of probabilities I accept that injury is established under s 19 (1) (c). As no updated medical reports have been presented I cannot be satisfied that the applicant sustained serious injury or continuing disability.
10. On the balance of probabilities an act of violence is established.
The Tribunal notes that the Applicant pleaded not guilty to the charge, but was convicted by a Magistrate. He then appealed against that conviction to the District Court of NSW. However, on 31 July 2012, Judge Black dismissed the appeal and confirmed the Magistrate's orders.
[3]
Provisional order for Restitution
Part 5 of VRSA is concerned with the recovery of victim support payments from offenders. The object of that Part is set out in s 57 of VRSA:
The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.
The statutory scheme gives the Commissioner of Victims Rights a discretion to make a provisional restitution order against a person convicted of a relevant offence, either after a recognition payment (or financial support) has been paid to a victim of that offence, or following approval of such a payment (see: s 59 (1) of VRSA).
"Relevant offence" is defined in s 58 of VRSA, as follows:
Relevant offence means the following (emphasis added):
(a) An offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given,
(b) Any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence,
(c) An offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.
A provisional order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or if more than two (2) years have passed since the later of the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under s 40 (6) of VRSA.
On 28 May 2016, the Commissioner made a provisional order for restitution against the Applicant in the sum of $6,500, being the full amount of victims support that was approved for the victim.
The Tribunal notes that an Affidavit of Service evidences that a copy of the Provisional Order was posted to the Applicant on 30 May 2016. I am therefore satisfied that the Provisional Order was served on the Applicant as required by s 61 of VRSA.
S 62 of VRSA gives a person on whom a Provisional Order is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (see: s 62 (3) of VRSA) and the objector bears the onus of proving their case (see: s 62 (4) of VRSA).
[4]
Decision upon Internal Review
On 7 June 2016, Mrs Helen Bannister-Clow, the applicant's wife, sent an email to the Commissioner, advising that the applicant "would be filing an objection to the provisional order". She also sought advice from the Commissioner in relation to certain legal matters that are not directly relevant to the determination of the current application. On 27 June 2016, requested an extension of time for filing the objection by way of a further email to the Commissioner.
On 17 July 2017, Mrs Bannister-Clow wrote to the Commissioner setting out the applicant's submissions in support of the objection, which included issues of culpability, guilt, the reasonableness of the financial support approved for the victim and financial hardship. She also made submissions criticising the reasoning of both the Magistrate who determined the charge against the applicant at first instance and the District Court Judge who determined the applicant's appeal against conviction.
I note that the Commissioner treated Mrs Bannister-Clow's email dated 7 June 2016 as a notice of objection for the purposes of s 62 of VRSA.
On 23 August 2016, the Commissioner's Delegate determined the Objection. The Delegate determined that the applicant was convicted of a relevant offence, but decided to vary the amount of the restitution order to $3,000. In making that decision, the Delegate stated (relevantly):
14. The defendant's objections have been submitted by Mrs Helen Bannister-Clow, the defendant's wife. The objections are based on the following:
● The circumstances of the act of violence - the defendant submits that (the victim) behaved in an aggressive and abusive manner towards Mr Clow and directly caused the act of violence. Further Mr Clow has provided character references in support.
● Character of (the victim) - the defendant submits that (the victim's) behaviour towards other people in her life indicates that she regularly makes false claims and displays erratic behaviour. Submissions about the character of the victim is (sic) not relevant information for the purposes of this decision.
● Circumstances of the investigation and court proceedings - Mr Clow submits that the case was mishandled by Police, Police Prosecutor, defence counsel, Local Court Magistrate and District Court Judge. Mr Clow has also provided a transcript of the court proceedings and subsequent AVO made. There is reference to a settlement/gag order signed by Mr Clow during the course of the court proceedings. As a conviction has already been confirmed, this is not relevant information for the purpose of this decision.
The Commissioner's Delegate Ordered the applicant to pay the sum of $3,000 by way of restitution, to be paid by instalments of $100 per month commencing on 15 September 2016.
The Tribunal notes that a copy of the Determination of the Objection was served upon the applicant by post under cover of a letter from the Commissioner dated 24 August 2016. I am therefore satisfied that this was properly served upon him.
[5]
Application for Administrative Review
The powers of the Tribunal upon administrative review are set out in s 67 of VRSA, relevantly, as follows:
(1) On an administrative review, the Tribunal may:
(a) Confirm, vary or reverse the original decision the subject of review, and
(b) Make any other orders it thinks fit.
…
(3) The Tribunal may confirm a provisional order made under Section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision…
On 17 October 2016, the Tribunal received the following documents from the applicant:
1. Notice of Appeal dated 13 October 2016; and
2. Application for stay of original decision pending appeal.
As the Notice of Appeal sought administrative review of the Commissioner's decision dated 23 August 2016, the Tribunal determined to treat it as an Application for Administrative Review.
Mrs Bannister-Clow lodged a large volume of documents in support of the current application, including a letter from the applicant to the Tribunal dated 27 September 2016, in which the applicant authorised her to act on his behalf in these proceedings. The documents also related to a litany of "complaints" that she outlined concerning: (1) The victim - "Perjury, fraud, destroying evidence, menacing/predatory driving and breach of RTA Regulations"; (2) The Witness - "Changing evidence, false evidence and an inability to see what he claimed"; Barristers and Attorney - "Lack of proper representation and failure to follow instruction"; Magistrate - "Bias and what appeared to be re-interpreting of evidence to suit the "victim"."; Judge - "Bias and apparently biased judgment only on the Magistrate's summation which we believe was flawed"; and Police - "Bias, possible false testimony, failure to secure evidence, refusal to provide evidence, failure to breathalyse after motor vehicle incident, knowingly taking a false AVO to Court, possibly influencing a witness and ignoring breaches of RTA regulations in relation to the "victim" and her vehicle, racist/derogatory remarks".
In her covering letter to the Tribunal dated 27 September 2016, Mrs Bannister-Clow asked for the Commissioner's decision to be overturned and stated that if the Tribunal could not do this, then a stay should be placed on the Commissioner's determination "until we receive a ruling from NSW Legal Services, NSW Judicial Commissioner and NSW Ombudsman." She also stated that the Commissioner had advised her that a stay was in place for a period of 3 months pending determination of the current application.
On 15 November 2016, Mrs Bannister-Clow wrote to the Tribunal enclosing a copy of a letter to the Commissioner and attached documents that she had served upon the Commissioner by Express Post that day. I refer to her letter to the Commissioner and note that she advised that:
The Judicial Commission had confirmed that it could not make a ruling in regard to decisions made by Judges and Magistrates;
The Ombudsman's Office and Local Police Superintendent had responded to the effect that their complaints should have been filed sooner and that they should have been dealt with in the Local Court and District Court at those times. She stated that this had confirmed that their decision to lodge complaints with the Bar Association about their barristers and lack of proper legal representation was justified.
The applicant disputes that the victim suffered any injury as she did not lodge "any valid evidence" and he disputed other amounts that the victim claimed for disbursements.
No definitive response had been received from the Bar Association in relation to their complaints. However, they pressed their complaint against their Barrister.
On 17 November 2016, the Commissioner lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 ("the ADR Act"). The Commissioner did not lodge written submissions.
The Applications for Administrative Review and Stay were lodged within the permitted time. It came before me for interim hearing on 18 November 2016, when Mrs Bannister-Clow sought to appear for the applicant (by telephone) and Mr Singh appeared for the Commissioner.
S 45 of the Civil and Administrative Tribunal Act 2013 No. 2 ("the CAT Act") provides (relevantly):
45 Representation of parties
(1) A party to proceedings in the Tribunal:
(a) has the carriage of the party's own case and is not entitled to be represented by any person, and
(b) may be represented by another person only if the Tribunal grants leave:
(i) for that person to represent the party, or …
Pursuant to s 45 (1) (b) (i) of the CAT Act, the Tribunal granted leave for Mrs Bannister-Clow to represent the applicant in these proceedings.
The documents provided by the Commissioner under Section 58 of the ADR Act were comprehensive and complete.
As the Commission agreed in writing to stay the restitution order for a period of three (3) months pending the determination of the current Application, it was not necessary for the Tribunal to determine that application. By consent, the application for stay was withdrawn and dismissed.
Mrs Bannister-Clow sought to rely upon the submissions set out in her letters to the Tribunal and Commissioner and particularly those set out in her letters dated 27 September 2016 and 15 November 2016.
However, the Tribunal determined that it has no power to either look behind a conviction that was entered by a Magistrate and upheld upon appeal by a Judge of the District Court or to review the approval of victims support that is the subject of the restitution order. I noted that most of the applicant's submissions were directed to those matters, which were not relevant to the application before me.
I observed that there was no evidence of financial hardship in the large volume of documents that had been filed and served. In response, Mrs Bannister-Clow stated that both she and the applicant are dependent upon "the Age Pension".
The Tribunal granted leave to the applicant to file and serve an Affidavit of Financial Circumstances. On behalf of the Commissioner, Mr Singh undertook to provide Mrs Bannister-Clow with the form of an Affidavit of Financial Circumstances for completion and lodging.
Mr Singh also made oral submissions to the effect that:
1. The Applicant was convicted of a relevant offence under s 58 of VRSA, as the conviction arose from substantially the same facts as those constituting the act of violence in respect of which the recognition payment was approved (see: s 58 VRSA);
2. The provisional order for restitution was made no more than 2 years after the later of either the date of conviction or the date of payment to the victim (see: s 59 of VRSA); and
3. Therefore, the correct and preferable decision is to confirm the decision under review "subject to anything the applicant may wish to say about his financial circumstances".
[6]
Consideration
The Commissioner's discretion under s 59 (1) of VRSA to make a provisional order for restitution is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of relevant offence makes it clear that the conviction has to relate to the act of violence concerning which payment is made. This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that the person from whom recovery is sought must have been convicted of the offence arising from the act of violence for which statutory compensation (or a recognition payment) has been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to such acts of violence.
This Tribunal does not have power to look behind a conviction recorded by a Court and it cannot, in the course of administrative review of a restitution order, review the Commissioner's decision to approve victims support for the victim. Further, the Applicant's submissions regarding the character and behaviour of the victim and his legal representatives in the criminal law proceedings are not relevant to the current Application.
Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence. On 20 January 2012, he was convicted in the Local Court of NSW of assault occasioning actual bodily harm and on 31 July 2012, the District Court upheld that conviction upon appeal.
On 12 November 2014, the payment of victims support was approved for the victim in the sum of $6,500, comprising a Category D Recognition Payment ($1,500) and a Special Grant ($5,000). The provisional order was made on 28 May 2016. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of VRSA. In any event, in the exercise of the Commissioner's discretion upon determination of the applicant's Objection, the restitution amount was reduced to $3,000.
After considering all of the available evidence and the parties' submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order and I make the following order:
1. Pursuant to Section 67 (1)(a) of VRSA, I confirm the order made by the Commissioner on 23 August 2016, which requires the Applicant to make restitution in the sum of $3,000 by way of instalments of $100 per month, commencing on the fifteenth day of the first month after the date of publication of this decision.
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: 31 January 2017
The Tribunal reserved its decision in the matter pending receipt of the applicant's affidavit of financial circumstances. However, no affidavit of financial circumstances has been received from the applicant.