Commissioner of Victims Rights v Lechminka

The appeal

1. The Commissioner of Victims Rights appeals from that decision. The appeal came before us on 27 May 2022 and we made orders dismissing the appeal on that day. These are our reasons for doing so.
2. Section 80(2)(b) of the NCAT Act provides that an internal appeal may be made as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds.
3. The Court of Criminal Appeal in Orr v Cobar Management Pty Limited [2020] NSWCCA 220 discussed the term "question of law". It must be noted that the Court's discussion was in the context of a referral of questions of law to the Court from the District Court under the Criminal Appeal Act 1912 and not an appeal. Nevertheless, the Court's discussion of the term is useful in giving some guidance as to what is a question of law.
4. The Court noted at [40] that there is no universal meaning or understanding of what is a question of law and, like any statutory expression, its meaning must ultimately be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears. The Court also noted the distinction between a question of law and a question the answer to which may disclose an error of law. At [52] the Court stated: A question may, in its form, sufficiently identify a possible error of law, but may nevertheless not qualify as a "question of law" or be readily answered as a question of law.
5. In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
6. In her submissions the Commissioner stated the grounds of appeal as follows:

• making findings of fact for which there was no evidence; and
• applying a repealed definition of "relevant offence" as set out in s 58 of the Victims Rights and Support Act 2013 (the Victims Support Act).

1. Leave to appeal was not sought and the Commissioner's submissions are to the effect that the Tribunal made errors of law. No questions of law, however, were set out in the Notice of Appeal or submissions. We understand that it can be difficult for parties to articulate precisely the grounds of appeal. As was explained by the Appeal Panel in Cominos v Di Rico [2016] NSWCATAP 5 at [13]: In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal.
2. In this matter we have identified that the grounds of appeal raise the following questions of law: 1. Whether there was no evidence before the Tribunal to support a finding of fact; and 2. Whether a wrong principle of law had been applied by the Tribunal.
3. If an appeal does not raise a question of law, leave to appeal must be granted. In light of our conclusions below we do not need to consider if leave should be granted.

Relevant legislative provisions

1. Part 5 of the Victims Support Act allows for the recovery of victims support payments that have been paid to a victim from persons found guilty of the crimes giving rise to those payments (s 57). Section 59 of the Victims Support Act provides that, if the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a "relevant offence", the Commissioner may make an order for restitution against the person.
2. The Commissioner's power under s 59 of the Victims Support Act to make a restitution order is therefore dependent on the person against whom the order is made being convicted of a "relevant offence". It is clear that the conviction has to relate to the act of violence (or acts of violence) concerning which payment is made.
3. At the time the order was made by the Commissioner and when the matter came before the Tribunal "relevant offence" was defined in s 58 of that Act to mean: 1. an offence in respect of which an act of violence (whether or not a series of related acts) is found to have been committed, 2. an offence for or in respect of which victims support is given under this Act, 3. any other offence if an offence referred to in paragraph (a) or (b) 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.
4. That definition of relevant offence came into force on 14 January 2019 through amendments contained in the Victims Rights and Support Amendment (Statutory Review) Act 2018 (the amending Act).
5. In relation to restitution orders, the amending Act provided that the amendment to s 58 made by it extended to an order for restitution made under Part 5 of the Victims Support Act before the commencement of that amendment and that has not been determined by the Tribunal. The restitution order the subject of these proceedings was in fact made after the commencement of the amending Act and the amended definition of "relevant offence" therefore applied to the making of the order (and to the decision of the Tribunal).
6. We note that the definition was further amended on 1 January 2022 to add a reference to an act of modern slavery, but that is not relevant to this appeal.
7. Prior to the 14 January 2019 amendment by the amending Act the definition of "relevant offence" was as follows: 1. 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, 2. 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, 3. 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.

The evidence before the Tribunal

1. The Tribunal had before it the application for support under the Victims Support Scheme from the victim submitted on 13 September 2016. The application was in relation to an assault on the victim by Mr Lechminka on 11 September 2016.
2. The Tribunal also had before it various police and court documents dealing with charges against Mr Lechminka arising out of the events which occurred on 11 September 2016. It also had before it police and court documents concerning an earlier conviction of Mr Lechminka on 14 January 2016 at Waverley Local Court of Stalk/intimidate intend fear or physical harm. That offence also concerned the victim.
3. Also before the Tribunal were copies of the decision made by the Commissioner which gave victims support to the victim and her acceptances of the payments made to her. The payments which were made to the victim were made in respect of incidents of violence that took place between 8 January 2016 and 12 September 2016.

The Tribunal's decision

1. The Tribunal found that the following offences, as set out in the decision to order restitution, were relevant to the approval of victim support:

• Common assault (DV) - T2
• Destroy or damage property
• Contravene prohibitions/restriction in AVO (Domestic).

1. These were the offences with which Mr Lechminka was charged by police arising out of the incidents occurring on 11 September 2016. We note that the offence of destroy or damage property was not included as a relevant offence in the restitution order made against Mr Lechminka.
2. The Tribunal found that Mr Lechminka pleaded guilty to these offences at Queanbeyan Local Court on 10 October 2016. The Tribunal went on to find that he was convicted of these offences on that date. In light of this finding the Tribunal concluded that the convictions cited in the restitution order were different to those that formed the basis of the approval of victims support. This was because the offences arising out of the 11 September 2016 incident as cited in the restitution order resulted in convictions at Waverley Local Court on 18 January 2017, whereas the offences which formed the basis of the approval of victims support were those he was convicted of on 10 October 2016.
3. The Tribunal therefore concluded that the restitution order had not been made in respect of a "relevant offence". In those circumstances the Tribunal was required to reverse the restitution order (see s 67(3) of the Act).

Whether no evidence to support finding of fact

1. As stated above, the Tribunal found that Mr Lechminka had been convicted of the relevant offences on 10 October 2016. The Commissioner argues that there was no evidence before the Tribunal that Mr Lechminka had been convicted of the offences on that date at Queanbeyan Local Court. The Commissioner submits that the relevant documents show that while he pleaded guilty to the offences on this date, he was not convicted of those offences until 18 January 2017 at Waverley Local Court.
2. We note that the Commissioner has conceded that the conviction on 14 January 2016 for the offence of stalk/intimidate as set out in the restitution order is not a relevant offence as this conduct fell outside the applicable period for which victims support was approved. Section 59 of the Victims Support Act provides that a restitution order may be made in respect of a relevant offence (emphasis added). We agree with the submissions of the Commissioner that the fact of the inclusion of an irrelevant offence does not affect the overall validity of the restitution order, so long as the order includes at least one relevant offence.
3. We also agree with the Commissioner that the Tribunal has misread the documents that were before it which evidenced the convictions which were said to be a relevant offence. Those documents clearly show that, while the guilty plea was entered on 10 October 2016, Mr Lechminka was not convicted of those same offences until 18 January 2017.
4. Mr Lechminka submits that this was merely an administrative error and equates it to "mere typos" in this context. He argues that the mistake was not relevant to the outcome. In our view, for the reasons which appear below that submission cannot be maintained.
5. The finding that Mr Lechminka was convicted of the relevant offences on 10 October 2016 was not based on the evidence before the Tribunal. There was in fact no evidence before the Tribunal that he was convicted on that date. That finding was made in error and led the Tribunal to conclude that the offences set out in the restitution order and for which Mr Lechminka was convicted on 18 January 2017 were different to those which formed the basis of the approval of victims support. This error then led the Tribunal to reverse the restitution order in accordance with s 67(3) of the Act.
6. We are satisfied that the question of whether there was no evidence before the Tribunal to support its finding of fact that the convictions cited in the restitution order were not relevant offences which enabled an order for restitution to be made must be answered in the affirmative. The Tribunal's error in this regard meant that Mr Lechminka's application was not considered on its merits. On this basis, the Tribunal's decision must be set aside and the matter remitted to the Tribunal for a determination on the merits.

Whether wrong principle of law applied

1. The second ground of appeal is that the Tribunal applied a wrong principle of law by applying the wrong definition of "relevant offence". Mr Lechminka states that the Tribunal applied the correct legislation as in force at the time but provides no further submission to support that statement.
2. In its decision the Tribunal referred to the definition of "relevant offence" as in force prior to the definition inserted by the amending Act on 14 January 2019 and in particular to paragraph (a) of the definition: 1. 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
3. As set out above, the relevant provision at the time of the Tribunal's decision was the amended definition of "relevant offence" as came into force on 14 January 2019 through the amending Act .
4. It is clear that the Tribunal adopted the incorrect definition of relevant offence. Again, this question must be answered in the affirmative. Whether the appeal should be allowed on this ground is another matter. It is difficult to assess whether, if the Tribunal had applied the correct definition, the outcome of the case would have been no different. Mr Lechminka argues that it would not while the Commissioner indicates that, as the new definition is somewhat broader than the old, a different conclusion may have been reached by the Tribunal.
5. This is not a matter upon which we are able to reach any conclusion. In any event, the Tribunal's error in making a finding of fact on the basis of no evidence is sufficient to dispose of the appeal.

Orders

1. We make the following orders: 1. The appeal is allowed. 2. The decision of the Tribunal made on 28 January 2022 is set aside. 3. The matter is remitted to the Administrative and Equal Opportunity Division of the Tribunal for determination in accordance with law.

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: 08 June 2022