DEL v Commissioner of Victims Rights

Legislation

1. On 3 June 2013 the Victims Rights and Support Act 2013 (the Act), replaced the former Act - the Victims Support and Rehabilitation Act 1996. (the 1996 Act). The 1996 Act provided for victims of violent crime to recover compensation for injuries through eligibility based on a table of compensable injuries or table of maims. Each compensable injury had a fixed amount payable and additional injuries were paid at a lower rate with a maximum of three injuries payable. The maximum amount of compensation was $50,000.00 for each successful claim. All claims required applicants to establish that they were the victim of what the legislation referred to as an 'act of violence'.
2. The current Act provides identical provisions in establishing injury as a victim of an act of violence. The main difference between the two Acts is that compensation or injury has been replaced by the giving of 'victims support' (s- 26 of the Act.) by way of a recognition payment (s-34 of the Act). Part 4 Division 5 deals with recognition payments which provides for four general categories of payment rather than almost 300 specific injury amounts under the 1996 Act.
3. Sections 35 and 36 provide: 35 Categories of recognition payment (1) A category A recognition payment is a payment given in respect of an act of violence that apparently occurred in the course of the commission of a homicide. (2) A category B recognition payment is a payment given in respect of an act of violence of the following kinds: (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts. (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. (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). 36 Recognition payments (1) Recognition payments are payable as follows: (a) a category A recognition payment of an amount prescribed by the regulations is payable to a family victim who, immediately before the death of a primary victim of an act of violence described in section 35 (1), was financially dependent on the primary victim, (b) a category A recognition payment of an amount prescribed by the regulations is payable to each parent, step-parent or guardian of a primary victim who died as a result of an act of violence described in section 35 (1), (c) a category B recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (2), (d) a category C recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (3), (e) a category D recognition payment of an amount prescribed by the regulations is payable to a primary victim who suffered injury as a result of an act of violence described in section 35 (4). (2) Only one recognition payment is payable to a single victim in respect of a series of related acts of violence against the victim.
4. The amounts for each of the categories: A, B, C and D are set out in clause 12 of the Victims Rights and Support Regulation 2013 which provides: 12 Recognition payments The following are the prescribed amounts of recognition payment for the purposes of section 36 of the Act: (a) for a category A recognition payment referred to in section 36 (1) (a) of the Act - $15,000, (b) for a category A recognition payment referred to in section 36 (1) (b) of the Act - $7,500, (c) for a category B recognition payment - $10,000, (d) for a category C recognition payment - $5,000, (e) for a category D recognition payment - $1,500.
5. The pathways under the Act which lead to a recognition payment have already been traversed by the applicant both in the initial decision and the Internal Review. It is therefore unnecessary to examine threshold matters, and these reasons (as did the hearing) focus on the extent of the immediate impact, injuries and subsequent effect of the act of violence on the applicant. I note that the applicant has received payments or grants for immediate assistance, treatment and other matters all directly related under the scheme to the act of violence.

Jurisdiction

1. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal. 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner. Nor was there any dispute that the application had been lodged within the 28 day period provided for by the operation of the s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and Clauses 23 and 24 of the Civil and Administrative Tribunal Rules 2014.
2. The application under s 51 of the Act followed an internal review under s 49 of the Act. That review on 10 July 2017 reached the same decision as the original decision maker, and approved a Category D recognition payment payable at $1,500.00 under the Regulation.
3. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the ADR Act, which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Hearing

1. At the hearing the applicant appeared in person and the respondent was represented by an employee Solicitor. The following material was filed by the parties in support of the respective positions:

Applicant's written evidence

• Application for Administrative Review dated 9 August 2017 including grounds - Exhibit 'A-1'.
• Letter from Dr R Bahl dated 14 November 2017 (and 31 pages of annexures) - Exhibit 'A-2'.

Respondent's written evidence

• Documents filed under s 58 of the ADR Act dated 12 September 2017 56 pages - Exhibit 'R-1'.
• Counselling report dated 14 November 2016 - Exhibit 'R-2'.

Preliminary finding

1. Based on a consideration of all of the evidence before the Assessor, and the evidence before the Tribunal, I find that the applicant is the victim of an act of violence within the meaning of s19 of the Act and that there are no relevant s44 issues to disentitle the applicant's claim.

Applicant's evidence at hearing

1. The applicant gave evidence at the hearing. The applicant is employed by a government department and is engaged in a care role. The applicant was functioning reasonably prior to the assault but was on a slight dose of an anti hypertension (Blood pressure) medication. One month after the assault the medication was increased, and the applicant remains on the elevated dose.
2. Prior to the attack the applicant was seeing her General Practitioner (G.P.) every six weeks or so, but since the assault she sees the G.P. fortnightly. The applicant has had victims of crime counselling and also believes that she would benefit from further counselling. The counselling ceased because the counsellor was having surgery and was unable to book further sessions.
3. In addition the applicant gave evidence that a problem has arisen with a rash on her neck (from the attempted strangulation), and that it was getting worse since the attack. Recently the applicant had seen a dermatologist (who is a registered nurse) who has applied a laser-based treatment.
4. Further treatment concerning the applicant's psychological well-being was undertaken in the weeks prior to this hearing. Clinician Deborah 'B' has been providing treatment which included EMDR (Eye Movement and Desensitisation Reprocessing) which is a common therapy based treatment for patients with mental health, anxiety and psychological impairment symptoms. When asked by the Tribunal about this treatment and her attitude to it and future needs the applicant advised that she had her first session two days prior to the hearing and would be making an appointment for next week.
5. When asked by the Tribunal why she believed that the injuries and impact equated to a GBH type assessment the applicant advised that she was entitled to it, because of what happened to her, her life has not been the same, and her life is different now. In addition the perpetrator lived very close by, she sees him in the community and he 'got away with it'.
6. When questioned further the applicant agreed that he was charged by police but has not been able to find out anything since and clearly he is still free to do as he likes and assault and rob again. She is reminded of the matter every time she goes outside and has lived in the area for many years and used to feel safe. Now she no longer feels safe.
7. The respondent declined to ask any questions of the applicant by way of cross-examination. The respondent did provide written submissions and brief oral submissions at hearing.

Respondent's submissions

1. In oral submissions the respondent acknowledged that an act of violence was clear on the facts and evidence but that the applicant was still functioning fairly well notwithstanding her limitations. The applicant had benefited from grants of victims assistance and may be eligible for further grants from the scheme upon evidence of ongoing needs / expenses. In respect of the counselling report the applicant could avail herself of further counselling upon application, especially based on the evidence of the most recent report, her apparent need for ongoing EMDR treatment and evidence at hearing.
2. In written submissions the respondent stated that the applicant appears to be claiming that rather than a Category D recognition Claim in the sum of $1,500.00 the correct category is a $5,000.00 Category C grant. The respondent also referred to the level of evidence necessary to make a positive finding and referred to the cases of ATX v Victims Compensation Fund Corporation [2015] NSWCATAP 42 referring to the following passage at [45]: ATX refers to the fact that she was being treated by a psychiatrist at the time. Because of the nature of these proceedings ATX's evidence has not been tested. Despite that, it does not appear to us to be exaggerated or fanciful. In addition it is sufficiently detailed for us to regard it as credible.
3. Reference was also made to the case of Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 where Rothman J took a more narrow approach to the concept of 'untested evidence' before the former Tribunal. The Court observed at [58] 58. …, there seems to be some level of injustice associated with any tribunal making findings which, in effect, are findings against the credit of the applicant in circumstances where the applicant has not been heard or cross-examined; and in circumstances where there is no evidence that contradicts the evidence of the applicant. Nevertheless, the mere fact that evidence is adduced before a tribunal, and not contradicted, does not require the tribunal to be satisfied that the evidence is true or accurate.
4. The respondent also referred to a decision of this Tribunal in the case of BQG v Commissioner of Victims Rights [2015] NSWCATAD 63 where the Tribunal focussed in some detail on the meaning of the term grievous bodily harm. I note that the term is not defined in the Act. In BQG the Tribunal was dealing almost solely with the definition of that term. That case was decided by the Tribunal as currently constituted so it seems appropriate to revisit the matter in some detail, especially in the absence of the respondent pointing to any other case dealing specifically with an analysis of this issue in the current scheme.
5. From paragraph 25 to 31 the Tribunal observed: 25. Much of the focus of this review / appeal concerns the appropriate meaning that should attach to the words, grievous bodily harm. 26. 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] NSWCCA 399; (2003) 59 NSWLR 472; and any grievous bodily disease. (Butterworths Criminal practice and Procedure 115,079) 27. 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.' 28. 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.' 29. 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] VicRp 1; [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] VicLawRp 49; [1951] VLR 346; R v Perks (1986) 41 SASR 355; 20 A Crim R 201. 30. 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 31. 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".
6. The respondent also submitted that the Tribunal had more recently affirmed the decision in BQG in the case of CZU v Commissioner of Victims Rights [2017] NSWCATAD 240. At paragraphs 22-24 after considering the analysis in BQG the Tribunal observed: 22. Based upon a consideration of the principles discussed in the relevant case law and all of the available evidence in this matter, I am not satisfied on the balance of probabilities that the psychological injury that CZU suffered as a result of the act of violence constitutes "very serious injury". 23. While I accept that the act of violence has had a significant impact upon CZU and that she has required psychological treatment for her depressive disorder and symptoms of post-traumatic stress, there is no evidence before me that supports a finding that her condition required either treatment by a specialist psychiatrist or medication. I also note that while the treating psychologist referred to symptoms of post-traumatic stress, she did not formally diagnose Post-Traumatic Stress Disorder. 24. As a result, I am satisfied to the required standard that the act of violence resulted in actual bodily harm and that CZU is eligible for a Category D recognition payment pursuant to s 35 (4) of the Act.

Consideration

1. The evidence in the current case does not appear to reach the necessary threshold of severity to enliven a consideration and finding that the applicant suffered grievous bodily harm. The applicant's evidence at hearing was in my view of assistance to her case, as it built on the evidence before the Assessor. Of particular relevance was the evidence at Exhibit 'A-2" being the medical report / letter from Dr Bahl. The report detailed from an expert and contemporaneous perspective the following matters:

• She has developed redness around the neck due to the assault due to broken blood vessels.
• She has developed stress and anxiety and anger issues.
• She is jumpy with every unexpected noise and if someone approaches towards her this causes increased distress.
• The symptoms are not abating.
• This has caused sleep problems and she and her partner sleep in separate rooms as his sleep is affected by her disturbed sleep.
• Her sick leave has increased due to stress related to the incident.
• She is showing sigs of PTSD (Post Traumatic Stress Disorder).

1. I note that in her oral evidence the applicant was asked about the leave records attached to Exhibit 'A-2'. The Tribunal assessed that immediately prior to the incident the applicant had been availing herself of approximately 80% of her annual sick leave allocation, but that this had only marginally increased since the act of violence. (Around 85%-90% allocation). Other leave was taken (Leave Without Pay) but the basis of this leave was not clear. When asked about her sick leave and leave generally the applicant advised that the type of work often results in on the job issues requiring sick leave.
2. I also note from the evidence that the applicant notwithstanding the matters concerning leave, is able to continue satisfactorily (albeit under some duress) with her occupational functioning. The applicant continues working and this is a matter to her credit. The applicant also maintains a relationship with her partner (albeit with sleep problems arising from the assault incident), and whilst her medical needs have increased post incident, it is difficult to see (on the basis of the current evidence) that this situation will persist for the foreseeable future or some deficits becoming permanent.
3. The applicant's evidence was that she no longer goes out at night, butt goes to work, does shopping etc. I have already referred to the applicant's apparent satisfactory occupational functioning.
4. I note in particular my findings in BQG that GBH is defined in the Crimes Act 1900 as follows: 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, .
5. On my assessment of the available evidence, the matter sits somewhere between the level of injury and extent of symptoms classified in Category D and Category C. It would be inaccurate to say that the totality of the evidence creates a 'borderline' GBH finding. In my view the matter sits somewhere just below that threshold and I so find. In making this finding I acknowledge the serious nature of the assault and the fact that the assailant sought to strangle the applicant and she was in fear for her life.
6. The applicant presented honestly and in my view had diligently sought to present her claim. I acknowledge the sense of violation and injustice that the applicant feels.
7. It may well be that with related matters discussed between the parties at hearing, that the applicant may be entitled to further assistance (but not by way of a recognition payment). In particular ongoing treatment expenses, and perhaps some way of mitigating the impact of the perpetrator's location by screening the view of the adjoining property, or other screening. I have not considered the qualifications of such further matters but note that is a matter for the Commissioner's delegate to consider on such a further application being made.
8. Finally, an issue arose at hearing concerning the lack of information that the applicant had received concerning the court process, and police information. I would encourage the parties to examine what further aspects of the Charter of Victims Rights the Commissioner can assist the applicant with in this regard.

Conclusion

1. For the reasons outlined above a claim of grievous bodily harm is not made out on the available evidence, and as a result no greater recognition payment is available under the Act, having regard to the circumstances of the act of violence.
2. For those reasons the application must be dismissed and the decision of the respondent affirmed.

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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: 22 December 2017