EGM v Commissioner of Victims Rights

Internal review

1. On 12 December 2023, EGM's solicitors requested an internal review of the Assessor's decision and they made the following submissions in support of that application: Grounds for internal review The applicant suffered grievous bodily harm in the form of psychological harm as a direct result of the act of violence and is therefore eligible for a category C recognition payment of $5,000 under section 35(2)(c) of the Victims Rights and Support Act 2013 (NSW) (the Act). The applicant submits that the decision maker erred as follows: a. in failing to find the acts of violence that were subject to the claim caused her to sustain an injury in the nature of a psychological injury amounting to grievous bodily harm; b. By incorrectly interpreting section 35 of the Act in determining her claim as an injury amounting to a category D injury; c. In failing to apply a beneficial approach to the legislation… Evidence of Injury The certificate of injury from Robina Otrupcek states: At item [7]: Her son (name provided) moved in when he was released from jail. He threatened her life every day and (EGM) was frightened to sleep and when she did she had nightmares. He also threatened his siblings and (EGM's) grandson. He left notes with knives and tortured her 24/7 for 2/5 months… At item [8]: (EGM) was terrified of (name provided). She believes he could escape custody and come and kill her. At item [9]: (EGM) is suffering from post-traumatic stress disorder. She is highly anxious and very stressed. Section 18 of the Act stipulates that "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". In CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 (CRT), the Court (sic) found that "serious bodily injury" must be interpreted based on ordinary dictionary definitions and, in the context of psychological or psychiatric harm, must be more than trifling, be of grave aspect and/or give cause for apprehension. The medical evidence from counsellor, Robina Otrupcek clearly states that as a direct result of domestic violence perpetrated by the offender, the applicant has suffered psychological injuries in the form of being highly anxious, very stressed, afraid to sleep, suffering with nightmares and diagnosed with post-traumatic stress disorder and anxiety. The medical evidence shows the debilitating, serious and ongoing impact these conditions have on the applicant which amount to grievous bodily harm. The applicant should be awarded a category C payment of $5,000…
2. On 11 January 2024, a Senior Assessor issued a Notice of Review Decision under the Act and determined that EGM was eligible for a category D recognition payment in the sum of $1,500.
3. In making that decision, the Senior Assessor stated, relevantly: 16. There is minimal information provided in the correspondence from the counsellor however it does state that (EGM) has been fearful of the potential for further violence from her son and also has concerns that he will escape custody and end her life. (EGM) is described as being highly anxious stressed and can be considered as suffering from Post Traumatic Stress Disorder. 17. I note that (EGM) has unfortunately experienced other forms of trauma in her life and suffered from related symptoms and so the recent violence and impact to her emotional wellbeing can be considered as an exacerbation or resurfacing of her psychological harm. 18. In relation to the psychological injury sustained by (EGM), I cannot establish on that this injury can be considered as grievous in nature. There is a single source of medical evidence and a very general statement regarding (EGM) experiencing stress and anxiety and a provision diagnosis provided. 19. There is no description of relevant symptoms nor any discussion regarding their impact on the day to day psychological functioning of (EGM) not any prognosis. To confirm, the limited information before me at this time does not indicate a psychological injury ahs been sustained by (EGM) that could be considered as grievous in nature.
4. I note that a copy of the review decision was emailed to EGM's solicitors on 12 January 2024, under cover of a letter from the respondent dated 11 January 2024. I am therefore satisfied that the decision was served as required by the Act.

Application for administrative review

1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (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.
2. On 5 February 2024, EGM's solicitors filed the current application for administrative review, which sought a review of the internal review decision on the following grounds: That the decision maker erred as follows: a. In failing to find the acts of violence the subject of the claim caused the application (sic) to sustain an injury in the form of a psychological injury amounting to grievous bodily harm; b. By incorrectly interpreting section 35 of the Victims Right (sic) and Support Act 2013 (the legislation) in determining the applicant's claim as an injury amounting to a category D injury; and c. In failing to apply a beneficial approach to the legislation.
3. The matter came before Senior Member McAteer for directions on 1 March 2024. Ms A Power appeared for EGM and Ms K Douch appeared for the respondent. The Senior Member made a non-publication order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). He ordered EGM to file and serve any further evidence by 12 April 2024. He ordered the respondent to file and serve any further evidence and submissions by 26 April 2024 and ordered EGM to file and serve any submissions in reply by 8 May 2024. He listed the matter for hearing on 10 May 2024 and noted that the respondent intended to issue a summons for production of documents to the Commissioner of Police.
4. On 9 May 2024, Principal Member Simon granted leave for EGM to participate in the hearing by way of telephone.

The hearing

1. The matter came before me for hearing on 10 May 2024. Ms K McDonald appeared for and with EGM and Ms K Douch appeared for the respondent.

Applicant's case

1. EGM relied upon a further statement that she signed on 8 May 2024 and written submissions from her solicitors.
2. In her further statement, EGM stated that on/about 27 April 2024, the offender was released from prison, since which her feelings of fear have intensified. She has upgraded the security in her home by installing deadlocks on all doors, security cameras and security mesh on the winds. She also pegs the curtains shut over all windows to ensure that he cannot look into the property. She also receives support from a domestic violence service and she has been issued with a duress band to wear, which she never takes off. If pressed, the duress band alerts police and notifies them of her location and it monitors her heart rate to determine the risk that she may be in. She stated, relevantly: 13. The symptoms of the stress, anxiety and trauma I have suffered as a result of (the offender's) violence are constant and have only worsened over time, particularly since his release from prison. My symptoms include: a. Difficulty sleeping. I struggle to fall asleep and when I do sleep, I wake up maybe 4 or 5 times a night. There are some nights where I might only get 3-4 hours of sleep. This happens due to my constant state of fear. I never feel at ease or that I can rest. My constant state of being on edge affects my sleep. b. Extreme levels of fear. I am scared to go out in public and I don't like to socialise with people. c. Altered appetite. Most days I don't feel like earing and there are some days when my first meal will be around 3:00pm. I usually only have about 1 meal a day. d. Altered mood. I feel down, depressed and upset most days. I cry almost every day. e. Inability to perform day to day tasks. f. Extreme levels of distress. I feel heartbroken that this has happened with my eldest son. He is the one who made me a mother. When he was born, the love I had for him was very special and now I feel that son is dead to me. The son I knew isn't there anymore and he is a monster now he has been so violent to me and that he is so affected by drugs, I feel I don't know my son at all anymore and that I won't ever get him back. I feel an immense sense of guilt and shame. This has been added stress to me with the amount of guilt and shame I feel. 14. I feel there is no end in sight to my symptoms and that I am not recovering. If anything, things are only getting worse since (the offender) was released from prison about a week ago. 15. I still seek therapeutic help and on-going counselling with my counsellor, Robina Otrupcek (Robina). She regularly calls me and checks in on how I am going. I can have a session with Robina whenever I need. I have had more frequent sessions with her lately. 16. I most recently had counselling with Robina on or around 27 April 2024, when (the offender) was released from prison. 17. I need the support from Robina for my mental health and psychological injuries caused by (the offender) and his violence. Being able to speak to Robina helps me cope because if everything gets bottled up and I keep it inside me, I feel like eventually I will explode.
3. In their written submissions, EGM's solicitors referred to the respondent's solicitors and they argued that the cases that the respondent relies upon differ from the circumstances of this matter and are therefore not persuasive authority in relation to the issue of whether the act of violence resulted in actual bodily harm or grievous bodily harm. They argued that there is sufficient evidence to enable the Tribunal to find that the injury "is to such a degree that it is in the nature of grievous bodily harm". There is no evidence that EGM has recovered from her psychological injury, but there is evidence that the injury has endured and continues to have a debilitating impact on her day to day functioning.
4. EGM's solicitors argued that she has been diagnosed with PTSD and that her injury is now chronic in nature as it has existed for more than twelve months. Therefore, the injury is grave and debilitating and not trivial or trifling and therefore satisfies the definition of grievous bodily harm.

Respondent's case

1. The respondent filed written submissions on 1 May 2024, which pre-date EGM's most-recent statement. I have summarised these submissions as follows: Meaning of grievous bodily harm 15. The Tribunal has considered the meaning of "grievous bodily harm" on various occasions and has been guided by the commentary of Beazley JA (as her Honour then was) in Haoui v Regina [2008] NSWCCA 209: 137. The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one". 16. It is apparent that grievous bodily harm involves a higher threshold than actual bodily harm. The threshold for actual bodily harm in respect of psychological injury was further considered in the matter of Shu Qiang Li v R [2005] NSWCCA 442, in which the Court of Criminal Appeal stated: 45. A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (See R V Lardner, unreported, NSWCCA, 10 September 1998). 17. In considering when a psychological injury constitutes grievous bodily harm, the Tribunal has previously found: (a) In BXB v Commissioner of Victims Rights [2015] NSWCATAD 173, there was evidence that the applicant was undergoing counselling and treatment by way of prescription medicine. However, despite noting that the impact of the act of violence was quite devastating, the Tribunal did not find grievous bodily harm in the absence of a psychological report from a clinical psychologist or a psychiatrist's report that established: (a) a serious psychological or psychiatric condition; (b) that arose as a direct result of the violence; and (c) had a debilitating and serious long-term impact on the applicant. (b) In EMT v Commissioner of Victims Rights [2021] NSWCATAD 39, despite the treating GP diagnosing post-traumatic stress disorder and prescribing medication for anxiety, neither the psychologist nor the mental health social worker formally diagnosed PTSD. The Tribunal was not satisfied that the evidence provided a safe climate for accepting a diagnosis of PTSD as a result of the act of violence. Further, the Tribunal was not satisfied that the psychological injury could properly be considered a "really serious injury" and approved a category D recognition payment. (c) In CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, the Tribunal accepted that the act of violence had a significant impact upon the applicant and that the applicant required psychological treatment for her depressive disorder and symptoms of post-traumatic stress. However, there was no evidence before the Tribunal that supported a finding that the applicant's condition required either treatment by a specialist psychiatrist or medication. It was further noted that the treating psychologist referred symptoms of post-traumatic stress, but did not formally diagnose a post-traumatic stress disorder. Further, based on the available evidence, the Tribunal was not satisfied that the applicant's injury could be considered "really serious" and approved a category D payment. (d) In the matter of FQR v Commissioner of Victims Rights [2023] NSWCATAD 66, the applicant reported experiencing various symptoms including severe anxiety, nightmares, memory and concentration problems, self-doubt and low self-esteem, hyper-vigilance, agoraphobia and avoidance behaviour and was given a provisional diagnosis of post-traumatic stress by a Mental Health Social Worker. The Tribunal was not satisfied on this evidence that the applicant suffered grievous bodily harm, noting the absence of evidence in respect of the impact of the symptoms on the applicant's day-to-day functioning and evidence from a medical practitioner or psychologist. (e) In the matter of FNA v Commissioner of Victims Rights [2022] NSWCATAD 388, the Tribunal considered whether the applicant had suffered grievous bodily harm for the purpose of considering an extension of time. In that matter, the applicant suffered two lost teeth and had been diagnosed with an adjustment disorder by his GP. In relation to the latter, there was no evidence that the applicant either required or had received any treatment from either a psychologist or a psychiatrist. The Tribunal was not satisfied that the available evidence provided a safe climate for finding that the applicant had suffered grievous bodily harm.
2. The respondent noted that Ms Otrupcek is a registered counsellor and that she had provided an undated letter which indicates that EGM first disclosed the offender's conduct on 17 May 2023 and that she had seen EGM on three further occasions and had spoken with her on five later occasions (the last being on 24 October 2023). However, as previously noted, these submissions pre-date EGM's most-recent statement, which indicates that she continues to receive counselling for her psychological injury.
3. The respondent argued that the act of violence resulted in actual bodily harm and concluded to the effect that the submissions made by EGM's solicitors regarding "beneficial legislation" are not relevant to the issue before the Tribunal. Therefore, the decision under review should be affirmed.

Act of violence

1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.
2. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons.
3. Section 20(1) of the Act defines "primary victim" as follows: A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…
4. The onus is on EGM to prove the allegation that she was the primary victim of an act of violence that was perpetrated by the offender on the balance of probabilities and that she suffered injury as a result.
5. Based on the evidence before me, I am satisfied that EGM a primary victim of an act of violence in the nature of domestic/family violence that occurred over a period of time from 1 January 2022 and 1 July 2023 and that this directly resulted in a psychological injury (PTSD and Anxiety).
6. I accept EGM's statement dated 8 May 2024. Based upon this evidence, I am satisfied that her psychological injury continues to have debilitating effects upon her. In particular, she is unable to work and requires ongoing support from her GP and regular counselling.
7. I note that the respondent did not have the advantage of this statement when the decision under review was made.

Recognition payment

1. In determining the appropriate category of recognition payment, I have applied the principles discussed by Beazley JA (as her Honour then was) in Haoui. Having done so, I am satisfied that the domestic/family violence that is the subject of EGM's application for victims support was in the nature of an assault that resulted in grievous bodily harm.

Conclusion

1. I am satisfied that EGM is eligible for a category C recognition payment under s 35(3)(b) of the Act.
2. I am also satisfied that there are no relevant factors under s 44 of the Act that justify either the withholding of victims support or a reduction in the amount of support approved.

Orders

1. The decision of the Senior Assessor dated 11 January 2024 is set aside and I make the following order by way of substitution.
2. The applicant is eligible for a category C recognition payment in the sum of $5,000.00.

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 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: 30 May 2024