EJF v Commissioner of Victims Rights

[2021] NSWCATAD 168

NCAT Administrative and Equal Opportunity|2021-01-15

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Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2021-01-15

Source

Original judgment source is linked above.

Judgment (23 paragraphs)

[1]

Introduction

The applicant has made claims seeking recognition payments under the victims of crime scheme. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (the V S and R Act).
In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant has not established that she is eligible to receive a victims recognition payment in four claims, but has established eligibility on one claim.
These proceedings concern whether the applicant in each of her claims has established that she was a victim of a violent crime (the statutory term being 'act of violence') in accordance with the Act, and is entitled to a recognition payment.

[2]

Background

The applicant has lodged five applications for administrative review with the Tribunal. Each application concerns an administrative review of how the respondent has dealt with her initial applications and internal reviews for Victims Support. The applicant in these proceedings before the Tribunal is referred to as 'EJF'.

[3]

Summary of the claims:

Below is a summary of the alleged violent conduct perpetrated against EJF following the summary provided by her in each of the seven claims. 1. 2020/173534 (NCAT) 226756 (Victims Services) 1. At Randwick in 1997 EJF was sexually assaulted by an unknown male. She had gone to Coogee and had smoked cannabis and was drunk and was unable to get home. A man she vaguely knew called 'Kris' and his two mates (who said they knew EJF's bothers) took her back to his house and showed EJF a firearm and a large quantity of cannabis to intimidate her. The man raped EJF but part way through the assault the two mates tried to drag EJF's friends into a car so she went and helped them escape and they got away (but she was were later blamed and bullied at High School for what happened). 2. EJF claimed a psychological injury arising as a result of this incident. 1. 2020/00173545 (NCAT) 263099 (Victims Services) 1. 1997 going home drunk and stoned, spoke to some men who gave her a drink spiked with the drug 'fantasy'. Sexually assaulted at Railway Square, blacked out - awoke to find she was being 'passed around' by a group of men (Footballers). Being sexually assaulted by two brothers. Fell asleep at Bus Stop at Railway Square. Awoke to find 10 year old boys urinating on EJF. Sometime later, attacked by the same two brothers on her way to school resulting in EJF's knee being injured. 2. EJF claimed a physical and a psychological injury arising as a result of this incident(s). 1. 2020/00173560 (NCAT) 263100 (Victims Services) 1. 1997, EJF walked off with a man to Hotel in Coogee and was sexually assaulted when EJF refused to perform oral sex on the man. Man pushed EJF down a flight of stairs - broke left front tooth and has permanent lump on chin as a result. 2. In 2004 EJF stayed at friends house and friend's brother came into room when EJF asleep and tried to violently rape EJF. Strangled EJF and when she called out he knocked out filling (of front tooth referred to above). 3. EJF claimed a physical and a psychological injury arising as a result of this incident(s). 1. 2020/00173589 (NCAT) 263901 (Victims Services) 1. 1998 Coogee Beach bus stop going home alone drunk and stoned - EJF was sexually assaulted. Afterwards one of the assailants and an Aboriginal woman stalked and intimidated EJF across various suburbs trying to make her forget about the incident. Memories came back when assailant came into EJF's work in 2004 and bragged about incident and threatened EJF. In company with same woman as described above who continued to stalk and harass EJF. 2. The applicant claimed a psychological injury arising as a result of this incident(s). 1. 2020/00185383 (NCAT) 280041 (Victims Services) 1. Sometime between 1 November 2011 and 30 November 2011 at Leichhardt drank too much, was threatened by a male (EJF had never seen before) in the home - hid in other males room, made a mistake smoking cannabis and then the male sexually assaulted EJF. 2. The applicant claimed a psychological injury arising as a result of this incident.
Because of the number of claims, I believe that it is appropriate to set out briefly the key elements of the scheme and how the matters have been decided prior to the applications for administrative review.

[4]

Legislation

As the Tribunal has previously observed, the Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an 'act of violence'. The relevant current provisions are set out in the following sections of the Act: 5 Meaning of "victim of crime" (1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence. (2) A person suffers harm if, as a result of such an act: (a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or (b) the person's property is deliberately taken, destroyed or damaged. (3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part. (4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights. …. 19 Meaning of "act of violence" (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. 2) For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment. (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because: (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner: (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given. (7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. 20 Meaning of "primary victim" (1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act. (2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of: (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act. ….
The Act provides for a number of areas of support for victims of violent crime. These five reviews concern an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment. recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.
Prior to accessing a recognition payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an 'act of violence'. The section has been amended since the V S and R act commenced. The section currently provides: 39 Documentary evidence (1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form. (2) Without limiting subsection (1), the documentary evidence to be required: (a) for an application for financial assistance for immediate needs under section 26 - is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment - is: (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. (Emphasis added)
These pathways or preconditions under the Act which lead to a recognition payment are a threshold issue to an applicant accessing the benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.
In all of the five applications the initial decision maker dismissed the claim as they were not satisfied that the applicant was the victim of an act of violence. Upon review the senior delegate also dismissed all five claims on the basis that they were not satisfied that EJF was a victim of an act of violence. The reasoning in all five claims concerned an insufficiency of evidence to make the requisite positive findings. The Senior A as delegate in each claim stated: Having considered the available material, I am not satisfied that there is sufficient evidence to establish an act of violence, on the balance of probabilities, for the purposes of section 19 of the Act.
In all five claims EJF sought an internal review of the decision made by the initial decision maker (the A. Initially four matters were decided by the same Assessor and it appears that they were all determined or finalised on the one day (26 June 2019). EJF's Internal Reviews were determined by a Senior Assessor under s 49 of the Act. The four reviews were determined by the same Senior Assessor and were also determined on the same day (15 August 2019).
In respect of the fifth matter (VS Ref: 00280041 NCAT 2020/00185383) the initial determination was by the same Assessor (as the earlier claims) on 4 March 2020. The Internal Review was conducted by a different Senior Assessor on 19 June 2020.
On 11 June 2020 EJF filed four administrative review applications with the Tribunal.
On 23 June 2020 EJF filed the administrative in her fifth matter determined on 19 June 2020.

[5]

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear the administrative reviews if validly lodged. 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.
The Tribunal notes that four of the five applications have not been received within the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil and Administrative Tribunal Rules 2014.
As noted above four of the applications were filed on 11 June 2020, approximately ten months after they were determined on Internal Review on 18 August 2019. This matter was not addressed on the first return date of the reviews, and since that time the matters have proceeded to be prepared for hearing notwithstanding that an extension of time had not been considered on the first return date. It appears that this procedural defect was not identified by the Tribunal at that time, or brought to the Tribunal's attention. As the matter has proceeded on the parities understanding that the Tribunal had jurisdiction it appears that the respondent does not press the lateness of four of the applications. The matter has proceeded with hearing dates and further determinations on the papers. In my view it is appropriate to consider extending time to make the application of the Tribunal's own motion, as provided in the NCAT Act.
Section 41 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) provides for the Tribunal to extend the time for an applicant to make an application to the Tribunal. It provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
As s 57 of the ADR Act has been repealed the Tribunal is not required to determine whether an out of time application has been supported by a reasonable explanation for the delay in making the application. Section 41 of the NCAT Act does not import the same language as the former s57. However the authorities indicate that there must be some explanation for the delay when the Tribunal is called upon to exercise its discretion.
I note that the delay was not pressed, that there was no prejudice attaching to the respondent and that EJF's administrative reviews appear to have been initiated in response to the determination of the last claim in June 2020. EJF lodged the fifth administrative review reasonably promptly after receiving the Commissioner's advice in June 2020. I believe that it is in the interests of justice to extend time for lodgement. I extending time to lodge the reviews (to the extent necessary) to 5:00pm 11 June 2020 for claims 2020/00173534, 2020/00173545, 2020/00173560, and 2020/00173589, pursuant to s 41 of the NCAT Act.
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.
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

[8]

EJF's medical evidence

The Rozelle Hospital notes confirm that EJF was admitted initially on 24 February 2000 and discharged on 1 March 2000. A further record shows an admission on 23 March 2000. The presenting problem is recorded as: One month poor sleep, isolating in room, believes gang of people have raped her in park 35 times, laughing and talking to self. During interview claim to have been raped 20 times, to have used heroin since age 3 . Believes she is psychic. … laughing inappropriately .. first episode psychosis - has been using cannabis frequently.
The notes confirm that EJF was admitted as an involuntary patient and commenced with anti-psychotic medications. The discharge diagnosis was schizophrenia and admission due to a drug induced psychosis. A further reference in clinical notes relates to reporting on 24 February 2000 that she was raped by 3 males when she slept, this was in 1998.
In records completed on 13 March 2000 the following is recorded. Believes gang of people have raped her in park 35 times. .. Laughing and talking to self.
This appears to be an earlier record of what is set out above at [31]. 25 February 2020 progress notes from Rozelle Hospital; record that EJF believes 'that she is a prostitute in Burwood'. Immediately after that reference the following is recorded: 'if she does not do her job tonight all these men will die. She needs to get to Burwood today.' The notes contain references to males being rapists and a male family member raping EJF all of her life and male staff at Rozelle being 'rapists'. 25 February 2000 notes record: 'Many sexual themes regarding rape throughout her childhood. States she does not take heroin, takes marijuana.
Clinical notes recorded on 11 March 2000 refer to: Began to talk about her history and said that she had been raped over 1000 times. Reeled off various places, names, dates.
References appear in the clinical notes to EJF being 'thought disordered', 'delusional', 'generally delusional has had auditory hallucinations'. There were also references to EJF discussions of the rapes with her parents.
References on 4 March 2000 from the clinical notes state: (EJF) told a brother 2 years ago she had been raped - on (or around) the train - drinking 'schized out' would 'go burko; doesn't like being touched, hates men, won't talk about sex. Mother worried she may have been raped.
A medical report under Form 2 of s 29 (2) of the then Mental Health Act 1990 s 29 (2) concerning a Medical Report as to Mental State of a Detained Person states the following: Reported behaviour: (EJF) states because she is psychic they are all trying to kill her. Observations: (EJF) is quite thought disordered and describes rapes waiting 3 months during which time she slept she can hear angels talking to her. Conclusion: (EJF) is psychotic and needs hospitalisation for her own safety.
Records from Parramatta Medical Centre do not provide any evidence to support the claims. The response to the Summons indicates that there are 'no documents in relation to the specific incidents'.
The Counselling report form D Wachala from 2014 refers to counselling sessions relating to EJF's recent abusive relationship. There is also a reference to an alleged sexual assault by a babysitter's husband when EJF was three years of age. A further reference is made to an attack by a group of males when EJF was 17 years old. The assault or attack is described as being held hostage and sexually harassed.
Further references are given concerning being forced to play with a male's penis on her way to school and having drinks spiked at parties throughout her adolescence and young adult years.
Whilst some of these matters are reoccurring reports through EJF's history as given to health professionals, this evidence does not seem to relate to the specific incidents upon which the current claims are based.
In respect of the Cumberland Hospital records, there is reference to EJF's admission in 2013 as a 31 year old. Again there are references to sexual assaults in the past, including a Police note setting out the basis for bringing EJF to the mental health facility for admission. That note records that EJF thought that Police were going to sexually assault her when they detained and transported EJF. The Hospital notes also refer to numerous threats to kill EJF and her family by others.
The Cumberland Hospital records also refer to an admission in 2011 where EJF said she was being persecuted by demons. Another admission in 2016 resulted in EJF being scheduled.
Additional allegations were made and recorded during the 2016 admission relating to EJF being sexually abused by neighbours.
Medical records from the Western Sydney Local Health District (WSLHD) Centre for Addictive Medicine and another WSLHD unit Grevillea Cottage, provide some further evidence about the allegations and their constancy of report and the impact of these matters on EJF.
Some of the reported matters show inconsistencies. The issue concerning the alleged assault by the baby sitter's husband (which does not form part of these claims) is reported as being when EJF was three years of age, and also at five years of age.
However the records also refer to an assault at age 17 when EJF was 'pack raped' by 10-15 men. Reference is also made to alleged sexual assaults by men when intoxicated at the age of 15 or 16 years. Reference is also made to being sexually assaulted by some of the friends of EJF's mother.
The medical records indicate that: '(EJF) has engaged with the Centre for Addiction Medicine for assistance with her substance use issues since 2 April 2014. (EJF) attended three initial psychology assessments sessions across 2 March 2016, 22 March 2016 and 29 March 2016 where she disclosed multiple sexual assaults occurring during her childhood, adolescence and early adulthood.' 'Clinical notes indicate that (EJF) has on four occasions disclosed that she was sexually assaulted in 1999 at the age of 17 by a group of men in a park.' '(EJF) has reported a number of psychological impacts as a result of the sexual assault. (EJF) disclosed experiencing flashbacks, nightmares, and panic attacks on an almost daily basis. She reports being fearful of future attacks which has led to the restriction of social activities and community involvement, and avoidance of areas where she is likely to be around unknown men.' (Report of R Hopkins 26 September 2018)
The report refers to EJF's engagement with counselling intervention focusing on relapse prevention assistance and anxiety management.
The Grevillea Cottage records also concern more contemporary allegations where EJF reported that in January 2014 that she had been sexually assaulted by her boyfriend six months prior to the report.
The medical records indicate: '(EJF) sexually assaulted at the age of five years by a paedophile who would babysit her. She has memories of being in a room with two naked men kissing her and being forced to touch these men's penis. She was further sexually assaulted at the age of fifteen years when intoxicated at a school party. (EJF) experiences sleep disturbances, social phobia and she gradually disclosed her childhood sexual assault experience during therapy with mental health services'. '(EJF) informed me that she was sexually assaulted as a very young child by babysitters and when aged 15 by her peers, on many occasions, when intoxicated'. '(EJF) describes the impacts of these assaults include the following: Trust issues, Obsessive exercising, Social phobia, Nightmares, Withdrawn, Lethargy, Lack of motivation, Sadness'. 'IMACTS (EJF) has clear impacts from being sexually abused which began from a young age. This includes that she experiences triggers and flashbacks as a result of the assaults. She feels sick to the point of vomiting and she abuses alcohol likely as a means of blocking out the impacts'. 'The assaults seem to consume every area of (EJF"s) life to the point that she cannot sustain employment and cannot at times leave the house. She reports experiencing anxiety and depression'. (23 March 2016 Grevillea Cottage Report)

[10]

EJF's Police Evidence

A summons issued to the Commissioner of Police identified only one Event Number in respect of EJF. A request was made for COPS Event Report E 566779118 and any other Police Report relating to incidents of sexual assault upon (EJF) between 1990 and 2000 in the Sydney suburbs of: Railway Square, Leichhardt, Coogee or Randwick. The summons included EJF's personal particulars to enable an appropriate search for information to be undertaken.
Police responded to the summons with two items of information. A search against Event Number E566779118 resulted in a nil find. However a different Event (reference E 3480375) had been located. This Event however related to a petty theft matter where as a 15-year-old EJF had been accused of shoplifting a book valued at less than five dollars. I note that the summons incorrectly refers to E 566779118 when the previous holding of Victims Services (including their written submissions and the decisions of the Assessors) all refer to Event Number 'E66779118'. It is curious how the Victims Services Assessors were able to access this information by a COPS Event (E66779118) but when a summons issued for: COPS report E 56677918 (and) Any other police report relating to incidents of sexual assault upon (EJF) (date of birth XX YY 1982) in the period between 1990 and 2000 in the Sydney suburbs of Railway Square, Leichhardt, Coogee and Randwick event E6677918 was not located. It appears that the Commissioner of Victims Rights has not identified the procedural error in the summons with the wrong event reference issuing. In addition the absence of production of E 6677918 remains unexplained from the Commissioner of Police's perspective.
This issue could have been overcome if the Commissioner of Victims Rights provided the Police material which was before the Assessors, as part of the s 58 documents provided under the ADR Act. In my view it was incumbent on the agency to which the administrative review relates to provide those documents. In response to this issue the Commissioner of Victims Rights when providing the s 58 documents in August 2020 advised the Tribunal that: Please note due to recent changes to Victims Services agreement with the NSW Police we are no longer able to produce records obtained directly from the COPS system. We are advised that if NCAT require NSW police records they must obtain them from NSW Police.
Section 58 of the ADR Act is set out in the following terms: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (Emphasis added)
The only explanation for this state of affairs is that in accordance with s 58 (1) (b) Police material is not available or under the control of or in the possession of Victims Services at the time of the administrative review. However clearly it must have been available to Victims Services when the Commissioner of Victims Rights delegates considered the claims. For such a situation to arise because of administrative arrangements between the two Commissioners seems contrary to the obligation imposed by s 58 and at odds with the objects of the V S and R Act. It also seems somewhat at odds with the guiding principle of the Tribunal to resolve matters in a just quick and cheap manner.
The determination of these matters has been delayed by the need for the Commissioner of Victims rights to apply to the Tribunal for summons and for these to issue and be returnable. In any event in addition to delaying the matter, this process has resulted in less Police material being before the Tribunal (due to the provisions of incorrect information in the summons). If that material was not already available from the review decisions the matter would require a further adjournment, further delaying the quick resolution of the matter.
Notwithstanding these issues, I believe that it is in the interests of justice that the matter proceed because there is sufficient material before the Tribunal from the detailed medical reports, and the reproduction in reasons of the evidence obtained from the Commissioner of Police, via the Event referred to as E6677918. In addition there is also the evidence of the applicant.
Noting the matters above, the respondent filed and served s-58 (ADR Act) documents in August 2020 and written submissions filed March 2021.

[14]

Consideration

The medical evidence supports the claim that EJF was sexually assaulted by a group of males. The exact details are imprecise because of the circumstances of the assault and the passage of time. In any event EJF's consistent presentation to medical providers, retelling all of her experiences of traumatic assault instances provide a cogent context to that claim. Aspects of the allegation are consistently reported and recorded in the medical evidence. '(EJF) has engaged with the Centre for Addiction Medicine for assistance with her substance use issues since 2 April 2014. (EJF) attended three initial psychology assessments sessions across 2 March 2016, 22 March 2016 and 29 March 2016 where she disclosed multiple sexual assaults occurring during her childhood, adolescence and early adulthood.' 'Clinical notes indicate that (EJF) has on four occasions disclosed that she was sexually assaulted in 1999 at the age of 17 by a group of men in a park.'
In my view there are consistent references to a number of incidents as alleged by EJF. Not all of these incidents form part of a claim which is currently before the Tribunal and referred to by EJF specifically in the applications.
Without making any medical finding about EJF's mental state I note her detailed and complex mental health admissions, history and diagnosis. Having dealt directly with EJF, I observe that her verbal evidence is consistent with her written evidence and reports, where it is often jumbled and at times contradictory on minor or specific detail. However the medical evidence makes findings of trauma based on sexual assault and specific abuse of an exploitative and degrading nature. Whether EJF was mentally ill at the times of these traumas and that explains the lack of clarity on some aspects of her evidence, and minor contradictions about details I do not know. However I note the professional reports which refer to EJF's abuse based trauma and how this (and possibly drug and alcohol misuse in the past) may have exacerbated her mental illness.
In my view EJF has demonstrated injury arising as direct result of the act of violence irrespective of any mental health diagnosis.
As set out in part at [52] above, these matters have had a significant impact on EJF. '(EJF) describes the impacts of these assaults include the following: Trust issues, Obsessive exercising, Social phobia, Nightmares, Withdrawn, Lethargy, Lack of motivation, Sadness'. 'IMACTS (EJF) has clear impacts from being sexually abused which began from a young age. This includes that she experiences triggers and flashbacks as a result of the assaults. She feels sick to the point of vomiting and she abuses alcohol likely as a means of blocking out the impacts'. 'The assaults seem to consume every area of (EJF"s) life to the point that she cannot sustain employment and cannot at times leave the house. She reports experiencing anxiety and depression'. (23 March 2016 Grevillea Cottage Report)
Some of EJF's earlier medical evidence supports this incident / claim in the Rozelle Hospital; clinical notes where EFJ reported: on 24 February 2000 that she was raped by 3 males when she slept, this was in 1998
The counselling records indicate a number of stressors arising from different incidents, many of which are in the applications under review. In respect of this specific claim the evidence of injury arises in the context of the counsellor overviewing the impact of the traumas upon EJF. The following specific evidence from the health professionals at Grevillea Cottage (as extracted from the evidence set out at [52] above), establishes these matters. The following words have significant weight: '(EJF) She was further sexually assaulted at the age of fifteen years when intoxicated at a school party. (EJF) experiences sleep disturbances, social phobia and she gradually disclosed her childhood sexual assault experience during therapy with mental health services'. '(EJF) informed me that she was sexually assaulted …. and when aged 15 by her peers, on many occasions, when intoxicated'. '(EJF) describes the impacts of these assaults include the following: Trust issues, Obsessive exercising, Social phobia, Nightmares, Withdrawn, Lethargy, Lack of motivation, Sadness'. 'IMACTS (EJF) has clear impacts from being sexually abused which began from a young age. This includes that she experiences triggers and flashbacks as a result of the assaults. She feels sick to the point of vomiting and she abuses alcohol likely as a means of blocking out the impacts'. 'The assaults seem to consume every area of (EJF"s) life to the point that she cannot sustain employment and cannot at times leave the house. She reports experiencing anxiety and depression'.
Section 39 (2) (b) (i) criteria have been met. (Police report). This is established from the evidence considered by the Assessor in respect of the report to Police in 2018.
There is also a requirement under s 39 ss (2) (b) (ii) that there be a medical or dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. Those words arise direct from the Statute and the operation of 39 (2) (b) (i) and (ii) is conjunctive. (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. (Emphasis added)
In the current claim I take the meaning of the words at the end of s 39 (2) (b) (ii) 'as a result of an act of violence' to mean: as a result of the act of violence upon which the relevant claim being assessed is based.
Whilst I might find that on the available evidence s19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s - 18: 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.
Reading s 39 (2) (b) (ii) and 19 (1) (c ) together, it is clear that the legislature requires a recognition payment to be only made when there is independent professional evidence indicating that injury has arisen as a direct result of the violence.
On my assessment of the evidence, the counselling records as set out at [52] and [75] and [76] provide evidence of injury.

[15]

Consideration of Respondent's submissions

In written submissions the respondent referred to the lack of medical evidence supporting EJF's claim. The respondent submitted that: Whilst both bundles make several references to the Applicant having a history of sexual abuse, there is no particularisation of the incidents, nor is there any conclusive link between the Applicant's diagnosis of schizophrenia or nay other mental health condition.
I disagree with this submission. In my view it is clear from the medical records that EJF has reported the sexual assault at 15 or 16 years of age. Whilst there is not a specific reference to Railway Square in her reporting as a location at those times, nor is there any reference to a different location. The records refer to EJF being sexually assaulted whilst intoxicated at age 15. The references to numerous sexual assaults during this period are consistent with the overlap in many of EJF's reports and applications. In my view the evidence establishes that EJF has been the victim of violent crime on numerous occasions, however the specifics are sometimes jumbled and repeated, potentially due to the impacts of the trauma on EJF as well as her mental illness. This position arises from the totality of the medical evidence.
It is unclear what assistance (if any) EJF has had in bringing her applications to Victims Services. The Tribunal only has the material in the current suite of claims before it, and is unsure as to whether the other (ten) claims referred to by EJF were ever made and if so what was the outcome. I note that the current scheme does not fund external advocates or legal practitioners to clarify claims and applications such as those made by EJF. Previously the scheme did provide for the provision of a lawyer to get the claim in order and arrange for lodgement of the evidence and responding to any requisitions raised.
However the current scheme is still a beneficial scheme and the Legislation should as such be applied beneficially to victims of violent crime. The changes to the scheme were fiscally based but were not designed to limit the rights of victims, merely the quantum of successful claims for sustainability reasons.
The respondent concluded that the evidence did not meet the requirements of s 39 and that the evidence failed to verify that EJF suffered injury as a result of the act of violence as per s 19 of the Act.
Reference was made to the case of BMF v Commissioner of Victims Rights [2020] NSWCATAD 97 at [53]. 53. Section 39 (2) (b) (i) criteria have been met. (Police report). However there is also a requirement under s 39 ss (2) (b) (ii) that there be a medical or dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. Those words arise direct for the Statute and the operation of 39 (2) (b) (i) and (ii) is conjunctive…. 54. In the current claim I take the meaning of the words at the end of s 39 (2) (b) (ii) 'as a result of an act of violence' to mean: as a result of the act of violence upon which the relevant claim being assessed is based. 55. Whilst I might find that on the available evidence s 19 (1) (a) and (b) have been met, s 19 (1) (c) concerns whether the applicant has been injured as a result of the act of violence. The definition of injury in Part 4 Division 1 of the Act is as follows under s 18: 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. 56. Reading s 39 (2) (b) (ii) and 19 (1) (c ) together, it is clear that the legislature requires a recognition payment to be only made when there is independent professional evidence indicating that injury has arisen as a direct result of the violence.
Having accepted that the report provides information as to how the incident affects EJF in a general sense, the respondent then submits that such an acceptance does not provide evidence of injury. However I note that psychological harm is of a low threshold and the guidance on the term 'harm' (under the former Act) comes from a guideline under s-65 of that Act. The reference is that the injury (to constitute harm) must be something more than transient or trifling.
The case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.
On my assessment of the observations of the counsellor, EJF has suffered psychological harm.
There is nothing in the legislation requiring that the impact of the sexual assaults be a diagnosed mental illness. The Assessor makes reference to there being no link between sexual abuse and (EJF's) schizophrenia. There is no specific requirement for any such specified link, merely that the assault has directly resulted in injury. Perhaps this is the link requirement referred to by the Assessor. In the current matter the evidence now before the Tribunal is in my view significant, as to the impact and effect that the EJF's sexual assault history (including this claim) has had on her. That evidence is reproduced above. This is clearly evidence of injury arising as a direct result to use the Statutory language. For completeness any (non specific) requirement for a 'link' is in my view on the totality of the evidence established.
I therefore make a finding that the applicant (EJF) is the victim of an act of violence suffering psychological or mental harm / trauma as a result of a sexual assault by more than one offender when aged 15-16 years.
Having regard to the totality of the evidence, and noting the beneficial nature of the scheme as set out in Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA 185 and by the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54, I find that the elements of s 39 (2) (b) (ii) are made out on the available evidence. The report verifies that the applicant has been injured by the act of violence and I so find.
In respect of the category of recognition payment I note that the circumstances of the offences would appear to meet the criteria of Category B recognition payment as defined at s 35 (2) of the Act. (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, (Emphasis added)
Section 36 of the Act sets out how recognition payments (as described in s 35) are payable: 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: (i) to each family victim (other than a child referred to in subparagraph (ii)) who, immediately before the death of a primary victim as a result of an act of violence described in section 35 (1), was financially dependent on the primary victim, and (ii) to each child of a primary victim who, immediately before the death of the primary victim as a result of an act of violence described in section 35 (1), was under the age of 18 years, (b) a category A recognition payment of an amount prescribed by the regulations is payable to the following who were not, immediately before the death of the primary victim concerned, financially dependent on a primary victim who died as a result of an act of violence described in section 35 (1): (i) a parent, step-parent or guardian of the primary victim, (ii) any person who, immediately before the death of the primary victim, was the victim's spouse or de facto partner as referred to in section 22 (3) (b), (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. (Emphasis added)
Clause 14 of the Victims Rights and Support Regulation 2019 provides the following amounts payable for the various categories of recognition payments: 14 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. (emphasis added)
In addition having regard to the nature of EJF's concerns about intimidation, coming to harm, and retribution, I accept why the police report was made in 2018. Therefore having regard to the provisions of s 44 of the Act I decline to not approve or reduce the giving of support by way of a recognition payment.
On the basis of the above finding at [93] the correct and preferable decision is to set aside the decision of the respondent. The applicant (EJF) will be entitled to a Category B recognition payment.
EJF is entitled to a recognition payment in the amount of $10,000 and that amount will be payable to her.

[20]