ELW v Commissioner of Victims Rights [2023] NSWCATAD 26 | Case summary

NCAT Administrative and Equal Opportunity|2022-11-03

Background

These proceedings relate to a claim for victims support in the form of counselling, financial assistance and a recognition payment lodged by the applicant known by the pseudonym ELW initially before the Commissioner of Victims Rights ("the Respondent").
The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 20 November 2019. ELW alleged that he was the primary victim of an act of violence in the nature of an assault that occurred at Nimbin, in New South Wales, on 9 November 2019, and that he suffered "physical injury" and "psychological injury" as a result.
ELW alleged that the perpetrator approached his residence with her daughter (and her daughter's baby). She was filming with her phone and accused him of misusing electricity, which he denied. She moved to the front of his dwelling and he went to the front to deny her access. She "kept attempting to bait me about electricity", but he refused to react. A male appeared with an axe and he shouted that if ELW "touched anyone he would kill me" and he felt intimidated by this. The perpetrator attempted to enter his house and he placed his hand on her shoulder to stop her. The male became more threatening and he went back inside the dwelling and grabbed his parang (an Indonesian knife). As he turned around, the perpetrator "was in my face still abusing me". He placed his hand on her neck to turn her around and force her to leave the dwelling. However, the perpetrator threw herself on the ground and he took her arm and began to drag her outside. The perpetrator's daughter then "threw her baby on the ground and charged at me, smashing me head into the framing of the building, the boy hit me at the same time and (the perpetrator) also began punching him from behind". He was scared for his life and they tried to force him down, but he "managed to cover up from their blows" and left the building, bleeding from the head. He called 000 and requested Police assistance.
ELW also stated that the perpetrator is "friends" with a person who attacked him on 3 October 2019. He evicted them and they resented this and the perpetrator had previously threatened to murder him. He made a complaint to Police in writing about that. He stated: …I have ongoing injuries from these attacks and from the attack last year, including my left shoulder, jaw and head injuries. PTSD has been exacerbated again by this attack. I have been denied access to CCTV by Victims Services because of false statements made from Police. Police told us (myself and my neighbour and friend) that they would place an AVO on the boy and that they would not be allowed on the property again but nothing has happened since the attack, they boy stays in the house that (the perpetrator) was a tenant in and is very threatening, they shine strong lights on my house at night and are generally intimidating and abusive. Police asked me to lodge an AVO on (name provided) who I know to be a cocaine addict and resentful of being evicted and already threatening. I feel he would become more threatening if I take out the AVO and it makes me wonder why Police do not do it themselves.

Decision at first instance

On 10 March 2022, an Assessor (Client Claims) issued a Notice of Decision, which determined that ELW was the primary victim of an act of violence. The Assessor stated, relevantly: 9. Having regard to the documentary evidence, I find on the balance of probabilities, that (ELW) is the primary victim of an act of violence that occurred on 9 November 2019. Is there any reason to reduce or withhold the approval of victims support? … 11. The Police report indicates that the applicant's behaviour prior to the assault could be considered threatening and provocative. However, noting the nature and circumstances of the case, I have decided that there are insufficient grounds to warrant a reduction to the applicant's recognition payment. Recognition of the trauma suffered by (ELW) … 15. To determine the category of recognition payment, I have considered the nature of the violence committed against (ELW) and the medical evidence…
Based upon the available evidence, the Assessor approved a category D recognition payment in the sum of $1,500.
I note that a copy of this decision was sent to ELW by email under cover of a letter dated 10 March 2022. I am therefore satisfied that the decision was served in accordance with the requirements of the Act.

Internal Review

On 11 March 2022, ELW submitted a request for internal review to the respondent, on the following grounds: I believe there are documents and evidence that the assessor … has not been given opportunity to consider. I believe the injuries sustained constitute both grievous bodily harm and considerable mental trauma. I was denied access to the Police report by VS so have been forced to apply through GIPA. The process may take longer due to the recent disaster to the area. I am aware of missing documents which would support my case going missing? One document has gone missing twice, that being the order to revoke an AVO placed on me maliciously by SC (name provided). The other document is the hospital report. I asked for a copy of all the documents to be used in assessing my case and those two were notably missing.
On 26 July 2022, a Senior Assessor issued a Notice of Review Decision and determined that ELW was the primary victim of an act of violence and approved a category D recognition payment in the sum of $1,500. The Senior Assessor stated, relevantly: … 18. (ELW)'s review grounds, in respect of the category of recognition payment, are that he sustained grievous bodily harm and seeks to rely, in particular, on the hospital report signed by Dr (name provided). 19. Category C includes a recognition payment for a primary victim of assault, causing grievous bodily harm. Grievous bodily harm is really serious harm, such as causing permanent disabling, debilitation or disfiguring of the victim. This can be established through the offences apparently committed during the act of violence or through medical evidence. Where grievous bodily harm is not established, an adult primary victim of assault is eligible for a category D recognition payment. 20. While the AVOs naming the alleged offenders as defendants are confirmed, no person was charged with or convicted of an offence in connection with the act of violence. 21. A NSW Ambulance report states that (ELW) was observed to have sustained a superficial laceration to his parietal scalp with swelling and complained of a generalised headache. (ELW) refused transport to Lismore Hospital and advised attending ambulance officers that he would prefer to drive himself to another facility. 22. A consult note of Dr (name provided) of Nimbin Medical Centre states that (ELW) sustained a wound to the right side of his head, described as a 1.5cm wound to the right parietal, which was washed and sterile strips attached. No other head injury related symptoms are noted by the doctor. 23. I consider that the above evidence verifies injury to (ELW) as a result of the act of violence and establishes that the alleged offenders caused actual bodily harm to (ELW). I do not consider that grievous bodily harm is established…
Accordingly, the Senior Assessor approved a category D recognition payment in the sum of $1,500.
I note that a copy of this decision was emailed to ELW on 27 July 2022, under cover of a letter from the respondent dated 26 July 2022. I am therefore satisfied that a copy of the decision was served in accordance with the requirements of the Act.

Application for Administrative Review

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.
On 1 August 2022, the Tribunal received the current application for administrative review, which sought review of the decision dated 26 July 2022 on the following grounds: That the assessors did not fully consider the seriousness of the assault, the injuries suffered and the continued NSW Police attack on me using misinformation in an attempt to lessen the seriousness of the attack. Police continued use of lies by omission. To set aside the decision and make a new decision awarding a category C payment.
The matter came before me for a directions hearing on 1 July 2022. ELW appeared in person and Ms Douch appeared for the Respondent. The matter was stood over for a further directions hearing on 29 July 2022 and both parties were granted leave to participate by telephone.
The matter came before me for a directions hearing on 9 September 2022. ELW appeared in person and Ms Douch appeared for the Respondent. I made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), directed ELW to file and serve any evidence that he relied upon by 7 October 2022 and ordered the respondent to file and serve submissions by 21 October 2022. I listed the matter for hearing on 3 November 2022 by way of AVL and noted that the applicant intended to issue a summons to NSW Police to produce body-worn video and audio files relevant to the act of violence.

The hearing

At the hearing on 3 November 2022, ELW appeared in person and Ms K Douch appeared for the respondent. ELW advised that upon the return of summons, the Solicitor for NSW Police stated that SC Stephenson would be available to "appear" at the hearing in order to show the video to the Tribunal by way of AVL. Much of the allocated hearing time was spent attempting to contact SC Stephenson, but the Tribunal ascertained that Nimbin Police Station was unattended and that the Senior Constable was "out on the road".

ELW's evidence and submissions

ELW informed the Tribunal that in addition to the cut to the top of his scalp, he suffered "shock and trauma" and PTSD as a result of the act of violence. He said that he underwent further counselling with the approved Counsellor who treated him following "the attempted murder" in 2018.
ELW relied upon the following evidence and submissions: 1. Bundle of documents received on 7 September 2022, including a letter to the Tribunal dated 4 September 2022; 2. Response to the respondent's s 58 bundle dated 9 September 2022; 3. Email to the Tribunal dated 10 October 2022; 4. Letter to the Tribunal dated 25 October 2022; 5. Report of Dr A Blenkhorn, Cardiologist, dated 9 September 2022; 6. Final submission to NCAT dated 23 October 2022; 7. Email to the Tribunal dated 29 October 2022; and 8. Reference from Nimbin Headers Sports Club Inc. dated 27 October 2022.
In his letter to the Tribunal dated 4 September 2022, ELW requested that the Senior Member "please access the body worn camera footage from the incident…" as he believed that this would show that the event was more serious than the assessor "has given weight to in his findings". He also expressed his beliefs, including: That there is a connection between all three attacks on me between 2nd of May 2018 and 9th of November 2019 with Police refusing to act, withholding evidence and that (name provided) assisted (the perpetrator) and or motivated her to assault me… I can show a pattern that began after I gave information to the ICAC in February 2018 in regard to police activities. There is also an unfortunate pattern of mistakes and missing documents throughout the three applications to Victims Services/Rights including me being sent information relating to other peoples matters (very confusing).
In his "response" to the respondent's s 58 documents, ELW stated, relevantly: 22. …Other incidents have happened including a car driving at high speed through my property and exiting through a fence panel adjoining my neighbour… I did not report to police because they never act. … 24. Letter re costs, I was unaware that I could no apply for costs associated with the continued abuse and threats relating to the incident because I was denied access to Legal Aid and to this day suffer from the trauma of the attacks on me by police and tenants. … 84. Advice re police corruption, the LECC refuse to investigate the involvement of Richmond LAC in the attempt to murder me on the 2nd of May 2018, stating that they have declined previously and refuse to inspect or investigate evidence that Richmond LAC withheld until after their initial reply to my complaint…
In his letter to the Tribunal dated 25 October 2022, ELW submitted a report from Dr Blenkhorn, who conducted a Stress Test. He stated, relevantly: The report speaks for itself. Though I do not recall anything but a regular conversation in relation to the harm that any reasonable person is fully aware of in relation to the effects of nicotine addiction/smoking. It is another matter, to read the actual evidence in black and white. I have been trying to stop smoking, including starting a course of nicotine patches. I have tried not buying so many nicotine-based products. Somehow, the collective stress and trauma involved in taking part in this process, keeps my stress and trauma levels at such a high level, it has seemed impossible to stop smoking, a trigger with every new event that comes to light. For instance, an officer of the law, laughing at the description of how hard an attacker/home invader hit me in the back of the head. How the officer also tells the attacker/home invader that "he is insane" when describing me the victim. Dealing with the time factor, the lack of support and seeming inclination by Victims Services to ignore evidence, not be too bothered ensuring that all is in order and that nothing is being withheld by NSW Police as it was in the previous case that, coincidentally Kathleen Douch was involved in. I am of the opinion, that many of the people involved in protecting my rights and having regard to my welfare are in total dereliction of their duties intentionally or otherwise (incompetence?) … Even more especially when the NSW Police have shown a tendency to be frugal with the truth even denying evidence under subpoena/summons in relation to the victim of the crime before them. Something is terribly wrong, I may not be here to even contemplate exactly what it is and it is, in any case, not my position to judge, that is the responsibility of departments such as the LECC, the HCCC, the ICAC, the NSW Department of Public Prosecutions, the NSW Judiciary, the NSW Constabulary and a few assorted seemingly innocuous departments and possibly some charitable organisations such as community welfare organisations, community counselling services. … It is up to a person, far more qualified than myself to decide on the merits of my case, my only request is that someone, other than me be engaged to ensure that what has been thrust upon me should not happen to any other person. I feel more abused now than when this process started in January 2018, prior to that, I was the happiest I can remember, I had no health problems whatsoever, I was looking forward to a rewarding career in commercial cooking, owning my own restaurant or café, living the dream on my amazing property, really, really amazing property. For the past month I have hardly slept at all. I have wondered at which point it will alle end but this report was withheld from me. Can someone explain to me why?
Dr Blenkhorn recorded a history that ELW suffered some intermittent chest pains and that he background of smoking, but stopped many years ago but restarted smoking cigars lately. He stated that the Stress test did not provoke any significant symptoms, ECG changes or abnormalities and that he encouraged ELW to stop smoking.
In his "final submission to NCAT", ELW focussed at length on matters and events that pre-date the act of violence that is the subject of the current application. For this reason, I have not extracted these submissions.
In an attached "Response to audio and video evidence contained in material accessed under summons", ELW again focussed at length on matters and events that pre-date the act of violence that is the subject of the current application. However, in relation to the act of violence, he made complaints including the following: The fact that Kathleen Douch and the Commissioner of Victims Services are in possession of evidence showing police involvement in the attack on me on the 2nd of May 2018, evidence showing that police tampered with that crime scene including leaving an axe unmarked, not taken for forensic examination and that police refused to produce evidence under summons being statements of me recorded and statements made by overseas visitors (apparently) which are identified in previous COPS reports in regard to that case, shows a continuation of contempt for justice, evidence and any moral obligation to defend me, as a victim of these crimes. This is a form of abuse that no person should be forced to accept. Police spreading rumours, inciting violence and defaming me, this is why I carry a knife with me at night, why I sleep with a 60cm parang in my bed. This is why I have not been able to sleep more than a few hours at a time in four years. It has led to me abusing alcohol, developing an eating disorder where I gained 20kg and why I have relapsed into smoking tobacco, the stress, the trauma of having to continually defend myself to Victims Services who lose documents, accuse me of asking them to investigate these attacks. I have never asked them to investigate, I have only questioned why they have not engaged the LEC and the HECC (in regard to drs and staff at Lismore Base Hospital abusing me, drugging me and interrogating me under the influence of such drugs)… The poultry (sic) sum offered as compensation in this most serious of incidents could never make up for the trauma, the fear of being left without any protection because as any reasonable person can see the police refuse to act or confuse the situation to excuse the people attacking me from any prosecution. The police are accessories after the fact, inciters of violence and act with impunity, without any trace of conscience for their actions, acts of malice to cover up their own incompetence. Kathleen Douch and the Commissioner for Victims Services seem hell bent on defending all of these actions. I am asking that the snr member set aside the previous category D payment and replace it with a category C payment of $5,000. Not only to show that I was harmed in a grievous manner but to show the seriousness of the event. And that possibly there will be a formal investigation into these events leading to reforms put in place by parliament so that no other victim should have to undergo such abuse in the future.
The reference from Nimbin Headers Sports Club Inc is addressed to "the Presiding Magistrate" and does not refer to the act of violence. It is not relevant to the current matter.
As ELW maintained that the body-worn video was relevant to the current administrative review, the Tribunal adjourned the matter part-heard to 18 November 2022 and instructed the Registry to issue appropriate correspondence to NSW Police to ensure the attendance of the Senior Constable at that hearing.
On 6 November 2022, ELW wrote to the Tribunal, in which he stated, relevantly: In relation to injuries received on the day of the 9th of November 2019.

I received injuries to my jaw, my neck, my head at the top, my head at the back of my head (from being punched "hard enough to keep him down") as described by the attacker (name provided)
The attack to the back of my head has no doubt led to the neck injury
PTSD triggered/exacerbated … The collateral damage to me from police not acting with any integrity in these matters has had a massive effect on my life. Injurious and highly de-motivational it has caused me to relapse into using nicotine, which is killing me as surely as any bullet. I was forced to abandon two TAFE courses due to police targeting me on the way to TAFE and around the area in general in my car, so many times (8 time over a 2 yr period), I became scared to drive and PTSD was continually triggered. The actions of Police and Victims Rights/Services in denying me access to CCTV, has led to me having no confidence in the system, no feeling of personal safety or security for me or my property… I look forward to hearing/seeing the missing 4 parts of the material under summons… After the attack on me by three home invaders on the 9th of November 2019, I felt I would have a heart attack, the fear and shock involved in escaping the clutches of these people who seemed intent on attacking me with a full-sized axe was overwhelming, my only thought was to escape with my lie. At no time did I offer any form of retaliation, I am a pacifist but will defend myself in any situation where I am forced to do so… I was further attacked over the following weeks with verbal abuse and my property continually damaged to the point where I could not stay in my home. Police turning up without notice at 10pm at night without identifying themselves compounded my fears for my safety and wellbeing. The attack re-injured my jaw, which was broken in the attempt to murder me on the 2nd of May 2018 and my shoulder injury as well which was partly dislocated on that date as well, both injuries were left untreated, un-noted which I was abused by hospital staff for apparent self-harm as described to them by police on the day, who withheld evidence for over 2 years. I am asking with even more cause now that the Snr Member set aside the previous category D payment and replace it with a Category C payment. Not for the pitiful amount of money in respect of a serious crime but in line with the interests of justice.

In a further letter to the Tribunal dated 7 November 2022, ELW addressed a number of matters including a number of alleged conflicts from the Police COPS report. However, most of those matters are not relevant to the current dispute and I have not set them out in this decision.
A report from Dr J Alexander, Registered Psychologist, dated 8 November 2022, indicates that on 10 December 2019, ELW gave a history regarding the act of violence. The doctor set out that history in his report, but he did not indicate any clinical findings, diagnosis or prognosis.

Adjourned hearing

The Tribunal resumed hearing the matter on 18 November 2022. Appearances were as per the previous hearing.
However, again much of the allocated hearing time was spent attempting to contact the Senior Constable from Nimbin Police who was to "show" the video evidence to the Tribunal.
Ultimately, the Tribunal contacted the solicitor who appeared for NSW Police upon the return of summons and who gave an undertaking that the video evidence would be shown to the Tribunal by a police officer.
The solicitor stated that he had informed the relevant officer that he was required to attend the heading. Ultimately, he undertook to have the video evidence produced to the Tribunal on a USB drive so that the Tribunal could view it.

ELW's further submissions

The Tribunal asked ELW if he was still receiving any treatment for his injuries. He replied to the effect that he sees "a Chinese doctor" in Coolangatta and has massage for his pain. He said that he had seen Dr Alexander about 8 to 10 times "since the attempt to murder me" and he has been 'constantly in touch" with him by SMS because it is very hard to get a face to face appointment.

Respondent's submissions

The respondent relied upon written submissions filed on 26 October 2022. I note that the respondent did not dispute that ELW was the primary victim of an act of violence. However, it did dispute that ELW suffered grievous bodily harm as a result of the act of violence.
The respondent argued that ELW did not suffer grievous bodily harm as a result of the injuries suffered in the act of violence and referred to and relied upon the commentary in Haoui v Regina [2008] NSWCCA 209 (Haoui) in which Beazley JA (as her Honour then was) stated: 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"
Further, a finding of grievous bodily harm involves a higher threshold than actual bodily harm. In relation to a psychological injury, the threshold for actual bodily harm was considered in Shu Qiang Li v R [2005] NSWCCA 442: 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). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant.
The respondent referred to the following decisions that are relevant to the consideration of whether a psychological injury constitutes grievous bodily harm: 1. 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 medication. However, despite noting that the impacts of the act of violence were quite devastating, the Tribunal did not find grievous bodily harm in the absence of a psychological report from a clinical psychologist or psychiatrist's report that established: (a) a serious psychological or psychiatric condition, (b) that arose as a direct result of the act of violence, and (c) had a debilitating and serious long-term impact on the applicant. 2. In EMT v Commissioner of Victims Rights [2021] NSWCATAD 39, despite the treating general practitioner opining that the applicant suffered 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. 3. 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 to 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.
The respondent argued that the contemporaneous medical evidence verifies that ELW suffered a physical injury (a 1.5cm wound to his right parietal), which does not meet the threshold of grievous bodily harm. While ELW alleges an exacerbation of PTSD, he has not filed any medical evidence that supports that allegation and most of the documentation that he has lodged relates to the psychological impact of the previous incident in May 2018. While some material post-dates the 2019 act of violence, it is insufficient to give rise to a finding that ELW suffered grievous bodily harm as a direct result of the act of violence in November 2019.
Therefore, the respondent argued that the decision dated 26 July 2022 should be affirmed.

Further conduct of the matter

As the matter could not be concluded in the absence of the video evidence, and ELW remained adamant that this was relevant to the injuries that he suffered as a result of the act of violence, the Tribunal decided to reserve its decision, with a view to viewing the video evidence in chambers once it was produced by NSW Police.
However, on 16 December 2022, ELW wrote to the Tribunal, in which he stated: Soon after your decision to reserve your decision in my matter, I found myself feeling only further abused. It is clear to me that if similar circumstances were applied to one of your associates or an officer of the law charges would have been laid and grievous harm would not even be questioned. I feel further emancipated and the result is that I am now self-harming on a daily basis, which is a new low for me. Can I please request a detailed description of the evidence in the recordings that police continue to withhold including the identifying code for each recording, for ease of reference by the DRC. Can I please have an explanation in regard to any complaint you may make against police or an explanation as to why no complaint should be lodged. I am left in a situation of not being able to respond to the evidence being withheld and thus am being denied natural justice. It is clear to me that police will continue to abuse me, unless some sort of action or protection is taken which would stop them they act with impunity. The LECC does not consider police involvement in the previous attempt to murder me a serious enough matter for them to investigate. With no apparent protection from the law I am left vulnerable to further acts of violence. I have no faith in the law or any officer of the crown at this time. The seriousness of the matter is undeniable but is being questioned at every opportunity. Four and a half years of this abuse is making my life a misery, though I still reach for hope and have enrolled to finish my cookery course. I truly cannot understand how the nature or seriousness of my injuries and the consequences of the abuse can be questioned. The abuse from Victims Services and police has been relentless, Can you please explain how withholding your decision benefits me as a victim of such a serious crime in any way? Is it possibly just a simple legal mechanism you are forced to undertake due to the nature of the evidence suggesting police incitement and involvement in acts of violence against me? Police were involved in a similar but more serious manner in the attempt to murder me on the 2nd of May 2018, fraudulently fabricating a report that attacks my character and produced a mental health outcome based on lies, I was so abused, forced by hospital staff to believe I attacked myself with an axe. Magistrates and Judges seem to have done all in their power to prevent any of this evidence from being placed before a court. This leaves me in an unenviable position of being forced to make the matter public, in the public interest. I apologise sincerely if you feel that I am questioning your integrity. I have lost faith in the system, and have been forced to trust nobody in any position under any circumstance.
Given the serious nature of ELW's complaints, the Tribunal decided to revoke the matter's "reserved" marking and it listed the matter for a further hearing by way of AVL on 20 January 2023.

Further hearing on 23 January 2023

The Tribunal conducted a further oral hearing on 23 January 2023, noting that appearances were as per the previous hearings.
When the matter commenced, the Tribunal noted that it received a USB drive from Police that contained 12 body-worn video files, which the Tribunal played and viewed in sequence.
Having viewed the video evidence, the Tribunal noted that while it clearly showed ELW bleeding profusely from the laceration to his right parietal, the evidence did not shed any light on any other injuries that he may have suffered and the evidence does not assist the Tribunal to determine whether he suffered grievous bodily harm as a result of the injuries. This is the only issue that the Tribunal is required to determine.

ELW's further submissions

ELW then complained to the effect that viewing the video evidence had "brought it all back" and he then alleged that there are still four video files that have not been produced by Police. However, he was unable to identify what these files are. He said that he also now suffers from diverticulitis and he has a heart problem due to smoking and that he is "tired of being depressed".
The respondent did not wish to make any further submissions.
Accordingly, the Tribunal again reserved its decision.

Act of violence

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.
"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. … (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…
Section 20 of the Act defines "primary victim" as follows: (1) 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…
The onus is on ELW to prove the allegation that he was the primary victim of an act of violence in the nature of an assault perpetrated by the more than one offenders on the balance of probabilities.
As required by ss 19(1), (3) and (4) of the Act, I am satisfied on the balance of probabilities that ELW was the primary victim of an assault, which was perpetrated by more than one offender on 9 November 2019.
I am satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.
I am satisfied on the balance of probabilities that ELW suffered physical injuries and a psychological injury as a result of the act of violence.
In CRT v Commissioner of Victims Rights [2017] NSWCATAD 174, the Tribunal determined that while the Act requires an applicant to establish, on the balance of probabilities, that they suffered injury as a direct result of the act of violence, the act of violence does not have to be the sole cause of that injury.
The available evidence strongly suggests that EWL suffered a psychological injury as a result of previous acts of violence, although the Tribunal is not required to make any particular findings in relation to those matters.
In BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, the Tribunal considered a matter in which there was evidence of a pre-existing psychological or psychiatric injury and determined that the applicant's psychological condition was such that the "eggshell psyche" principle espoused by Spiegelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [40] applied.
Accordingly, if I am wrong regarding my finding as to the causation of ELW's current psychological condition, I am satisfied that the "eggshell psyche" principle applies and that his pre-existing "eggshell psyche" was aggravated, exacerbated or deteriorated as a direct result of the act of violence.
While the available medical evidence is somewhat lacking in detail, based upon ELW's presentation during the hearings, I am satisfied on the balance of probabilities that he suffered an exacerbation of a pre-existing psychological injury as a direct result of the act of violence.
There is no evidence before me that supports a finding that either the effects of the exacerbation have abated or that the chain of causation was interrupted by any later incidents.

Recognition payment

It is necessary to determine the relevant category of recognition payment that ELW is eligible to receive as a result of his injuries.
The Respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that ELW was the victim of an assault not resulting in grievous bodily harm.
However, in view of my finding that the effects of the exacerbation of ELW's psychological injury are continuing more than three years after the act of violence occurred, I am satisfied that he suffered grievous bodily harm as a result of the assault on 9 November 2019. Accordingly, he is eligible for a category C recognition payment.

Section 44 Considerations

I am satisfied that no factors prescribed in s 44 of the Act apply to this matter.

Conclusion

I make the following orders: 1. The respondent's 26 July 2022 decision is set aside and I make the following decision in substitution. 2. ELW is eligible for a category C recognition payment in the sum of $5,000.

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: 03 February 2023

ELW v Commissioner of Victims Rights

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Judgment (17 paragraphs)

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Cited By (3)