EPU v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2021-12-17

Background

These proceedings relate to a claim for victims support and a recognition payment lodged by the applicant known by the pseudonym EPU initially before the Commissioner of Victims Rights ("the Respondent").

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.
EPU sought a review of the Respondent's decision on the following grounds: The Respondent wrongfully found that the Applicant was not a primary victim. The decision was made without affording the Applicant the opportunity to provide additional supporting material despite notice being given. The original decision fails to take in to account the victims version of events. The Applicant's evidence was not sufficiently taken into account. Further submissions and evidence to be filed following directions from the Tribunal.

Directions hearings

The matter came before me for directions on 9 April 2021. Mr M El-Saj appeared for EPU and Ms K Douch, Victims Services, appeared for the Respondent. I ordered the Respondent to file and serve documents under s 58 of the ADR Act by 16 April 2021 and granted leave to the Respondent to issue a summons to NSW Police seeking production of COPS event records. I listed the matter for further directions on 7 May 2021.
The matter came before Senior Member McAteer for directions on 7 May 2021. The same legal representatives appeared for the parties. The Senior Member ordered EPU to file and serve all evidence relied upon by 4 June 2021 and to file any written submissions by 1 July 2021. He ordered the respondent to file and serve any further material relied upon and any witnesses required for cross-examination by 25 June 2021. He listed the matter for hearing on 2 July 2021 and noted that EPU potentially has 3 witnesses who will be available to give evidence at the hearing either in person or by telephone.
However, on 23 June 2021, Principal Member Britton vacated the hearing date and listed the matter for directions on 2 July 2021. Accordingly, the matter came before me for directions on 2 July 2021, during which Ms Douch mentioned the appearance of Ms A Khan (as solicitor for EPU). I ordered EPU to file and serve any material upon which he relied and written submissions by 20 August 2021. I ordered the Respondent to file and serve any evidence in reply and written submissions by 10 September 2021 and listed the matter for hearing on 1 October 2021. I also ordered EPU to file and serve a statutory declaration from each of his intended witnesses.
On 1 October 2021, the Solicitor on record for EPU, applied for an adjournment of the hearing on the basis that her client was pursuing NSW police for production of further records relating to the alleged act of violence. There was no objection from the Respondent and by consent I vacated the hearing date and made the following further orders: (1) Approval is given for EPU to issue a summons to NSW Police by 15 October 2021 to produce any further records relating to the alleged act of violence; (2) EPU is to file and serve any material upon which he relies by 26 November 2021; (3) The Respondent is to file and serve a summary of legal arguments by 3 December 2021; and (4) The matter is listed for hearing on 17 December 2021.
However, on 28 November 2021, Senior Member Ransome extended the time for EPU to file and serve further evidence to 3 December 2021 and she extended the time for the Respondent to file written submissions to 10 December 2021.
On 14 December 2021, Ms A Khan, a solicitor employed by EPU's solicitor, sent an email to the Tribunal, in which she stated, relevantly: …We note the Tribunal indicated on the previous occasion that the matter would be dealt with on the papers. Could you kindly advise whether an appearance and/or oral submissions will be required or whether the matter will be dealt with in Chambers? Could you otherwise kindly confirm that the Tribunal has received and filed our client's submissions and evidence, as emailed on 6 December? …
On the morning of 16 December 2021, a delegate of the Registrar sent an email to Ms Khan, EPU's solicitor of record and Ms Douch, advising that the matter remained listed for hearing on 17 December 2021 and that any request for the matter to be determined on the papers may be made and considered at that time.

The hearing

The matter came before me for hearing by way of AVL on 17 December 2021, at which time Mr A Jones appeared as an Agent for EPU's solicitor and Ms Douch appeared for the Respondent. When the matter commenced, Mr Jones stated that EPU was not in attendance and that he believed that he was unable to attend the hearing, although he had no instructions regarding his non-appearance.
The Tribunal advised Mr Jones that the matter would not proceed in EPU's absence and, contrary to the assertion contained in his principal's email to the Tribunal dated 14 December 2021, no application had been made for the matter to be determined on the papers and no order had been made to that effect. The hearing was suspended for a short period to enable Mr Jones to obtain instructions from his principal.
When I resumed the hearing after approximately 5 minutes, Mr Jones advised that EPU had "dialled into" the AVL hearing room and was now on-line. Mr Jones relied upon his principal's written submissions and argued that the evidence in the Respondent's case and the police COPS records is incomplete and that the police did not provide EPU with an opportunity to provide his version of events and did not investigate the matter properly.

Applicant's further evidence

EPU relied upon the following evidence: (1) His Statutory Declaration dated 19 September 2021; (2) A Statutory Declaration of Mr A Harmouch dated 19 September 2021; (3) A Statutory Declaration of his sister (name provided) dated 19 September 2021; and (4) A "Tender Bundle" of documents. There was no objection by the Respondent and the documents were admitted into evidence.
EPU also sought to rely upon the Respondent's s 58 documents and the written prepared by his solicitors dated 3 December 2021.
I refer to EPU's statutory declaration, in which he deposed that on 23 December 2015, he was in the front yard of his home and was mowing the grass strip on the footpath. Two of his friends were present at the time, one being Mr A Harmouch and the other was identified as "Amin". However, he declined to completely identify "Amin" on the basis that he no longer has any contact with him. He alleged that Mr Harmouch and Amin were assisting with carrying out some repairs to the front of the property.
EPU stated that Amin had parked his truck in the driveway of the property and once the repairs were completed, he observed Amin begin to reverse the truck out of the driveway with the intention of parking it on the road across from the house. As he did so, an orange/gold coloured Holden Commodore sedan stopped behind the truck and continued to press its horn, indicating frustration at the truck reversing. He said that he saw the male driver of the car appeared "extremely agitated" and there was a second male in the passenger seat. He did not know these men and had no history with them. Once amin parked the truck, he crossed the road back to the property. He then saw the Commodore pull over on the side of the road a few houses down the street and 2 men exited from the vehicle and crossed the road towards his house, where Mr Harmouch, Amin and himself were standing. They appeared "extremely hostile", aggressive and were "shouting slurs" towards them. The 2 men approached and tried to start a fight, continuing to swear at them. He said that he recalled a strong smell of alcohol coming from them and that he believed that they were under the influence of alcohol and possible also drugs. One of the men ran back to the Commodore, opened the boot and pulled out a large umbrella with a pointy end. He then "rushed back to where we were standing" and lunged towards him with the umbrella. He said that he tried to jump back to avoid being hit and that the men then lunged at Mr Harmouch and Amin and struck them with the umbrella.
EPU stated that he raised his hands and attempted to block the blows as the man "continued to strike" and both men became physically abusive and began directing punches towards them. He recalled that he was struck by repeated blows but is unsure who struck him. While this was occurring, he saw the other man run to Heckenberg Cellars, which was a shop on the corner of the street about 100 metres away, and he ran back out with a glass bottle in each hand. The man suddenly threw a bottle in his direction and he heard this shatter on the ground. As he looked up, and before he knew what was happening, he felt "an extremely heavy blow" to his face from the second glass bottle and fell to the ground. He does not recall what happened after that as he last consciousness. When he regained consciousness, at Liverpool Hospital, he realised he had been hit by a glass bottle to his face.
EPU stated that he suffered deep lacerations to his face and nose, fractures in his nasal bone, the medial walls of his cheeks and depressions in both orbitals of his eye. He underwent surgery to implant titanium plates in his cheeks and had reconstructive surgery to his face. He continues to suffer numbness to parts of his face and gums, he can no longer breathe properly through his nose and he requires further cosmetic and corrective surgery to repair his breathing and sinus issues. In addition, he has become fearful of leaving the house, cannot sleep properly and feels depressed and anxious as a result of the incident and he has self-esteem issues and social anxiety due to his altered physical appearance.
EPU stated that after the incident, his sister (name provided) who was also his solicitor, continued to liaise with the police and requested that they investigate the matter and charge the men responsible. The police informed him that the man who was driving the Commodore alleged that he had initiated the altercation by approaching him for no known reason and that he alleged that he was alone in the vehicle at all times and he did not have a passenger who was involved in the incident. EPU "completely" denied this assertion and stated that he was certain that there were 2 men. He identified the man who police spoke to as the male who ran to the car and took the umbrella out and maintained that there was a second male who threw the bottles at him. He expressed the view that this man had attempted to conceal the identity and presence of the second man to protect him due to the seriousness of his actions and the injuries that he caused. He said that he was unable to provide an explanation for damage to the windows of the Commodore vehicle as he was unconscious.
EPU expressed "very serious concerns" that police did not adequately investigate the matter. He believed that police did not attempt to speak with either Mr Harmouch or Amin following the incident or to any of his family members, who could corroborate his version of events. However, after his sister repeatedly followed up the progress of the investigation with police, he was asked to provide a formal statement and on 4 June 2016, he attended Green Valley Police Station with his sister to provide a statement. This was taken by Detective Senior Constable Yammine and he stated: 31. I recall the extreme unpleasantness of this experience. Before I was able to offer my version of events Detective Yammine started drafting the statement on her own accord without asking me what occurred. I am unsure whether this is ordinary police protocol however I found this to be highly unusual. 32. I began to feel highly anxious and apprehensive. Up until this point in time I had encountered difficulties dealing with Green Valley Police and did not feel that they were ready and willing to assist me in my matter had it not been for the persistence of my sister (name provided). 33. Detective Yammine provided me with a statement that she had drafted and asked me to sign the statement while I was at Green Valley Police Station. I felt highly uncomfortable singing a police statement that had not been drafted in accordance with my instructions, particularly as it could potentially lead to the institution of criminal proceedings. I advised Detective Yammine that I wished to take the draft statement home to read before signing and did not proceed to sign the statement on the day. 34. Following this and after speaking with my sister… I decided not to sign the statement. Unfortunately after my experience, despite being a clear victim and having suffered extremely traumatic injuries, I delt that I could not rely on Green Valley Police to investigate the matter and lost faith in their capacity to take my version of events into account. 35. Sadly, to the best of my knowledge, the individual who struck me with the glass bottle was never pursued or charged in relation to this incident. 36. I understand that a copy of the draft statement has been provided to the Respondent as part of my application for victims compensation. I have since instructed my solicitors in relation to why the statement was not signed and why I do not rely on this statement as an accurate representation of events. 37. I assert that the contents of this statutory declaration is a true and accurate account to the best of my knowledge and recollection and I have used my best endeavours to recall events to the best of my ability.
Mr A Harmouch provided a statutory declaration on 19 September 2021. He deposed that on 23 December 2015, he was in the front yard of the property where EPU lived, with EPU and a mutual friend - "Amin". EPU was mowing the grass strip at the front of the property. He provided an almost identical description of Amin reversing his truck off the driveway and parking it on the street across the road, the appearance of the Commodore and its occupants, Amin crossing the road back to the property, the Commodore pulling up in front of Amin's truck and the occupants of the Commodore exiting the vehicle and attempting to start a physical altercation with them. He stated that after one of the men lunged at EPU with an umbrella, he hit Amin and himself with it and he felt pain in his head and arms. Both of the other men became physically abusive and began directing punches at them and he was struck by repeated blows. During the commotion, Amin managed to get away and he saw the other man run to Heckenberg Cellars, which was about 100m away, and then run back out with a glass bottle in each hand. He heard the sound of glass shattering and saw glass shattered around him and then he saw the man throw a glass bottle at EPU's face, causing him to instantly fall to the ground face down. He said that he cannot recall the exact details of the altercation due to the events that followed and noting that it occurred almost 6 years ago. However, EPU was unconscious on the ground and there were substantial amounts of blood and glass "everywhere". By then, many people and members of EPU's family had gathered. Paramedics arrived and attempted to treat EPU at the scene, but his face was covered in blood and his face "appeared to have been completely shattered, particularly his nose and cheeks". He believed that the two men had fled the scene. Police attended and attempted to ask questions of witnesses, but he was not approached by police to provide any information or assistance in the matter.
Mr Harmouch stated that in 2016, EPU told him that the Police had advised him that the driver of the Commodore said that he was alone in the car and that EPU had started the fight. He stated that he "personally observed" the second man and that he threw the glass bottle at EPU and that he "personally observed" the blood and glass shattered outside EPU's home and around "EPU". He also said that he did not see any damage to the Commodore's windows and that he did not know when or how that damage occurred.
EPU's sister also provided a statutory declaration dated 29 September 2021. She stated that on 23 December 2015, she arrived home and saw people standing at the front of the home and EPU lying face down on the path, apparently unconscious. She saw shattered glass on the ground and spots of blood. She asked what had happened and was told that two random men, unknown to EPU, had thrown a glass bottle in his face and that the man appeared to be under the influence of alcohol and possibly also drugs. Police attended and attempted to ask questions of witnesses and she spoke to them and exchanged details so that she could follow up with the investigation of the matter. Paramedics decided to take EPU to Liverpool Hospital and she travelled with him in the ambulance and stayed at the hospital, speaking to doctors and nurses. She recited a description of the incident that was provided to her by Mr Harmouch.
EPU's sister said that after EPU was discharged from hospital, she continued to attempt to liaise with police regarding their investigation of the matter, including making multiple calls and leaving multiple messages for the officer in charge. The officer in charge later told her that the driver of the Commodore had alleged that EPU initiated the altercation and that he was alone in the vehicle. She was concerned that the perpetrators were attempting to conceal what had occurred to avoid being charged and she discussed the issues with EPU and spoke about him providing a formal statement of his version of events to police in the hopes that the perpetrators would be charged. She made numerous attempts to follow this up with police and finally arranged a time for EPU and herself to attend Green Valley Police Station so that EPU could provide his statement. However, by that time, EPU had "already lost faith in the police investigation of the matter". They attended on 4 June 2016 and met with Detective Senior Constable Yammine, and she observed the officer starting to draft a statement without asking EPU what had occurred. She said that EPU became highly anxious and apprehensive and that he appeared uncomfortable with what was being written. When the statement was completed, the officer have it to EPU and asked him to sign it. However, he did not sign it and when they left the station, EPU said "this statement is not accurate and this is not what happened, it's just what Detective Yammine wanted to write". EPU later told him that he would not sign the statement that he felt that he could not rely upon police to investigate the matter and he had lost faith in their capacity to take his version of events and that he did not feel comfortable to try to give another statement.

Applicant's submissions

Mr Jones relied upon the lengthy written submissions prepared by his instructing solicitors on 3 December 2021 and filed on 6 December 2021. I read and considered those submissions, although I have not extracted them in this decision. He argued that the police COPS records are incomplete and that the police did not provide EPU with an opportunity to provide his version of events and they did not investigate the matter, but did not charge EPU with any offence.
Mr Jones argued that the evidence before the Tribunal establishes that EPU was a primary victim of an act of violence and that he "should be entitled to the standard category of recognition payment". I asked Mr Jones which category of recognition payment he considered to be "the standard category" and he replied that EPU should be awarded $10,000 because an offensive weapon was involved. However, I advised Mr Jones that a Category B recognition payment requires a sexual assault to be established and he then stated that a Category C payment of $5,000 should be approved because EPU was the victim of an assault occasioning grievous bodily harm.
Mr Jones argued that there are no factors under s 44 of the Act that a decision to either not approve victims support or to reduce the amount of victims support that should be approved.

Respondent's submissions

Ms Douch relied upon the Respondent's undated submissions, which were filed on 24 September 2021 and pre-date the filing of EPU's further evidence, in which the Respondent argued, relevantly: … 16. The NSW Police records indicate that the applicant did not return a signed copy of the statement despite numerous requests being made. A copy of the unsigned statement was provided by the applicant in support of his application. In summary, the applicant asserts that: (a) two unknown males attacked him and his brother with a pole which had a sharp point to it like a spear outside the applicant's home; (b) the unknown man with the pole lunged the spikey end of the pole at the applicant; (c) the four men ended up 100 metres from his home by Heckenberg shops; (d) while trying to separate one of the unknown attackers from his brother, the second attacker threw bottles at the applicant; (e) the applicant was hit by a bottle and passed out; (f) when the applicant came to he was at home and he realised it had been hit by a glass bottle to the face. 17. As can be seen above, the description provided un the unsigned statement is inconsistent with the description provided in the application. Similarly, each of the above descriptions are inconsistent with the description contained in the COPS report… COPS Report … 18. The account provided in the unsigned statement is inconsistent with the description contained in the COPS report, which identifies the applicant as a person of interest. In summary, the COPS report records the following: (a) the alleged offender was travelling in his car with no passengers when he became stuck behind a truck trying to reverse. (b) the alleged offender has honked his horn, which has drawn the attention of the applicant who was mowing his lawn. (c) after the truck is parked, the alleged offender parks his car in front of the truck and exits his vehicle to talk to the driver of the truck. (d) the applicant approaches the alleged offender and hits the alleged offender over the head with an iron bar of some description. (e) the applicant and the other persons of interest proceed to assault the alleged offender as he attempts to run from them. (f) an unknown male in a white van who has witnessed the alleged assault has stopped to assist and has removed the alleged offender from the scene. (g) after this the applicant and the other persons of interest have walked back towards the alleged offender's car and proceeded to smash the windscreens and boot lit with an iron bar. (h) the applicant sustained injuries to his nose either during the assault of the alleged offender or whilst smashing the alleged offender's vehicle. (i) paramedics were called who contacted the police to attend. (j) police were informed of the applicant's version of events, namely that he was mowing the lawn when the alleged offender has driven past and thrown a glass bottle at him which smashed in his face and caused glass to get into the applicant's eye. (k) paramedics informed police that glass had made its way into the applicant's eye however, it was noted that this most likely occurred while the applicant smashed the windows of the alleged offender's vehicle. (l) no glass was found anywhere near the front of (the applicant's home) or anywhere else in the street. (m) the alleged offender attended Green Valley Police Station with serious lacerations to his head and severe swelling to his right eye. The alleged offender claimed that he was alone in his car. (n) on 24 December 2015 NSW Police attended Liverpool Hospital and spoke briefly to the applicant. The applicant was advised that detectives wished to obtain a statement from him, and a contact card was left for him to contact police following his release. Medical records/Government Agency report … 22. On review of the totality of the medical evidence provided by the applicant, the respondent is satisfied that the injury is a "really serious injury" which amounts to grievous bodily harm (see Haoui v Regina [2008] NSWCCA 209).
The Respondent referred to the Tribunal's decision in DZE v Commissioner of Victims Rights [2020] NSWCATAD 21 (at [30]-[35]), which is authority for the proposition that the onus is on the applicant to prove his allegations on the balance of probabilities. In that matter, the Tribunal stated that while it is not bound by the rules of evidence in determining whether an act of violence occurred, the supporting evidence must be logical, relevant and probative and it referred to the decision of the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246, in which McDougall J (McColl and Bell JJA agreeing) stated (at [44]-[48]): 44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712. 45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that '[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied'. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161-162, and Mason J (with whom Brennan J agreed) in the same case at 168. 46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness. 47. In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643: A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. 48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the events having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.
Accordingly, it is necessary for the Tribunal to determine the respective probabilities of the act of violence alleged by EPU having occurred or not occurred and the available evidence must establish a fair climate for finding that it is more probable than not that the act of violence occurred.
The Respondent argued that while it is clear that EPU suffered from a serious injury, it is unclear how this injury was sustained and it recited the multiple scenarios that were discussed in detail in the internal review decision. The Respondent concluded that there is not a fair climate for finding that more probably than not the applicant was a victim of an act that apparently occurred in the course of the commission of an offence as required by s 19(1)(a) of the Act.
Accordingly, the correct and preferable decision is to affirm the Respondent's decision under s 63(3)(a) of the ADR Act. In the alternative, if the Tribunal found that EPU was the primary victim of an act of violence, it must then consider whether he is ineligible as an offender (s 25(3) of the Act) and/or whether any award should be reduced under s 44 of the Act.
Ms Douch also made brief submissions, based upon the written submissions, in which she highlighted the inconsistencies between the evidence that was available to the Respondent when the determinations were made and that which is now before the Tribunal.

Applicant's submissions in reply

After hearing the Respondent's oral submissions, I asked Mr Jones if EPU wished to respond to any of the evidentiary inconsistencies raised by Ms Douch and I allowed him a time to privately confer with his client. However, when Mr Jones and EPU re-joined the hearing, Mr Jones stated that EPU did not wish to respond to any of those matters and that he relies upon his statutory declaration and maintains that the investigation that the police conducted was incomplete, biased against him and unfair.
I note that Mr Jones conceded, and in my view properly so, that the first account of EPU's version of events was provided in his statutory declaration, which was signed approximately 5 years and 9 months after the alleged act of violence occurred. He did not offer any explanation for this delay on behalf of EPU.

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. (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…
The onus is on EPU to prove the allegation that he was the victim of an assault perpetrated by the alleged offenders on the balance of probabilities. However, the available evidence indicates a significant dispute as to what actually occurred on 23 December 2015.
There are significant discrepancies between the histories that were provided to the doctors and Liverpool Hospital by EPU's sister shortly after the incident occurred. In my view, this may be explained on the basis that EPU's sister did not personally witness the incident, but rather attended in its aftermath and simply relayed information that was provided to her by others. However, the histories that she provided to the doctors and the hospital are dependent upon the accuracy of the information that was provided to her and I note that her histories are inconsistent with the descriptions provided in 2021 by EPU and Mr Harmouch.
I note that Mr Harmouch has provided a version of evidence that supports that in EPU's declaration. I also note that he stated that while he was present when police attended the scene, and attempted to obtain statements from witnesses, they did not attempt to obtain a statement from him. However, I also note that Mr Harmouch did not depose that he made any attempt to speak with police or to provide a statement about what he witnessed, either on 23 December 2015 or at any later time. In my view, if he had done so, the police could have conducted a more thorough investigation of the incident. His declaration does not contain any explanation as to why he did not provide a witness statement.
In my view, the evidence set out in the 2021 statutory declarations was clearly known to EPU, and therefore available to his solicitors with reasonable diligence, before his application for victims support was determined by the Respondent. He clearly had an opportunity to lodge his evidence for the Respondent's consideration, but he did not do so and there is no explanation from him or his solicitors about why this was not done.
In my view, it is also significant that EPU has not sought to obtain and lodge any statements of evidence from either "Amin", who he described as a witness to the act of violence, or any other members of his family, particularly noting that during the course of the application for victims support, his solicitors advised the Respondent in correspondence that further evidence of that nature would be lodged in due course. there is no explanation from him or his solicitors about why this was not done.
In Nguyen, the Court of Appeal cited the decision of the High Court of Australia in Malec v JC Hutton Pty Limited (1980) 169 CLR 638 (per Deane, Gaudron and McHugh JJ) as follows: 642. A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. 643. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of a fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the events having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of occurrence should not require some sense of actual persuasion.
Accordingly, it is necessary for the Tribunal to determine the respective probabilities of the act of violence alleged by EPU having occurred or not occurred and the available evidence must establish a fair climate for finding that it is more probable than not that this act of violence occurred.
In the current matter, the events described by EPU and Mr Harmouch in their 2021 declarations clearly support a finding that EPU was a primary victim of an act of violence in the nature of an assault on 23 December 2015. However, this evidence cannot be considered in isolation and it is necessary to the totality of the available evidence, including versions of the incident that were obtained by police following the incident and which do not support EPU's version and the description of the act of violence in the application for victims support.
I note that EPU and Mr Harmouch each dispute the version of events that the driver of the Commodore provided to police in 2015. However, neither EPU nor Mr Harmouch took any action to assist police to further investigate the matter by providing witness statements. Had they decided to provide their witness statements, their allegations could have been fully investigated by police.
I also note that the description of the act of violence in the application for victims support, which EPU's solicitor completed and signed on 17 August 2017, made no mention of the presence of a second assailant and/or of any verbal altercations and/or physical altercations involving the use of an umbrella and/or the throwing of punches and/or that the second assailant ran 100 metres to a bottle shop located on the corner of the street where EPU lived and returned with 2 glass bottles and then threw both bottles at EPU.
By signing the application for victims support, EPU's solicitor declared that the information contained in it was true and correct. In my view, it is unlikely that a competent solicitor would have made that declaration without first verifying the contents of the application with EPU. There is no explanation before me as to why the description of the act of violence that was declared as being true and correct in the application for victims support is inconsistent with the evidence in the 2021 declarations.
I am satisfied that an incident occurred on 23 December 2015, during which a glass bottle was thrown at EPU and struck him in the face, causing him to suffer significant facial injuries. On the balance of probabilities, I find that EPU was a primary victim of an act of violence for the purposes of ss 19 and 20 of the Act.
However, for the reasons set out later in this decision, I am not actually persuaded that the act of violence occurred in the manner alleged in the 2021 declarations.

Recognition payment

I am satisfied to the required standard of proof that the act of violence resulted in grievous bodily harm and that EPU is eligible for a Category C recognition payment pursuant to s 35(3)(c) of the Act.

Section 44 considerations

Section 44(1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to the following matters: (a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, … (d) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed, (e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed, (f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed, (g) such other matters as the Commissioner considers relevant.
In my view, ss 44(1)(d) and (e) are relevant to the current application.
In relation to s 44(d), I note that Police COPS records raise issues concerning EPU's conduct and actions leading up to his being struck in the face by a glass bottle on 23 December 2015.
Those matters were clearly discussed in the Assessor's decision, the Senior Assessor's Review decision and in the Respondent's written submissions in these proceedings. I am satisfied that EPU and his solicitors were aware, or would have been aware of them with reasonable diligence, before EPU and Mr Harmouch signed their declarations on 19 September 2021.
I am satisfied that both EPU and Mr Harmouch had an opportunity to address those matters in their declarations, but they did not do so and no explanation has been offered for this failure.
I also note that none of these matters were adequately addressed in submissions before the Tribunal, although the Tribunal was invited to find that the police investigation was incomplete, inaccurate, biased against EPU and unfair.
I confirm that following the completion of Ms Douch's oral submissions on 17 December, I asked Mr Jones if EPU wished to respond to any of the evidentiary inconsistencies that she raised. However, Mr Jones stated that EPU had instructed him that he did not wish to respond to any of those matters and that he relied upon his statutory declaration.
Based on a consideration of all of the available evidence, and in the absence of any explanation from EPU and/or Mr Harmouch regarding the evidentiary inconsistencies, I am not persuaded that the 2021 declarations provide a safe climate for finding that the act of violence occurred in the manner described in the 2021 declarations. It follows that I am not satisfied on the balance of probabilities that EPU did not participate in the commission of the act of violence on 23 December 2015.
In relation to s 44(1)(e), I have carefully considered the evidence provided by EPU's sister in her statutory declaration regarding her efforts to arrange for EPU to attend upon police to provide a witness statement following his discharge from hospital and her description of their attendance at Green Valley Police Station on 6 February 2016. I accept her evidence that on 6 February 2016, after a police officer provided EPU with a draft statement that did not accord with his version of events, he decided to not sign that draft statement and that he later decided that he would not provide any witness statement to police.
While I can appreciate that EPU felt aggrieved that police did not prepare a draft statement on 6 February 2016, which recorded his version of events, I do not accept the submission made on his behalf that police did not give him an opportunity to provide a statement that accurately set out his version of events.
Rather, in my view, EPU made a conscious decision not to provide a witness statement to police and this decision resulted in part the current scenario, in which police were unable to properly investigate the matter and he provided his version of events for the first time in a statutory declaration signed approximately 5 years and 9 months after the act of violence occurred and after the application for victims support was determined by the Respondent.
I do not accept that EPU had no opportunity to provide his witness statement to police. In my view, he could have prepared a statement with the assistance of his solicitors and submitted that statement to police at any time before the police decided to close the matter.
In this regard, I note that the police wrote to EPU on 17 August 2016, advising him that the matter could not proceed without his statement and that if no correspondence was received from him by 31 August 2016, it would be presumed that he did not wish to assist them with the investigation and the case would be suspended.
There is no evidence before me that EPU, or his solicitors, responded to the police's letter in any manner. On the contrary, his sister's evidence supports a finding that EPU decided not to submit a witness statement. I regard that decision as unfortunate particularly in circumstances in which his application for victims support was then on foot and the matters set out in s 44(1) of the Act would clearly have to be considered by the Respondent in determining the matter in the event that an act of violence was found to be established on the balance of probabilities.
In my view, if EPU had decided to assist police in the investigation of the matter, by providing a witness statement that accorded with his 2021 declaration, police could have investigated the matter and s 44(1)(e) of the Act would not be relevant to my determination of the current application.
For these reasons, I am satisfied that there are significant issues under ss 44(1)(d) and (e) of the Act and while these do not justify a decision to not approve the giving of victims support, they do justify a decision to reduce the amount of the recognition payment that should be approved. In my view, a reduction of 40% is appropriate in the circumstances of this matter.

Order

I make the following orders: 1. The decision of the Respondent dated 14 October 2020 is set aside and I make the following decision by way of substitution: 1. EPU is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Act. 2. EPU was the victim of an assault resulting in grievous bodily harm and is eligible for a category C recognition payment under s 35(3)(c) of the Act and cl 14(d) of the Regulation; 3. I reduce the amount of recognition payment by 40% pursuant to ss 44(1)(d) and (e) of the Act and approve payment in the sum of $3,000.

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: 05 January 2022

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