FDT v Commissioner of Victims Rights

Summary of the claim:

1. Below is a summary of the violent conduct as set out in FDT's claim. Some details have been omitted to preserve FDT's anonymity consistent with the s 64 order. 1. Claim 00370062 (Victims Services) 1. At Budgewoi Beach in Budgewoi in February 2019 FDT was sexually assaulted by 'B.M' a known male. During the assault FDT lost consciousness due to the offender strangling her. The sexual assault continued after FDT lost consciousness. 2. FDT claimed a psychological injury as a result of the sexual assault which was characterised in her claim as 'serious bodily injury'.
2. In order to understand the basis of the claim, the administrative review and the position of Victims Services it is necessary to briefly examine the legislation relevant to this claim.

Legislation

1. 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. ….
2. The Act provides for a number of areas of support for victims of violent crime. This review concerns 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.
3. 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)
4. 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.
5. Section 34 of the VS and R Act specifies the types of recognition payments and particularises the factual circumstances of the act of violence (including injury) necessary to enliven the particular category of recognition payment. The section provides: 34 Definitions In this Division - category of recognition payment means a category of recognition payment described in section 35. recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery. series of related acts has the same meaning as in section 19 (4). sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8). sexual touching or sexual act means sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years. 35 Categories of recognition payment (1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide. (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) a sexual assault other than one referred to in subsection (2) (b), (b) an attempted sexual assault resulting in serious bodily injury, (c) an assault resulting in grievous bodily harm, (d) physical assault of a child that is one of a series of related acts. (4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) sexual touching or sexual act, (b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b), (c) a robbery involving violence, (d) an assault (not resulting in grievous bodily harm). (Emphasis added)
6. FDT has already been assessed as eligible for a Category C recognition payment. The initial Internal Review and now the Administrative Review before the Tribunal seek to establish that FDT is eligible for a Category B Recognition payment.
7. As noted above, in the current claim, in order to be eligible for a Category B payment FDT must succeeded in establishing that the sexual assault resulted in her sustaining a serious bodily injury in order to displace the current finding that FDT was the victim of a sexual assault that resulted in injury, but not serious bodily injury. It is also possible that if FDT's claim is considered by the Tribunal to be based on a series of related acts of violence and if so the claim might succeed on those other grounds.
8. In the initial decision the Assessor described the act of violence in the following terms: 15. … the alleged offender forced himself onto [FDT] and sexually assaulted her. She cried, screamed and let him know that she did not consent to the assault. He continued and forcefully held her by the neck, causing her to pass out.
9. In respect of injury the Assessor noted the following: 16. I have reviewed and considered a report from Dr Bendit, Psychiatrist at James Fletcher Hospital; dated 25 January 2021, … Dr Bendit states that there is no doubt in his mind that this incident is one that contributed to her mental health difficulties. … 20. Having considered the evidence on a balance of probabilities, it is established that [FDT] is the primary victim of an act of violence, that occurred (x) February 2019.
10. On the question of act of violence the Senior Assessor as delegate on review stated: 12. On review, it is submitted that the act of violence involved related acts. It is submitted that the rape and strangulation of [FDT] by the alleged offender, described in the SARO, amounts to a sexual assault involving violence that is one of a series of related acts. 13. Based on the description of the sexual assault provided by [FDT] to police and recorded in the SARO form, it is accepted that the alleged offender engaged in a number of actions that could be considered separate offences under the Crimes Act 1900. However, I consider that the alleged offender's actions, including strangulation, form part of a single act of violence, rather than separate acts related to other acts by the operation of section 19 (4).
11. On the question of injury and category of Recognition Payment the Senior Assessor on review stated set out the categories from the V S and R Act and explained the payment provisions for each. After considering those matters the Senior Assessor stated: 25. On review it is submitted that [FDT] is eligible for a higher category of recognition payment based on a finding that the act of violence involved related acts, or that the alleged offender caused serious bodily injury in the nature of psychological harm. 26. For the reasons previously addressed above, I do not consider that the evidence establishes the act of violence involved related acts.
12. On 19 October 2021 FDT filed an application for administrative review in the Tribunal. As FDT was notified of the decision on 22 September 2021 the application for administrative review has been received within time (on the 27th day after receiving notice of the decision) 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.

Jurisdiction

1. 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.
2. 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.
3. 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.

The Hearing

1. The matter was heard on 18 February 2022 where both parties representatives made oral submissions to supplement the written submissions. A number of items were received into evidence from both parties, some of the material having been obtained by summons issued by the Registrar on the application of the Commissioner and then material copied and provided to both parties.

FDT's evidence:

• COPS Event 77932924
• Sexual Assault Reporting Option (SARO) Sexual Assault Questionnaire
• Letter Dr N Bendit dated 25 January 2021
• Letter Dr N Bendit dated 6 December 2021
• Statutory Declaration of FDT sworn 10 March 2021 Received as Exhibit 'A-1'.

1. FDT also filed written submissions dated 2 February 2022.

Commissioner's evidence:

• Documents filed pursuant to s 58 of the ADRT Act 1997 Received as Exhibit 'R-1'.
• Copy of COPS Event E 77932924
• Copy of COPS Event E 77955078
• Copy s 61J Crimes Act 1900
• Copy of decision in DOC v Commissioner Victims Rights 2018/00251821 (unreported). Received as Exhibit 'R-2'.

1. The Commissioner also filed written submissions dated 10 February 2022.

The Commissioner's decision

1. These are summarised very briefly at paragraphs [15] - [18] above. In the initial decision the Assessor does not appear to have addressed whether the act of violence was a series of related acts, but by inference finds a solitary act of violence at [20] of the initial decision. On review, the Senior Assessor addresses the issue of whether the conduct central to the application constitutes a series of related acts (constituting an act of violence) or a single act constituting an act of violence. At [12] of the review decision the following is recorded: 12. On review, it is submitted that the act of violence involved related acts. It is submitted that the rape and strangulation of (FDT) by the alleged offender described in the SARO, amounts to a sexual assault involving violence that is one of a series of related acts. 13. Based on the description of the sexual assault provided by (FDT) to police and recorded in the SARO form, it is apparent that the alleged offender engaged in a number of actions that could be considered separate offences under the Crimes Act 1900. However, I consider that the alleged offender's actions including strangulation, form part of a single act of sexual violence, rather than separate acts related to other acts by the operation of section 19 (4). … 25. On review it is submitted that (FDT) is eligible for a higher category of recognition payment based on a finding that the act of violence involved related acts, or that the alleged offender caused serious bodily injury in the nature of psychological harm. 26. For the reasons previously addressed above, I do not consider that the evidence establishes the act of violence involved related acts.

Consideration of FDT's submissions

1. FDT made submissions concerning the serious bodily injury ground and did not specifically address the 'series of related acts' ground. FDT however did make a consistent submission that the legislation as it applied to the scheme should be interpreted beneficially in accordance with the rulings of Courts and that the Assessor's did not apply the legislation to the given facts beneficially.
2. FDT submitted that her medical records should be sufficient to satisfy the Tribunal that she suffered injury as a direct result of the sexual assault. Reference was made to Dr Bendit's evidence of his letter of 25 January 2021 referring to 14 psychotherapy sessions between 29 April 2020 and 26 August 2020. Dr Bendit's evidence is that the sexual assault on the beach in 2019 significantly exacerbated FDT's symptoms of borderline personality disorder.
3. Submissions were made that the case of CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 is authority for the proposition that whilst an applicant must suffer an injury as a direct result of the act of violence, the act of violence does not have to be the sole cause of the injury.
4. Reference was made to how the medical evidence established serious bodily injury and that such evidence was of probative value. At [33] - [36] of CRT the Tribunal observed: 33. Section 18 of the Act defines "injury" as meaning "actual bodily harm, grievous bodily harm or psychological or psychiatric harm..." However, the Act does not define the term "serious bodily injury" and this must be interpreted based upon ordinary dictionary definitions. 34. The Macquarie Dictionary defines "serious" (relevantly) as follows: 1. of grave or solemn disposition or character; thoughtful. 2. of grave aspect. 3. being in earnest; not trifling. 4. demanding earnest thought or application: serious reading; serious music. 5. weighty or important: a serious matter. 6. giving cause for apprehension; critical: a serious illness. 35. In the context of the current matter, to establish that she has suffered "serious bodily injury" as a result of the sexual assault, CRT must prove on the balance of probabilities that she suffered psychological or psychiatric harm that is more than trifling; is of grave aspect; and/or gives cause for apprehension. 36. However, the Act does not require CRT to prove that the sexual assault is the sole cause of her current psychological or psychiatric injury, provided that the evidence establishes that the injury directly resulted from the act of violence.
5. Reference was also made to the case of BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 137 where the Tribunal addressed the interpretation of serious bodily injury under the former Act. At [42] the Tribunal observed: 42. Having regard to the 16 years of cases dealing with victims compensation under the old Act, it is clear that the Category 3 sexual assault provisions were to deal with the most serious matters. Usually a category 3 award involving serious bodily injury, arises in an instance where an offender injures the victim in such a way so as to either disable the victim (long or medium term), or where the sole sexual assault or unlawful sexual intercourse, is accompanied by the most violent of assaults. The Category 3 provisions tend towards matters at the extreme end of the spectrum concerning an incident, or a prolonged abuse over many days, weeks months or years constituting a pattern. Other provisions recognise aggravating circumstances such as an assault in company, involving use of an offensive weapon etc.
6. FDT submitted that consistent with the observations in BDJ, a category B recognition payment is a symbolic acknowledgement of the pain, suffering and wrong that has been done to a person during a sexual assault perpetrated in aggravating circumstances. FDT referred to the Crimes Act 1900 definition of aggravating circumstances for an offence under s 61 J of that Act. 61J Aggravated sexual assault (1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. (2) In this section, circumstances of aggravation means circumstances in which - (a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or (Emphasis added)
7. FDT submitted that she required therapeutic intervention to manage the psychological injuries caused to her by the sexual assault over a year after the act of violence occurred. It was submitted that this established that the nature of the harm or injury continued to have a direct impact on FDT's daily functioning for a significant period after the act of violence.
8. FDT also submitted that as the V S and R Act is beneficial legislation it should be interpreted liberally and beneficially to the benefit of the applicant seeking a benefit under the scheme. Reference was made to the cases of Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604 and Fleming v White [1981] 2 NSWLR 719 at 722.
9. In oral submissions FDT submitted that the Tribunal must consider whether medical evidence is strictly required to establish all aspects or facets of injury.

Consideration of Commissioner's submissions

1. In written submissions the Commissioner referred to the medical evidence supporting FDT's claim and submitted that there was no 'verifiable' medical evidence to support the claim that FDT sustained serious bodily injury. Other than FDT's Statutory Declaration of 10 March 2021 (Exhibit 'A-1'), the Commissioner submitted that there was no evidence of any bodily injury to FDT.
2. The Commissioner made other submissions noting that even if the incident occurred in what would legally constitute circumstances of aggravation (as submitted by FDT), the circumstances did not enliven a finding that the two specified circumstances of aggravation set out in s 35 (2) (a) are met. Being that the offence occurred in company or that an offensive weapon was used.
3. The majority of the Commissioner's submissions focused on the necessary prerequisites to a finding of serious bodily injury as referred to in previous cases of the Tribunal and Courts.

Consideration

1. I note and accept the submission that 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. For those reasons the findings of the Supreme Court in the case of Harvey continue to apply.
2. In addition for the same reasons the findings of the High Court (in reference to the former Act) in the case of Victims Compensation Fund Corporation v Brown [2003] HCA 54 as to the beneficial approach to the legislation continue to apply.
3. 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.
4. On my assessment of the observations of the evidence before the Tribunal, FDT has suffered psychological harm.
5. As noted above the main focus of the parties' submissions was on the Category B ground that FDT had (or had not) sustained an injury which could be described as serious bodily injury. In my view the evidence on this issue is somewhat non-determinative having regard to the limited detail of the reports by Dr Bendit. In addition the SARO report whilst referring to a bruised neck and swollen vagina, it does not detail injuries that (irrespective of the circumstances in which they were inflicted) would constitute serious bodily injury. In making this observation the Tribunal is in no way dismissive of the seriousness of the stated injuries in the context they arose. In the area of Mental Health from the SARO questionnaire there is evidence of Depression and Borderline Personality Disorder.
6. Dr Bendit refers in his first report to: There is no doubt that the childhood and adult sexual assaults contributed to her mental health difficulties, although probably not the primary pathogenic factors with regards to borderline personality disorder or bulimia.
7. In the second report Dr Bendit refers to 14 psychotherapy sessions between April 29 and August 26 2020, as well as observing: [FDT's] mental health diagnosis of borderline personality disorder and bulimia. . we discussed in some detail an experience of sexual assault on the beach on (x) February 2019. It is my opinion that this sexual assault significantly exacerbated her symptoms of borderline personality disorder.
8. I note FDT's own evidence in her statutory declaration which was received without objection and that FDT was not required for cross examination by the Commissioner at hearing. Reference is made in that Statutory Declaration (Exhibit 'A-1') to significant psychological damage, … not limited to frequent nightmares, PTSD, an inability to focus, distressing memories and overwhelming anxiety. … For a significant time after the assault I suffered from pain and swelling in my vagina. The choking which occurred also resulted in serious bodily harm to my neck and wind pipe, experiencing pain from breathing, coughing and slight touching.
9. I note that both parties referred to the case of BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 187 as referred to at [31] above. In that case I considered the meaning of serious bodily injury under the V S and R Act by reference to the available cases and definitions available. Since that time there have been many cases which considered grievous bodily harm, but in my view it seems appropriate to revisit BJD for the serious bodily injury analysis (in conjunction with what is at [31] above), and noting both parties rely on it to some extent.
10. At [36] - [41] of BJD the following was observed: The serious bodily injury claim. 36. BDJ's Solicitors make a claim for Category 3 sexual assault relying on the provision of: 'unlawful sexual intercourse in which serious bodily injury is inflicted, and / or a pattern of abuse involving category 1 or category 2 sexual assault.' (Clause 6 (c) of Schedule 1 of the old Act). 37. In respect of the serious bodily injury claim, I note the solicitor's submissions concerning the lack of case studies on the Victims Services webpage. Under the old Act, injury is defined. Injury means (a) actual physical bodily harm or psychological or psychiatric harm. (See dictionary following Schedule 4 of the old Act). Helpfully, under the old Act, the Chairperson issued Guidelines (for compensation assessors) under section 65 of the old Act. 38. The section 65 Guideline on Injury addresses the minimum requirement to find the presence of 'injury'. It is helpful as a starting point. The Guideline is as follows: S.65 Guidelines - Injury section 5(1)(c) The dictionary definition of 'injury' under the Victims Support and Rehabilitation Act 1996 was: (a) actual physical bodily harm, (b) psychological or psychiatric disorder. This definition is now changed. As a result of various amendments to the Act some of which commenced on 22 December 2006 injury is now defined as (a) actual physical bodily harm (b) psychological or psychiatric harm. The new definition of injury will apply to all matters determined after the legislation is enacted. In the absence of physical injury, new and existing claims will no longer require the presence of a psychological or psychiatric disorder as listed in the DSM IV in order to establish 'injury' for the purposes of section 5 of the Act. To establish psychological or psychiatric harm, consideration should be given to the following elements - In R -v- Donovan [1934] 2 KB 498 at 509 when discussing harm the Court said, "its ordinary meaning includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than merely transient or trifling." Actual bodily harm came to be seen as including psychological or psychiatric harm following Donovan. The Court said that, "if a person is caused hurt or injury resulting, not in any physical injury, but an injury to his state of mind for the time being, that is within the definition of 'actual bodily harm'." R-v- Miller [1953] 2 All ER 529 at 534. Later in the Australian case of T -v- The State of South Australia & Anor (1992) Aust Torts Reports 81 - 167, which related to a criminal injuries compensation case, the Court said "If the practical effect of the relevant conduct was to bring about a morbid situation in which there had been something more than transient deleterious effect upon an applicant's mental health and wellbeing, so as adversely to affect that person's normal enjoyment of life beyond a situation of mere transient sorrow and grief then, in the relevant sense, the person has sustained mental injury." The Court specified that this must be something more than mere sorrow and grief. Each matter will need to be considered on a case by case basis, assessing both the facts and the degree, in order to be satisfied that the requisite threshold for 'harm' is met. There must be the presence of medical evidence that establishes that psychological or psychiatric harm is present, however, as per 'T' it may be necessary to examine the facts of the 'violent conduct' (s-5 (1) (a) (b) of the Act), and weighing them with a consideration of the medical evidence (s-5 (1) (c) of the Act), in order to be satisfied that the element of injury is made out. It may be that Compensation Assessors will need to give greater amplification to their reasons when establishing both the presence (or absence) of psychological or psychiatric harm in applicable matters in their written Notices of Determination. C. Brahe Chairperson Victims Compensation Tribunal. 22 December 2006 39. These Guidelines remain in force for consideration of all matters relating to the old Act. They set out the minimum requirements for bodily injury or actual physical bodily harm. Their authority and purpose comes from the words of the section (65) in the old Act. 40. Other references in the old Act to the term 'serious' or 'seriously' coupled with the term 'injury' or 'injured' arise at section 24 (5) of the old Act. That section concerns the narrow exception to the ineligibility of convicted inmates to recover victims compensation irrespective of the type of assault inflicted upon them. The provision provides that (in such instances) the ineligible applicant only becomes eligible if the Tribunal Member determines that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned. (Emphasis added) 41. The Macquarie Dictionary (3rd Edition) relevantly defines serious as: 'of grave aspect' giving cause for apprehension; critical: a serious illness,' . The Australia Concise Oxford Dictionary (3rd Edition) relevantly defines serious as: 'not slight or negligible (a serious injury; a serious offence).
11. In my view having regard to the matters outlined above, FDT does not qualify for a finding that she sustained serious bodily injury as a direct result of the act of violence. That finding is not to diminish the hurt and trauma that FDT clearly endured during this terrible and terrifying ordeal. The finding will however not be the end of the matter.
12. In my view the act of violence, being the incident on the beach (in itself) constituted a series of related acts.
13. The COPS Event held within both Exhibits 'A-1' and 'R-1' provides evidence of at least four separate assaults which would (of themselves, constitute separate but related acts constituting one 'act of violence' for the purpose of s -19 of the VR and S Act.
14. The COPS Event refers to the following matters which in my view constitute individual acts coupled with possible offence references:

• (the offender) began to pull at my clothes. (common assault)
• He shoved it (his erect penis) in my face (indecent assault / common assault / commit act of indecency)
• He slapped me in the face with his erection (indecent assault / common assault / commit act of indecency),
• Touching my vagina with his left hand (indecent assault / sexual assault / common assault / commit act of indecency)
• Placed his hand around my neck. He was squeezing hard with his right hand. I was trying to remove his hand while still pushing him away and trying to keep my knees together, it was hard to breathe. … I lost consciousness. (assault / assault occasioning actual bodily harm)
• The reference to: I came to, .. (offender) standing over me. He pulled a full condom off his penis and threw it into the sand, pulled his pants up.. coupled with the other evidence about the offender's intentions and the evidence that my neck and vagina were extremely sore, is evidence of ( sexual assault - unlawful sexual intercourse -aggravated sexual assault)

1. In my view the above evidence demonstrates and establishes that FDT was the victim of at least six separate acts of violence that for the purposes of s 19 constitute an act or series of related acts, whether committed by one or more persons that have all involved violent conduct that have resulted in injury to one of those persons (FDT).
2. In the circumstances of the offences FDT would have been terrified and would have received a combination of physical and psychological injuries from the acts collectively. In that regard I find that all of the elements concerning related acts of violence are made out. In my view the evidence is clear that as a result the elements of s 36 (2) (b) are made out in that the sexual assault, sexual touching or sexual act or attempted sexual assault involved violence and was one of a series of related acts.
3. 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, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (Emphasis added)
4. I note that FDT's legal representatives made submissions on related acts when the matter was subject to Internal Review. (Par [3] subs dated 18 August 2021). However the Senior Assessor when considering that issue as set out at [26] above, did not elaborate on their finding that a series of related acts was not enlivened.
5. No further explanation or extrapolation of how the finder of fact reaches that conclusion is provided, but by inference the Tribunal observes that they were not considered sufficiently discrete but linked. In my view it is clear that the physical and indecent assault concluded prior to the significant sexual assault where the offender commenced to rape FDT. The entire ordeal would have been traumatic and is in no way diminished by FDT's loss of consciousness during part of the ordeal.
6. I note that s 19 (4) provides that acts are related acts because: 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.
7. Having regard to the totality of the evidence, and noting the beneficial nature of the scheme as set out in the cases above and also Victims Compensation Fund Corporation v GM and 5 Ors [2004] NSWCA and Brown, I find that the elements of s 39 (2) (b) (ii) are made out on the available evidence. The reports verify that the applicant has been injured by the act of violence and I so find.

Conclusion

1. The Tribunal makes the following orders:

Orders 1. The decision of the respondent of 21 May 2021 is set aside. 2. In substitution of that decision FDT is awarded a Category B recognition payment in accordance with s 35 (2) (b) and s 36 (1) (c ) of the Victims Rights and Support Act 2013.

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: 18 May 2022