FLG v Commissioner of Victims' Rights

NCAT Administrative and Equal Opportunity|2022-11-03

Background

These proceedings relate to a claim for victims support in the form of financial assistance and a recognition payment lodged by the applicant known by the pseudonym FLG 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 31 January 2019. FLG alleged that he was the primary victim of an act of violence in the nature of an assault that occurred at Punchbowl, in New South Wales, on 24 June 2018, and that he suffered "physical injury" and "psychological injury" as a result. He applied for a recognition payment and financial assistance for immediate needs.

Decision at first instance

On 11 January 2022, an Assessor (Client Claims) issued a Notice of Decision, which determined that FLG was the primary victim of an act of violence. The Assessor stated, relevantly: 15. To determine the category of recognition payment, I have considered the nature of the violence committed against FLG and the medical evidence. Based on the supporting evidence, I approve the following:…

Internal review

On 13 March 2022, FLG applied to the Respondent for an internal review of the decision dated 11 January 2022, although in the request form he indicated that he sought review of decisions regarding financial assistance for economic loss and s 44 of the Act, on the following grounds: The result of that assault I have lost myself running from that people I'm actually spen two years in street with mental problems and my hand where it was injured I still have big pain and my head I still have so much mental problem. I really lost everything during two year mentaly, physically, economically, financially.
On 26 May 2022, a Senior Assessor issued a Notice of Review Decision and determined that FLG 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: 6. Having conceded the assessments findings in the documentary evidence on file, I am satisfied on the balance of probabilities, that FLG was the primary victim of assault that occurred on 24 June 2018 at Punchbowl in New South Wales. 7. The violence being considered as part of his climb involves an assault of FLG walls he was at a licenced premises. FLG was physically assaulted by a male he was later charged by police and convicted of irrelevant criminal offence. further to this common medical evidence confirms that FLG sustained physical injuries in addition to the impact on his emotional wellbeing as a result of the assault. 8. There are no section 44 issues that lead me to reduce or dismiss the application for victims support. 9. As I am satisfied the evidence establish is an act of violence, I can consider FLG's claim for a recognition payment. … What category of recognition payment is applicable to FLG in relation to this claim? 14. Given that the act of violence that forms the basis of this claim is … violence which includes an assault, there are two applicable categories of recognition payment for consideration. The differentiation between eligibility for these two categories centres around the extent of the injury sustained by the applicant and whether or not this injury - either physical or psychological - can be considered as grievous in nature. 15. For FLG's Benefit, the definition of a physical injury which can be considered as grievous in nature would include injuries which are permanent, disabling or debilitating. the definition as it relates to psychological harm includes a diagnosis of a mental illness by a clinical psychologist and/or psychiatrist and symptoms which led to a long term or significant impairment of the day today functioning of the victim or may result in their hospitalisation. 16. FLG has provided documents from several medical centres he has attended, (names provided) and an un-named source. the information from (one of the named medical centres) does not have any information to indicate that FLG was a victim of assault, nor sought medical treatment for related injuries. 17. The information from (the other named medical centre) includes correspondence from General practitioner Dr G Annetts dated 1 January 2022. This correspondence indicated that on 23 June 2018, FLG had reported being the victim of an assault as previously described, during which he was punched to the face and sustained injury to his face, head and left wrist. No further details of these injuries are supplied. There was also information to suggest that FLG was subsequently feeling fearful and struggled to leave his residence as a result. 18. The medical evidence on file confirms that FLG sustained several physical injuries as a result of the assault described. this information is sufficient to confirm that an injury has been sustained however gives no information regarding the nature of these injuries nor their treatment or prognosis. there is also a comment regarding fear and social isolation being displayed by FLG soon after the assault however no additional information to assist in determining the extent of any psychological harm, treatment or prognosis. 19. Based on the evidence before me, I am unable to establish that the assault experienced by FLG has directly resulted in either a physical or psychological injury which could be considered as grievous in nature. regrettably, there is no description of symptoms or diagnosis of injury for either type of injury which would allow me to make such a finding…
I note that a copy of the Review Decision was sent to FLG by way of email under cover of a letter from the Respondent dated 16 May 2022.

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 8 June 2022, the Tribunal received the current application for administrative review, which sought review of the decision dated 16 May 2022 on the following grounds: I have been assaulted by more than three people including the manager of the place that cause me injuries and discrimination which cause me mental problems to inup street for two years I do not agree with disition witch victim support made for payment. I should get fair payment.
The matter came before me for a directions hearing on 1 July 2022. FLG 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.
However, on 29 July 2022, the Tribunal made several attempts to contact FLG to participate in the directions hearing, but was unable to contact him. Accordingly, the matter was dismissed because of FKG's failure to appear. However, the Tribunal stated that under s 55(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Tribunal may reinstate the matter if it considers that there is a reasonable explanation for the failure to appear.
On 5 August 2022, the Tribunal received an Application to reinstate proceedings, in which the applicant stated: I miss my appointment because the booking around 9:30 and I was waiting until 10:30 then around 10:40 I received voicemail so I would like rebook.
The application for reinstatement was listed for hearing before Senior Member McAteer on 26 August 2022. FLG appeared in person and Ms Douch appeared for the Respondent. The Senior Member reinstated the matter. He made an order under s 64(1)(a) of the NCAT Act, prohibiting the publication or broadcast of FLG's name and ordered FLG to file and serve any further medical or other evidence that he wishes to rely upon which might establish that he is eligible for a higher category recognition payment by 21 September 2022. He listed the matter for directions on 23 September 2022.
On 26 September 2022, I made orders extending the time for FLG to file and serve any further evidence until 21 October 2022 and I ordered the Respondent to file and serve any submissions by 28 October 2022. I listed the matter for hearing on 3 November 2022 and granted both parties leave to participate by telephone.

The hearing

At the hearing on 3 November 2022, FLG appeared in person and Ms Douch appeared for the respondent.
FLG relied upon a medical report from Dr Annetts dated 3 October 2022, which stated: Please see below record sent to Victims Services in January 2022. "This is to report that (FLG) called the Police about 23/6/2018 in relation to an incident in Punchbowl Hotel. The Bar Manager asked him to leave but there were 2 men at the door barring his way. (FLG) rang 000 on his mobile. The Police (2 Police) arrived about 20-30 minutes later. FLG explained he was barred from leaving because of a group of men preventing him leaving. FLG was afraid for his safety at the time. There had been a fight in which FLG was injured. He was punched in the face, head and left wrist was injured. Went home once the police came. Next day he was still afraid and felt he could not leave the house. FLG did not go to hospital he says he came to report it to me around that time." FLG claims: 1. Physical injuries - face, hand, left wrist 2. Psychological trauma - depression, fear, anxiety, nightmares, fear of going outside 3. Accommodation issues - had to move from premises in Punchbowl - several other addresses… sleeping in the street etc. over 2 years The offer of $1,500 is adequate to compensate for these losses and injuries and he requests a review of the amount. Rental over 2 years is over $30,000. FLG would accept $30,000. Addendum: There were 3 men plus the manager - 4 men in total not 2 men and the manager. FLG claims discrimination also which he did not originally as he was too emotionally affected and upset at the time. He has had time to consider all of the issues, hence his request and claim for a more just compensation to assist in his full recovery.
As FLG did not submit any further evidence or a statement in support of his application, the Tribunal sought to obtain further information from at the hearing.
FLG informed the Tribunal that a category D payment is not enough "because of his mental issues", for which he "went overseas for two years".
The Tribunal asked FLG if he had received any treatment for his psychological condition from a psychologist or psychiatrist? He replied to the effect that he had a psychologist, and had asked them to prepare a report, but that he could not obtain this in time for the hearing.
The Tribunal noted that FLG had not indicated any problem obtaining medical evidence before the matter was listed for hearing.
The Tribunal asked FLG whether Dr Annetts had prescribed him any medication for the psychological conditions referred to in his report dated 3 October 2022. FLG replied to the effect that he takes medication for Schizophrenia, but he has not been prescribed medication for the conditions referred to by Dr Annetts. He said that he takes pain-killers for his physical injuries, including Voltaren, and that he also takes Panadeine Forte because this helps him to sleep.
I note that the Respondent's bundle of documents under s 58 of the ADR Act includes the following medical reports: 1. A Health Summary from Inner City Homelessness Services, the Salvation Army NSW, which indicates that he was prescribed 3 separate medications until 31 January 2019 and that his past history included "Left ACL tear and Gambling Addiction". However, there was no reference to the act of violence that is the subject of the application for victims support. 2. A Patient Health Summary from Dr E Mohammed, printed on 28 March 2022, which includes a history of Schizophrenia since 20 September 2016, muscle pain on 6 December 2918, back pain on 17 March 2019. However, there is no reference to the act of violence that is the subject of the application for victims support.
Ms Douch relied upon the Respondent's written submissions dated 28 October 2022, which conceded that FLG is the primary victim of an act of violence and, according to the Justice Link records, the correct date of the act of violence is 6 June 2018.
The Respondent submitted that FLG 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"
The Respondent stated that the decision in Haoui was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated, relevantly: 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…
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] NSWCA 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 CAU 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.
In relation to the assertion contained in Dr Annett's most-recent report, that four men were involved in the assault upon FLG, the Respondent noted that this is inconsistent with both the information contained in the application for victims support and the Justice Link records. The latter indicates that only one perpetrator was charged and convicted of an offence in relation to the act of violence.
The Respondent argued that if the Tribunal accepts that the act of violence was perpetrated by multiple persons, it should be treated as a series of related acts under s 19(4) of the Act.
The Respondent concluded that the correct and preferable decision is to correct the date of the act of violence to "5 June 2022" (I believe that this should read "5 June 2018"), but to otherwise affirm the review decision dated 16 May 2022.

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 FLG 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 FLG was the primary victim of an assault, which was perpetrated by more than one offender on 5 June 2018, although only one perpetrator was charged police and subsequently convicted.
I am also satisfied on the balance of probabilities that FLG suffered physical and psychological injuries as a result of the act of violence.
I am satisfied that the act of violence is a series of related acts as defined by
I am also satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act.

Recognition payment

It is necessary to determine the relevant category of recognition payment that FLG 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 FLG was the victim of an assault not resulting in grievous bodily harm.
Based on a consideration of all of the evidence before me, I am not satisfied that FLG suffered grievous bodily harm as a direct result of the injuries suffered in the act of violence. While there is evidence of a pre-existing mental health condition (Schizophrenia), which required medication, there is no evidence before me that FLG required any specialist treatment for the psychological conditions referred to in Dr Annett's reports. In any event, I note that Dr Annetts has not disclosed FLG's prior history of mental illness.
In relation to physical injuries, Dr Annett's reports indicate that FLG did not seek treatment from a hospital and he has not documented any treatment (including medication etc) that was required as a result of any physical injury suffered in the act of violence.
For these reasons, I am not satisfied that the evidence before me provides a safe climate for a finding that FLG was the victim of an assault resulting in grievous bodily harm.

Section 44 Considerations

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

Conclusion

For these reasons, I have decided that the correct and preferable decision is to vary the Respondent's decision dated 16 May 2022 pursuant to s 63(3)(b) of the ADR Act, to indicate that the act of violence occurred on 5 June 2018. However, the decision is otherwise affirmed.

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: 01 December 2022

Victims' Rights and Support Act 2013(NSW)

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