FWV v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2023-12-08

Background

These proceedings relate to an application for victims support under the Victims Rights and Support Act 2013 (NSW) (the Act) in the form of a recognition payment and financial assistance lodged by the applicant, who is known by the pseudonym "FWV", initially before the Commissioner of Victims Rights ("the respondent"). The application was lodged on 24 November 2022.
The applicant alleged that he was the victim of an assault that occurred in the following circumstances: I was in my front yard with my daughter, the parents of and the actual children who have been severely bullying my daughter drove past in 2 cars making threatening gestures. They stopped both cars and got out. I moved onto the road to keep them away from my daughter. They repeatedly punched and kicked me.
The applicant alleged that he suffered both physical and psychological injuries as a result of the act of violence and he stated that he reported the matter to Police.

Decision at first instance

On 8 December 2022, an Assessor (Client Claims) issued a Notice of Decision under the Act and determined that an act of violence was not established on the balance of probabilities and that the applicant was not eligible for victims support. The application was therefore dismissed.
The Assessor relied primarily on the contents of Police records, and stated as follows: 12. The incident involving (FWV) and members of the K family were reported to Police. Event (number provided) relates. The event documents that the (FWV) and K family have numerous issues between them regarding allegedly defaming posts on social media referencing the other family. The report states that both families are involved in committing spiteful acts towards each other. 13. On 13 August 2022, the (FWV) family were out on their front lawn. According to the event, CK drove his car past the (FWV) residence with his son, BK, in the car as a passenger. NK, CK's wife, was following in her car with PK and SK, her children, in the car with her. Both families were yelling out at each other. CK and NK stopped their cars. SK started filming the interactions between the families on a mobile phone. CK exited his car and Mr (FWV) is noted to be walking towards CK in an advancing manner. An altercation is then noted to take place between (FWV) and CK and CK's son, BK. Both (FWV) and CK are noted to suffer injuries as a consequence. The K family then dissipates, get in their cars and drive away. 14. Police arrive at the scene. (FWV) is noted to be laying on the ground on his back. He is suffering no visible injuries. AE, his wife, provides a version of what she states took place to Police. 15. Officers then proceed to the K residence. They all provide a different version of events to what AE provided. Police not that CK had a red mark on his abdominal area and on his face from where he alleges that he was punched. Four statements are taken from (FWV), (FWV)'s wife (AE), and CK and NK in relation to what took place. (FWV's) statement is corroborated by his wife's and similarly, CK's is corroborated by his wife-s, NK. CK's daughter, SK, who captured part of the incident on her phone provided the phone to Police to view. It captures both families yelling at each other then (FWV) briskly walking to CK. It shows CK and BK standing over (FWV) briefly and (ME) (FWV's daughter) getting an object and walking towards where the altercation is. The recording details NK on the phone contacting Police. 16. Other versions were obtained from ME, BK, PK and SK. They were conflicting. Due to the various conflicting versions and there being no independent witnesses to the incident and no footage of the whole incident, Police were unable to ascertain who was the instigator of the altercation and they deemed both parties to be equally at fault. Both (FWV) and CK deny any wrongdoing. 17. Looking specifically at the version provided by (FWV), he informed Police that CK drove by his house and did a "cut throat" gesture to him. CK then is stated to have stopped his car, exited the vehicle and began advancing towards (FWV), who was of the belief that CK had a weapon in his hand and was going to harm his family. (FWV) informed Police he advanced towards CK in order to prevent him from doing whatever he thought he was going to do and used his leg to push/kick CK in the abdominal area and away from the residence. (FWV) states he then slipped and fell on the ground and CK and BK started kicking and punching him in the ribs and face whilst he was on the ground. He got up and made his way to the other side of the riad to get CK and BK away from his home. AE and her daughter ME were yelling at CK and BK to get off (FWV) and they did. (FWV) then walked past NK's car and spat on it. AE then contacted Police whilst (FWV) was laying down as he sustained injuries. (FWV) was taken to hospital with the possibility he had fractured ribs. 18. CK's version of events was that he and his wife, NK, were driving their children to a friend's residence, and when they drove past (FWV's) house, he started telling at them to "get back here". CK stopped his car and exited the vehicle. CK said to (FWV) "what's your problem?", and (FWV) apparently walked towards him in a brisk manner whilst removing the jacket he was wearing. CK did not walk towards him. (FWV) then jumped in the air and pushed his foot into CK's abdomen which forced CK to become unsteady on his feet. (FWV) then fell to the ground. CK then started to walk back to his car when (FWV) confronted his son, BK. CK used his foot and attempted to push (FWV) away but (FWV) took hold of CK's foot and pushed him back. (FWV) began throwing punches at BK but they did not connect. BK then threw multiple punches at (FWV), collecting him in the face a couple of times. BK then moved to the other side of the road and (FWV) started to follow him in an aggressive manner. CK then approached (FWV) and (FWV) punched CK on the left side of his face. (FWV) continued to confront MK so CK used his shoulder to push him to the ground. CK then sprawled his body over (FWV) in order to contain him. 19. (FWV) then wrapped his arms around CK's legs and would not release his grip, so CK used his hand to push (FWV) away. SE then approached CK and threatened to hit him if he did not get off (FWV). (FWV) then walked towards NK's car and spat on it, stating "I'm gonna kill you all". The K family then left the scene. The report states as a result of the incident, CK has sustained a swollen cheek and is tender to his abdominal area. 20. Noting the above versions, and as stated, that both (FWV)'s partner and CK's partner both backed their respective partners' versions of what occurred, and without independent witnesses that could attest to who was the instigator and aggressor to the incident and precisely what took place, Police have not charged any person with any offence relating to this matter.

Internal review

FWV applied to the respondent for an internal review of the Assessor's decision in relation to two applications for victims support that he lodged on 24 November 2022. In relation to the application that is the subject of the current administrative review, he stated, relevantly: The period of time for internal review expired for matter 00445605 on 8 March 2023. (0044516 is still in timeframe). I am asking however that this review still be conducted, even though the request is outside the usual time frame. I am asking this, as although it may not appear so on initial assessment, this incident was part of a far larger, ongoing situation and also actually related to the second incident as well. I therefore did not have all the evidence and documentation within 90 days to support the request for review. I have therefore had to wait until a range of court and other proceedings had fully gone through their processes and concluded to be able to move ahead with review. It was only in the past two weeks that things have finalised enough to be able to put this case for review in the matter forward… Reasons for review It was not until I received the decisions in these matters that I learnt of just how inaccurately the police had recorded each situation in the event reports. Therefore, I did not realise that I needed to gather and send additional information to support my claims - I thought the police reports would be accurate… Of note - it is the same police officer in charge of both matters and who wrote up the police event reports… In October 2021 my stepdaughter made allegations that I had sexually touched my granddaughter… but I was fully cleared of these allegations, being found not guilty after full hearing. The allegation was found to be fabricated as part of my stepdaughter's action to try and stop custody proceedings about my granddaughter. It took 10 months for the police to decide to charge me (even though all the interviews and investigation were done in the first 5 months). During this time waiting for police action, my stepdaughter also reported her unproven allegations to the Department of Education to impact my employment and told numerous people in the community of her allegations (frequently exaggerated from what she even told the police). She even started a vigilante group to incite people to target and attack me, my family. After I was charged in August 2022 the situation escalated. Both the (name provided) family (from incident 2) and the (name provided) (from incident 1) were part of this group and highly involved in the groups planning and actions. This vigilante group was responsible for: Stalking… Harassing… False allegations… Physical attacks - 2 assaults of me, attempts at running over my wife, assaults of my daughter (requiring school change)… This led to many incidents and situations that there was police involvement in (the same police officer who was in charge of the 2 incidents being reviewed was also involved in many of these). Unfortunately, the police were not much help on any occasion. As often happens, even though the local police were not investigating m daughter's allegation, they were aware of them. It was clear through their lack of actions and behaviour that they had already prejudged me as a "paedophile", just as the vigilante group had. As evidence of the attitude of police ant (name provided) family, I have attached a video of police taking to (them) after the assault incident with them (00435612). In this (they) identify me as the "rockspider" and "paedo". Officer Smith participates in the conversation acknowledging he knows who she is referring to without making any issue of her referring to him in that manner. As further evidence I have also attached the video that shows the (name provided) family arriving at the scene of the (other party's) assault - after the incident, but aware of what has happened as go straight to (them). Not only just this support their joint involvement in targeting my family, the fact police not only allow this to happen while investigation still happening, but they talk to (K's) and allow them to comment on us and the situation shows the police taking sides. The situation with the police was so bad, particularly when they wouldn't take any action to protect my 12 year old daughter from the attacks, that we lodged a complaint against the police. As evidence, around police attitude and their records being inaccurate, I have attached a copy of that complaint (to date - it is not yet finalised). This not only supports this, but sets out the actions of each family involved and gives further information about the two incidents these two reviews relate to… Several months after this incident… (NK) applied for AVO's against myself and my wife. These went to hearing and evidence was submitted. Their case included this incident, and it was therefore weighed up as part of a bigger picture. Her applications were dismissed, indicating no threat from me - so how could I have been the threat or instigator in this matter - it was 100% self-defence…
On 28 June 2023, the respondent sent an email to the applicant, advising that his application for an internal review was lodged out of time and it was rejected.

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 11 July 2023, the applicant filed the current application for administrative review, which sought a review of the respondent's decision on the following grounds: I am asking the NCAT to use its discretion to hear this application for administrative review and conduct a review of the original decision, despite the application for Internal Review that was lodged being rejected and therefore wasn't conducted. The application for internal review was rejected due to being out of timeframe, but there were extremely exceptional circumstances that caused it to be out of time frame. I ask the NCAT to consider the details and facts on the attached page.
In his attached statement, the applicant largely repeated the contents of his submissions in support of an internal review.
The matter came before Senior Member McAteer for directions on 1 September 2023. The applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which prohibited the publication of the applicant's name. He granted leave to the respondent to issue a Summons to the Commissioner of Police and listed the matter for directions on 13 October 2023. He noted that on the next occasion, the respondent was to provide its position as to the lateness of the application for internal review and whether an order under s 41 of the NCAT Act was opposed.
On 13 October 2013, Senior Member McAteer conducted a further directions hearing. He made an order under s 55(4) of the ADR Act and granted the applicant leave to proceed with his application for administrative review in the absence of an internal review. He also extended to time for lodging the current application to 11 July 2023 pursuant to s 41 of the NCAT Act. He ordered the respondent to file and serve summons material by 20 October 2023. He ordered the applicant to file and serve any further evidence to be relied upon by 3 November 2023 and he ordered the respondent to file and serve written submissions by 17 November 2023. He listed the matter for hearing by AVL on 8 December 2023.
I note that on 20 November 2023, Principal Member Simon extended the time for compliance with the timetable.

The hearing

The matter came before me for hearing on 8 December 2023. The applicant's wife sought leave to appear as his agent at the hearing. Mr Ting appeared for the respondent and he did not oppose the application. I therefore granted the applicant's wife leave to appear as his agent.

Applicant's case

The applicant's agent stated that this was not a simple matter, but was one that had a lengthy history involving prior incidents with the other persons involved in the incident that is the subject of the application for victims support. She invited the Tribunal to view the video evidence filed in support of the current application.
The applicant's agent also stated that the applicant underwent surgery to his left knee to repair the medial meniscus tear and that he resumed work about 1 to 2 weeks after the surgery. However, the applicant had also suffered a psychological injury and he suffers nightmares. He has been diagnosed with anxiety, although this is not recorded in the medical certificates. He underwent counselling around Christmas 2022 and his GP prescribed medication for this. He continues to have counselling and is still taking medication for anxiety.

Respondent's case

Although the respondent filed written submissions that defended the Assessor's decision, Mr Ting stated that the applicant had presented "good evidence" at the hearing, based upon which the respondent conceded that s 44 of the Act is not relevant.

Ex Tempore decision

In view of the respondent's concession, the Tribunal gave an ex-tempore decision to the following effect: Based on a consideration of all of the evidence before me, I am satisfied that an act of violence has been established on the balance of probabilities and that the applicant is eligible for a Category C recognition payment in the sum of $5,000. There are no relevant factors under s 44 of the Act.
Mr Ting requested that written reasons be provided and the Tribunal stated that written reasons for decision would be provided within 28 days.

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.
Section 20(1) of the Act defines "primary victim" as follows: 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 FWV to prove the allegation that he was the primary victim of an act of violence that was perpetrated by the named offenders on the balance of probabilities and that he suffered injury as a result.
Based on the evidence before me, I am satisfied that FWV was a primary victim of an act of violence in the nature of an assault, which was perpetrated by the named offenders on 7 August 2022, and that he suffered a torn left medial meniscus (which required surgery) and a psychological injury as a result.

Recognition payment

It is necessary to consider whether the act of violence (which was in the nature of an assault) resulted in either actual bodily harm or grievous bodily harm. In the case of the former, the applicant would be eligible for a category D recognition payment in the sum of $1,500, but if the latter is established he would be eligible for a Category C recognition payment on the basis that he suffered grievous bodily harm.
There have been many previous decisions from courts and this Tribunal regarding the meaning of "grievous bodily harm", and I have summarised some of these decisions as follows.
In BMF v Commissioner of Victims Rights [2016] NSWCATAD 54 (BMF), the Tribunal referred to Haoui v R [2008] NSWCCA 209 (Haoui) which stated that "(p)rovided the harm is a "really serious injury", then there is "grievous bodily harm"." What amounts to "really serious injury" is defined in the case law as to be taken as its ordinary natural meaning.
In determining whether the applicant suffered grievous bodily harm, I have applied the principles discussed by Beazley JA (as her Honour then was) in Haoui. In this regard, I note that the left knee injury required surgery and that the applicant also suffered a psychological injury for which he receives ongoing counselling and he has been prescribed medication by his GP.

Conclusion

I am satisfied that the applicant was the victim of an assault that resulted in grievous bodily harm and that he is therefore eligible for a category C recognition payment under s 35(3)(c) of the Act.
I am also satisfied that there are no relevant factors under s 44 of the Act that justify either the withholding of victims support or a reduction in the amount of support approved.

Orders

The decision of the Assessor dated 8 December 2023 is set aside and I make the following decision by way of substitution.
The applicant is eligible for a category C recognition payment in the sum of $5,000. …

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 January 2024

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (3)

Cases Cited (2)

Cited By (1)