GBK v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2024-02-16

Background

These proceedings relate to an application for victims support in the form of counselling, financial assistance and a recognition payment lodged by the applicant known by the pseudonym GBK 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 6 July 2022, in which GBK alleged that he was the victim of sexual assault that occurred on 28 May 2023 at Norwest, in New South Wales. He described the act of violence as follows: I was inside the church and I felt the male member, the penis, someone touched my back body, I turned back and told him what to do so he retreated a few distance after that I want to leave the church so he grabbed my hand strongly and said to me not now I pulled my hand strongly and left and then again outside he came close to me and started yelling at me My face got scared a lot a lot and looked I cried, and I saw him in my sleep, and he tortured me. I do not know the person's name, nor do I know him. This accident caused the deterioration of my psychological state because I receive treatment for two years with a psychiatrist because I had two similar accidents in 2021. I do not have a family, and after the accident I imprison myself inside my house because I am very afraid of the world and I became afraid to leave the house. Because lighter open the refrigerator and sit on the balcony. I live on the ground floor. Thank you. Sorry, my English is not perfec.
GBK alleged that he suffered a psychological injury as a result of this alleged sexual assault.

Internal review

On 16 August 2023, GBK sent an email to the respondent advising, "I wish to lodge external review we're supporting document medical report and cancila (sic) sand today thank you".
On 19 September 2023, a Senior Assessor issued a Notice of Review Decision under the Act, which determined that there was insufficient evidence to establish, on a balance of probabilities, that GBK was the primary victim of an act of violence. The application for victims support was therefore dismissed.
The Senior Assessor stated, relevantly: Reports to police and court outcomes 14. There are no reports to police or court records indicating the matter has been reported. Reports to Government agencies 15. The Government funded report on file is completed by the applicant's General Practitioner (name provided). As the GP is not a government funded agency, this report is insufficient for the purposes of section 39 documentary evidence requirements of the Act. 16. I have reviewed a report from (name provided), Centrelink Social Worker, which satisfies that the applicant reported he attended (name provided) Church and went up on stage to be healed by a pastor. The pastor came into contact with his back and he was in a sexually aroused state. He states he reported the incident to another pastor who told him he was being very sensitive. Evidence of physical or psychological harm … 20. I have reviewed a report from "Malvika", counsellor at Holistic Healing. It is reported the applicant disclosed that on 28 May 2023 he attended church with a friend, where he was sexually assaulted by a pastor. When he told a second pastor about the incident, he was shut down, felt ridiculed, and was told that no-one would believe him. Since the incident, he has reported feeling incredibly distressed, ostracized, and has lost all social connection.
The Senior Assessor found that GBK is firm in his convictions that he was sexually touched, but was not satisfied, in the circumstances, that an act of violence was established. Therefore, the incident referred to in the application for victims support does not satisfy the definition of an act of violence as required by ss 19 and 20 of the Act and the application was dismissed.
I note that a copy of the Review Decision was emailed to GBK under cover of a letter from the respondent dated 19 September 2023. Accordingly, I am satisfied that the decision was properly served upon him.

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 21 October 2023, the Tribunal received the current application for administrative review, which sought a review of the Senior Assessor's decision dated 19 September 2023, on the following grounds: I believe the decision made is unjust. I have been the victim of a sexual crime, and this has resulted in severe mental deterioration. I have experienced insomnia, panic, anxiety, social ostracization, incontinence and night terrors since the incident. Due to my limited English, and lack of support, I feel I was unable to file my paperwork as well as I could have, however I have since experienced counselling and have recognised the impact of this incident on my mental health. I would greatly appreciate the review as I believe I am still suffering the consequences of this incident.

Procedural matters

The matter came before Senior Member McAteer for directions on 24 November 2023. GBK appeared in person and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the NCAT Act, prohibiting the broadcast of GBK's name. He extended the time for GBK to lodge the current application to 21 October 2023 pursuant to s 42 of the NCAT Act. He ordered the respondent to file and serve its bundle of documents under s 58 of the ADR Act by 25 January 2024 and he noted that GBK filed and served further evidence by email on 16 November 2023. He listed the matter for hearing on 16 February 2024.

The hearing

The matter came before me for hearing on 16 February 2024. GBK appeared in person and Ms K Douch, Victims Services, appeared for the respondent.

GBK's further evidence

GBK filed reports from Malvika Bali, Counsellor, dated 16 November 2023 and 19 January 2024.
I note that on 16 November 2023, Ms Bali stated that GBK first presented to her in July 2023, with Complex PTSD, Depression, Anxiety and Agoraphobia, and that he had since shown symptoms of and disclosed a diagnosis of Psychosis. He disclosed a long-standing impact of mental health injury due to traumatic incidents that had occurred.
In July 2023, GBK disclosed that on 28 May 2023, he attended (name provided) Church with a friend, where he had an opportunity to go on stage and be healed by a pastor. He reported that while on stage the pastor engaged in a frotteuristic act (pastor stood very-close behind him and pressed the front of his body, specifically his penis) onto (GBK)'s backside). He said that when he asked the pastor to step away and tried to walk away himself the pastor held onto his hand. He then told another pastor about the incident, but felt ridiculed and laughed at, reporting this second pastor said that no-one would believe him. This incident triggered a trauma response in him as it brought up memories of previous sexual trauma and it triggered auditory and visual hallucinations as well as issue with his memory. Since then, he has become agoraphobic and has developed hyper-vigilance, which has impacted his daily function such as sleep and hygiene, night terrors, severe emotional distress, panic, general distrust of people, rumination and suicidal thoughts. He remained in extreme emotional distress and experiences auditory hallucinations and suicidal ideation.
In her report dated 19 January 2024, Ms Bali provided a detailed report of multiple previous traumatic incidents that occurred between 10 February 2018 and 11 April 2023, involving sexual assaults, as well as repeating her report relating to the act of violence that is the subject of the current proceedings.

GBK's submissions

The Tribunal asked GBK to provide further information about what actually occurred on 28 May 2023, as there are conflicting accounts in the evidence.
GBK then stated that he was at church and was on stage at the front of the church and a man came up behind him, touched him on his shoulder and then pressed the front of his body into his back and he felt "the penis". He initially said that this person was a pastor, but that he did not know him. He subsequently said that he did not know who the person was or even if he was a pastor.
The Tribunal informed GBK that to establish that he was the victim of an act of violence, there must be evidence of an intention to commit an offence, and asked whether he saw the man approaching him? He replied, "No".
The Tribunal then attempted to further clarify what occurred on 28 May 2023 and, based on GBK's responses, it was ascertained that: 1. The male person was taller than GBK; 2. He did not know if the male person was a pastor or not; 3. GBK did not see whether the male person's penis was erect before the incident occurred; 4. GBK did not see whether the male person's penis was erect when he confronted him immediately after the incident occurred, because he was "in shock"; and 5. While he was at church with a friend, his friend refused to be involved in this matter and declined to provide any evidence.
The Tribunal noted that the respondent had lodged a copy of a Restitution Order dated 21 April 2023, which was issued to GBK in respect of an approval of victims support totalling $6,500 in respect of an application made by his ex-wife on 21 January 2020.
GBK stated that he had not received the Restitution Order and that he knew nothing about it. However, on further questioning by the Tribunal, he stated that he was living at the address to which the Order was sent at the time that it was sent.
That evidence is relevant to whether a set off order should be made against any approval of victims support in GBK's favour under s 45 of the Act in the event that he succeeded in the current proceedings.

Respondent's submissions

The respondent filed written submissions on 25 January 2024, which inter alia stated: 16. Specifically, there is insufficient evidence as to the intention of the alleged offender to find an apparent offence on the balance of Probabilities. In this regard, I note that the incident occurred in a public forum and in the context of a religious practice that likely involved physical toughing of a non-sexual nature. Further, noting that there has been no report to NSW Police, there has been no investigation of the incident to assist with this finding. 17. This position is supported by the findings in Pham v Commissioner of Victims Rights [2019] NSWSC 1060 (Pham). In this matter, in considering whether there was an act that apparently occurred in the course of the commission of an offence, Justice Leeming noted at [25]: Secondly, Mr Pham was seeking to establish injury resulting from the commission of an offence, rather than civil liability. While it is true that if the police officer satisfied s 230, there could be no offence, it does not follow that Mr Pham has established the commission of an offence merely from the fact that s 230 has not been shown to have been satisfied. Let it be assumed that excessive force deployed by the police in discontinuing the arrest (this was at the forefront of Mr Pham's submissions). It does not follow that the police officers were committing an offence. When pressed to identify the offence, Mr Pham eventually identified the offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). But there is a mental element to the offence which needs to be shown before the offence is committed. It is difficult to see how the mental elements of that offence would be made out, consistently with the findings by the Senior Member, irrespective of s 230. 18. Similarly, in the matter of DSK v Commissioner of Victims Rights [2019] NSWCATAD 170, the Tribunal was not satisfied that the elements of an offence were satisfied ay [45] - [46]: DSK submitted that his mother's coercion of his family members to ostracise him and her threats to tell police that he threatened to harm her constitutes "intimidation" for the purposes of s 13 of the Crimes (Domestic and Personal Violence) Act 2007. However, s 13 requires the offender to have acted with the intention of causing the victim to fear physical or mental harm and there is no evidence before me that establishes the requisite intention on the part of either of the alleged offenders. I am therefore not satisfied that an offence under s 13 has been established on the balance of probabilities.
The respondent also referred to s 45 of the Act, which relevantly provides: Payments may be applied towards liability for restitution under Part 5 (1) If financial support or a recognition payment is payable to a person who is also liable for payment of a restitution amount, the Commissioner may authorise the amount payable, or any part of that amount, to be applied towards discharging the person's liability for the restitution amount. (2) Any amount that the Commissioner authorises to be applied towards discharging the person's liability for a restitution amount is a set-off amount. (3) When a set-off amount is applied towards discharging a person's liability for a restitution amount, the person is taken to have been paid financial support or a recognition payment to the extent of the set-off amount. (4) If the restitution amount has been referred to the Commissioner of Fines Administration for the making of a court fine enforcement order under the Fines Act 1996, the set-off amount - (a) is to be paid to the Commissioner of Fines Administration, and (b) is taken to be an amount recovered from the person under a court fine enforcement order made under that Act. Note - Section 112K of the Fines Act 1996 provides that amounts recovered under the court fine enforcement order are to be applied firstly towards enforcement costs payable under the order and secondly towards payment of the restitution amount.
The respondent stated that on 21 September 2023, the Restitution Order was referred to the Commissioner of Fines Administration for enforcement. As at 23 January 2024, the full amount of the order remained outstanding and a copy of an email from Revenue NSW dated 23 January 2024 was attached to verify this.
The respondent stated that in the event that the Tribunal found that an act of violence was established on the balance of probabilities, the amount of any recognition payment that is approved for GBK should be applied to the restitution order by way of s et off under s 45 of the Act.
However, the respondent argued that the correct and preferable decision is to affirm the decision under review.

Consideration

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 provides, 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 GBK to prove his allegation of sexual assault on the balance of probabilities.
Based on the evidence before me, there is no doubt that GBK believes that he was the victim of a sexual assault that occurred while he was in a church, during a public religious service, on 28 May 2023. However, given the nature of the alleged act of violence, there must be evidence of an intention to commit an offence by the alleged offender.
As Leeming J stated in Pham, which this Tribunal applied in DSK, there is a mental element to the alleged offence that needs to be shown before the offence is committed. Based upon the available evidence, it is difficult to see how the mental elements of that offence would be made out.
In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), the Court of Appeal (McDougall J, McColl & Bell JJA agreeing) held: 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 event's 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.
I have applied the principles in Nguyen to this matter. Having done so, I find that the available evidence does not cause me to feel some sense of actual persuasion that GBK was the primary victim of an act of violence in the nature of a sexual assault that occurred on 28 May 2023.
Accordingly, I am satisfied that GBK has failed to discharge his onus of proving that he was the primary victim of an act of violence that occurred on 28 May 2023.

Order

I make the following order: 1. The decision under review is 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: 26 February 2024

: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) a) Crimes (Domestic and Personal Violence) Act 2007(NSW)

At a glance

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