GFF v Commissioner of Victims Rights

Internal review

1. On 20 October 2023, GFF applied for an internal review of the Assessor's decision on the following grounds: Explanation for disagree with the decision of Notice of Decision on 23/8/2023 1. This explanation is for (GFF)'s application of (number provided) of victims support of recognition payment only. 2. The application (number provided) of victim support of recognition payment's victim services claims number is (number provided). 3. The victims services claim number (number provided) is for a single incident that occurred on 25/2/2022. The defendant is a male and lives in (address provided). 4. The application of (number provided) for victim support of recognition payment is not related with application number (number provided). 5. There are total 28 points in the "Summary of the Decision" of the "Notice of Decision" on 22/8/2023 to express the decision. The points of number 8, 12, 13, 14, 15, 17, 18, 22, 23, 24 & 26 are mixed with the application of (matter no.) and (matter no.). 6. I have already reported the claim number (number provided) to the police on 24/8/2023, the event number is (number provided). 7. I have attached the Certificate of Injury form within this Application for an internal review. That was the support document from the victims services approved counsellor. 8. I am still getting help from the victims services counselling service. Thus, I am eligible for victims support of recognition payment.
2. On 27 November 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 GFF was the primary victim of an act of violence. The application for victims support was therefore dismissed.
3. The Senior Assessor stated, relevantly: Reports to police and court outcomes 14. I have reviewed the information available on the NSW police database in relation to this matter and note that there is a relevant police event for an incident dated 25 February 2022… 15. In relation to this police event, (GFF) reported to Police in recent months (in 2023) that there had been the earlier incident in February 2022. It was described that the alleged offender, a neighbour of (GFF) had kicked a door open and almost struck her to the face as a result. 16. Police asked (GFF) why it had taken her such a length of time to report the incident given that there had been a history of violence from the same offender reported as incidents occurred. When this was put to (GFF), she indicated that the sole reason for reporting this incident was for the purposes of a victims support claim and requiring a police event number in order to make a successful claim. As a result, police did not dem further action was required… Is there an act of violence for the purposes of section 19 and 20 of the Act? 20. I am unable to establish that (GFF) was a victim of a single incident of violence that was perpetrated by her neighbour as stated. There are two pieces of evidence, a police report made more than twelve months after the incident occurred and was only made for the purposes of obtaining evidence to support this claim. I cannot be clear about the validity of the allegations made as part of the police report. 21. I also note that (GFF) has experienced violence from the named offender previously and has a related claim for victims support in which it was established that she sustained a related psychological injury. Whilst it is plausible that several incidents of violence or patters of violence may all contribute to the experience of poor mental health and psychological symptoms being experienced, given that am unclear about the nature of any violent conduct, I cannot establish injury. 22. The available evidence also discusses an incident in which the alleged offender tried to open a door and almost struck (GFF) to the face. There is very little further context provided regarding both parties actions before and after and also no information to indicate that the alleged offender was reckless or purposeful in engaging in violent conduct towards (GFF) or alternatively that she was intimidated by his actions. 23. To confirm the available evidence does not satisfy all of the required elements to meet the definition of an act of violence as required under section 19 and 20 of the Act. On this basis, the claim for victims support is dismissed.
4. I note that a copy of the notice of review decision was emailed to GFF on 28 November 2023. I am therefore satisfied that the decision was served as required by the Act.

Application for administrative review

1. 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.
2. On 1 February 2024, the Tribunal received the current application for administrative review, which sought a review of the Senior Assessor's decision dated 27 November 2023, but it did not provide any grounds of review.
3. The application also indicated that it was lodged out of time.

Procedural matters

1. The matter came before me for directions on 16 February 2024. GFF appeared in person and was assisted by a Cantonese interpreter. Ms K Douch, Victims Services, appeared for the respondent. The made an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting the publication information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.
2. Tribunal noted that no grounds of review were indicated in the application and asked GFF is she wished to rely upon any additional evidence. GFF was unable to answer that question and the matter was adjourned for a further directions hearing on 16 March 2024.
3. At the directions hearing on 15 March 2024, GFF again appeared in person and was assisted by a Cantonese interpreter. Ms Douch again appeared for the respondent. I noted that the respondent had filed documents under s 58 of the ADR Act. I ordered GFF to file and serve any evidence that she relied upon by 22 March 2024. I ordered the respondent to file and serve a summary of legal arguments by 5 April 2024 and I listed the matter for hearing on 12 April 2024, by way of AVL.

The hearing

1. I conducted a hearing on 5 April 2024, at which the applicant appeared in person and she was assisted by a Cantonese interpreter. Ms Douch appeared for the respondent.
2. I noted that the applicant had filed a bundle of documents on 22 March 2024. These largely comprised documents that were previously lodged with the respondent, although in an unsigned and undated statement (on page 3) she asserted that she had reported the alleged act of violence to police because she did not believe that the alleged offender's actions were reckless.

Questions posed by the Tribunal and the applicant's submissions

1. The Tribunal considered it necessary to seek clarification of the alleged act of violence from the applicant, given the lack of detail provided previously, In response to questioning by the Tribunal, GFF stated that the security door was made of timber and there were no glass insert panels in it. I asked GFF about the following matters: Tribunal: If someone was leaving the building, how would they know that someone was trying to come into it? GFF: He could not see but he would have heard my keys jingle. Tribunal: Based on the description in the application, the alleged offender was coming out and you were waiting to come in. How could he see you before he opened the door? GFF: He could not, but why would he kick the door? Tribunal: Unless the alleged offender acted with an intention to harm you by allegedly kicking the door, it is not an act of violence. GFF: Well he saw me after the door opened and before this incident, the person made behaviour that concerned me. I felt it was an assault and that is why I reported it. Tribunal: I note that the application for victims support was for a single incident and unless there is evidence of intention to harm you by allegedly kicking the door, it is not violent conduct. GFF: I think he had intention. Tribunal: He may have had intention to kick the door, but this does not prove that he kicked it with the intention of causing you harm.
2. GFF did not respond to the Tribunal's comment and, when pressed, she stated that she had nothing to say.

Respondent's submissions

1. The respondent filed written submissions on 8 April 2024.
2. The respondent referred to the Police report and the available evidence and argued that it was not clear that the applicant was the victim of an offence involving violent conduct. The alleged offender did not make contact with the applicant and there was insufficient evidence to suggest that he acted with the intention of causing her to fear physical or mental harm.
3. The respondent referred to the Tribunal's decision in GBK v Commissioner of Victims Rights [2024] NSWCATAD 51 at [37] - [38] as follows: 37. 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. 38. 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.
4. The respondent stated that in relation to violent conduct, it was not apparent that the alleged offender used rough or destructive force against the applicant or a menace or threat to cause personal intimidation or fear of being subjected to force. While "violent conduct" is not defined in the Act, the Macquarie Dictionary provides the following definitions: 1. Violent - i. acting with or characterised by uncontrolled, strong, rough force; ii. Acting with, characterised by, or due to injurious or destructive force; iii. Intense in force, effect, etc. 2. Conduct - i. personal behaviour; way of acting; deportment; ii. Direction or management; execution; iii. The act of conducting; guidance; escort.
5. On that basis, the ordinary meaning of violent conduct can be construed as actions using rough or destructive force against a person.
6. In R v Butcher 919860 VR 43, the Supreme Court of Victoria considered what constitutes violence and stated, relevantly: However, if actual force is not used, then the menace or threat must either be such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion, if force is used there can be no debate but that this is actual violence. If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is constructive violence, as Wilks J said in Donnally's case. But both putting a person in fear or seeking to put a person in fear of being "subjected to force" have always been accepted under the common law as violence, sufficient to render a contemporaneous larceny a robbery.
7. The respondent also referred to the decision in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), in which 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.
8. The respondent concluded that an act of violence was not established on the balance of probabilities and that the correct and preferable decision is to affirm the decision under review.

Consideration

1. 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.
2. "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…
3. The onus is on GFF to prove her allegation of assault on the balance of probabilities.
4. I have applied the decision in Nguyen to the available evidence. Based upon that evidence, I am satisfied that GFF believes that she was the victim of violent conduct by the alleged offender, when he allegedly kicked the external security door of the unit block open whilst she was waiting to enter the building on 25 June 2022.
5. However, her belief as to the alleged offender's intentions is not sufficient to establish an act of violence and there must be evidence of an intention to commit an offence by the alleged offender.
6. In this matter, the available evidence indicates that the external security door was made of solid wood and GFF conceded that the alleged offender could not have seen her standing outside the door before he opened it, I am not satisfied that GFF has discharged her onus of proving that she was the victim of violent conduct.
7. 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 GFF was the primary victim of an act of violence in the nature of an assault that occurred on 25 February 2022.

Order

1. Accordingly, I make the following order: 1. The decision under review is affirmed.

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            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar 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: 03 May 2024