Ms Britbart of counsel instructed by the Victorian Government Solicitor

Note: These written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing including anonymising identifying information. They have been provided at the request of the Victorian Government Solicitor's Office

1 GH, your application for compensation under the Victims of Crime Assistance Act 1996 (the Act) refers to a sexual assault that you say occurred in April 2005.

2 To be eligible for compensation under the Act, you have got to satisfy me on the balance of probabilities according to s 31 of the Act that you are a "primary victim" as defined by the Act -

a primary victim of an act of violence is a person who is injured or dies as a direct result of an act of violence committed against him or her.

3 "Act of violence" is defined in s 3 of the Act to mean :

a criminal act or a series of related criminal acts, whether committed by one or more persons, that has -

(b) directly resulted in injury or death to one or more persons, irrespective of where the injury or death occurs;

an act or omission constituting a relevant offence or that would constitute a relevant offence if the person had not been incapable of being criminally responsible for it .....

5 "Relevant offence" is defined relevantly to mean :

(a) an offence, punishable on conviction by imprisonment, that involves an assault on, or injury or a threat of injury to, a person;

(b) an offence against Subdivision (8A), (8B), (8C), (8D) or (8E) of Division 1 of Part I of the Crimes Act 1958 or any corresponding previous enactment (sexual offences) or an offence at common law of rape or assault with intent to rape;

6 At the hearing you gave evidence and a number of statements you made were tendered in evidence (Exhibit A). You were cross-examined. Also tendered were letters (Exhibits C, D & E) from the Centre Against Sexual Assault; a Regional Victims Assistance And Counselling Program; and a Regional Health Service, respectively.

7 The respondent called a Senior Constable to give evidence. She had prepared a statement. Tendered with that was an earlier report prepared for the VOCAT together with the notes she had made when you saw her on 9 May 2005 (Exhibit 4).

8 I understand that you now believe you did not consent on the night concerned, that you believe you were not in a fit state to consent and that you think you were drugged and raped, have been stalked and were entrapped, and you now believe you were raped.

9 Whilst you think and believe those things, I have to be satisfied on the balance of probabilities that you were the victim of a relevant criminal act.

10 Looking closely at all the material before me and having heard your evidence today, having observed you giving that evidence today and having considered all the material before me and in particular the evidence of the Senior Constable, I am not satisfied that the evidence could support any finding of any assault or rape. I agree with Ms Britbart's submissions that your more recent statements are your own reconstruction of what you think happened. I am not satisfied that they reflect sufficiently accurately the events as they occurred.

11 Whilst you might believe today that you are the victim of a rape, the more contemporaneous material does not support such an allegation. In all the circumstances, I prefer the more contemporaneous evidence to what you might be saying now.

12 The document closest to the alleged incident is part of Exhibit 1. You visited the Emergency Department on 28 April 2005. The Triage notes say:

Today at 1pm states has had central chest pain with left arm sensation. Unable to take breath at the time also. Now pain not there. Also states has vaginal pain following intense sex several days ago.

13 There is no reference to any rape or assault in those notes and, as I understand it, a diagnosis of gastritis was made.

14 On 3 May 2005 you attended the Regional Health Service. The report says:

She complained of low back pain, pelvic discomfort and general anxiety which she alleged was due to having been sexually assaulted.

She had, prior to attending surgery, presented to the Emergency Department of the Hospital and had been examined there. To the best of my knowledge, no forensic evidence was taken as the alleged event had occurred several days prior to presentation.

Since the alleged assault, GH asserts that she has been verbally harassed by associates of the alleged perpetrator.

GH has requested this report in order to establish that she did, in fact, attend to report these incidents but did not wish to press charges against the person concerned.

15 It is in that letter that the earliest claim of any assault is made. However, the report of assault is at odds with what is recorded in the Hospital notes.

16 On 9 May 2005, you attended the Senior Constable. Her evidence was clear and I accepted it. Her notes reflect mention on that day of a number of matters. Amongst a range of other things, there was mention of the alleged incident. In relation to that, her evidence was that you were reporting you had consensual sex with him, and that prior to it, you had smoked marijuana. Her evidence also was that you had just wanted to talk about what had happened; that at no time did you make a formal complaint regarding sexual assault and that, as far as she understood it, there was no issue to be followed up. Her evidence also touched upon the extensive history of contact with GH over a number of years.

17 Finally, there is the letter from the counselling service (Exhibit D). That says their file note indicates that on 13 May 2005, there was discussion about the incident and confusion on your part about whether it was rape or not.

18 In all the circumstances, I cannot be satisfied that you are a victim of a criminal act as defined and entitled to any compensation.

19 I therefore affirm the decision of the respondent.