GNI v Commissioner of Victims Rights

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 22 July 2024, the Tribunal received the current application for administrative review, which sought a review of the decision dated 8 July 2024, on the basis that she submitted medical evidence relating to her claims to the respondent.
3. On 16 August 2024, Senior Member McAteer conducted a directions hearing at which GNI's Mother appeared as her agent and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member made an order under s 64(1) of the Civil and Administrative Decisions Act 2013 (NSW) (the NCAT Act), prohibiting the broadcast of GNI's name, including a reference to any information, picture or other material that identifies her or is likely to lead to her identification. He ordered the respondent to file and serve documents under s 58 of the ADR Act by 23 August 2024 and he ordered GNI to file and serve any further evidence by 4 October 2024. He listed the matter for further directions on 11 October 2024 and made the following notation: The parties agree that note that the senior assessor found that claim 510488 was part of a series of related acts of violence encapsulated in claim number 496736. Whilst it would be open to the applicant to appeal that finding by way of administrative review to the Tribunal on claim 510488 they do not seek to overturn that decision. What this review is about concerns the finding of a category D level of injury for the series of related acts on claim 496736. The applicant believes that a category C injury is appropriate in the circumstances, and whilst they have put on ambulance records before the Tribunal, they will consider further evidence to be reviewed on the next occasion with a view to then fixing the matter for hearing later in 2024.
4. I conducted a further directions hearing on 11 October 2024, at which GNI appeared in person and Ms Douch appeared for the respondent. I ordered the applicant to file and serve any further evidence by 25 October 2024 and ordered the respondent to file and serve a summary of legal arguments by 1 November 2024. I listed the matter for hearing by way of audio-visual link on 8 November 2024.

The hearing

1. At the hearing, GNI appeared by way of audiovisual link, with support from her Mother, and Ms Douch appeared in person.

Further evidence from GNI

1. When the matter commenced, the Tribunal exercised its inquisitorial powers with a view to obtaining further information from GNI. She told the Tribunal that she had received counselling through Victims Services, but that she did not require treatment for her physical injuries. She also told the Tribunal that because the perpetrator was her Father, she felt that he did not want her and that he did not love her as his daughter. This triggered periods of self-harm, because she felt that she could not talk to anyone else about the issues that she was suffering because that could cause further problems for the perpetrator.
2. As a result of the psychological trauma that she suffered as a result of the acts of violence, she was reluctant to go to High School and she dropped out. She could not bear to be around people that she did not know because that caused her to suffer anxiety. She stated that she finds it difficult to trust anyone and that her self-confidence is virtually non-existent.
3. However, GNI stated that she does not require any medication and that she has begun job-seeking.

Respondent's summary of legal arguments

1. The respondent filed a summary of legal arguments, which argued to the effect that the correct and preferable decision is to affirm the decision under review.
2. In support of that argument, the respondent relied upon the decision in Haoui v Regina [2008] NSWCCA 209, in which Justice Beasley (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".
3. Further, in BMF v Commissioner of Victims Rights [2020] NSWCATAD 97, the Tribunal stated: 71. The case of R v Donovan [1934] 2 KB 498 at 509 provides authority for the proposition that actual bodily harm means "any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.
4. The threshold for actual bodily harm in respect of a psychological injury was considered by the Court of Criminal Appeal in Shu Qiang Li v R [2005] NSWCCA 442 at [45]: 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.
5. The respondent also referred to the following decisions of the Tribunal:

BXB v Commissioner of Victims Rights [2015] NSWCATAD 173

1. In this matter, there was evidence that the applicant was undergoing counselling and treatment by way of prescription medicine. However, despite noting that the impacts of the acts of violence were quite devastating, the Tribunal did not find that the applicant had suffered grievous bodily harm given the absence of a report from either a clinical psychologist or a psychiatrist, which established a serious psychological or psychiatric condition that arose as a direct result of the act of violence and had a debilitating and serious long-term impact on the applicant.

EMT v Commissioner of Victims Rights [2021] NSWCATAD 39

1. In this matter, the treating general practitioner opined that the applicant had suffered Post-traumatic Stress Disorder and prescribed medication for anxiety. However, neither the treating 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. The tribunal was also not satisfied that the psychological injury could properly be considered as a really serious injury and a category D recognition payment was approved for the applicant.
2. The respondent also referred to three other decisions in which the Tribunal declined to find that the applicant suffered grievous bodily harm as a result of the act of violence.

Ex-tempore decision

1. At the completion of the hearing on 8 November 2024, I delivered an ex-tempore decision and stated that I would publish written reasons for my decision within 28 days. These are my written reasons.

Written reasons for decision

1. I am satisfied on the evidence before me that each of the decisions that the respondent relies upon in support of its argument that the act of violence caused actual bodily harm, were decisions that turned on the facts of each matter and the evidence that was available to the Tribunal at the time that the administrative review application was determined.
2. In this matter, unlike the Senior Assessor, I had the advantage of hearing directly from GNI and observing her demeanour as she gave further evidence by way of audio-visual link. I was impressed by her candour and bravery in agreeing to share the details of the acts of violence, which were perpetrated on her by her Father, and the impacts that these had on her life, health and well-being.
3. Based upon this further evidence, I was satisfied that the act of violence caused the applicant to suffer a psychological injury that was really serious in nature and the effects of which are continuing after a significant passage of time.
4. As a result, I am satisfied that she was the primary victim of a series of assaults, which were physical and psychological in nature, during the period from 1 January 2018 until 1 May 2023.
5. I am further satisfied that these acts of violence are a series of related acts for the purposes of s 19(4) of the Act.
6. I therefore find that GNI suffered grievous bodily harm as a result of the assaults and that she is eligible for a category C recognition payment in the sum of $5,000.

Orders:

1. I make the following orders: 1. The decision under review is set aside and I make the following decision by way of substitution. 2. The applicant is the primary victim of an act of violence, being a series of related acts; and 3. A category c recognition payment is approved in the sum of $5,000.

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: 29 November 2024