GNY v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2024-10-25

Introduction

The applicant (GNY) has made a claim seeking a recognition payment under the victims of crime scheme. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (the V S and R Act).
In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant had previously established that she was the victim of violent crime and was entitled to a recognition payment. It was already established in the initial decision prior to the Tribunal that the evidence was sufficient to determine that GNY was the victim of an act of violence and was entitled to a recognition payment.
On Internal Review the same matters were established with the reviewer affirming the decision to award a recognition payment arsing from a sexual assault. The reviewer did not accept that the sexual assault was one where serious bodily injury was inflicted.
As set out in the application for Administrative Review, these proceedings concern whether the applicant in her claim has established that she was a victim of a violent crime (the statutory term being 'act of violence') in accordance with the Act, and is entitled to a recognition payment, specifically arising in circumstances where the applicant sustained serious bodily injury.

Summary of the claim:

Below is a summary of the violent conduct as set out in GNY's claim. Some details have been omitted to preserve GNY's anonymity consistent with the s 64 order. 1. Claim 00501974 (Victims Services) 1. 1 January 2008 GNY was sexually assaulted by a 17 year old male 'A', GNY was 15 years of age and was staying at a friend's residence and a group of males had come into the house to 'hang out'. GNY awoke to one of the males 'A' sexually assaulting her with vaginal penetration. 2. GNY claimed a psychological injury as a result of the sexual assault which was characterised in her claim as 'serious bodily injury'.
In order to understand the basis of the claim, the administrative review and the position of Victims Services it is necessary to briefly examine the legislation relevant to this claim.

Legislation

The Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an 'act of violence'. The relevant current provisions are set out in the following sections of the Act: 5 Meaning of "victim of crime" (1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence. (2) A person suffers harm if, as a result of such an act: (a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or (b) the person's property is deliberately taken, destroyed or damaged. (3) If the person dies as a result of the act concerned, a member of the person's immediate family is also a victim of crime for the purposes of this Part. (4) If a person dies as a result of the act concerned and there is more than one member of the person's immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights. …. 19 Meaning of "act of violence" (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) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because: (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner: (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other. (5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts. (6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given. (7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence. 20 Meaning of "primary victim" (1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act. (2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of: (a) trying to prevent another person from committing that act, or (b) trying to help or rescue another person against whom that act is being committed or has just been committed, or (c) trying to arrest another person who is committing, or who has just committed, that act. ….
The Act provides for a number of areas of support for victims of violent crime. This review concerns an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment. recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.
Prior to accessing a recognition payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an 'act of violence'. The section has been amended since the V S and R act commenced. The section currently provides: 39 Documentary evidence (1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form. (2) Without limiting subsection (1), the documentary evidence to be required: (a) for an application for financial assistance for immediate needs under section 26 - is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment - is: (i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant's claim to be a victim of an act of violence, and (ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence. (Emphasis added)
These pathways or preconditions under the Act which lead to a recognition payment are a threshold issue to an applicant accessing the benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.
Section 34 of the VS and R Act specify the types of recognition payments and particularises the factual circumstances of the act of violence (including injury) necessary to enliven particular category of recognition payment. The section provides: 34 Definitions In this Division - category of recognition payment means a category of recognition payment described in section 35. recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery. series of related acts has the same meaning as in section 19 (4). sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8). sexual touching or sexual act means sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years. 35 Categories of recognition payment (1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide. (2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds - (a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons, (b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts. (3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) a sexual assault other than one referred to in subsection (2) (b), (b) an attempted sexual assault resulting in serious bodily injury, (c) an assault resulting in grievous bodily harm, (d) physical assault of a child that is one of a series of related acts. (4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following - (a) sexual touching or sexual act, (b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b), (c) a robbery involving violence, (d) an assault (not resulting in grievous bodily harm). (Emphasis added)
GNY has already been assessed as eligible for a Category C recognition payment. The initial decision before the Assessor on 6 March 2024 determined a category C recognition payment on the basis that the evidence established on the balance of probabilities that GNY was the victim of a sexual assault. The Internal Review on 11 July 2024 reached the same conclusion having considered and discounted the serious bodily injury prong of the claim, that if successful would have entitled GNY to a Category B Recognition Payment.
On administrative review before the Tribunal GNY seeks to establish that she is eligible for a Category B Recognition payment on the basis of sustaining a serious bodily injury, in order to displace the current finding that GNY was the victim of a sexual assault that resulted in injury, but not serious bodily injury.
On the question of act of violence the Senior Assessor on review accepted and adopted the findings of the initial assessor and found that GNY as the victim of an act of violence.
On the question of injury and category of Recognition Payment the Senior Assessor on review set out the categories from the VS and R Act and explained the payment provisions for each. After considering those matters the Senior Assessor refers to the medical evidence being a Certificate of Injury (COI) and stated: 18. I have read the Certificate of Injury (COI) prepared by 'BK' social worker … dated 30 October 2023. Ms K does not indicate in the completed COI the date that (GNY) stated she suffered her injury. She details that she first saw (GNY) and examined her for the purposes of completing the COI on 17 April 2023. 19. (GNY) stated that she was sexually assaulted when she was 15 by 'A'. She disclosed she was living at her friend's residence and a group of young males came into the house to hang out. (GNY) woke to one of the males sexually assaulting her with vaginal penetration. 20. Ms K states that (GNY) was visibly impacted in giving her disclosure of the violence she experienced. 21. The COI indicates that (GNY) completed the DASS21 testing and the score indicated that (GNY) was suffering moderate depression and extremely severe levels of anxiety and stress. Ms K notes (GNY) reporting ongoing trauma symptoms such as triggers and flashbacks, regular nightmares and hyper-vigilance, elevated anxiety, avoidant behaviour, difficulty feeling safe around others and building trusting relationships. 22. A provisional diagnosis is made of (GNY) presenting with symptoms consistent with that of a Post Traumatic Stress Disorder (PTSD). 23. No other reports or other evidence has been provided by (GNY), attesting to the impact that the subject violence has had on her psychologically over the years. The violence the subject of the application took place in 2008 some 16 years ago. The COI of Ms K makes no reference to earlier treatments to any other clinicians or precisely how the violence experienced in this matter impacted (GNY)'s life, particularly from a day to day functioning perspective - either retrospectively at the time it took place and the years thereafter, or in more recent times. 24. … there is no other evidence provided that establishes chronic and long term formally assessed impacts on (GNY)'s functioning arising directly from the violence she experienced. There is also no formal diagnosis of a psychological or psychiatric disorder provided, only Ms K's assessment that the presenting symptoms are consistent with a PTSD. The content of the COI by itself is insufficient, in my view, to establish that the violence (GNY) experienced resulted in her suffering serious bodily injury. In stating this, I also note no evidence has been provided in addition to the COI attesting to any physical injuries (GNY) may have experienced that equate to 'serious bodily injury' being experienced.
On 7 August 2024 GNY filed an application for administrative review in the Tribunal. As GNY was notified of the decision on 11 July 2024 the application for administrative review has been received within time (on the 28th day after receiving notice of the decision) in the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil and Administrative Tribunal Rules 2014.

Jurisdiction

There is no dispute that the Tribunal has jurisdiction to hear the administrative review if validly lodged. Section 51 of the Act provides for administrative review by the Tribunal. 51 Application to Tribunal for administrative review of decision concerning recognition payment (1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker's decision with respect to the recognition payment. (2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
The Tribunal's powers in relation to an application for administrative review are governed by s 63 of 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.
The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The Hearing

The matter was initially listed with a related claim on 25 October 2024 for hearing. GNY appeared at that hearing (and a prior directions hearing) by AVL. On the related claim the parties were invited to consider making submissions on the evidence relating to s 35 (2) (a) of the VR and S Act and both matters were adjourned part heard to 20 December 2024.
The parties ultimately resolved the related matter and provided consent orders dealt with in chambers on 20 November 2024. Those orders include an order dispensing with a further hearing on this matter with the 20 December 2024 part heard hearing date to be vacated and the matter to be determine on the papers. I infer that in submitting such orders and with the making of those orders, the provisions of s 50 (2) of the NCAT Act have been satisfied.

GNY's evidence:

COI dated 17 April 2023
Section 58 Documents filed by respondent.

GNY also filed written submissions dated 19 September 2024.

Commissioner's evidence:

Documents filed pursuant to s 58 of the ADR Act 1997

The Commissioner also filed written submissions on 1 October 2024 annexing a COI.

The Commissioner's decision

The decision under review is summarised in detail at [16] above
On my assessment of the evidence the decision of the Commissioner should be upheld. My reasons are as follows.

Consideration of GNY's submissions

GNY submitted that the COI is sufficient to establish serious bodily injury. The submitted that the VR and S Act does not require multiple forms of medical evidence or a formal diagnosis or assessment in order to satisfy a decision maker of serious bodily injury. However the Act does require that there be evidence sufficient to establish on the balance of probabilities the relevant matter or issue.
The Tribunal in this instance in a merits review is the finder of fact, and is required to identify evidence to establish a particular matter. Makita v Sprowles [2005] NSWCA 305 sets out the proposition that the evidence in a report must be sufficient to satisfy the decision maker of the conclusions reached by the report writer. In my view the evidence of the COI does not sufficiently particularise and establish how the incident resulted in a finding of serious bodily injury.
At it's highest the report opines a possible diagnosis of PTSD, but does not sufficiently link that finding to the evidence by any analysis or reasoning. This is also particularly unhelpful when the claimant (GNY) has multiple stressors arising from different incidents which Ms K the Social Worker is considering in the preparation of the Certificates of Injury.
Reference is made to the case of Haoui v R [2008] NSWCCA 209 which is often cited in similar reviews before the Tribunal. At [137] Beazley JA states: 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"
The Tribunal notes that both parties relied upon Haoui in their reasoning and submissions.
GNY submitted that the COI establishes that she continues to suffer really serious psychological injuries as a direct result of the sexual violence she experienced when she was a child. This issue is not squarely in dispute, due to there being more than one sustained claim. Other submissions were made concerning the beneficial nature of the legislation.

Consideration of Commissioner's submissions

In written submissions the Commissioner referred to the lack of medical evidence supporting GNY's claim and that the evidence did not support a finding of 'serious bodily injury' as a direct result of the act of violence for the purposes of a category B Recognition payment.
The case of R v Donovan [1934] 2 KB 498 at 509 was also referred to by both parties and 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.
Whilst there is nothing in the legislation requiring that the impact of the sexual assaults be a diagnosed mental illness or disorder, the finder of fact must be satisfied that serious bodily injury has been inflicted as a direct result of the assault with evidence sufficient to support such a finding.
The Commissioner and GNY referred to the case of BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 187.
At [40] - [43] the Tribunal considered these terms relating to the level of injury when considering the former Act (the Victims Support and Rehabilitation Act 1996- repealed). The relevance of this analysis is because these terms are not referred to by way of any definition in the current Act. The Tribunal observed: 40. Other references in the old Act to the term 'serious' or 'seriously' coupled with the term 'injury' or 'injured' arise at section 24 (5) of the old Act. That section concerns the narrow exception to the ineligibility of convicted inmates to recover victims compensation irrespective of the type of assault inflicted upon them. The provision provides that (in such instances) the ineligible applicant only becomes eligible if the Tribunal Member determines that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned. (Emphasis added) 41. The Macquarie Dictionary (3rd Edition) relevantly defines serious as: 'of grave aspect' giving cause for apprehension; critical: a serious illness,' . The Australia Concise Oxford Dictionary (3rd Edition) relevantly defines serious as: 'not slight or negligible (a serious injury; a serious offence). 42. Having regard to the 16 years of cases dealing with victims compensation under the old Act, it is clear that the Category 3 sexual assault provisions were to deal with the most serious matters. Usually a category 3 award involving serious bodily injury, arises in an instance where an offender injures the victim in such a way so as to either disable the victim (long or medium term), or where the sole sexual assault or unlawful sexual intercourse, is accompanied by the most violent of assaults. The Category 3 provisions tend towards matters at the extreme end of the spectrum concerning an incident, or a prolonged abuse over many days, weeks months or years constituting a pattern. Other provisions recognise aggravating circumstances such as an assault in company, involving use of an offensive weapon etc. 43. I have considered the charges that the offender was breached with, the proof material associated with those charges in the criminal context, the lack of any medical evidence to establish the fracture and other claimed significant injuries, and the general meaning of the word 'serious', when considered in the context of the old Act. As a result I am not satisfied that the actions of the offender resulted in the infliction of serious bodily injury on BDJ during the course of the digital penetrations constituting unlawful sexual intercourse / sexual assault.
Reference was also made to the case of CRT v Commissioner of Victims Rights [2017] NSWCATAD 174. At [35] of CRT the Tribunal observed: 35. In the context of the current matter, to establish that she has suffered "serious bodily injury" as a result of the sexual assault, CRT must prove on the balance of probabilities that she suffered psychological or psychiatric harm that is more than trifling; is of grave aspect; and/or gives cause for apprehension.
In concluding the Commissioner relied on the case of Dobbie v Commissioner of Victims Rights [2018] NSWSC 1989 to establish that the current evidence is insufficient to establish a finding of serious bodily injury.
At [68] of Dobbie the Court observed: 68. Equally, fundamentally the delegate misdirected himself by treating the statutory phrase "a direct result" as requiring that the act of violence be the sole cause of the compensable injury. In Victims Compensation Fund Corporation v Ainsworth and Another (2001) 51 NSWLR 466; [2001] NSWCA 92 Mason P emphasised (at [30]): "[t]he Act speaks of "a" direct result, not "the" direct result." Mason P also said at [27]: "The particular statutory language must be kept in mind (here the requirement is proof of "a direct result"). A determination that the necessary causal link is present or absent will usually involve a question of fact, although the reasoning process may reveal an error of law in that the tribunal of fact misdirected itself as to the correct approach to the issue. (Emphasis added.) In my judgment that is what occurred here. The statutory language, "a direct result" is suggestive of a proximate, effective or dominant cause, but not the sole cause. In determining whether a compensable injury is a direct result of the relevant act of violence, indirect or more remote causes must be eschewed. But as I have said, the evidence here did not elevate those other stressors to the status of causes.

Consideration

As noted above, in my view, having regard to the evidence before the Tribunal, there is insufficient evidence to establish a finding of serious bodily injury based on the COI and the other evidence establishing the elements of act of violence under s 19 of the VR and S Act.
The COI established injury and refers to current and ongoing symptoms and the impact of the sexual assault. However I do not interpret that evidence to be sufficient to establish serious bodily injury. Whilst the legislation is beneficial consistent with the obiter of the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 54, there still must be evidence sufficient to make the findings sought or relied upon by a party.
In the current claim taking into consideration the totality of the evidence I find that that GNY is the victim of an act of violence and is entitled to recover a recognition payment, that is due to having been the victim of a sexual assault, being an assault which did not occur in company, involve an offensive weapon or result in serious bodily injury on the available evidence.
In addition I find that the evidence, when having regard to the cases referred to above is considered, that evidence is not sufficient, and such conclusions of the author are not sufficiently supported by the contends of the author's brief reporting to enable the decision maker or finder of fact to reach a similar conclusion to the one put forth by GNY. That being that GNY suffered serious bodily injury.
I note that no party sought to pursue the matter by way of continuing the part heard hearing and in that regard I infer that no complaint of any lack of procedural fairness would be forthcoming.
The narrow issue in dispute was clearly agreed by the parties and their helpful submissions focused on this issue. In such circumstances making the findings that I do, there is no scope of any complaint that GNY should have had a further opportunity to put on additional medial evidence.
In respect of the beneficial argument I agree with the Commissioner's submission concerning the case of FQE v Commissioner of Victims Rights [2023] NSWCATAD 62 at [33]: 33. The Tribunal noted that while the Act is generally considered beneficial legislation, this does not mean that the Tribunal can make findings of fact without supporting evidence and that in this matter, there is no dispute regarding statutory interpretation.
Because of the above finding the decision of the Commissioner of Victims Rights delegate will be affirmed following administrative review.
In making this decision I have not considered the impact of any other stressors on GNY. The reason being that those matters are established or discounted separately on other evidence.

Conclusion

For the reasons outlined above, the decision of the respondent will be affirmed and the application dismissed.
The Tribunal makes the following orders:

Orders 1. The decision of the respondent of 11 July 2024 is affirmed. 2. The application is otherwise dismissed.

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: 15 January 2025

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (10)