HDW v Commissioner of Victims Rights [2026] NSWCATAD 106;

"My home was burglarized while I was away. The intruders cut the power and attempted to disable my security cameras before breaking a window to gain entry. They stole my Rolex Submariner Date Two-Tone, valued at approximately $22,000 - $25,000. I arrived home just six minutes later, nearly confronting them before they fled."

1. The applicant alleged that he suffered a psychological injury as a result of the act of violence.

1. On 12 April 2025, an Assessor (Client Claims) issued a Notice of Decision that dismissed the application on the basis that the Assessor was not satisfied that the available evidence supported a finding that the applicant was a primary victim of an act of violence that took the form of a personal violence offence. The Assessor noted that the incident concerned a home invasion that occurred when the applicant was not present on the premises.
2. I note that a copy of the decision was emailed to the applicant under cover of a letter from the respondent dated 17 April 2025. I am therefore satisfied that the decision was served as required by the Act.

1. On 28 April 2025, the applicant applied for an internal review of the decision and he lodged further submissions in support of that application.
2. The applicant asserted that there were subsequent developments that materially impacted the psychological consequences of the incident. He stated, relevantly:

"However, the offenders' actions - forcibly breaching my residence, disabling security infrastructure, and fleeing upon my arrival - demonstrate violent conduct directed against my personal security environment.

Such conduct, occurring within an occupied dwelling during imminent re-entry conditions, constitutes a threat environment comparable to an imminent physical assault, consistent with prevailing victim recognition standards.

This situation aligns with discretionary provisions recognised in victim impact evaluations, where immediate threats within a residential environment are deemed sufficient to satisfy the violent conduct criteria, irrespective of physical contact."

1. The applicant also argued that in the weeks following the original incident, local residents raised concerns based on rumours of a fatal altercation involving intruders in a nearby street (details provided). She stated that: (1) No official notification, public reassurance, or clarification was issued by NSW Police regarding these developments; (2) The structural silence regarding escalating local violence compounded the psychological impact of the original incident, sustained and intensifying acute stress reactions initially diagnosed by my physician; and (3) This ongoing environmental uncertainty directly exacerbated the original harm, necessitating full consideration under dynamic injury evaluation standards.
2. The applicant argued to the effect that the decision should be set aside and that the respondent determine that he was the primary victim of an act of violence as a result of the incident alleged in the application.
3. On 10 June 2025, a Senior Assessor issued a Notice of Review decision and dismissed the application for a recognition payment on the basis that there was insufficient evidence to establish that the applicant was a primary victim of an act of violence. The Senior Assessor determined that the act of violence was a property offence and that there was no element of personal violence involved.
4. I note that a copy of the decision was emailed to the applicant under cover of a letter from the respondent dated 10 June 2025. I am therefore satisfied that the decision was served as required by the Act.

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.

1. On 16 July 2025, the Tribunal received the current application for administrative review, in which the applicant alleged that:

(1) Victims Services misapplied s 19 of the Act by requiring physical force.

(2) The Act includes psychological injury (the Act, s 18) and defines an act of violence as violent conduct during an offence that causes such injury. Under section 18, psychological injury is expressly included within the statutory definition of injury. This threshold is met.

(3) Victim Services initially recognised the incident as an act of violence but reversed position without legal basis or new evidence.

(4) Medical confirmation of injury was provided. Further materials to be submitted at hearing.

1. The matter came before me for directions on 15 August 2025, when the applicant was self-represented and Ms P Srikanth, Victims Services, appeared for the respondent. The applicant stated that he had video evidence that he had not submitted to the respondent for consideration. The Tribunal made a non-publication order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and it ordered the applicant to provide the respondent with the video evidence by 29 August 2025. I remitted the matter to the respondent for re-consideration under s 65(1) of the ADR Act and ordered the respondent to notify the applicant and the Tribunal by 26 September 2025, whether the decision under review was affirmed, varied or set aside and replaced by a new decision. I listed the matter for further directions on 10 October 2025.

1. I note that on 9 September 2025, a Senior Assessor completed an internal review upon remittal and issued a Notice of Decision, which determined that the further evidence did not establish on the balance of probabilities that the applicant was a primary victim of an act of violence. Therefore, the application for victims support was dismissed. The Senior Assessor stated, relevantly:

"14. On this date, at approximately 1:30am, (the applicant) was alerted on his phone to someone at his residence. Using a mobile phone application for his security system, he learned that there was a break-in primarily as a result of a security camera motion sensor being triggered. (the applicant) returned to his residence several moments later and two unidentified offenders were described as running from the back door of the residence, as seen on video footage. (The applicant) states that a backpack and Rolex watch were taken from his residence during this incident. Police were contacted shortly after.

15. It does not appear that any persons have been identified, arrested or charged with any criminal offences as a result of the violence described in the police event...

...

22. I am unable to establish that (the applicant) was a victim of an act of violence which has met all of the required elements discussed in paragraph 19 above, it is clear tat he was a victim of criminal offence that occurred at his residence and involved items being taken, most specifically an expenses watch when he was not present.

23. It is also clear that this incident resulted in (the applicant) experiencing a range of related psychological symptoms and was further fearful of his personal safety. Whilst it is reasonable for (the applicant) to experience these symptoms and for him to fear future violence, the incident that occurred does not have an element of personal violence towards him.

24. Examples of personal violence include an assault, direct physical intimidation and stalking. All of these types of violence are displayed by one person (an offender) towards another person. A crime that involves a residence being burgled and items taken without persons present is not considered to be violence from one person to another.

25. The video footage recently provided by (the applicant) does not identify that he comes into contact with the offenders as viewed in the footage however it seems clear that he arrived at his residence only moments later.

26. To confirm, an act of violence has not been established in relation to this application as there is no evidence of violent conduct towards (the applicant's) person perpetrated by another. Given that all of the elements required to satisfy the definition of an 'act of violence' as required under section 19 and 20 of the Act have not been met, the application for victims support is dismissed."

1. I note that a copy of the decision was emailed to the applicant under cover of a letter from the respondent dated 9 September 2025. I am therefore satisfied that the decision was served as required by the Act and the Tribunal's orders.

1. The matter came before me for directions again on 10 October 2025. The applicant stated that he had lodged a USB stick containing his CCTV evidence with the Tribunal. I ordered him to file and serve any material on which he relied by 24 October 2025 and I ordered the respondent to file and serve updated s 58 documents by 7 November 2025 and to file and serve a summary of legal arguments by 21 November 2025. I listed the matter for hearing on 6 February 2026.

1. The matter came before me for hearing on 6 February 2026. The applicant was self-represented and appeared by AVL with the assistance of a Mandarin Interpreter. Ms Srikanth appeared for the respondent.

1. The applicant argued that the respondent had applied a very narrow interpretation of s 19 of the Act in finding that his psychological injury did not result from personal violence. He asserted that the CCTV footage shows that the offender fled the house after he got there, but he did not know this at the time. He said that he believed that the threat to his safety was real and that he consulted his GP in March 2025. He was not referred to a psychologist and his GP did not prescribe any medication for his psychological symptoms. However, he told the Tribunal that he had purchased unspecified tablets "for stress." He asserted that he was awaiting approval from Victims Services to see a counsellor.

1. The respondent filed a summary of legal arguments on 24 November 2025, and Ms Srikanth relied upon them at the hearing.
2. In relation to the alleged act of violence, the respondent noted that the incident on 17 February 2025 was reported to NSW Police and recorded in an Event record. This indicates that at about 1:31am, the applicant received a notification from a security camera installed in his house that the motion sensors had been activated. On checking the footage, the applicant saw two unknown persons entering his house. At 1:42am, he returned home, and the two persons of interest ran out the rear door of his house. The respondent argued, relevantly:

"21. Police and CCTV records establish the applicant never interacted with the offenders during the events of 17 February 2025. There is no suggestion the offenders assaulted or threatened the applicant, or that they intended to intimidate him by their actions. This is confirmed by the applicant's own submissions, in which he concedes he did not personally encounter the offenders during the incident.

22. As there is no evidence of an offence involving violent conduct being perpetrated against the applicant to cause his injury, the respondent respectfully submits that section 19(1)(b) of the Act is not satisfied. Therefore, an act of violence cannot be established and the applicant odes not satisfy the definition of a primary victim under the Act. Victims Support therefore cannot be approved."

1. The decision under review is that made on remittal dated 9 September 2025.
2. Section 19(1) of the Act defines "act of violence" as follows:

(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.

1. Section 20(1) of the Act defines "primary victim" as follows:

A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act.

1. Section 18 of the Act defines injury as "actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property."
2. The applicant bears the onus of proving, on the balance of probabilities, that he was the primary victim of an act of violence. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen) the Court of Appeal (McDougall J, Bell & McColl JJA agreeing) stated, relevantly at [44]-[48]:

Discharge of the burden of proof: the relevant principles

"44 A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

45 Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 - 162, and Mason J (with whom Brennan J agreed) in the same case at 168.

46 It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.

47 In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

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."

1. I am bound by the Court of Appeal's decision in Nguyen and for the applicant to succeed in his current application, I must feel a sense of actual persuasion that the incident alleged in the application for victims support involved violent conduct against the applicant.
2. In this matter, there is no evidence that supports a finding that there was any physical confrontation/contact between the applicant and the offenders and it is apparent from the CCTV footage that the offenders fled from the rear of the applicant's home when he arrived at the premises.
3. While the applicant argues that psychological injury is expressly included as an injury by s 18 of the Act, and that the respondent has erred by applying an interpretation of s 19 of the Act that is too narrow, the fact remains that there is no evidence before me that establishes that the act of violence involved violent conduct against the applicant.
4. Therefore, I am satisfied that s 19(1)(b) of the Act has not been satisfied, and as the applicant's injury resulted from loss or damage to property, he is not entitled to recover victims support in relation to the incident on 17 February 2025.
5. Accordingly, I am satisfied that the correct and preferable decision is to affirm the decision dated 9 September 2025.

(1) The decision dated 9 September 2025 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.