Lin v Commissioner of Victim Rights

NCAT Appeal Panel|2023-11-03

Introduction

The Appellant brought an application for administrative review in respect of an order or determination for restitution under s 66 of the Victims Rights and Support Act 2013 (NSW) (the Victims Rights Act). Part 5 of the Victims Rights Act allows the amount paid by the State to a victim to be recovered from a person found guilty of the crimes giving rise to the payments.
The application to the Tribunal arose from an order made by the Respondent for the Appellant to pay $5,000 by way of restitution. On 7 March 2023, the Appellant filed a Notice of Objection to that order. On 9 June 2023, the Respondent dealt with the objection and affirmed the order to pay restitution.
On 4 August 2023, the Tribunal confirmed the provisional order for restitution and provided oral reasons. The Appellant appeals from this decision and seeks to have the restitution order set aside.
For the reasons which follow we have decided to dismiss the appeal.

Background

The Victims Rights Support Act gives the Respondent power to make an order against a person for payment of restitution if the Commissioner is of the opinion that a person has been convicted of a 'relevant offence': see ss 59 and 60 of the Victims Rights Act. A relevant offence is an offence for and in respect of which victims support has been given: see s 58 of the Victims Rights Act.

The Notice of Appeal

Decisions of the Tribunal, such as the decision before us, are internally appealable decisions and appeals are made as of right where there is a question of law, and, otherwise, with the leave of the Appeal Panel: see s 80(1) and (2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13], the Appeal Panel set out a non-exhaustive list of questions of law.
In respect of the grounds of appeal, we note that the Appellant is self-represented, and we assume she drafted her own grounds of appeal. These grounds of appeal consist of four paragraphs. The essence of the grounds of appeal can be described as follows: 1. The proceedings which led to the Appellant's conviction (the Conviction Proceedings) are civil proceedings and not criminal proceedings; and 2. Section 59(2)(b) of the Victims Rights Act applies such as to preclude an order for restitution being made against the Appellant.
Section 59(2)(b) of the Victims Rights Act is as follows: An order may not be made against a person if - … (b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.
The Appellant put the same argument to the Tribunal below. The Tribunal held that the Conviction Proceedings were criminal proceedings and rejected the Appellant's contention.

The Conviction Proceedings are not criminal proceedings

The Appellant referred to s 3 of the Civil Procedure Act 2005 (NSW) which relevantly provides as follows:

3 Definitions (1) In this Act-- "civil proceedings" means any proceedings other than criminal proceedings. "criminal proceedings" means proceedings against a person for an offence (whether summary or indictable), and includes the following - (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence.

The Appellant contended that the Conviction Proceedings were not criminal proceedings within the definition above because they did not fall within any of the subparagraphs (a) - (d) as they were neither committal proceedings, proceedings relating to bail, proceedings relating to sentence or proceedings on an appeal against conviction or sentence.
The Appellant submitted that the Tribunal erred in rejecting this submission and holding that the words 'and includes' and following in the definition were by way of clarification and not an exhaustive definition.
The Tribunal found that the Conviction Proceedings were criminal proceedings because they were 'proceedings against a person for an offence (whether summary or indictable)' within the meaning of the definition.
The Appellant submitted that the Tribunal was wrong in this regard and that the descriptions given in paragraphs (a) - (d) are not additional definitions by way of clarification, they are the only relevant criminal proceedings.
The Appellant then referred to the Australian Law Reform Commission Report 114 and the summarised differences between civil and criminal proceedings as follows. In civil proceedings, the purpose is to protect the victim but in criminal proceedings it is to punish offenders. In civil proceedings, the outcome is to place conditions or restrictions on persons against whom orders are made, while the outcome of criminal proceedings is focused on a finding of guilt and conviction and the offender is sentenced.
Turning then to the Conviction Proceedings, the Appellant referred to the orders made. Following conviction, the Appellant was given a two-year good behaviour bond. In addition, the Court proceeded on an interim basis to issue a 12-month apprehended violence order.
Based upon these outcomes of the Conviction Proceedings the Appellant contended that the analysis provided by the Australian Law Reform Commission establishes that the Conviction Proceedings were not criminal proceedings as the proceedings did not lead to a sentence but a good behaviour bond.
Further, as we understand the submissions, the apprehended violence order was in the nature of preventing future conduct rather than a sentence based on past criminal conduct.

Section 59(2)(b) of the Victims Rights Act applies

The Appellant contended that the Conviction Proceedings at the Hornsby Local Court were civil proceedings which had been commenced against her by and on behalf of the State arising from substantially the same facts as those on which the relevant approval for victims support was based and that they were also in respect of an action for damages. Accordingly, the Appellant submitted that s 59(2)(b) of the Victims Rights Act applied to preclude the making of an order for restitution against her.
The Appellant submitted that the existence of s 59(2)(b) of the Victims Rights Act indicates that 'a violence/criminal matter is most likely dealt with in civil proceedings in court.'
In submissions in reply to the Respondent's Reply to Appeal, the Appellant submitted that her contention based upon s 59(2)(b) was not examined by the Tribunal below. The Appellant's submission that the Conviction Proceedings were an action for damages was as follows: 'however, [the Conviction Proceedings] are the proceedings of an action of the bodily harm in [the victim]. Court had examined all the evidence presented by Police and Appellant and balanced all aspects of fact and made a decision. The victims support … receipt was approved for same facts as they apply by Police that had been assessed in 2017/00106961 [the Conviction Proceedings] in court. Therefore, they are proceedings commenced / maintained by the State in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was placed.'

Consideration

Our understanding of the Appellant's grounds of appeal is that the Tribunal was wrong to confirm the provisional order for restitution because s 59(2)(b) of the Victims Rights Act applies. For that provision to apply, a defined type of "civil proceedings" must have been commenced against the Appellant. Framed in that way, the Notice of Appeal and grounds of appeal raise a question of law. That question is whether the facts as found come within the meaning of "civil proceedings" in s 59(2)(b) of the Victims Rights Act: Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24].
The question is not whether the Conviction Proceedings are criminal proceedings, but whether they are "civil proceedings" within the meaning of that term in s 59(2)(b).
In our view, the Conviction Proceedings were not "civil proceedings" within the meaning of that term in s 59(2)(b) of the Victims Rights Act. The proceedings against the Appellant were criminal proceedings for the offence of assault occasioning actual bodily harm. Those proceedings were summary proceedings because they were heard by a Magistrate sitting alone.
Although it is not relevant to the issue in dispute, we agree with the Tribunal below that the examples of criminal proceedings provided for in s 3 of the Civil Procedure Act are examples given by way of clarification or amplification of the previous definition. They are not exhaustive of what constitutes criminal proceedings. However, as we have said, the issue is not whether the Conviction Proceedings are criminal proceedings, but whether they are "civil proceedings" as defined. The offence of assault occasioning actual bodily harm is not a civil proceeding. Nor is it an action for damages. There was no claim for damages against the Appellant as part of the Conviction Proceedings
Accordingly, s 59(2)(b) of the Victims Rights Act does not preclude the making of an order of restitution against the Appellant.

Disposition

The orders of the Appeal Panel are: 1. Appeal 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: 08 November 2023

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