BEM v Victims Compensation Fund Corporation
[2014] NSWCATAD 208
•01 December 2014
Civil and Administrative Tribunal
New South Wales
Case Title: BEM v Victims Compensation Fund Corporation Medium Neutral Citation: [2014] NSWCATAD 208 Hearing Date(s): On the papers Decision Date: 01 December 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. Pursuant to section 38 (5) (a) of the old Act I set aside the decision of the compensation assessor.
2. Pursuant to section 29 (1) (a) of the old Act I make an award of Statutory Compensation.
3. Pursuant to section 35 (1) of the old Act I make an award for costs.Catchwords: Victims Compensation - Criminal conduct - Act of violence - conflict in corroborative evidence - self-defence - civil standard Legislation Cited: Victims Support and Rehabilitation Act 1996
Victims Compensation Rule 1997
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Crimes Act 1900Cases Cited: Zecevic v DPP (Vic) (1987) 162 CLR 645 at 657
R v Dziduch (1990) 47 A Crim R 378 at 380Texts Cited: Butterworth's Criminal Practice and Procedure NSW Category: Principal judgment Parties: BEM (Applicant)
Victims Compensation Fund Corporation - (Respondent)Representation - Solicitors: Hansons Solicitors (Applicant) File Number(s): 137343 (Decision under review 154017) Publication Restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal).
REASONS FOR DECISION
BEM claims statutory compensation by way of an application lodged in March 2011, in which he alleged that he had suffered various compensable injuries as the result of an assault by an acquaintance at Bellambi in the State of New South Wales on 22 May 2009.
I note that BEM was represented by Hansons Solicitors before the compensation assessor and continues to be represented for his subsequent appeal.
On 15 March 2011 BEM submitted the Application to the Victims Compensation Tribunal ("the Tribunal"). I note that the application was lodged within the statutory period required by section 26 of the old Act.
During the period May 2011 to September 2012 BEM's Solicitors provided a range of medical and other material to the Tribunal which addressed both act of violence and compensable injuries.
In the interim BEM applied for an interim award under section 33 of the old Act. However as the compensation assessor was unable to make a finding at that stage that BEM would receive an award of statutory compensation when the matter was finally determined, they declined to make an interim award having regards to section 33 (2) of the old Act.
On 1 June 2012 the Tribunal advised BEMs Solicitor that the matter was listed for determination at the first available opportunity on or after the month of September 2012. In that letter BEM's Solicitor was reminded of the need to ensure that all relevant evidence to establish the claimed compensable injuries must be received prior to the listing date.
On 6 May 2013, the Compensation Assessor determined that BEM was not entitled to compensation and issued a Notice of Determination under section 29 of the old Act. The Assessor found that BEM was not the victim of an act of violence. The Notice of Determination, which was (inter-alia) in the following terms, advised:
... I have carefully considered all the material on this file. The applicant has submitted that he was the victim of an unprovoked physical assault, where he was head butted and sustained physical injuries.
(BEM) reported the incident to police without delay. The police interviewed the alleged offender of 16 July 2009. The alleged offender admitted to borrowing the applicant's phone, for the purpose of using the light of the phone to locate $50 that he had dropped on the ground. The alleged offender informed police that the applicant had struck him with [sic] to the head with a beer bottle and grabbed him, after which time the offender admitted to head butting the applicant in self-defence.
The police subsequently obtained a sworn statement from the alleged offender's girlfriend, who had witnessed the incident. She declared that she had seen the applicant throw a beer bottle at the alleged offender's head, and then throw a number of punches.
The police contacted the two other people who had witnessed the incident however they both declined to provide police statements. The police investigation was then suspended as there was no reasonable prospect of a conviction. The police noted that the applicant had provided two statements with fairly significant discrepancies.
Having taken all of the material into account, I am not satisfied that the incident occurred in the course of a criminal offence as required by section 5 (1) (a). This finding is based on the fact that there is evidence to support the offender's claim that he was acting in self- defence when he head butted (BEM).
I have taken the applicant's statutory declaration into account. The applicant stated that two people had verified his version of events to police, and that the detective had told (BEM) that he believed his version of the incident. Unfortunately this is not supported by the police commentary within the COPS report, or the follow up reports on file. As a result the evidence before me is not capable of supporting the applicant's version on the balance of probabilities.
Given that a third party supports the offender's version, and noting the fact that (BEM) provided two conflicting versions to police; I am not satisfied that the applicant was the victim of an act of violence as defined in Section 5 of the Act. While I note that the applicant gave consistent disclosures of the incident to ambulance and hospital staff, this fact alone is not sufficient to establish an act of violence given the weight of the other evidence on file.
The compensation assessor then made a finding that as an act of violence is not established the application must be dismissed.
Application of the old Act
On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 ("the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT").
Grounds of Appeal
BEM's Solicitor wrote to the Director Victims Services on 2 August 2013 seeking an 'Internal Review'. It is clear from the correspondence that the Solicitors were seeking to have the matter considered under the provisions of the Victims Rights and Support Act 2013 (the new Act). At page 2 of the Internal Review application BEM's Solicitors submit that their client would be entitled to a Category C recognition payment for grievous bodily harm in addition to payment of his expenses. The references relate to section 36 (1) (d) of the new Act, and clause 12 (c ) of the Victims Rights and Support Regulation 2013 (the Regulation).
However, on 16/08/2013, Clause 16 of the Victims Rights and Support Regulation 2013 ("the Regulation") commenced operation. This provided that despite the repeal of section 36 of the repealed Act, if a notice of determination of a compensation assessor was served before the repeal and an appeal could have been duly made in accordance with section 36 (3) (a) if it were still in force, an appeal may be made after 3 June 2013 as if section 36 (other than section 36 (2) and (3) (b) ) were still in force.
It appears that the matter was considered by the newly created Commissioner for Victims Rights as a request for an Internal Review under the provisions of the new Act. Correspondence dated 5 August 2013 issued by the Commissioner outlines the future conduct of the Internal Review. On 22 August 2013 the Commissioner issued a listing notice indicating that the review would be considered in the latter half of September 2013.
There is no meaningful information on file to explain what transpired between 22 August 2013 and 8 January 2013. It may be that a Senior Assessor identified jurisdictional issues. I make this observation for a number of reasons:
·The matter was finally determined by a compensation assessor prior to the repeal date of the old Act.
·The Notice of Determination was served prior to the repeal date of the old Act.
·The matter is not one which meets the terms of Clause 5 (1) of the new Act, in that it is not 'an application for statutory compensation that was lodged but not finally determined under the repealed Act before the introduction day, ... (emphasis added)
·Under clause 5 of Schedule 1 of the new Act, the matter cannot be dealt with under the new Act as though it were an application for Victims Support.
·Section 49 (1) of the new Act only provides for an Internal Review of victims support decisions. (emphasis added).
In any event on 8 January 2014 the Commissioner of Victims rights wrote to both BEM's Solicitor and the newly created NSW Civil and Administrative Tribunal (NCAT), in effect 'transferring' the matter to NCAT which had jurisdiction to deal with appeals under the old Act.
Initially such appeals were sent to the Administrative Decisions Tribunal (ADT) pending the repeal of the old Act. It appears because there was no record of a Notice of Appeal on the papers transferred to the Tribunal, that this did not occur. (see paragraph 9 above). Clause 16 of the Victims Rights and Support Regulation 2013 provides that transitional appeals are dealt with under the relevant provisions of the old Act (notwithstanding its repeal). See paragraph 10 above.
The ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 on 1 January 2014 and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides:
All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.
Further, Clause 7(3) provides:
For the purposes of subclauses (1) and (2):
(a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and(b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.
The Registrar of the Tribunal wrote to BEM's Solicitors on 28 January 2014 and advised them that the matter would be determined by a Senior Member of NCAT, and provided a copy of the 'Transitional Appeals Guideline (5.2)'.
As a Senior Member in the Administrative & Equal Opportunity Division of the NCAT, I have been directed by the President of the NCAT to hear the appeal and, in doing so, to exercise all the functions that were exercised by the Tribunal immediately before the commencement of the new Act.
Upon receipt of this matter recently I identified the issues outlined at paragraphs 9 - 14 (above), and in particular noted that the papers contained no Notice of Appeal either in the form prescribed by Clause 15 of the now repealed Victims Compensation Rule 1997 or any documentation identifying an appeal as opposed to an internal review. On 17 November 2014 the Registrar of the Tribunal wrote to BEM's Solicitors outlining these issues, and requesting that they consider the matter and in effect make an election as to how they wished to proceed. I indicated that if an election was made to deal with the matter as an Appeal, then the material dates of the internal review request should apply to any appeal, and that this was in reflection of the administrative handling and processing of the matter between 5 August 2013 and 28 January 2014.
On 21 November 2014 BEM's Solicitors reply to the 17 November 2014 correspondence was received. They advised that they had in fact lodged a Notice of Appeal (subsequent to the request for Internal Review) on 17 September 2013 with Victims Services / Commissioner for Victims Rights. A copy of the relevant e-mails and documents were provided. It appears that these documents were not on file when the matter was forwarded in early January 2014 to NCAT.
The Notice of Appeal therefore was subsequently lodged on 17 September 2013 complementing the Internal Review request of 2 August 2013. The Grounds of Appeal are:
(1)That the Assessor erred in finding that the Appellant / Applicant was not the victim of an act of violence as defined in section 5 of the Act.
Particulars of appeal were filed in support of the application.
(1)The alleged offender received no injuries and sought no medical intervention.
(2)He was not interviewed by police until approximately 12 months after the incident.
(3)He initially denied he was involved in a fight.
(4)He apparently failed to show up for two appointments with the Police to provide a statement and only eventually did when he was threatened to do so.
(5)The Police did not charge the applicant with assault.
Decision on the papers
BEM has not applied for the appeal to proceed by way of hearing and I am satisfied that the matter can be properly determined without a hearing under section 38(2) of the old Act, pursuant to section 38 (1). In addition I have read and considered the whole of the evidence before the compensation assessor. I have taken it all into account even though I may not refer specifically to all the evidence and material in these reasons.
Act of violence
Section 29(2) of the old Act provides that in order to make an award of compensation the Tribunal must be satisfied that:
... On the balance of probabilities, that the person to whom the application for that compensation relates:
(a) is a primary victim, secondary victim or family victim of an act of violence, and(b) is eligible to receive the amount of compensation provided by the award.
In essence the Assessor found that BEM was not a victim of an Act of violence in accordance with the provisions of section 5 (1) of the old Act. It appears (from the words of the determination) that the Assessor applied weight to the fact that Police raised the issue of self-defence, (Corroborated) as a basis of ceasing any further investigation or prosecution, and the fact that there were inconsistencies in BEM's version of events.
Evidence of act of violence.
At Part 4 of the application for compensation BEM declares that: 'I was visiting a friend when the offender asked to use my phone. I gave it to him and he got into a scuffle with another person. I asked for the phone back and he said he didn't have it. As I looked around the park to see if I could see it, the offender head butted me.'
The COPS Event provides the following information: ' (SMT) requested to use his mobile phone with the victim handing him his Sony Ericsson mobile phone and (SMT) making a call. After the call the victim states that (SMT) placed the mobile phone into his pocket and as a result the victim said, "Can I get my phone back?". (SMT) replied, "I don't have your phone, what are you going to do about it?". The victim replied "Nothing, I'm not going to do anything". At this time (SMT) head-butted the victim to the nose and commenced to punch out at the victim, with the victim wrestling with (SMT) in an attempt to block the punches.'
In addition the COPS event provides the following information about BEM's injuries: '(BEM) was informed by Doctors at Wollongong Hospital that he has a fractured nose and needs to have surgery to have his nose realigned. (BEM's) nose was bent, red and swollen and had bruising around the nose and under the left eye. These entries were completed after talking with and observing BEM at hospital the evening of the incident. BEM later advised police that the alleged offender was (SP) not (SMT). This information was clarified after BEM discussed the incident with his brother.
BEM changes his statement to police 11 days later were he states (after recovering somewhat from his injuries), that (SP) borrowed the phone to use the light on the phone to assist in finding a lost $50 note and that (SP) had not called anyone. BEM explained the discrepancy due to his injury but stated he now recalled the exact turn of events.
When (SP) is interviewed by police he provides a broadly consistent version of what occurred prior to the assault. He says that he lost $50 whilst riding his bike and borrowed (BEM's) phone to look for it. Whilst searching for the phone (SP) has fallen off his bike and the phone has fallen out of his pocket. (SP) states that when the victim asked for his phone back (SP) stated that he did not have it. (SP) then alleges that (BEM) struck him to the head with a half full bottle of beer and grabbed (SP). (SP) stated that at that time he head-butted (BEM) in self-defence as he feared that he was going to be hit with the bottle again. (SP) stated that his girlfriend (SN) witnessed the incident.
Police obtained a statement from the witness (SN). She stated that she saw BEM throw a beer bottle at (SP) which hit him in the head. (SN) then says that (BEM) threw a number of punches at (SP) at which time (SP) head-butted (BEM) to the face. Two other nominated witnesses were contacted by Police but both declined to provide statements.
The police investigation appears to have concluded because of the issue of self-defence, and the fact that BEM altered his statement in respect of what purpose (SP) borrowed the mobile phone. It also appears that weight was placed on the apparent corroboration of (SP's) version of events by (SN). I note that there is a reference in the COPS event to an earlier issue (the day prior) involving BEM and a comment made that (BEM) failed to mention this incident when investigators spoke to the victim. On the face of the record, it is not possible to glean any objective relevance or significance to those matters in respect of the investigation of the serious assault.
Consideration
I note that there are various conflicts in the three versions of events, i.e.: those given by BEM, SP and SN. BEM says that after a verbal exchange SP head-butted him in an otherwise unprovoked manner. SP says that BEM 'struck him to the head with a half full beer bottle and grabbed him'. SN stated that BEM 'threw a beer bottle at SP which struck him in the head' . There is a slight conflict in SP and SN's version in that on one hand SN says he was struck with a beer bottle, and BEM needed to be grabbed in order to prevent being hit again with the bottle. This would be consistent with BEM holding the bottle during the course of any assault. On the other hand SN says that BEM 'threw the beer bottle', and that BEM 'has then thrown a number of punches at SP'. SP makes no mention of any punches, but says that the beer bottle was 'half full' and that when he head-butted BEM in self-defence it was 'in fear that he was going to be hit again'.
On one hand SP and SN's evidence is in conflict both in how SP was allegedly hit, whether he had the opportunity to immediately 'hit' SP again with the beer bottle, and in conflict as to whether BEM began punching SP around the face immediately after 'dispatching' the beer bottle, or not.
Self defence
The police raise the issue of self-defence, (and presumably) the apparent corroboration as grounds which would indicate that there would be no reasonable prospect of conviction. That consideration was made having regard to the criminal standard, as opposed to the civil standard (which I must apply in making findings in this matter), which is whether it was more likely than not, that the particular issue occurred. This is often referred to as the balance of probabilities.
In any criminal prosecution, where the issue of self-defence is raised, the onus is on the Crown to negate self-defence. Butterworth's Criminal Practice and Procedure NSW provides the following commentary on self-defence at 8s-58.20.
Self defence is not properly to be regarded as a defence but as a matter which the prosecution must negative beyond reasonable doubt: Zecevic v DPP (Vic) (1987) 162 CLR 645 at 657; ALR 641;BC8701784. It should be listed with all the other issues which the Crown has to establish and be expressed so as to emphasis at all times that the onus lies upon the prosecution to eliminate any reasonable possibility that the accused was acting in self defence: R v Dziduch (1990) 47 A Crim R 378 at 380-1;BC9002651.
The question to be asked is whether the accused believed upon reasonable grounds that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter.
The Crimes Act 1900 provides the following provisions in respect of self defence:
418 Self-defence-when available
(1)A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.2. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.419 Self-defence-onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.In the current matter in my view, whilst the Crown may have difficulty in negativing self-defence, there is a clear conflict not just between the victim and the alleged perpetrator, but also a conflict in the exculpatory evidence which would be used to establish self-defence as a consideration to be rebutted or negatived. On the basis of all of the material before me, in respect of the actual assault (not the non-violent circumstances leading up to the assault), on my assessment the evidence indicates that it is more likely than not that SP was the instigator of the actual violence. In addition the significant injuries of BEM (and the apparent lack of any injuries requiring treatment of SP), lead me to the conclusion that on the balance of probabilities, SP assaulted BEM. Whether that assault involved excessive force, is only a finding of fact relevant in criminal proceedings where the issue of self defence is before the Court on the circumstances and facts of the case.
I therefore make a finding based on the analysis of the evidence above (and the medical evidence on file) that BEM was the victim of an act of violence in accordance with the provisions of section 5 of the old Act.
In reaching this conclusion I have also had regard to the various statutory declarations of BEM dated 21 March 2011 and 4 September 2012. However, my finding is based is based on the totality of the evidence to the requisite standard.
It is necessary to consider the issue of section 30 in each application. In this matter, whilst section 30 might appear to be a live issue (in respect of section 30 (1) (a) of the old Act), having made the finding that I have above, based on the analysis at paragraphs 26 - 38 (inclusive), consequentially matters referred to in the sub section, are as a finding of fact, discounted. I therefore find that there are no section 30 issues which would reduce any award or disentitle BEM to an award of statutory compensation.
For completeness I reject BEM's Solicitor's 4th Particular of Appeal (see paragraph 22 above), as in my view it is an entirely irrelevant consideration in what BEM is required to establish.
Compensable Injury
BEM has claimed four compensable injuries from Table 1 of Schedule 1 of the old Act. Those injuries are:
·Head: Ear - Partial deafness of both ears - remaining hearing socially useful with hearing aid if necessary. - $18,000.00
·Head: Nose - Partial loss of smell and / or taste - $12,000.00
·Head: Nose - deviated nasal septum requiring septoplastomy - $4,800.00
·Head: Nose- Displaced fracture of nasal bones - $3,600.00
There is a claim for expenses under section 18 (1) (a) of the old Act in respect of actual expenses. These have been paid as disbursements by the compensation assessor on 6 May 2013.
Based on a thorough consideration of the medical evidence, I find that the acclaimed compensable injuries are established, and arise as a direct result of the act of violence.
Clause 3 of Schedule 1 of the old Act provides the following in respect of multiple compensable injuries:
3 Multiple injuries
If 2 or more compensable injuries are received by an eligible victim, the standard amount of compensation for all of those injuries is the total of the following amounts (subject to the other provisions of this Act):(a) The full standard amount for the most serious injury (that is, for the injury that has the largest standard amount payable).
(b) 10% of the standard amount for the second most serious injury (that is, for the injury that has the same or the second largest standard amount payable).
(c) 5% of the standard amount for the third most serious injury (that is, for the injury that has the same or the third largest standard amount payable).
(d) No amount for any further injuries.As a result BEM will receive statutory compensation for the three most serious (based on value) injuries at the percentage payable as set out in clause 3. There will be no compensation payable for the fourth most serious injury.
I make an award of statutory compensation in the following manner:
(1)Head: Ear - Partial deafness of both ears - remaining hearing socially useful with hearing aid if necessary. - at 100% --------- $18,000.00
(2)Head: Nose - Partial loss of smell and / or taste - at 10% ----------------- $1,200.00
(3)Head: Nose - deviated nasal septum requiring septoplastomy - at 5%.------- $240.00
Subtotal: ------------ $19,440.00
(Less $750.00 statutory deduction for all awards less than $20,001.00 pursuant to section 19A of the old Act.
Total Compensation payable: ----- $18,690.00
I make an award of costs in the sum of $500.00 (plus GST if applicable).
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