BYZ v Commissioner of Victims Rights
[2014] NSWCATAD 168
•09 October 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BYZ v Commissioner of Victims Rights [2014] NSWCATAD 168 Hearing dates: 24 January 2014 Decision date: 09 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. The decision made by the Senior Assessor upon Internal Review on 23 September 2013 is affirmed.
2. The Application is dismissed.
3. No order as to costs.
Catchwords: Victims Rights and Support - administrative review - application for recognition payment - balance of probabilities- civil standard - evidence of act of violence - contradiction in evidence - weight of evidence Legislation Cited: Victims Rights and Support Act 2013
Victims Support and Rehabilitation Act 1996
Civil and Administrative Act 2013Cases Cited: Reifek v McElroy (1965) 112CLR 517 at 521-522 Category: Principal judgment Parties: BYZ (Applicant)
Commissioner for Victims Rights (Respondent)Representation: Commissioner for Victims Rights (Respondent)
File Number(s): 137335 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 witness summoned by, or appearing before, the Tribunal.
reasons for decision
BYZ has applied for administrative review of a Review Decision order made by the Senior Assessor as the Delegate of the Commissioner of Victims Rights ('the Commissioner") on 23 September 2013 pursuant to section 51 of the Victims Rights and Support Act 2013 ("VRSA"). That decision affirmed the decision of the Assessor (Client Claims) dated 29 July 2013 to dismiss the Application for Statutory Compensation pursuant to section 25 (3) of the VRSA. The Review Decision was made pursuant to section 49 of the VRSA.
Background
BYZ's application is based upon matters broadly detailed in her comprehensive statement to Police dated 28 June 2011. In essence her application concerns an alleged sexual assault which occurred at her dwelling in Sydney in approximately 1977, by an offender who she had met earlier that day. Whilst that statement refers to other matters that indicate domestic violence and sexual intercourse without consent in later years (1979-1980) at the hands of the same offender, this application concerns the unlawful sexual intercourse which allegedly occurred in 1977 on the first day that BYZ met the offender.
This was not the only application for victims compensation initially lodged with Victims Services by BYZ. It is necessary to refer to another application, due to the fact that the medical evidence provided in respect of this appeal, was commissioned in respect of another claim by BYZ involving a different offender. That evidence will be addressed later in this decision.
In respect of the allegation outlined at paragraph 2 (above), BYZ lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 15 December 2009. That application sought statutory compensation for the compensable injury of Category 3 sexual assault in that the instance of unlawful sexual intercourse included an assault which caused the infliction of serious bodily injury.
BYZ was legally represented in her claim initially before the Assessor. BYZ was not represented in her internal review application and BYZ is not represented in respect of these proceedings before the Tribunal.
The application was to be determined in accordance with the provisions of Parts 1 and 2 of the old Act, with an award to be determined on the available evidence establishing that on the balance of probabilities BYZ was the victim of an act of violence being - violent conduct against the person apparently in the course of the commission of a criminal offence resulting in injury to the applicant.
The matter was awaiting determination by a compensation assessor in the period December 2009 - June 2013 when the victims compensation scheme was changed by the Parliament. I note that the matter was notionally listed for consideration under the old Act in May 2013 by way of letter dated 16 April 2013.
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").
As BYZ's application had not been determined prior to 4 June 2013, contrary to the mattes outlined in paragraph 4 (above), BYZ's application was now dealt with under the new provisions of the new Act (VRSA).
On 29 July 2013 the Assessor (Client Claims) issued a Notice of Decision pursuant to section 43 of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms:
The applicant details that they were a victim of sexual assaults perpetrated upon her by alleged offender [sic] at the applicant's premises in Surry Hills. Incidents occurred in 1977.
Matters were reported to police in 2007 and the applicant provided a statement to police on the 28th June 2011.
The applicant details that she moved in with the alleged offender in 1979 at the alleged offender's premises in Darlinghurst. The applicant details that the alleged offender continued to sexually abuse the applicant during 1979.
The applicant details that she became pregnant and was forced to have an abortion.
The applicant details that she moved out of the alleged offenders premises in 1980 due to the fact that the alleged offender was getting renovations and also that the applicant did not like the builder. I find it strange that the applicant did not detail the continual sexual assaults by the alleged offender as a reason for her moving out.
The incidents were not reported to police until thirty years after they occurred. I note that this application can be contrasted with application 125618 where the applicant reported a sexual assault to police that was not as serious as assaults detailed in this application on the day that it occurred.
Police detailed that they attempted to obtain supporting evidence from the time in question without success.
I note that police declined to charge the alleged offender with any offence whatsoever as police considered that there was minimal chance of obtaining a conviction. Police refer to the delay in reporting, the lack of any supporting evidence obtained from the time in question and the fact the applicant resided with the alleged offender after the sexual assaults took place.
The applicant makes very serious allegations against the alleged offender but the alleged offender was never charged with any offence due to reasons detailed above.
I accept that the applicant had a difficult life, however due primarily to the lack of specific supporting evidence relating to the subject period, combined with the fact that matters were not reported until thirty years after they occurred and that the alleged offender was not charged with any offence whatsoever I cannot be satisfied that an act of violence is established.
For the reasons stated, an act of violence is not established. Accordingly the application is dismissed.
In August 2013 BYZ wrote to the Commissioner for Victims Rights requesting an Internal Review in accordance with section 49 of the VRSA.
On 23 September 2013 the Senior Assessor issued a Notice of Decision pursuant to section 49 (5) (b) of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms:
I understand from the form that the applicant is requesting a review of the Assessor's decision to dismiss her claim due to insufficient material on the file.
The applicant has submitted a copy of her police statement dated 28 June 2011. A copy of that statement was on file at the time of that the claim was considered by the original decision maker.
... (BYZ's) application was lodged in relation to sexual assaults that are alleged to have occurred in New South Wales in 1977. The act of violence was described on the application form as: The victim was sexually assaulted in her apartment at Kings Cross in 1977. The assailant was a Fijian taxi driver who had offered to drive her around. He carried a carton of vegetables into her apartment and sexually assaulted her. He hit her and inflicted serious bodily injury in the form of a broken wrist.
In order to establish "act of violence" for this claim, the onus is on the applicant to establish all the elements of criminal conduct by the offender, including the absence of consent and the offender's knowledge that consent was not given.
The applicant reported the alleged act of violence to police in 2007, 30 years after the incident was alleged to have occurred. The supporting evidence on the file consists of the applicant's 25-page police statement dated 28 June 2011, follow-up police report dated 4 September 2012, report of clinical psychologist (S.H.) dated 31 March 2009 and submissions prepared by the applicant's former solicitor.
The applicant did not provide the name of the alleged offender on the application form, however she named him in her statement to police. The applicant described the alleged sexual assaults in some detail in the police statement. The applicant alleged that the offender had sexual intercourse with her without her consent on the day that's she met him. (BYZ's) police statement does not make reference to the offender breaking her wrist, however she informed (the psychologist S.H.) that the offender had twisted her wrist and broken it, and that she subsequently had plaster on her wrist. The applicant told (S.H.) that the offender threatened to deport that applicant if she told anyone.
The applicant declared that she later moved in with the alleged offender, as she was no longer scared of him and thought it would be safe to live with him. The applicant declared that she felt she had no choice but to marry the offender, given that he had allegedly sexually assaulted her.
The applicant declared that the offender forced her to have sex with him while they were living together and that she became pregnant as a result. The pregnancy was terminated in 1979-1980.
The applicant moved out of the offender's home in approximately 1980, stating that "a big reason" why she left was that she realised that the offender wasn't going to make a commitment to her.
The applicant declared that she disclosed the alleged sexual assaults to her brother and his former wife, and later to a Dr 'N'. The applicant has not provided any supporting evidence to substantiate these disclosures.
In the follow-up report, Detective Senior Constable B. T. advised that the police did not commence criminal proceedings in this matter. The police interviewed a potential witness who had lived with the applicant and the alleged offender. He could not remember what happened that long ago and was not willing to speak with the police. The applicant's brother did not assist police with any information about the sexual assaults.
The police requested the applicant a number of times to assist with providing identification details or contact details for her brother's ex-wife. The applicant did not supply the police with these details.
Detective senior Constable T. noted that a particular difficulty was the fact that the applicant agreed to live with the alleged offender approximately 12 months after the sexual assault. The police noted that the applicant was gainfully employed at that time and living in her own apartment, they therefore had difficulty accepting her submission that she moved in with the offender because she did not have any support at that time or anywhere else to live.
The police determined that it was not in the public interest to commence criminal proceedings against the offender, and were of the view that a criminal conviction was unlikely. The police informed the applicant on 29 November 2011 that they would no longer investigate the allegations.
Having considered and weighed the evidence on file, I am not satisfied on the balance of probabilities that the incidents occurred as indicated. The applicant has not provided any evidence of an independent contemporaneous nature, the evidence is dated at least 30 years after the date that the sexual assaults allegedly occurred. The applicant has not provided any contemporaneous medical evidence to substantiate the broken wrist and / or termination of pregnancy. Further, as noted by the police, the applicant's decision to move in with the offender is not consistent with the allegation.
I am not of the view that the signed application form, the police statements, and Ms (S.H.'s) report are sufficient to establish on the balance of probabilities, that the offender sexually assaulted the applicant. The lack of formal or corroborative evidence from an independent source makes it difficult to establish that the applicant was the victim of a sexual assault offence (sections 19(1) (a) and 19 (1) (b) ).
As I am not satisfied on the balance of probabilities that an act of violence is established, I have dismissed the application for internal review. I wish to make it clear to Ms (BYZ) that by making this finding I am not stating that allegation is definitely false or disingenuous. My finding, as outlined above, is based on the fact that there is insufficient contemporaneous or corroborative evidence on file to establish the allegations.
On 29 November 2013 BYZ appealed to the Tribunal under the provisions of section 51 of the VRSA.
Application for Administrative Review
On 19 November 2013 BYZ completed an Application for administrative review under the Administrative Decisions Review Act 1997 in accordance with section 51 (1) of the VRSA. The Application was lodged with the Tribunal on 29 November 2013.
The application raises the following grounds:
(1) I would like justice done.
(2) The case is genuine. The police need to talk to first witness and second witness was a friend of offender is not willing give evidence, I have contacted the witness on several occasions to witness, the abuse, bulling, harassment and serious bodily harm, Basing me, threatening me that he is going to deport me back to Fiji if I am not sleeping with him Later the girl friend was living with me in flat. The offender has reported her to immigration and deported her to Fiji. I was too scared to live on my own. These trauma is still there I cannot go into marriage relationship any more already 3 marriages fail because of these trauma The injury to my wrist in ST Vincent Emergency in 1977 to 1979. The termination of my pregnancy in 1979 at Randwick private. I few people for witness. [sic]
The Tribunal's powers in relation to an application for administrative review are governed by section 63 of the Administrative Decisions Review Act 1997, which provides:
63 Determination of administrative review by Tribunal
(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.
BYZ's matter was initially heard before Senior Member Molony on 24 January 2014. However after the initial hearing of the matters, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52.
Correspondence was sent by the Registrar of the Tribunal to the parties on 15 August 2014 in respect of the section 52 'substitution' issue. The Respondent replied by letter dated 27 August 2014 indicating that they had no submissions to make on the proposal. There was no response from BYZ.
In the absence of any submission to the contrary, the provisions of section 52 (2) of the NCAT Act were satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act.
I have had the benefit of examining the full transcript of the hearing before Senior Member Molony on 24 January 2014. I have read that Transcript. I have also read all of the material provided by both BYZ (her application and annexure letter dated 5 October 2013), and all of the material provided by the Commissioner under section 58 of the NCAT Act. I have taken all of that evidence and material into account even though I may not specifically refer to all the evidence, material and submissions in these reasons.
Hearing on 24 January 2014
On 24 January 2014 the matter came before Senior Member Molony for hearing. Mr Matulewicz appeared on behalf of the Commissioner. There was no appearance for or by BYZ at the commencement of the hearing. Attempts were made both by the Tribunal and the Respondent to contact BYZ by telephone and they were unsuccessful. On the Respondents application the hearing on the merits proceeded.
The central issue before the Tribunal (and the earlier decision makers) was whether an act of violence (in accordance with the provisions of the VRSA) was made out on the available evidence to the requisite standard.
However, one preliminary issue in relation to BYZ's application before the Tribunal was not addressed at the hearing. In addition I can find no evidence of it being addressed in a preliminary fashion from the material on file. That issue relates to whether the application for review was received within time. I propose to deal with that issue now for the following reasons.
The Respondent was legally represented and (notwithstanding the short period since the amendments) was in effect highly experienced in the provisions of the Victims Compensation / Support scheme. Preparation of the matter would have indicated the factual state in respect of the lateness of the appeal, and the fact that it was not raised either means that the Respondent was unaware of the matter, or did not take issue with the matter. In any event, the fact that they proceeded to argue submissions on the substantive issues (concerning act of violence) shows that by the time the matter was being heard, no prejudice attached to the Commissioner.
The Notice of the Internal Review appears to have been posted on 24 September 2013 (although the '4' could be a '9' on the copy provided under section 58). Either date brings the matter out of time and I infer the date as the 24th on the basis that the 29th was a Sunday and unlikely to be a date that the letter was physically posted. Using the relevant provision, the 28 days commenced after the 4th working day following posting. Therefore time ends 28 days after 30 September 2013 which means that the application needed to be received on or before Monday 28 October 2013. The application was ultimately received on Friday 29 November 2013 over one month out of time.
BYZ appears to have understood that her application was out of time. On page 2 of her Application she completes the section relating to late applications. BYZ provides the following explanation.
By express mail posted to wrong address, was not clear, Parramatta Victims Services gave phone number was waiting for my letter to return to me, not happen I had a 2nd copy with me.
I take BYZ's explanation to mean that she sent her initial application to the wrong address, and having found this out after contacting Victims Services, was waiting for her application to arrive back at her address 'return to sender'. When this did not occur, BYZ retrieved her copy of the application and forwarded that to the Tribunal. In any event even if I am wrong on the specifics, a plausible and relatively cogent explanation has been provided by BYZ.
Section 41 of the NCAT Act provides for extensions of time in these circumstances.
41 Extensions of time
(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.
(2) Such an application may be made even though the relevant period of time has expired.
For the reasons set out above, and in the exercise of my statutory discretion of my own motion I extend the time for BYZ to lodge her application for administrative review to the Tribunal until 5:00pm 29 November 2013.
The onus is on BYZ to prove the allegations of act of violence on the balance of probabilities. While the onus on the appellant is the civil standard of the balance of probabilities the following statements of the High Court in Reifek v McElroy (1965) 112CLR 517 at 521-522 apply:
The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support a conviction upon a criminal charge.
As mentioned above, the hearing focussed on the issue of whether the evidence supported a finding that an act of violence had occurred on the balance of probabilities. I will examine those issues shortly, however there are a number of matters that I wish to outline which arise from both the evidence and material filed, and the approach taken to the evidence and material.
BYZ's application (as I can glean it from the section 58 documents), relates solely to the incident whereby the offender sexually assaulted BYZ at 87 Surrey Street Kings Cross / Darlinghurst around 1977 or very early 1978. Subsequent allegations concerning sexual intercourse without consent whilst cohabitating with the offender from July 1979, pregnancies and subsequent terminations, and other matters arising from that 'relationship' in the nature of domestic violence, are not before the Tribunal. Whilst BYZ appears to have lodged material relating to a number of incidents, (some of which relate to Victims Compensation claims and others which may not), the Assessor, Senior Assessor and in part the hearing on 24 January 2014 have spent significant time considering the matters arising after the 1978 assault allegation. This may be in part due to decision makers trying to scrutinise and weigh the evidence relating to various allegations given to Police by BYZ in her comprehensive police statement. I note also that the section 58 documents include material relating to a separate Victims Compensation Claim concerning an unrelated 2005 assault. (See paragraph 3 above).
As outlined at paragraph 2 (above), this application concerns the assault that alleged occurred on the first day that BYZ met the offender.
The other issue that I wish to point out relates to the alleged broken or seriously injured wrist that apparently occurred during the sexual assault at the Surrey Street premises. On this basis BYZ's solicitors initially claimed Category 3 sexual assault. (See paragraph 4 above).
The Evidence
At Item 32 in her application declared 9 December 2012 BYZ declares that she was:
'sexually assaulted in her apartment at Kings Cross in 1977/8. The assailant was a Fijian taxi driver who had offered to drive her around. He carried a carton of vegetables into her apartment and sexually assaulted her. He hit her and inflicted serious bodily injury in the form of a broken wrist.
At paragraphs 43 - 57 of BYZ's detailed police statement dated 28 June 2011 there is no mention of any injury to the wrist. The entry into the apartments, what was said, where BYZ and the offender were positioned, where they moved, what was done, information in respect of the offenders large bulk and how this was used to restrain BYZ, details of the unlawful sexual intercourse, and the offenders departure are all outlined in the statement, but there is no mention of any injury to the wrist requiring treatment etc.
In the report prepared by (S.H.) albeit in respect of a separate application, the sexual assault related to this application is provided by BYZ. From the wording of the report it is clear that BYZ has informed SH of this matter at the outset of the assessment. The relevant information commences at the second last paragraph of page 2 of the report dated 31 March 2009.
This report has been requested in relation to a sexual assault / indecent assault which took place on 3 May 2005. However, (BYZ) informed me at the commencement of the assessment that she had been sexually assaulted in 1978 when she was living in Kings Cross and she has recently made a statement to police concerning this. She says that the 1978 sexual assault took place as follows:
(a detailed explanation of the period and day leading up to the assault follows). ... He started touching her and she moved away. He persisted .. (and details of the sexual assault are provided). ... She says that the assailant twisted her wrist and broke it, and she subsequently had plaster on her wrist. She reports that he hit her and threatened her with deportation if she told anyone.
(BYZ) says that she was too embarrassed to tell anybody about the assault at the time and particularly embarrassed to tell her family or her church colleagues. She was in Australia on a visa and she thought that the taxi driver could have her deported if she disclosed the assault.
The concern is that after approximately 30 years, BYZ has provided two significantly different versions of events concerning what transpired during the incident and in the hours and days following. In the police statement, there is no mention of the wrist injury and as a result no mention (understandably) of any treatment. The following paragraphs from the police statement appear relevant:
54. The incident was very quick, I think the whole thing was over in five minutes. I was struggling the whole time and kicking out with my legs.
55. I stayed in the room crying and in shock. I was shaking uncontrollably. I cried for hours and hours. I was thinking what happened to me. I put a towel between my legs because I was bleeding from my vagina. After some time I had a shower. I stayed in my room for the rest of the night by myself.
56. The next day I didn't go to Church. I stayed in bed. Normally on Sunday I would go to church at 8am. Normally I had to prepare the materials for Sunday School and get there before everyone else. I stayed in bed the whole day and night by myself.
57. The next day on the Monday I got up at my usual time and went to work at Elizabeth Lodge at Bayswater Road. I didn't discuss what had happened with anybody at work. For the remainder of the week I went to work as usual. I didn't go to any church meetings that week. From work I just went home and stayed. One of my friends who was working at St Vincents Hospital as a ward Clarke [sic] normally came by to visit me. She came around during this week but I didn't mention anything to her about what had happened.
58. I next went to church the following Sunday when I prepared and taught the Sunday School.
There is no evidence before the Tribunal as to the nature of BYZ's duties at the Retirement Village on Elizabeth Bay Road Elizabeth Bay. At paragraph 23 of the Police Statement BYZ provides evidence of obtaining the Retirement Village job. At paragraph 24 BYZ advised that she left her first dwelling for the one at 87 Surrey Street after she 'got the job'. 'As soon as I got the job I moved out to number 87 Surrey Street'. At Paragraph 57 (reproduced above) the employment is referred to as Elizabeth Lodge Bayswater Road. I note that the Anglican Church runs a retirement facility called Elizabeth Lodge which is located at 46 Bayswater Road Rushcutters Bay. Bearing in mind the passage of time, the fact that BYZ was in a foreign country, and localities such as Elizabeth Bay, Rushcutters Bay and Kings Cross border each other and the geographic references are colloquially interchangeable, I believe that BYZ is referring to the same place of employment and nothing turns on this discrepancy. This is further confirmed by paragraph 77 of the Police Statement.
Consideration
It would be reasonable to believe that having regard to BYZ's age at the time and apparent good health, as well as her nursing studies, it would be open and reasonable to conclude that the broken or damaged wrist requiring plaster would have prevented (or significantly impeded) BYZ in her ordinary duties at her place of employment.
I find it difficult to accept (on the evidence before me) that BYZ returned to work without any treatment some 36 hours following the alleged fracture of her wrist. These observations lead me to have doubts about aspects of BYZ's evidence.
It remains unexplained by BYZ how on one account given between April 2010 and June 2011, 32- 33 years after the incident there is no evidence of a broken wrist and treatment, but rather evidence of an immediate return to physical work, and on the other accounts given 31 or so years after the event, she provides evidence of a broken wrist and treatment.
Therein lies the problem with the evidence provided by BYZ. I note that this issue was canvassed in the hearing before Senior Member Molony. From pages 8 - 12 of the Transcript the Senior Member and the Respondent's legal representative canvass these issues. The issue is significantly complicated (and to an extent hampered) by the Applicant's non-attendance at her hearing and the Tribunal being denied the ability to properly test the inconsistency in her evidence. In adversarial proceedings involving witnesses, such a situation would ordinarily raise a Browne v Dunn scenario. The discrepancy is compounded by the fact that BYZ for reasons which are unexplained, did not attend her hearing of this appeal on 24 January 2014.
One piece of evidence is contradicted by another piece of evidence. The pertinent aspect being not so much the significant omission of the wrist injury, but the evidence BYZ provides that infers that she sought no treatment and returned to work for her next available shift. In making this observation I am not saying that if BYZ was sexually assaulted (as she alleges), then that event had no physical or psychological / emotional impact on her. Of course it would have had a significant impact and this is in part borne out by her evidence in her police statement that she did not leave her dwelling until 36 hours later to go to work. The issue is however that by giving the evidence about going to work 36 hours after the assault, BYZ's evidence that there is a wrist injury appears to become illogical. The evidence in effect now becomes (on an alternative assessment) that there could not have been a wrist injury, as described in her reporting to S.H. and solicitors when competing her application form.
This is particularly significant as BYZ's entire claim is predicated on the fact that she suffered serious bodily injury during the sexual assault.
I have carefully considered the weighing up of the evidence in this matter. Usually, conflicts in the evidence arise when comparing evidence from different sources. Whilst this is not always the case, the weighing up of evidence usually rests on comparing one witness's testimony with the agreed facts or other material, examining the witness's expertise and or experience, level of independence, demeanour and consistency in account. The significant passage of time will have a bearing on the quality of evidence as witness's memories can adjust or change over time in respect of details.
It is less usual for one witness's evidence to differ on significant aspects. Often when it does, the veracity of the evidence can be called into question. In this matter I am unable to determine what facts if any to accept on the specific details of BYZ's allegations. It is clear that BYZ appears to have had a somewhat difficult and traumatic first five years in Australia, but the details of what BYZ alleges need to have sufficient clarity for the finder of fact to make such a finding. It is not open to me to make a broad finding (along the lines of a 'trauma diagnosis') akin to when a medical expert finds a particular condition present due to some non-specified trauma.
BYZ's evidence is in significant conflict on the events that occurred during and following the 1977/78 sexual assault at 87 Surrey Street. The Tribunal was unable to question BYZ about these inconsistencies. As the claim is based solely on what transpired at 87 Surrey Street in respect of the sexual assault (not later matters from July 1979), due to this conflict, I believe that I am unable to determine to the requisite standard where the truth lies.
The hearing canvassed authorities and cases raised by the Respondent concerning weighing of evidence, how to approach a matter where the evidence is un-contradicted by a third party, witness or other. The problem that I have in this matter is that the evidence is in effect contradicted by BYZ's own evidence. These inconsistencies were unable to be put to BYZ and have her responses properly considered. However, I note that the issue of the broken wrist / conflict was referred to in the Senior Assessor's Review Decision. The conflict is referred to in paragraph 12 of that decision. I am of the view that this alerted BYZ to the fact that there was an apparent evidentiary 'defect' in her claim which she needed to 'correct' in her appeal before the Tribunal. In that regard, BYZ was on notice as to what she needed to address at the hearing.
I have previously determined that in matters under the old Act, based on the weight of evidence, do not necessarily require corroboration or verification of evidence. What is required under that Act, is for the finder of fact to be satisfied to the civil standard that what is asserted is factual, in that it is more likely than not that it occurred. A common issue in first instance decisions under these legislative provisions occurs when decision makers infer and state requirements outside of the provisions of the Act, as being necessary pre-conditions for being reasonably satisfied as to the veracity of the allegations making up a claim. In some instances 'injury' as defined in the old Act and the VRSA verifies the occurrence of an act of violence, in a self-evident and logical manner requiring no real testimony on the events. In many instances this only occurs when the medical evidence is contrasted and ultimately aligned with the testimony of the circumstances of the injury. In other instances, the medical evidence is completely equivocal, and adds nothing to establishing the nature and facts concerning the allegations of 'violent conduct'.
As a result of the significant contradiction in BYZ's evidence, I find that I am unable to attach any significant weight to any of her evidence concerning the sexual assault at 87 Surrey Street. Whilst I believe (having examined all of the evidence) that there are some plausible explanations for many of the subsequent dealings with the offender (as outlined in BYZ's detailed statement), in respect of other aspects, I am less certain. I accept the cultural, family, and religious matters that BYZ raises for explaining significant aspects of her delays in reporting matters, raising them with friends or family, and ultimately living with the offender a few years later. The medical evidence of a psychological / behavioural nature appears plausible and in part explains some aspects to BYZ's history.
I note that when the claim was initially before the Assessor, BYZ's then Solicitors provided no submissions in respect of the conflict in the evidence concerning the serious injury to the wrist. This may be due to the fact that their only submissions were prepared predominantly in respect of leave for BYZ to proceed outside of the limitation period, and the police Statement had not yet been finalised as at the date of the most recent submissions.
Section 19 (1) of the VRSA provides that:
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.
In respect of the sole incident upon which this claim / review is based, I am not satisfied on the balance of probabilities as to what occurred, and as a result I am unable to find that BYZ was the victim of an act of violence in accordance with section 19 (1) of the VRSA.
As a result the application for review must be dismissed.
Conclusion
I make the following orders:
(1) The decision made by the Senior Assessor upon Internal Review on 23 September 2013 is affirmed;
(2) The Application is dismissed;
(3) No order as to costs.
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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
Decision last updated: 09 October 2014
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