CDK v Commissioner of Victims Rights

[2016] NSWCATAD 300

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CDK v Commissioner of Victims Rights [2016] NSWCATAD 300
Hearing dates:	6 November 2015 & 7 October 2016
Date of orders:	20 December 2016
Decision date:	20 December 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 30 July 2016 is affirmed.
Catchwords:	Victims Rights and Support – administrative review –whether “act of violence” established – whether Applicant was the primary victim of an act of violence - Memory Evidence – application of Judicial Commission of NSW Guidelines on Memory and the Law
Legislation Cited:	Victims Rights and Support Act 2013 Civil and Administrative Tribunal Act 2013 Victims Rights and Support Regulation 2013 Crimes (Domestic and Personal Violence) Act 2007 Administrative Decisions Review Act 1997
Cases Cited:	Fox v Percy (2003) 214 CLR 118 De Domenico v Marshall [2001] ACTSC 52 Re Marshall & Discrimination Commissioner; Australian Capital Territory 52 ALD 361
Texts Cited:	Guidelines on Memory and the Law –Judicial Commission of New South Wales
Category:	Principal judgment
Parties:	CDK (Applicant) Commissioner of Victims Rights – (Respondent)
Representation:	Solicitors: CDK (Applicant in person)   6 November 2015 - S Matulewicz, Victims Services, (Respondent) 7 October 2016 - J Singh, Victims Services, (Respondent)
File Number(s):	1510574
Publication restriction:	A Non-Publication Order is made under section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

Background

1. These proceedings relate to a claim for victim support and a recognition payment lodged by the applicant known by the pseudonym CDK initially before the Commissioner of Victims Rights.

2. The application was lodged before the Commissioner under the provisions of the Victims Rights and Support Act 2013 (‘the Act’) on 18 November 2013, but on 1 April 2015, the claim was split into eleven (11) further matters.

3. This decision concerns 3 Applications for Victims Support (Victims Services matter numbers 217538, 217541 and 217543) in which CDK alleged that she was the primary victim of acts of violence that occurred in the following circumstances. She stated that she first reported these incidents to the Royal Commission on Institutional Responses to Child Abuse on 13 November 2013.

Matter no. 217538

4. CDK alleged that she was the primary victim of sexual assault over a period of time between 1959 and 1960, at the Masonic Temple in Bulli, NSW. In particular, she alleged that her father and other males (whose identities she did not know) sexually assaulted her; her father used a small dagger and they performed vaginal rapes. She alleges that she suffered psychological injury as a result.

5. On 15 April 2015, an Assessor (Client Claims) determined that an act of violence was established on the balance of probabilities, but that this was one of a series of related acts (together with application no. 193729 and 217544).

6. In this regard, I note that in matter no. 193729, CDK alleged that she was the victim of a sexual assault by her father, which occurred in 1957 (when she was aged 9 months) while she was in her crib. She alleged that she suffered a psychological injury as a result.

Matter no. 217541

7. CDK alleged that she was the primary victim of sexual assault over a period of time from 1959 to 1963, at the Masonic Temple in Bulli, NSW, and that she was “forced to perform oral sex on unknown men in hooded robes on numerous occasions”. She alleged that she suffered psychological injury as a result.

8. On 15 April 2015, an Assessor (Client Claims) determined that an act of violence was established on the balance of probabilities, but that this was one of a series of related acts (together with application no. 217543, 217546 and 217549).

Matter no. 217543

9. CDK alleged that she was the primary victim of sexual assault over a period of time from 1959 to 1963, at the Masonic Temple in Bulli, and that she was “ritually abused by […] Included grooming activities, physical abuse & rape when non-compliant.” She alleged that she suffered psychological injury as a result.

10. On 15 April 2015, an Assessor (Client Claims) determined that an act of violence was established on the balance of probabilities, but that this was one of a series of related acts (together with application no. 217541, 217546 and 217549).

11. However, matter number 217549 is the subject of a separate Application for Administrative Review to this Tribunal.

Recognition Payment

12. In respect of matters numbered 217538, 217541 and 217543 the Assessor approved a single Category B recognition payment in the sum of $5,000.

13. I note that a copy of that decision in relation to these matters was posted to CDK on 21 April 2015, under cover of the Commissioner’s letter dated 16 April 2015.

Internal Review

14. On 12 July 2015, CDK requested an internal review of each of the Assessor’s decisions dated 15 April 2015. In relation to these particular decisions, CDK submitted that:

1. The acts of violence that were the subject of applications numbered 193729, 217538 and 217544 should be ‘viewed separately’ as the alleged incidents were ‘distinct in kind, timing and circumstances’; and

2. Applications numbered 217541, 217543, 217546 and 217549 should also be considered separately ‘given the different locations, manner of alleged incidents, and different alleged offenders/groups of alleged offenders’.

15. In particular, CDK submitted relevantly:

Matter no. 217538

I request review of the decision to group these claims 193729, 217538 and 217544. In the letter re this decision Reference 193729, points 22 and 23 it is noted that ‘the incidents relate to sexual abuse perpetrated by her father (the same offender) and the acts were committed over a period of time by the same person’ and that ‘Taking into account the factors under section 19 (4) of the Act, I find the acts to be a series of related cats and ought to constitute a single act of violence.’

I question whether it is seriously the intention of the Act that two sexual assaults that are perpetrated on a toddler over two years apart, that are completely different kinds of sexual assault, that occur in different locations, and in completely different circumstances, essentially ‘count’ as one act of violence. If this were the case then the law would essentially be discriminating against children, who are relatively unable to control their circumstances and access by abusers. This would in effect enshrine a principal (sic) in the Act that a child’s suffering, pain and trauma requires less recognition than that of an adult, whereas in fact the damage to a child caused by sexual assault, according to all the research, is potentially much more damaging, as children are still forming their identities and developing neural pathways.

Similarly, I seek review of the decision made on claims Reference 217541, 217543, 217546 and 217549, which groups together different kinds of assaults, made by different individuals and groups of perpetrators in different locations. To group these crimes into a ‘series’ of related assaults is to effectively negate the experience of child victims of sexual abuse and to suggest that because a child is by definition of limited power to defend themselves, it doesn’t matter how many times they are assaulted, in various ways and in various locations, by various individual offenders, and different groups of offenders, that these all count together as if they were, as stated in point 28, ‘a single act of violence’.

Rather than recognize my experience as a child victim of sexual assault, this decision effectively dismisses the pain and suffering I endured, that caused me to have dissociative identity disorder until my early 50’s and affected every part of my life, as well as my son’s life, as I fought to recover through therapy and raise him with love and dignity as a single mother.

I request that the Review consider the written statements I have made clarifying the nature of each of the assaults and series of assaults in relation to claims 217541, 217543, 217546 and 217549. I would again point out that notes for my statement to the Royal Commission are drawing together possible links to the Masons as an Institution, and links between the organization and another cult, which was Satanic in nature. However, since I was not party to the conspiracies of various individuals and groups of individuals, this is supposition on my part. My experience was as the primary victim of multiple crimes, and I request that this experience be recognized…

Matter no. 217541

I request a review of the grouping of this claim together with claims references 217543, 217546 and 217549.

Between the ages of 3 and 7, I was taken to Masonic Temples in Bulli and Wollongong. These assaults occurred a number of times separately to an initial sexual assault by my father with a weapon in the Masonic Temple Bulli. At these times I was forced to be part of rituals in the temples where there were between 12 and 36 men present at different times, clothed in hooded robes.

I was forced to witness other children kneeling before hooded men in rituals and performing oral sex. I was forced to watch men masturbating to orgasm during chanting and ceremonies. I was forced to kneel before me in hooded robes and perform oral sex, alongside other unknown children, and witness these acts as well.

This was a series of related assaults according to the Act, but to group this with other claims effectively dismisses and diminishes these crimes which were made by multiple perpetrators. These assaults included different perpetrators over a four-year period. They were highly traumatizing assaults on a young child by terrifying strangers and I request that they be recognized as such.

Matter no. 217543

…I wish to appeal the grouping of the above claim with claim references 217541, 217546, 217549, and clarify the kinds and location of the sexual assaults committed by the man known to me as “Daddy [..]”, alias “[…]”, who I believe was one of the […] who own a company by this name. O also note a factual error in the notice of decision reference 193729X point 16 that my father took me into rooms in the Masonic Temple and “trained” me into completing sexual acts. The assaults referred to were in fact committed by a different perpetrator “[…]”.

After having been vaginally assaulted by a weapon by my father in the Masonic Temple at around the age of three I passed out for an unknown period of time. As I began to gain consciousness I became aware of sensations of soft stimulation between my legs. I believed I had been brought to life again. As I became fully conscious I realized a smallish man with a beard and in a hooded robe was performing what I now know to be oral sex on me. When he lifted his face he had blood on his beard.

After this sexual assault the man carried me to rooms beneath the Masonic Temple where he washed me gently, but with sexual stimulation, attended to my wounds, washed and dried and brushed my hair. He also dressed me in my pyjamas. I suspect that he suggested to me verbally that he was my ‘saviour’ and my very young mind thought he could offer me some kind of protection.

This sexual predator thus established a fake ‘relationship’ with me as a three year old child in which he became my alternate ‘daddy’ and brainwashed me gradually that I was his sexual ‘mistress’. Most of my contact from that time with the offender was not at the Masonic Temple, but through being taken to him in his private rooms and later through being picked up between home and school by him in a truck or by taxi. He established a process of sexual assault, which I now realize was intense pedophilic (sic) grooming. These sexual assaults continued over a number of years, from this time until I was around 12 years of old, but were most intense between the ages of 3-7 years.

These assaults were insidious, manipulative and totally exploitative of my youthful need for love and affection, as well as my absolute fear of my natural father. Again, the degree to which these series of assaults was traumatic can be measured by the fact that an ‘alternate’ personality called ‘Daddy […]’s Little Girl’ was formed to hold the shame and confusion of the sexual acts from my memory. It took years of counselling to be able to face the shame and betrayal of these assaults and they have insidiously and irrevocably scarred my sexuality.

I therefore request that this series of sexual assaults by this particular perpetrator known to me as “Daddy Beard” be recognized…

16. I confirm that matter number 217555 was considered in a further Application for Administrative Review to this Tribunal (NCAT matter number 1510573).

Internal Review Decision

17. On 30 July 2015, the Senior Assessor completed an internal review of these applications and issued a Review Decision. The Senior Assessor determined that the available evidence does not establish, on the balance of probabilities, that CDK was the primary victim of an act of violence pursuant to ss 19 and 20 of the Act and dismissed the Applications for Victims Support.

18. The Senior Assessor addressed CDK’s submissions and provided the following reasons, relevantly:

19. In considering the evidence, I must be satisfied on a ‘balance of probabilities’ that an act of violence can be established. This means that there needs to be sufficient evidence to satisfy me that the alleged incidents probably occurred. Given the applicant’s memories were recovered through therapy, that no report to police has been made, despite the very serious nature of the allegations and that there is limited evidence generally, it is my view that determining the alleged incidents collectively in matters 217538, 217541 and 217543 will allow me to give more weight to the available evidence.

20. I note that matter 217538 was previously considered as a series of related acts and then as a single act of violence in matters relating to the applicant’s father (193729 and 27544). After reading the contents of matter 217538 and as per section 19 (4)(b)(iii) of the Act, it is my opinion that the nuances of the alleged narratives are more closely aligned and are more similar in nature to the applicant’s alleged experiences with ritualistic assaults by the Mason Temple followers and cult members. The applicant submits that matter 217546 related to unknown persons, should be considered separately. I accept that submission and accordingly, matter 217546 will be considered separately.

21. In this regard, matters 217538, 217541 and 217543 will be considered together…

23. The applicant describes in her submissions of 12 July 2015 similar alleged incidents of sexual and physical assaults, torture, grooming and punishments of herself and other children at the Mason Temple. I note in particular, the applicant contends that the matters should be considered separately as they involve distinct groups of alleged offenders. Regrettably, I do not share the applicant’s view. It is my opinion that all of these alleged incidents, involving […], the […], and her father were conducted at the Mason Temple in Bulli and surrounds. The narratives provided by the applicant suggests that the rituals and torture were all inextricably linked.

24. In the submissions with heading ‘Review of Claim Reference 217538’, the applicant details that she was taken to the Mason Tempe, Bulli at age three years where three strange men in hooded robes removed her clothes, tied her up and surrounded her and chanted. The applicant then detailed that a person with her father’s face assaulted her with a weapon/dagger between her legs. The applicant recalls passing out from the pain and terror.

25. In the submissions with heading ‘Review of Claim Reference 217543’ it is detailed that following the above assault with the dagger, the applicant recalls waking up to ‘[…]’ orally stimulating her vagina and when she saw his face it was covered in blood.

26. I note it is difficult for me to reconcile the applicant’s description of the above incidents in a way that would persuade me on a balance of probabilities that the alleged incidents transpired as described. The applicant states that she was able to recall passing out from the pain and terror but is then able to recall waking and being orally stimulated. There is also no evidence that the applicant was treated or that her mother or other family members noticed any of the significant injuries.

27. In the submissions with heading ‘Review of Claim Reference 217541’ the applicant detailed that she was taken to the Mason Temples in Bulli and Wollongong where she was sexually assaulted by between 12 and 36 men who wore hooded robes. The applicant was forced to witness and perform oral sex on these males. The applicant alleges other children were present, however, she does not provide any details or descriptions of these children…

31. I am aware that recovered memories of childhood abuse and the associated methods of treatment have been the subject of some debate before the courts. In my view, it is plausible that some abuse is so horrific that a victim might block those memories as a coping mechanism and that they may be recalled in subsequent years. I note that the passage of time may hamper the applicant’s ability to recall particulars of the alleged incidents. Thorough the applicant’s therapy, she has now been able to particularise the violence in vivid detail. However, she has not provided sufficient detail to contextualise her assertions. The applicant has not identified the names of the alleged offenders (besides “[…]”), names of any of the other children involved or explained their associations with the Mason Temple.

32. Unfortunately, I do not have evidence before me which would allow me to support the applicant’s experiences. There is no medical evidence over the course of the applicant’s life which might indicate, for example, that she sustained scarring as a result of being tortured or brutalised with a dagger. Given the alleged serious and significant injuries sustained, there is no evidence that the applicant’s mother or other family members observed or noticed any of those injuries. The applicant has also not reported the alleged incidents to police and allowed them an opportunity to investigate the allegations relating to the Mason Temple, Bulli.

33. In light of the Royal Commission and the research into historical child sexual abuse, I am aware that disclosures are not always forthcoming and that there are numerous associated complexities with why disclosures may not be made. Mindful of this and given the serious allegations regarding the involvement of a significant number of people and the depraved nature of the abuse and torture of other children, a perusal of Victims Services records, other sources (such as police) and more importantly in the material provided by the applicant, there is a distinct lack of external evidence to support her assertions.

34. I would like to take this opportunity to emphasise that I do not doubt the applicant’s conviction that these experiences occurred, nor do I doubt the deep psychological impacts it may have had on her. However, I am unable to accept that the evidence establishes an act of violence, on the balance of probabilities, for the purposes of section 19 of the Act.

19. As a result, the applications for victims support in matters numbered 217538, 217541 and 217543 were dismissed.

20. I note that a copy of the Senior Assessor’s decision was posted to CDK on 4 August 2015, under cover of the Commissioner’s letter dated 3 August 2015.

Application for Administrative Review

21. On 1 September 2015, CDK applied for administrative review of the Senior Assessor’s decision on the following grounds:

Under Section 49 (4) of the act, the impartiality of the above review by Victims Services may have been compromised, since the same Assessor had previously deferred the claims. Statements about inconsistencies in the dismissal of the claim are incorrect. The comments ignore the effects of post-traumatic hypervigilance, as well as evidence given about treatment of injuries. Further, comments in the decision demand contextual ‘proof’ such as the names of offenders, other children present and their associations with the Masons that I simply was not able to know as a child victim. The assessment indicates that lack of reporting to police affects the decision, despite the evidence that as a child I was constantly under threat for my life.

22. This 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:

(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.

23. The Application for Administrative Review came before me initially on 6 November 2015, when CDK appeared in person and the Commissioner was represented by Mr Matulewicz. The documents provided by the Commissioner under Section 58 of the Administrative Decisions Review Act 1997 appeared to be comprehensive and complete.

24. During the initial hearing, the Tribunal observed that CDK relied upon “memory evidence” and it provided the parties with a copy of the “Guidelines on Memory Evidence and the Law” (“the Guidelines”) which have been published by the Judicial Commission of New South Wales. The Tribunal informed the parties that it intended to apply the Guidelines in determining the application for administrative review and it expressed some concern that the available evidence was deficient.

25. The Tribunal granted CDK leave to rely upon evidence from a memory expert witness and adjourned the hearing part-heard basis for Directions on 5 February 2016, to ascertain its readiness for further hearing.

26. However, CDK did not appear at the directions hearing on 5 February 2016 and the matter was adjourned to 26 February 2016. On that occasion, CDK informed the Tribunal that she had approached some forensic psychiatrists, who advised her that they required “legal instructions” and that she intended to consult with Community Legal Services to obtain legal advice regarding her matters. She would then decide whether she wished to obtain evidence from a forensic psychiatrist in support of her applications. The matter was adjourned for further directions on 18 March 2016.

27. On 18 March 2016, CDK advised the Tribunal that she had arranged an appointment with a forensic psychiatrist on 9 June 2016, and that the doctor had indicated that the report may not be available until August 2016. The matter was listed for further directions hearing on 10 June 2016. On that occasion, CDK advised the Tribunal that she had consulted the forensic psychiatrist on 9 June 2016 and was told that the report would be available within 6 weeks. The Tribunal ordered that the matter be listed for further hearing on 12 August 2016 and directed CDK to file and serve any further medical evidence to be relied upon by 5 August 2016.

28. However, on 5 August 2106, Shoalcoast Community Legal Centre Inc. faxed a letter from CDK to the Tribunal dated 6 August 2016, in which she stated:

I am writing to request an extension of time and new hearing date by consent, for review of decision for a recognition payment of S51 Victims Rights and Support Act 2013 File nos. 1510527; 1510573; 1510574 & 1510595.

I attended an appointment with a forensic psychiatrist on the 09 June 2016 to obtain further relevant evidence, as previously agreed with the Tribunal Member. However, I have now been advised that the actual report pertaining to the psychiatric assessment has been delayed and so has not been made available to me in time for me to proceed in this matter.

To allow time to obtain the report and to file and serve the evidence upon Victims Services and the Tribunal I now request consideration be given to allowing a further extension of time and that a new hearing date be set on either the 23 or 30 September if suitable to all parties.

29. The Commissioner did not oppose the adjournment application. By consent, the hearing date was vacated and the matter was listed for further hearing on 7 October 2016. CDK was directed to file and serve any further medical evidence to be relied upon by 2 September 2016.

30. However, on 26 September 2016, Shoalcoast Community Legal Centre Inc. sent a further letter to the Tribunal, as follows:

We advise that we have been approached by (CDK), the Applicant in the abovementioned matter, seeking assistance in respect to her preparation of the hearing of the matter. We have advised (her) that out staff resources are very limited at this time but we will attempt to assist her as soon as possible.

In addition, (CDK) indicated to the writer that there were two family members that were able to give evidence apparently assisting her application to your Tribunal. Whilst appreciating that this would appear to be the first time such family members have been mentioned we believe that this Centre will need to verify the availability of such witnesses and the overall benefit, if any, of attempting to introduce such evidence at this very late stage.

Accordingly, we would seek a further adjournment of the hearing for a period of five to six weeks. A copy of this letter has been forwarded to the Fund Solicitor.

31. The Tribunal considered this application for adjournment in Chambers on 27 September 2016. It noted that CDK’s evidence to both the Commissioner and the Tribunal to date was to the effect that there were no witnesses who could corroborate her allegations. It therefore rejected the application for a further adjournment and confirmed the hearing date.

32. However, on 4 October 2016, CDK sent a letter to the Tribunal by way of facsimile transmission in which she stated (relevantly):

5. I note that the Victims Services submission received after the due date is a 16-page adversarial legal document. I had been informed by the previous Victims Services legal representative that their role was not adversarial, but to explain aspects of Victims Services decisions and respond to questions by the Tribunal Member. It is only reasonable therefore that I should be afforded the time to consult a legal professional in regard to this detailed submission.

6. in addition, appearing unprepared at the Tribunal on October 7 is placing me under undue stress alongside my work schedule. In addition to my face-to-face teaching load for TAFE NSW I have exams and major student essays and reports to mark for the Certificate IV in Tertiary Preparation (HSC equivalent) this week, in order to participate in cross-Institute marking Verification Panels in the next two weeks. The sever hour return trip to Sydney and the stress of self-representation at the Tribunal without any legal advice comes at an already difficult time.

7. Finally, I am a survivor of extreme childhood abuse and suffer complex post-traumatic stress symptoms, as verified by numerous clinical psychologists in my file, both treating and two non-treating professionals. The decision not to grant an extension of time for the Tribunal hearing date places me under extreme stress.

I request that the Tribunal hearing date be vacated and a new date set towards the end of November or early December in light of the above points and the consent by Victims Services (attached). Shoalcoast Legal Centre has also advised they would be able to assist me to prepare for the hearing during that time.

33. Due to the lateness of this further adjournment application, it was listed for determination by the Tribunal at the hearing on 7 October 2016. On that occasion, CDK appeared in person and Mr Singh appeared for the Commissioner.

34. The Tribunal noted that the “adversarial document” referred to by CDK in her letter dated 4 October 2016 was the Commissioner’s written submissions and it observed that they did not constitute evidence on behalf of the Commissioner. The Tribunal also observed that a period of approximately 11 months had elapsed since the hearing had commenced and that CDK had been afforded ample opportunity to obtain legal advice and representation if she desired it. The application for further adjournment was refused and the matter proceeded to further hearing.

35. CDK advised the Tribunal that she did not wish to adduce any further lay evidence in support of her application. However, she sought to rely upon further medical evidence, namely reports and letters from Dr Susan Ballinger, clinical psychologist, dated 27 November 2009, 8 July 2010, 11 November 2010, 30 November 2010 and 5 October 2011; and a medical report from Associate Professor Carolyn Quadrio, consultant psychiatrist, dated 15 August 2016.

Consideration

36. In determining this application, I have read and considered the whole of the evidence that was before the Assessor (Client Services) and the Senior Assessor (upon Internal Review) as well as all submissions made by and/or on behalf of the parties. I have taken it all into account even though I may not refer specifically to all the evidence, material and submissions in these reasons.

37. The onus is on CDK to prove her allegations of sexual assault on the balance of probabilities (the civil standard).

Act of Violence

38. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the Scheme described in s 26 of the Act.

39. Act of violence is defined in s 19 (1) of the Act 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.

(2)  For the avoidance of doubt, the reference to an offence in subsection (1)

(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.

(3)  For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4)  Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a)  they were committed against the same person, and

(b)  in the opinion of the Tribunal or the Commissioner:

(i)  they were committed at approximately the same time, or

(ii)  they were committed over a period of time by the same person or group of persons, or

(iii)  they were, for any other reason, related to each other.

(5)  An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6)  An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7)  For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

(8)  In this Act:

sexual assault and domestic violence means any of the following (relevantly):

(a) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a person without his or her consent or with consent obtained by means of a non-violent threat,

(b) sexual intercourse (within the meaning of section 61H of the Crimes Act 1900) with a child under the age of 16 years or with a person having a cognitive impairment (within the meaning of that section),

…

(d)  the commission of an act of indecency with or towards a child under the age of 16 years or the commission of an act of indecency on or in the presence of any person in connection with an assault on the person,

…

(f)  any other act resulting in injury that occurred in the commission of a personal violence offence (within the meaning of the Crimes (Domestic and Personal Violence) Act 2007) against any of the following persons:

…

(viii)  a person who is or has been a child or step-child of the person who committed the offence, or some other child of whom the person is the guardian, …

40. The evidence to be considered by Tribunal is in the nature of ‘memory evidence’ from CDK, which has been documented in her notes for her statement to the Royal Commission, as well as in numerous histories that she provided to a social worker, treating psychologists and most-recently to a qualified forensic psychiatrist. However, there is no independent evidence that corroborates the ‘memory evidence’.

41. The Tribunal considers that it is required to apply the Guidelines in undertaking the current administrative review of the Senior Assessor’s decision and that the following provisions of the Guidelines are relevant to the consideration of CDK’s memory evidence.

42. Part 2.vi of the Guidelines provides:

Who is a memory expert witness?

It is ultimately the function of the judge to decide who is and is not a memory expert. However, some guiding principles that could be used are as follows:

A memory expert is someone whose expertise is recognised by their peers, i.e., other memory researchers.

Recognition should usually be in the form of relevant outputs that are publicly verifiable, e.g., peer-reviewed publications, other publications, and presentations at professional meetings. Of these, peer reviewed publications are the most important.

What a Court should require of a memory expert-witness

The memory expert witness should be required by the Court to provide a statement of their expertise in human memory and in legal proceedings. This should normally also involve, as a matter of routine, the submission of their full curriculum vitae to the Court.

The evidence must be available to the … applicant or respondent.

Being a member of a professional society or societies, no matter how exalted, does not of itself make a person a memory expert.

Teaching a course or several courses on memory at university or elsewhere also does not of itself ensure the required level of expertise.

Having acted as a memory witness in the past does not make a person a memory expert.

Listening, evaluating, interpreting or advising on accounts of memories as part of one’s professional activities does not of itself make a person a memory expert.

Working in a forensic area does not confer memory expertise.

The following will not normally constitute evidence of expertise in memory.

Being a member of a professional society or societies, no matter how exalted, does not of itself make a person a memory expert.

Teaching a course or several courses on memory at university or elsewhere also does not of itself ensure the required level of expertise.

Having acted as a memory expert witness in the past does not make a person a memory expert.

Listening, evaluating, interpreting or advising on accounts of memories as part of one’s professional activities does not of itself make a person a memory expert.

Working in a forensic area does not confer memory expertise.

43. Part 2 of the Guidelines also outlines some of the characteristics and properties of human memory relevant to memory in legal contexts. There are four key properties, namely:

Memory is a record of a person’s experience of reality

it is not a record of reality itself (as, for example, a video might be). An experience is a product of mind interacting with reality stop us, and experience, and a memory of it, always contain elements that are non-veridical, i.e., that originate from the experiencing person’s own mind rather than from reality.

Memories are samples of experience

Memories for single, specific, one-moment-in-time experiences are time-compressed summary representations that contain samples of an experience stop they are never a complete record of an experience. (Note: these types of memories are what memory research was call episodic memories.)

Remembering is a constructive mental process

Remembering engages many different brain areas; brings together episodic and conceptual knowledge; features visual imagery; and can also include information from other modalities will stop memories contain general knowledge of experiences and an understanding of the meaning of an experience. Thus, memories not only about particular the experienced events, but also includes more general autobiographical knowledge (schools, occupations, holidays, friends, homes, achievements, values, etc.) hence, memories may be wrong with regard to precise details and yet accurate with regard to more general contextual information.

Memories are part of the present moment; they are part of “now”

Memories are part of the cognitive, emotional, physical, social, cultural, historical, and believe context in which they are recalled, with all that entails.

Because of these for fundamental properties human memory has a high potential for inaccuracy, particularly with respect to details although it is less prone to inaccuracy at more general levels.

The extent to which a memory corresponds to reality is difficult to establish. Normally this can only be achieved, with any degree of certainty, by independent corroborating evidence.

44. Part 3 of the Guidelines relates to autobiographical memory and provides, as follows (relevantly):

In general, the type of memory we are concerned with here is known as autobiographical memory (3.25). The current view is that autobiographical memories are mental constructions that consist of various types of information. Two important types of information are episodic memories and autobiographical knowledge (3.23).

Episodic memories represent information derived from specific experiences, often in the form of visual mental images although other modalities may also feature, e.g., auditory, olfactory, haptic (touch), and even proprioception (body consideration and brackets, etc.

Autobiographical knowledge represents factual and conceptual knowledge about a person’s life, e.g., “I went to St Bede’s School”; “I didn’t like school”; “I was good at English”; “John Smith was my best friend”; and so on.

When a person recalls and autobiographical memory then, these two types of long-term memory representation are brought together and a person consciously experiences episodic memories of specific aspects of the past and conceptual knowledge that acts as a personal context for the episodic memories, locating them in a person’s life and providing a personal, self-relevant, meaning for them (3.15).

It is widely established that adult memories of specific events experienced after about the age of 10 years can be either, i) highly accurate (3.21); ii) highly inaccurate, and sometimes wholly false (3.22, 3.31, 3.32, 3.33 and 3.35); or iii) include both accurate and inaccurate reports relating to different aspects of the same episode (3.24, 3.40 and 3.41). For example, it has been found that some memories of traumatic events, such as memory for being in a concentration camp, memories of traumatic events from the second world war, etc. are highly accurate, even many decades later, when evaluated against accounts taken close in time to the actual experience. Similarly, vivid memories of one’s personal circumstances when learning of important and surprising items of public news – the assassination of JFK, the moon landing, the death of John Lennon, the space shuttle Challenger disaster, the resignation of Margaret Thatcher, 9/11, to name but a few — have also been found to be highly accurate and to persist over many years. Set against this are findings, for many of the same events, of wholly false memories and memories that are partly accurate but which contain clearly false details. These are false details of which the rememberer is unaware and when the impossibility is finally pointed out they are usually highly surprised about.

The references cited above provide many examples as well as formal research findings but one case which was recently reported, appropriately by a member of the legal professions, is highly illustrative and it is described here to provide a good example of how highly vivid memories can turn out to be wrong:

A middle-aged man recalled his father distracting him when he was young boy (about four years old) by asking him who was the first man on the moon. He had been intensely interested in the moon landings when he was a young boy and this incident occurred while his father was on the telephone to his mother, who had just given birth to his younger brother. My informant had a vivid and fond memory of his father placating him in this way; he was highly agitated by the birth, and in his memory he could “see” his father on the telephone and almost “hear” his voice. It was only decades later that he realised that his brother had been born in 1968, one year before the first moon landing.

So these significant public events can be remembered vividly, but not necessarily completely accurately.

The references listed below provide many examples of these types of memories and, it should also be noted, many examples of vivid memories that as far as it has been possible to establish are correct. Distinguishing between the true, wholly false and partly false vivid memories of healthy adults is impossible currently unless the content of the memories contains an obvious impossibility or contradiction. Even then such a distinction may not be possible. In the “moon landing” memory just described it seems likely that the event recalled probably did occur but at an earlier or later date and on a different occasion and has been transposed in memory, for what reason we do not know, to a more significant date.

…

For the above reasons the accuracy of memory is typically studied in the laboratory, where the conditions of learning and memory can be carefully controlled. The accuracy of specific memories formed in everyday life is much harder to judge, and can only be established with any confidence when there is independent evidence relating to the episode in question. Relevant corroborating evidence may include i) independent reports that the person was present and did indeed witness relevant aspects of the event, and ii) consistency of recall of core details over long periods of retention. While ii) represents weaker corroborating evidence than i), it can be viewed as a prerequisite for a judgment of reliable testimony. Finally, it should be noted that more general knowledge of a person’s life is considered to be less prone to the inaccuracies known to be associated with memories for one-off, unique, episodic events (3.26, 3.27 and 3.28).

3.ii Adult memory for childhood

Adult recall of very early childhood experiences is subject to amnesia. Most adults can remember few memories for events experienced before about five years of age (3.45, 3.46). When memories of events occurring at this early point are recalled, rememberers typically describe their recollection as having the form of “knowing” in a general way rather than remembering specific details (3.18). When adults recall their earliest memories, they frequently do not know whether what they have in mind is really a memory, something constructed from facts they have been told or based on photographs, or is a mental representation based on a family “story” (3.13, 3.29, 3.35 and 3.37). When fragmentary details are available, they are typically recalled in the absence of organising conceptual information for the event.

Most people remember little or nothing below the period of three years of age, a period which is known as the period of childhood amnesia. A few memories can typically be recalled from when the individual was aged 3–5 years, and more aged 5–7 years. However, it is not until the period of eight years or older that many memories can be recalled (3.45). And it is not until the age of about eight to10 years that memories begin to feature the more typical structure, content and organisation of adult memories (3.13).

Childhood memories have the following characteristics:

They are usually enigmatic in nature and feature only a few details. The information that is recalled is isolated, not associated with other memories, and is often perplexing to the individual. Unlike memories from later in life, early childhood memories lack detailed conceptual frameworks linking them into the personal history of the individual in complex and meaningful ways.

Early childhood memories have been found to be much more open to suggestibility than later childhood memories (3.19 and 3.20).

Children below the age of five years have many memories that cannot be recalled in adulthood.

The period from birth to five years is characterised by rapid neurological development, especially to those areas of the brain that in adulthood will control learning and memory. At the same time there is equally rapid acquisition of language, concepts and understanding of the world, including social interaction. It is important to note that infants and young children have yet to acquire many of the concepts familiar to adults, including complex emotions such as guilt, embarrassment, and shame. It would therefore not be possible for a child younger than five years who lacked, for example, the concept of “embarrassment” to have an original memory that contained features labelled by the term, although this might of course be added later in adulthood, perhaps for purposes of “presenting” a memory (3.13).

Thus, when gauging the accuracy of childhood memories recalled by adults, and by children older than about 10 years, the following rules of thumb are recommended:

Detailed and well-organised memories dating to events that occurred between seven to five years of age should be viewed with caution.

Detailed and well-organised memories dating to events that occurred between five to three years of age should be viewed with considerable caution.

All memories dating to the age of three years and below should be viewed with great caution and should not be accepted as memories without independent corroborating evidence.

In general, the accuracy of memories dating to below the age of about seven years cannot be established in the absence of independent corroborating evidence.

45. Associate Professor Quadrio’s Curriculum Vitae indicates that she has significant experience in clinical practice as a Forensic Psychiatrist, but that she does not describe any particular expertise as a memory researcher. It is apparent that in preparing her report she adopted the approach of a clinician by taking a history from CDK, conducting a clinical assessment, perusing other materials provided to her by CDK’s legal representatives and expressing her opinions based upon them. However, she did not provide any analysis regarding the manner and circumstances in which CDK’s memories were recovered. She stated (at page 16):

It is generally understood that psychiatrists have no special expertise in determining the veracity of a person’s history, including reports of childhood abuse (Bass et al, 2014; Hall et al, 2001; Mendelson, 2004). With that proviso in mind, I would note that CDK appears to have consistent, detailed and strong memories of ongoing childhood abuse. I note her report that the tribunal commented, and that she ‘believes’ the abuses have occurred, and she takes is to indicate that her beliefs are not based in reality. If this is the view that has been taken, then perhaps there is an assumption that she has ‘false memories’ and I can comment on what is a considerable research literature on that issue:

Much of this research suggests that false memories are not a significant issue in clinical practice (brown et Al, 1998), particularly when they referred to frequently occurring rather than one-off events as is true in respect of (Pedzek & Roe, 1994) as is true in respect of CDK’s memories of abuse.

One expert review concluded that,’ there is no hard scientific evidence that shows such phenomena in unequivocally… Only a minority of healthy children and adults are prone to producing extensive false memories’ (Schacter, 1995); this view was repeated by Brown et Al (1998). Similarly, a very recent review suggests that ‘susceptibility to false memories of childhood events appears more limited than has been suggested… Nor is there yet evidence to show that false memories can be created with the degree of conviction necessary to sustain protracted legal proceedings involving the police and cross-examination in the courts (Brewin et al, 2016).

…

46. Associate Professor Quadrio also stated (at page 17):

(CDK) describes becoming aware of these memories during my adult life, after a period when she apparently did not think about what had occurred will stop this is not an uncommon situation, survivors of childhood abuse often say they had ‘forgotten’ and later remembered childhood abuse, however, in my experience, there is rarely a genuine forgetting or amnesia for the events, rather there are efforts to suppress and not think about them; the research literature supports this and both the RANZCP (1996) and the APA (1993) recognise that memories may be recovered in adult life. For example, an extensive review of the literature concluded: ‘there seems to be reasonable agreement that individuals can have recovery experiences. The precise degree of forgetting is unclear but even the most conservative assessment of the evidence indicates traumatic memories can fluctuate in their persistence with periods of time in which they are relatively less accessible’ (Sivers et al, 2001).

Notably, CDK reports that her memories returned after the birth of her child stop this is a common situation; childbirth is a particularly potent trigger for the revival of memories of childhood abuse (Courtois & Riley, 1992); Heritage, 1998; Hobbins, 2004).

…

CDK has provided relatively consistent accounts to a number of different councillors over the years and those who have provided a report seemed to agree that they found her to be credible and consistent. The history CDK provided at this assessment was consistent with the history she has provided to other clinicians and her memories seemed to be clear and detailed, which is in keeping with what is said to characterise traumatic memory. Plus, some experts, particularly van der Kolk (1986, 1996, 2001) suggest that there is an initial sensory imprint of trauma that may be ‘indelible’ and is subsequently transcribed into narrative or declarative memory (van der Kolk et al, 2001); and often these sensory images repetitively replay the traumatic event in the form of flashbacks and traumatic dreams (Barrett, 1996; Bourne et al, 2013; Hellawell et al, 2004; Resnick 1997; van der Kolk et al, 1984; Wittman et al 2009).

47. Associate Professor Quadrio opined that while there are limits to what can be determined clinically, what could be said on clinical grounds is that CDK suffers from chronic/complex post-traumatic stress disorder, a condition that is most commonly seen in survivors of severe childhood abuse. She opined that her presentation is highly typical of a survivor of childhood sexual abuse and that she had provided a coherent history with no clinical evidence of any delusional or other disturbance of mind that would affect her capacity in this regard.

48. The Commissioner addressed the issue of ‘recovered memories’ and the application of the Guidelines in her submissions filed on 22 September 2016. In particular, the Commissioner submitted:

In the matter of Re Marshall and Discrimination Commissioner; Australian Capital Territory and Another (Parties joined) – (1998) 52 ALD 361, a matter relating to the review of the decision of the ACT Discrimination Commissioner dismissing a claim for sexual harassment, the Administrative Review Tribunal raised to the desirability, if not the need, to have corroborative evidence with testimony is based on recovered memory.

The matter proceeded to appeal before the Supreme Court of the Australian Capital Territory (De Domenico v Marshall (2001) 146 ACTR 30), in which the Court summarised the expert evidence as follows:

For example, an article by Dr Bruce Stevens “The Reality of Repressed Memories of Sexual Abuse” quoted research confirming that “new, post event information often becomes incorporated into memory, supplementing and altering a person’s recollection.” Dr Stevens referred to in article also in evidence, by an American psychologist, Elizabeth Loftus “The Reality of Repressed Memories”, American Psychologist, May 1993 pp 513-535 in which the author has suggested that “honestly believed but false memories might come about through internal or external sources”. She gave examples of false memories and concluded at p533 that: “These examples provide further insight into the malleable nature of memory. They suggest that memories for personally experienced traumatic events can be altered by new experiences will stop moreover, they reveal that entire events that never happened can be injected into memory. Dr Stevens also cited another note of caution sounded by a psychiatrist, Dr Fred Frankel, and mentioned a former student who would come to have memories of being sexually abused but later became convinced that they had been false. In his concluding remarks he quoted the observation of Loftus that “We presently do not have the tools for reliably distinguishing the signal of the true repressed memory from the noise of the false ones” (see: Para 84).

The judgment expresses clear caution in the manner in which recovered memory should be approached:

The question of “suppressed memory” arose in the recent case of R V Thorne (unreported, Court of Criminal Appeal, 19 June 1995) in that case the accused had been charged with a number of counts of sexually abusing the complainant many years before complaint was made of complainant denied that she was recalling “forgotten” events, but there was evidence to show that she had only complained years after the events occurred and had done so after she had received “therapeutic counselling”. Although it was suggested that a reverence was unreliable, no one had sought, at trial, to place any expert evidence relating to the reliability of her testimony before the jury. A majority of the court (albeit by way of obiter dictum) was not prepared to accept the unreliability of the evidence in the absence of expert material: see her Mandie J at 22 of his judgment; Ashley J at 32-3 of his judgment. Indeed, as Ashley J pointed out: it should be added, for sake of completeness that there is controversy whether early childhood memories of sexual abuse can be recovered by therapists. Believers referred to “repressed memory syndrome”; non-believers to “false memory syndrome”. There is a great deal of literature on the subject. It does not speak with one voice. Different responses of courts to aspects of the problem are revealed by R v Norman (1993) 87 CCC (3d) 153 at 168-169 (Ontario Court of Appeal) and R v R (1994) CRNZ 402 (Tipping J High Court of New Zealand).

49. In the matter of Fox v Percy (2003) 214 CLR 118, the High Court of Australia (Gleeson CJ, Gummow and Kirby JJ.) considered the manner of assessment of evidence by appellate Courts where an appeal proceeds by way of re-hearing. They stated (relevantly):

26. After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde [39], Abalos v Australian Postal Commission [40] and Devries v Australian National Railways Commission [41]. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons [42]. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43].

29. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"[45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [47]. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [48]:

... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

50. Unlike the previous decision makers, I have had the benefit of hearing the oral submissions made by CDK during the hearings and observing her demeanour. Having done so, I am impressed by her forthrightness and I note that her candour has not been challenged by the Commissioner. She clearly believes that her memories, as described to the various clinicians who have provided reports in support of her applications for victims support and in her notes for her presentation to the Royal Commission, are accurate.

51. However, in view of the Guidelines and the principles expressed in the case law, the issue of whether CDK’s account of her memories is accurate and whether it constitutes evidence of the acts of violence that she alleges cannot be determined based solely upon an assessment of her credit as a witness.

52. I am not satisfied that Associate Professor Quadrio is a memory expert as the qualifications set out in her curriculum vitae do not satisfy the definition in the Guidelines.

53. The Tribunal is then faced with a scenario in which there is no evidence that corroborates that the alleged acts of violence occurred and no evidence from a memory expert that is sufficient to satisfy the matters raised in the Guidelines. In particular, the alleged acts of violence that are the subject of the current administrative review occurred when CDK was a very young child.

54. I note that part 3.ii of the Guidelines provides that the period from birth to five years is characterised by rapid neurological development, especially to those areas of the brain that in adulthood will control learning and memory and that infants and young children have yet to acquire many of the concepts familiar to adults, including complex emotions such as guilt, embarrassment, and shame. It also provides that it would therefore not be possible for a child younger than five years who lacked, for example, the concept of “embarrassment” to have an original memory that contained features labelled by the term, although this might of course be added later in adulthood, perhaps for purposes of “presenting” a memory (3.13). However, CDK’s notes for her statement to the Royal Commission and her submissions in support of the current application for administrative review describe complex emotions of this nature.

55. It follows that I am not satisfied that the available evidence establishes on the balance of probabilities that CDK was the primary victim of the acts of violence that are the subject of the Application for Administrative Review.

56. Accordingly, pursuant to s 63 (3) (a) of the ADR Act, the decision of the decision of the Senior Assessor dated 30 July 2016 is affirmed.

Orders

57. The decision of the Senior Assessor dated 30 July 2016 is affirmed.

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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: 23 December 2016