CEL v Commissioner of Victims Rights (No. 2)

[2016] NSWCATAD 100

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CEL v Commissioner of Victims Rights (No. 2) [2016] NSWCATAD 100
Hearing dates:	24 March 2016
Date of orders:	20 May 2016
Decision date:	20 May 2016
Before:	M Riordan, Senior Member
Decision:	1. The decision made by the Senior Assessor upon Internal Review on 26 August 2015 is set aside.  2. Award for the applicant in the sum of $10,000.00.
Catchwords:	Victims Rights and Support – administrative review – Alleged sexual assaults over a period of time – Alleged offender not charged with any offence – Act of violence established on balance of probabilities –Eligibility for victims support - Application of s 44(1) of the Victims Rights and Support Act 2013
Legislation Cited:	Victims Support and Rehabilitation Act 1996 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997
Category:	Principal judgment
Parties:	CEL (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Women’s Legal Services NSW (Applicant) Victims Services (Respondent)
File Number(s):	1510588
Publication restriction:	A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

Reasons for decision

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 24 September 2015, the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Compensation that was lodged by the applicant (known by the pseudonym ‘CEL’).

2. The respondent objected to the hearing of the application on jurisdictional grounds and a previous decision has been handed down in relation to the jurisdiction dispute: CEL v Commissioner of Victims Rights [2016] NSWCATAD 83 (‘the Jurisdiction decision’). The present decision does not contain any outline of the content of the jurisdiction decision and it should be read in conjunction with that decision.

Background

3. On 17 April 2011, CEL lodged an application for compensation with the Respondent under the provisions of the Victims Support and Rehabilitation Act 1996 (“the old Act”). She alleged that she was the primary victim of an act of violence, in the nature of a sexual assault that occurred on 30 August 2007 at a Caravan Park/Motel in Sussex Inlet, NSW. She declared that she reported the matter to NSW Police that same day and she named the alleged perpetrator. She claimed compensation for the compensable injury of ‘sexual assault’.

4. The application for compensation was lodged out of time. On 19 April 2011 the respondent granted CEL leave to lodge it out of time on 19 April 2011. Further, on 21 April 2011 the respondent approved 10 hours of counselling for CEL.

5. The application was not finally determined before the introduction of the Bill for the Victims Rights and Support Act 2013 (“the new Act”) to Parliament. As a result, on 7 May 2013, the respondent treated the application as if it was an application for victims support under the new Act pursuant to cl 4 and cl 5 of Sch 2 of the new Act.

6. The Assessor (Client Claims) dismissed the application on the ground that the available evidence did not establish on the balance of probabilities that CEL was the primary victim of an act of violence (pursuant to s 19 and s 20 of the new Act). In making that decision, the Assessor determined that:

1. The Police COPS Event report did not specifically mention the act of violence that was the subject of the application. While the Assessor noted that CEL had reported other alleged incidents of indecent assault upon her by the alleged perpetrator (on or about 25 September 2007 and 1 October 2007), those alleged assaults were not mentioned in the application);

2. CEL had not lodged any medical evidence that established that she had suffered an injury as a result of an act of violence (as defined by s 18 of the new Act); and

3. While the respondent approved 10 hours of counselling for CEL on 19 April 2011, the records indicated that CEL did not attend that counselling and that there was no report from the counsellor in the claim file.

7. CEL requested an internal review of the Assessor’s decision and during the course of that review she lodged medical evidence that primarily related to treatment that she received for a pregnancy in 2009 and the subsequent premature delivery of a stillborn child. On 28 January 2015 the Senior Assessor deferred the determination of the internal review for a period of two months to enable the respondent to seek further information from NSW Police regarding their investigation of CEL’s complaint and to obtain the Police COPS Event report (number provided) regarding a complaint that CEL made in April 2007.

8. The Senior Assessor deferred the determination of the internal review to enable CEL’s solicitors to obtain a medical report from her former counsellor and they lodged that report with the respondent on 14 August 2015. At that time, they made submissions to the effect that the report corroborated CEL’s allegations of sexual assaults upon her by the alleged perpetrator and that while the Area Health Service redacted the alleged perpetrator’s name, the redacted name was that of the perpetrator named in the application. They also submitted that CEL’s presentation to the counselling service was consistent with her being the victim of sexual assaults and that the psychologist’s opinion was evidence that she had suffered injury as a direct result of the acts of violence. She continued to suffer psychological symptoms that included fear, anxiety and anger.

9. On 26 August 2015 the Senior Assessor issued a Notice of Review Decision and dismissed the application on the ground that the available evidence did not establish on the balance of probabilities that CEL was the primary victim of an act of violence pursuant to s 19 and s 20 of the new Act.

Application for Administrative Review

10. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)  any relevant factual material,

(b)  any applicable written or unwritten law.

(2)  For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)  to affirm the administratively reviewable decision, or

(b)  to vary the administratively reviewable decision, or

(c)  to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)  to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

11. The Application pleaded the following grounds:

1. The decision maker erred in dismissing the claim for failing to prove an act of violence that took place on 30 August 2007.

2. The decision maker erred in failing to find act of violence despite evidence of a series of acts of violence perpetrated by the same offender against the Applicant on other dates in 2007.

3. The decision maker erred in giving too much weight to the failure by police to investigate the offences.

4. The decision maker erred in not interpreting the Act as beneficial legislation.

12. On 14 March 2016, CEL’s solicitors lodged submissions in support of the Application. These were to the effect that the Application was lodged within the time permitted under the new Act and that CEL is eligible for a category B recognition payment under s 35(2)(b) of the new Act as she was a primary victim of a series of sexual assaults that were perpetrated by the same offender and suffered physical and psychological injuries as a direct result of those acts of violence. They also submitted that there are no factors that warrant a reduction of the amount of the recognition payment under s 44 of the new Act.

Application for Leave to Amend the Application

13. CEL sought leave under s 53 of the Civil and Administrative Tribunal Act 2013 (No. 2) (‘the CAT Act’) to amend the Application for Compensation in order to allege that she was the primary victim of acts of violence that occurred over a period of time between 11 April 2007 and 1 October 2007. Her solicitors submitted that the date of the act of violence (30 August 2007) had been “pleaded in error” and that the proposed amendment is consistent with CEL’s evidence concerning the occurrence of the alleged acts of violence that was available to the Assessors.

14. CEL’s solicitors submitted that it is appropriate for the Tribunal to make that amendment to the Application for Compensation because the current proceedings are in the nature of a hearing de novo and it is accepted practice in applications of this nature to allow an applicant to amend an Application ‘…once further evidence comes to light…’. They also argued that CEL has difficulty recalling the exact details of the acts of violence and the chronology of events that occurred in 2007 due to her intellectual disability and the interests of justice require the Tribunal to make the proposed amendment. They stated that if the Tribunal amended the Application, as requested, the current Application must succeed, but that if the Application was not amended then the grounds of review pleaded in the application are pressed.

15. The respondent filed written submissions in relation to the substantive issues on 22 March 2016, which conceded that the current application was filed within the permitted time and that s 51 of the new Act requires only that CEL establish that she is aggrieved by a decision. The respondent did not oppose the proposed amendment to the Application for Compensation.

Consideration

16. When this matter came before me for hearing on 24 March 2015 CEL was represented by Ms Davis and the respondent was represented by Mr Matulewicz. Both legal representatives requested the Tribunal to determine the substantive claim on the papers and I am satisfied that it is appropriate to do so.

17. S 53 of the CAT Act provides:

53   Amendments and irregularities

(1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice.

(2)  Any such amendment may be made:

(a)  at any stage of the proceedings, and

(b)  on such terms as the Tribunal thinks fit,

but may only be made after giving notice to the party to whom the amendment relates.

(3)  If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise.

(4)  The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings.

18. Based upon CEL’s submissions and a consideration of the available evidence, and noting that the respondent does not oppose the proposed amendment, I am satisfied that the interests of justice require the Tribunal to amend the Application for Compensation under s 53 of the CAT Act in order to allege that CEL was the primary victim of acts of violence that occurred between 11 April 2007 and 1 October 2007. The Application for Compensation is amended accordingly.

19. As a result, it is not necessary for me to specifically address the grounds pleaded in the current Application.

20. In determining the current 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.

Act of Violence

21. S 23(1) of the new 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 new Act.

22. “Act of violence” is defined in s 19(1) of the new Act as follows (relevantly):

(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 … means any of the following:

(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) ...

23. S 61H of the Crimes Act 1900 defines “sexual intercourse” as follows (relevantly):

(1)  For the purposes of this Division, sexual intercourse means:

(a)  sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i)  any part of the body of another person, or

(ii)  any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b)  sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c)  cunnilingus, or

(d)  the continuation of sexual intercourse as defined in paragraph (a), (b) or (c)…

24. The onus is on CEL to prove the allegations of sexual assault on the balance of probabilities.

25. In relation to this issue, I note that the report of Julie Roberts, treating clinical psychologist, dated 3 August 2015, indicates that on 20 April 2007, CEL gave a history that she had been sexually assaulted on several occasions by the alleged perpetrator and that while she reported this to the Police the alleged perpetrator was not charged with any offence. On 8 October 2007, she said that she had been further sexually assaulted by the alleged perpetrator in September 2007 and in October 2007 and that she went to the Police and “asked for an AVO”. On 21 October 2009, she gave a history that she “reported the rape” to a Social Worker at Royal North Shore Hospital following the still birth of a baby at 6 months’ gestation. The counselling notes indicated that “the rape” occurred approximately 18 months previously and that the alleged perpetrator continued to stalk CEL for a period of 15 months. The psychologist stated (relevantly):

…Should there be any confusion about the abuse that occurred, due to (CEL’s) difficulty in recalling and explaining events chronologically or the lack of legal protection installed, it is certainly clearly noted in clinical records that there was repeated unwanted sexual contact and coercion by (the named perpetrator) towards (CEL)…

I have no reason to doubt the veracity of the accounts provided to me by CEL and those in the clinical records held by the ISLHD.

26. On 14 October 2009, Northern Sydney Central Coast Area Health Service reported that CEL suffers from “developmental delay”.

27. The Police COPS event reports indicate that CEL complained that she was the victim of a number of sexual and/or indecent assaults that were perpetrated by the alleged offender. While it appears that the Assessor placed considerable weight on the decision made by the Police to not prosecute the alleged perpetrator, those matters are irrelevant to the determination of the substantive issue. I also note that the Assessor (Client Claims) and the Senior Assessor determined that CEL failed to establish that she was the primary victim of an act of violence despite the fact that on 21 April 2011, the respondent approved 10 hours of counselling for CEL and that the approval of counselling is subject to the same standard of proof.

28. After considering all of the available evidence I am satisfied that CEL has established on the balance of probabilities that she was the primary victim of an act of violence, which was a series of related sexual assaults that were committed by the same alleged perpetrator over a period of time between 11 April 2007 and 1 October 2007 and that she suffered both physical injuries and a psychological injury as a direct result of those acts of violence. As a result, the provisions of s 19 and s 20 of the new Act are satisfied.

Recognition Payment

29. CEL is eligible for a recognition payment under s 35(3) of the new Act and I am satisfied that she is eligible for a category B recognition payment under s 35(2)(b) of the new Act as she was the primary victim of a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts. Under cl 12 (c) of the Victims Rights and Support Regulation 2013, she is eligible for an award of $10,000.

Special Grant

30. As the Application for Compensation was not lodged within a period of 2 years of the occurrence of the act of violence, CEL is not eligible for a special grant pursuant to cl 5(3) of Sch 2 of the new Act.

Section 44 Considerations

31. S 44 of the new Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to specified matters. However, I am satisfied that in the current matter there are no factors under s 44 of the new Act that support a decision to either refuse to make an award to CEL or to otherwise reduce the amount of the award.

Determination

32. Pursuant to s 63(3)(c) of the ADR Act, I have decided to set aside the decision of the Senior Assessor dated 26 August 2015 and to make the following decision in substitution:

1. Pursuant to s 53 of the CAT Act, the Application for Compensation is amended to allege that CEL was the primary victim of an act of violence that was perpetrated by the same offender over a period of time between 11 April 2007 and 1 October 2007.

2. The available evidence establishes on the balance of probabilities that CEL was the primary victim of an act of violence, in the nature of a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts, pursuant to s 19 and s 20 of the new Act.

3. CEL is eligible for a category B recognition payment in the sum of $10,000 pursuant to section 35(2)(b) of the new Act and cl 12 of the Victims Rights and Support Regulation 2013.

4. There are no grounds pursuant to s 44(1)(a) of the new Act that support a decision to either refuse to make an award of victims support or to otherwise reduce the amount of the award.

Conclusion

33. I make the following orders:

1. The decision made by the Senior Assessor upon Internal Review on 26 August 2015 is set aside;

2. Award for the applicant in the sum of $10,000.00.

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: 20 May 2016