CKP v Commissioner of Victims Rights
[2016] NSWCATAD 108
•07 June 2016
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: CKP v Commissioner of Victims Rights [2016] NSWCATAD 108 Hearing dates: 20 May 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The decision by the Senior Assessor is affirmed.
Catchwords: Victims Rights and Support – administrative review – time limits for lodging Application for Victims Support – act of violence – burden of proof Legislation Cited: Victims Support and Rehabilitation Act 1996
Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Administrative Decisions Review Act 1997Category: Principal judgment Parties: CKP (Applicant)
Commissioner of Victims Rights (Respondent)Representation: Solicitors:
CKP (Applicant in person)
Victims Services (Respondent)
File Number(s): 1610008 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
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In these proceedings, which were commenced by an application (‘the Application”) filed on 3 February 2016, 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 ‘CKP’).
Background
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On 4 August 2015, CKP lodged an application for victims support under the provisions of the Victims Rights and Support Act 2013 (“the Act”). He alleged that he was the primary victim of an act of violence, in the nature of an assault that occurred on 14 September 2012, while he was within the Coles Supermarket at Liverpool, NSW. In particular, he alleged:
I was assaulted by 3 police when I made a photo of a S/C (name provided) – who gave me police card earlier (different name written on it) the same day. (He appeared earlier in my unit as S/C (different name) with a female officer (name provided). S/C (name provided) handcuffed me – to be able to rip my camera out of my hand and pushed me against the paddy wagon twice hard, and put me to Liverpool Police Station’s cell handcuffed very tightly causing injuries on both wrists.
He also alleged that “Police cards” had been stolen from his home. He asserted that he suffered both physical and psychological injuries as a result of the alleged act of violence.
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The Police COPS Event report dated 15 September 2012 does not support the Applicant’s allegations. This was created by the alleged perpetrator and indicates that on 14 September 2012, Police attended the Coles supermarket at Liverpool, NSW, in relation to an unrelated matter and that while in attendance they observed the Applicant (described in the report as the “POI”) as they had attended his residential address a short time previously in relation to an alleged break and enter incident. The report states:
…Whilst at the location the POI consistently approached police demanding their details and informing them that they were not real police officers. Police informed the POI that they were not at the location for him but in relation to an unrelated matter. This appeared to make the POI more angry with the POI consistently approaching police and commenced to circle them. Police informed the POI that his behaviour would not be tolerated and to leave the store.
The POI did not comply with the direction and continued to approach police threatening to make complaint reports against them. Police again informed the POI that his behaviour would not be tolerated and to leave the location. Whilst police attempted to investigate the matter by speaking to Coles employees, the POI again circled police and removed a camera from his bag and mumbled something towards police that was not understood.
As a result of the POI constant refusal to leave police have approached the POI and informed him that he was under arrest. As the police approached the POI he began to yell out “Someone help me call the police. Call the police”. After a short struggle the POI was handcuffed and then escorted to a nearby caged police vehicle and then to Liverpool Police Station where he was introduced to the custody manager on duty.
At this stage police have conducted a number of checks on the POI with the checks returning the following warnings:
May have psychiatric illness
POI has depression and brain injury
Taking all these matters into consideration police released the POI without charge. Police attempted to explain to the POI the reasons behind the actions of police however he refused to listen to police constantly stating he was going to complain about them. Police informed the POI of the avenues open to him if he still wished to make a complaint about the matter.
Event created for record purposes. The on shift duty officer was briefed on the matter and the actions taken by police with nil concerns raised.
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The Assessor (Client Claims) dismissed the application on the ground that the subject of the Application occurred outside the time for lodging limits set by s 40 of the Act. The Assessor determined that the exceptions provided by s 40 (2) and s 40 (3) of the Act did not apply to this matter. Therefore, the Applicant was not eligible for financial support in respect of the alleged act of violence. However, the reasons for decision also indicate that the Assessor also considered the available evidence and determined that they were not satisfied that the Applicant was the primary victim of an act of violence as the Applicant’s actions resulted in his arrest.
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I note that the Respondent served a copy of this decision upon the Applicant on 27 November 2015, by posting it to him.
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On 4 December 2015, the Applicant requested an internal review of Assessor’s decision and lodged lengthy submissions in support of that request and he responded to the Assessor’s finding that his actions prior to the alleged incident resulted in his arrest by stating:
PLEASE NOTE: This kind of VICTIM’S BLAMING is a common COMMON TACTICS of the PREDATORY PERPETRATORS in general !!!
He requested an appointment time to inspect the evidence in the file.
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On 7 December 2015, the Respondent wrote to the Applicant and advised him that the file contained a Police COPS Event report, but no other statements or documents other that his Application, and that a vetted copy of the COPS report had been requested for his reference. This was posted to him on 16 December 2015.
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On 5 January 2016 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 CCKP was the primary victim of an act of violence pursuant to s 19 and s 20 of the Act and that the Application was lodged outside the time permitted by s 40(1) of the Act.
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The Respondent served a copy of the Senior Assessor’s decision by posting it to him.
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On 25 January 2016, the Applicant sent a facsimile letter to the Respondent, in which he requested (inter alia) that Victims Services to obtain “the necessary medical evidence from Liverpool Hospital, Dr Vago and Dr Huang of the injuries I was getting as a result of the unlawful arrest by a corrupt police with the names and his colleges (sic). I was also requesting the Video evidence of the attack when I took a photo of the crook policeman name used) when I found out his real name…” He alleged that the COPS Event report contained a number of “lies” and he provided a copy a letter dated 3 October 2012 (which he received from the NSW Ombudsman) in relation to his complaint that a Police officer had provided him with a false name and arrested him on 14 October 2012. I note that the Ombudsman decided to refer his complaint to the Police for investigation.
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Application for Administrative Review
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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.
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The Application for Administrative Review pleaded the following grounds:
(Police officer’s name) using (also FAKE NAMES & ) lies in his report and it was accepted before it was the ONLY evidence !!! My version of evidence was ignored completely. I did not have any other evidence despite I have requested through the Victims Services. It was pre-planned plot organised by the OCS.
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In support of the Application, the Applicant lodged a marked-up copy of the Senior Assessor’s decision in which he indicated that the decision contained a total of 21 lies and that the fact that his evidence was completely ignored “represented a cover-up by victims services”. He also lodged 3 pages of typed submissions, in which he repeated his previous allegations and raised further allegations concerning the conduct of the alleged perpetrator.
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On 6 May 2016, the Applicant lodged the following further documents in support of his Application for Administrative Review:
His letter to the Respondent and this Tribunal dated 6 May 2016;
His letter to his Local Member of Parliament and the NSW Ombudsman and the NSW Police Commissioner dated 26 September 2012;
His letters to Legal Aid NSW dated 24 October 2012, 11 November 2012 and 11 April 2016; and
Undated and unsigned submissions (comprising 5 pages) in which he further addressed “the 21 lies” set out in the Senior Assessor’s decision.
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In relation to the letter referred to in para 14 (1) above, I note that the Applicant made further allegations including:
He was ‘discouraged’ from going ahead with his case “with many different ways”, which included being threatened by a person who told him, “I am a magician, I make people disappear… I will shoot you in the forehead first!!!” He alleged that this “dead threat comes from the OCS posing as a SMA disguising themselves also, as “Professional Team” advertising themselves in the local paper – regularly – fortnightly”.
It appears that the alleged perpetrator (the police officer who arrested him) “is part of the OCS or hired by them”.
It appears that the Senior Assessor was “also hired by the OCS, stating such things, which never happened – protecting the perpetrators… I wrote to Paul Lynch, OM, PC & (Legal Aid NSW) …3 letters… typed in my computer to you disappeared, vanished into thin air…
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In relation to the submissions referred to in para 14 (4) above, the Applicant concluded:
P.S I edited this version of this file & then the computer was hacked into resulting most of the files were “disappeared” into thin air… like “magic”!!! This old computer I used was repeatedly hacked into despite of no internet connection!!! I have fond (sic) out later that the hacker or hackers activated the infrared connection which I was not aware of.
Consideration
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When this matter came before me for hearing on 20 May 2016, CKP appeared in person and the Respondent was represented by Ms Sabesan. Both parties made oral submissions and the Respondent also lodged short written submissions with its bundle of documents under s 58 of the Administrative Decisions Review Act 1997.
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I note that the Applicant largely repeated his previous written submissions. He also stated that he did not lodge his Application for Victims Support within the required period of 2 years because he was afraid of retribution by the alleged perpetrator.
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In determining the 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.
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I note that s 40 of the Act provides:
40 Time for lodging, and duration of, applications
(1) Except as provided by subsections (2) and (3), an application for financial support must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.
(2) An application for financial support or a recognition payment may be made by a family victim more than 2 years after the relevant act of violence that resulted in the death of the primary victim occurred if it was only established (whether or not by a court) that the primary victim died as a direct result of the relevant act of violence subsequently to the occurrence.
(3) In the circumstances described in subsection (2), an application for financial support may be duly made within 2 years after it is established that the primary victim died as a direct result of the relevant act of violence.
(4) Except as provided by subsection (5), an application for a recognition payment must be duly made within 2 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 2 years after the day on which the child concerned turns 18 years of age.
(5) An application for a recognition payment in respect of an act of violence involving domestic violence, child abuse or sexual assault must be duly made within 10 years after the relevant act of violence occurred or, if the victim was a child when the act of violence occurred, within 10 years after the day on which the child concerned turns 18 years of age.
(6) Claims may continue to be made under an application that is duly made in respect of an act of violence until whichever of the following first occurs:
(a) the expiration of the period of 5 years after the application is made,
(b) the total maximum amount of financial support that the victim is eligible to receive under this Act in respect of that act of violence has been given.
(7) This section (other than subsection (6)) does not apply to an application for financial support, being for financial assistance of a kind specified in clause 8 (2) (b) or (d) of the Victims Rights and Support Regulation 2013, or a recognition payment for a person who is a primary victim of an act of violence that occurs in the course of the commission of a sexual offence against the person when the person is under 18 years of age. There is no time limit on when such an application can be made.
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It is clear from the available evidence that the Applicant did not lodge his Application for Victims Support within the 2-year period permitted by s 40 (1) of the Act. While the Applicant alleges that lodged his Application late because he was afraid of retribution by the alleged perpetrator, this Tribunal does not have power to extend the time for lodgement of the Application beyond the 2-year period unless one of the exceptions in s 40 of the Act is established. None of those exceptions have been established.
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As a result, the Applicant is not eligible for victims support in relation to the act of violence alleged in the Application.
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However, even if the Applicant had established grounds for extending the time to lodge his Application for Victims Support, he bears the onus of proving on the balance of probabilities that he was the primary victim of an act of violence.
Act of Violence
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S 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.
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“Act of violence” is defined in s 19(1) of the 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…
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The onus is on CKP to prove his allegations of assault on the balance of probabilities. While he alleges that he was assaulted by NSW Police during the course of an “unlawful” arrest and that the Police COPS Event report contains lies and that the decision of the Senior Assessor (who accepted the evidence in that report) contains 21 lies, he has not lodged any evidence that corroborates his version of events. He did not obtain video surveillance report from the Coles Supermarket in which the relevant events occurred or any evidence from any witness to those events. He also did not obtain and lodge any medical evidence that supports a finding that he suffered any injury as a result of the alleged act of violence.
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For these reasons, I am not satisfied that the Applicant has established on the balance of probabilities that he was the primary victim of an act of violence, as alleged in his Application for Victims Support, or at all.
Determination
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Pursuant to s 63(3)(a) of the ADR Act, I have decided to affirm the decision of the Senior Assessor dated 5 January 2016.
Conclusion
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I make the following orders:
The decision made by the Senior Assessor upon Internal Review on 5 January 2016 is affirmed.
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: 07 June 2016
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