CNB v Commissioner of Victims Rights

[2020] NSWCATAD 31

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CNB v Commissioner of Victims Rights [2020] NSWCATAD 31

Hearing dates:

17 January 2020

Date of orders:

29 January 2020

Decision date:

29 January 2020

Before:

M Riordan, Senior Member

Decision:

The decision of the Senior Assessor dated 30 September 2019 is set aside. In substitution for that decision the following decision is made:

“The applicant is eligible for a Category C recognition payment in the sum of $5,000.”

Catchwords:

Victims Rights and Support – administrative review – act of violence - grievous bodily harm

Legislation Cited:

Victims Rights and Support Act 2013
Victims Rights and Support Regulation 2013
Administrative Decisions Review Act 1997
Crimes Act 1900
Civil and Administrative Tribunal Act 2013

Cases Cited:

AM v R [2012] NSWCCA 203
BJR v R [2008] NSWCCA 43
BWL v Commissioner of Victims Rights [2015] NSWCATAD 235
HAOUI v Regina [2008] NSWCCA 209
Overall v R (1993) 71 A Crim R 170 at 173
R v Donovan [1934] 2 KB 498 at 509
R v Remilton [2001] NSWCCA 546
R v Woodland [2007] NSWCCA 29 at [35]
Roger Lee Vann v Craig Michael Palmer [2001] ACTSC 12
Regina v Shannon [2003] NSWCCA 106
Regina v Sumeo [2002] NSWCCA 271
Regina v Williams [2005] NSWCCA 14
State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40]
Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333

Texts Cited:

None cited

Category:

Principal judgment

Parties:

CNB (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Counsel:

  Solicitors:
CNB (Applicant in person)
Victims Services (Respondent)

File Number(s):

2019/00329289

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. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 21 October 2019, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘CNB’.

Background

Application for Victims Support

2. On 14 December 2016, CNB lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that she was the primary victim of an act of violence in the nature of an assault that was perpetrated in February 2015, at a house in Berkeley Vale, New South Wales, as follows:

Housing NSW requested I look for my own accommodation on Central Court. I found a house share on Gumtree. The male tenant on the night entered the bedroom and started choking me in bed. I fled to Wyong Hosp.

3. The application alleged that CNB suffered both physical and psychological injuries as a result of the act of violence and that she sought counselling and a recognition payment.

4. The act of violence was reported to Wyong Hospital on 26 January 2015. The Hospital’s clinical notes indicate a history that CNB had gone to bed and awoke to find a man (first name provided) with his hands around her throat choking her. She said that she kicked the offender off, but he then started to attack her daughter and hit her in the ribs. She contacted the Police, but they did not attend. The report indicates that the Hospital also contacted Police, who spoke to CNB, but she declined to provide a statement. CNB complained of pain in her left lower chest and shortness of breath and there were some minor scratch marks to the medial aspect of her upper right arm and mild bruising to the right side of her neck, which could be consistent with the alleged assault.

Decision at First Instance

5. On 11 March 2019, an Assessor (Client Claims) issued a Notice of decision, which determined that CNB was the primary victim of an act of violence that occurred on 26 January 2015 and approved a Category D recognition payment. The assessor held, relevantly:

Evidence of physical or psychological harm

15. In order to be considered for a recognition payment…, the required evidence is a documentary report to police or a government agency and medical or dental evidence or a report from a Counsellor.

16. The record from Wyong Hospital indicates that (CNB) suffered minor physical injuries stemming from the alleged incident. She presented with bruising to her neck consistent with the described mechanism of being choked. There were some minor scratch marks to the medial aspect of her right arm above the elbow. She had mild bruising to the right anteroinferior aspect of her neck. There was no associated swelling. No stridor or dysphoria.

17. I have considered the counsellor’s report of Mr Chris Larkin dated 14 August 2017. (CNB) reported a number of unrelated acts of violence to the counsellor. In regard to the present case she says that a man broke into her home, walked into her bedroom and turned on the light. He refused to leave and argued loudly with (her) before leaving. Her disclosure on this occasion does not mention the attempted strangulation or assault upon her daughter but it appears to be the same incident.

18. In regard to injury, it is clear that (CNB) has sustained psychological trauma from a number of violent acts occurring over the course of her life. However, Mr Larkin does not distinguish the contribution of the violence perpetrated and any other act of violence perpetrated by other alleged offenders and the subject of other claims, presumably because such distinctions are almost impossible as Mr Larkin did not see the applicant or make an assessment in the period between the applicant’s relationships with various other abusers.

19. I think the better approach is to accept the Counselling report satisfies the requirements of section 19 (1) (c) of the legislation with regard to injury and to further characterise the approval of a Category D recognition payment for an assault not resulting in grievous bodily harm…

Recognition of the trauma suffered by (CNB)

26. A recognition payment is made to recognise the trauma suffered by a victim of an act of violence. The payment is given to acknowledge both the type and severity of the act of violence committed against the victim.

27. I have found the evidence to establish (CNB) to have been subjected to an assault involving physical violence. The medical evidence establishes (CNB) has suffered a degree of physical harm arising out of the violence she experienced. Additionally medical evidence before me also indicates that (CNB) has suffered a degree of psychological harm too. There I no material on file confirming that the extent of the injuries suffered and the violence experienced resulted in (CNB) suffering grievous bodily harm…

6. I note that a copy of this decision was posted to CNB under cover of a letter from the respondent dated 4 April 2019. However, the date of posting this letter is not indicated in the evidence before me.

Internal review

7. CNB applied for an internal review of the Assessor’s decision and she also requested a change in counsellor and an extension of time in which to obtain and lodge a report from her new counsellor, Ms Mala Sharma.

8. On 17 July 2019, Ms Sharma issued an initial report, in which she reported a history of the act of violence that is consistent with that reported by Wyong Hospital. She also noted that CNB had experienced ongoing domestic violence and had suffered multiple complex life events for which she obtained psychological support. She had been diagnosed with anxiety and was under the care of a psychiatrist. Ms Sharma administered psychological testing, which indicated depression, anxiety and stress in the “extremely severe” range. She opined that the act of violence had a severe impact on CNB.

9. On 30 September 2019, a Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that CNB was the primary victim of an act of violence and that she was eligible for a Category D recognition payment. The Senior Assessor stated, relevantly:

Chris Larkin, counselling report

18. I have read the counselling report of Mr Larkin dated 14 August 2017 where (CNB) presented for six sessions of counselling following the incident. She reported to Mr Larkin the following description of the act of violence:

(CNB) reports that she and her 13-year old daughter – while seeking private accommodation (as directed by Housing NSW) having left the family home following repeated assaults by (CNB’s) ex-husband – had just moved into share accommodation in a house in Berkeley Vale NSW, where they had rented a single bedroom. (She) reports that later that evening, she found the other tenant of the property asleep in the back seat of her car. She told him that he must vacate her car, or she would call the police. The reports that the other tenant followed her to her bedroom and began to throttle her. (Her) daughter then awoke and began to scream. At this, the perpetrator turned on (her) daughter and began punching her. (CNB) reports that she tried to pull the perpetrator off her daughter, at which he ran out of the house. (CNB) then drove her daughter to the hospital. Staff at the hospital contacted the police. (CNB)’s daughter did not report to government agencies and did not want to make a statement to police, so the perpetrator was not charged.

19. (CNB) reported symptoms consistent with Post-Traumatic Stress Disorder.

20. (CNB) provided a detailed description of a number of acts of violence perpetrated against her over the years and the counsellor indicated that the incident has exacerbated her symptoms.

Mala Sharma, counselling report

21. There is an additional counselling report on file from Mala Sharma dated 17 July 2019. Like the previous counselling report, it details the act of violence. (CNB) attending one session of counselling. However, it differs slightly in her report about what occurred:

It was reported that the alleged offender is unknown to (CNB). (She) reported that she was looking for shared accommodation and found one on Gumtree. She moved in with her daughter into this house supposedly owned by a person called (name provided). On the first night, (he) entered (CNB’s) room and started to touch her inappropriately. (CNB) and her daughter managed to escape and went to hospital for treatment as (CNB) suffered bruises. Medical help was sought and the matter was investigated by police. (CNB) has evidence. The violence has impacted CNB) has been impacted physically and emotionally. She is anxious and emotional and said that she is scared of men.

22. As highlighted above, (CNB) reported that she was inappropriately touched by the alleged offender. Apart from a report to Ms Sharma, earlier reports to the hospital, police and her former counsellor not suggest that the incident involved a sexual act or touching.

23. Her presenting complaints and symptoms were described in reference to the DASS scale. Her results were: Depression (extremely severe 37), anxiety (extremely severe 36) and stress (extremely severe 39).

24. On the Event Checklist she scored 69 indicating that the event had a severe impact on her…

38. To be approved a higher category of recognition payment, the evidence needs to establish on a balance of probabilities, that (CNB) has suffered grievous bodily harm. This means really serious injury. For the purpose of a recognition payment, this can include evidence of fractures, deep wounds, scarring, permanent or disabling or debilitating injury.

39. In circumstances where a victim relies on the injury or psychiatric or psychological harm as evidence of grievous bodily harm, I must consider whether the psychological or psychiatric evidence establishes a significant impact on the applicant’s day to day functioning and overall impairment, having regard to the prognosis an d effect.

40. On the current counselling and medical records before he, I am not satisfied the particulars of the psychological injury such as the duration, effect and prognosis, establish a significant impact to (CNB’s) daily functioning and wellbeing. I do not find the nature of the injury to be grievous.

41. I have found the evidence to establish that (CNB) was physically assaulted by the alleged offender. The assault caused actual bodily harm. I have found the evidence to establish that (CNB) was the primary victim of an assault by the alleged offender. The available medical evidence does not support any significant injury.

42. As discussed, I do not accept on a balance of probabilities that the act of violence involved a sexual act or sexual touching, and therefore have not approved a higher category of recognition payment in respect of sexual assault…

10. I note that a copy of the Senior Assessor’s decision was posted to CNB under cover of a letter from the respondent dated 30 September 2019. It appears that a copy of this decision was emailed to CNB on 1 October 2019.

Application for administrative review

11. 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.

12. The current application for administrative review raised the following grounds:

Due to act of violence this I feel should be changed to Category B or C not D. I was in shock at the time reporting this to police. My daughter wouldn’t talk at all, so it made it hard to press charges. This is very re-traumatising with Victim Services.

13. The matter came before Senior Member McAteer for Directions on 6 December 2019, when CNB appeared in person and Mr Ting appeared for the respondent.

14. The respondent filed documents provided under s 58 of the ADR Act. Senior Member McAteer ordered the applicant to file and serve all evidence replied upon on or before 17 December 2019 and he ordered the respondent to file and serve any material in reply and written submissions by 13 January 2019. He listed the matter for hearing on 17 January 2020.

15. However, on 11 December 2019, CNB requested an extension of time in which to comply with Senior Member McAteer’s orders on the basis that her Mother had recently died. The respondent did not oppose an extension of time, but sought an order that the hearing date be vacated.

16. On 19 December 2019, A Britton, Principal Member, granted CNB an extension of time to 29 December 2019 and she also extended the time for the respondent to file material in reply and submissions to 15 January 2020. She refused the respondent’s application to vacate the hearing date.

17. On 7 January 2020, CNB filed a bundle of further evidence with the Tribunal. While I have considered all of the documents included in the bundle, I do not consider it necessary to refer to each and every one of those documents. However, I consider that a statement from CNB dated 23 December 2019, and the following evidence, is particularly relevant to the current application:

…5. We originally come from the Central Coast and I needed to start (my daughter) back at school for the new year beginning February 2015. I attended Housing NSW to seek help, but I was advised by Lithgow office that I had to demonstrate I had attempted to find my own accommodation first. I found a house at Berkeley Vale that was advertised as a share mate accommodation on Gumtree. I have never met this person before, I have attached a copy of the response I did to the ad. The person named (name provided) who advertised this, their ad has now been removed. Initially I thought if a female was named (name provided)…

6. I attended the property at Berkeley Vale with a friend and met the other tenant and to inspect the property. There was no one else there except for the person named (name provided). The property had two separate living areas. (My daughter) and I then travelled up on the afternoon of 25 January 2015, looking to the view to start (my daughter) back at school the following week.

7. I only took what I could fit in my car and all my furniture was still in storage in QLD. We were offered 2 mattresses for the bedrooms downstairs.

8. On that same afternoon, I cannot remember the time, (name provided)’s ex-partner turned up with a tenancy form, to sign to be added to the lease. I was unaware that I would be added to the tenancy, as it was not advertised for this. I did not sign that form, as (name provided) requested one week’s rent which I did not have in my purse at that time. The ex-girlfriend then left with that form. Around 7:30pm 3 of (name provided)’s male friends turned up, stayed 20 minutes and then left. It was after this that (he) started acting strangely, and I had strong suspicions that maybe he had taken drugs.

9. At about 8:30pm the ex-girlfriend turned up and started arguing with (name provided). I overheard her say “If you keep going, I’m reporting you to the police for what you have been doing”. This raised alarms then, and I now know that I should have left with (my daughter). We had nowhere to go. So, (my daughter) and I started to unpack some of the car and organise the bedrooms to go to bed. At one point, (name provided) was in our car too. But I cannot remember if it was before the incident or after. I have memory loss from that night.

10. (My daughter) was originally supposed to sleep in the other room. So, I feel this man (name provided) did not know (she) was in my room, when he entered my room and the door was closed. As this man opened the door, the hallway light was on in the background, so I could see who it was, and I witnessed him without any clothes on. And later on, when he was on top of me.

11. When this man entered the room, he fell onto the mattress onto my lower legs. I kicked him off and screamed to get out. He then came towards me and landed on top of me, I was punched, grabbed and pushed, and he then put his hands around my neck. I was screaming to leave me alone, and then he started assaulting my daughter, after she startled him with screams and trying to push him off me. I kicked and punched as he held me down and touching me inappropriately. He was grabbing at my clothes and grabbing my breasts and down below. (My daughter) and I managed to kick and push him off us, and he ran from the room. I never discussed this part to the hospital because it was personal and I was in shock. I am a woman that is shy and reserved and it was difficult to express this. I was more concerned with my daughter who was in severe shock and refused to talk to anyone.

12. I packed up the car, while (my daughter) rang the police. We then travelled to Wyong Hospital where police attended. The officer advised that they couldn’t charge this person as they needed a witness statement off (my daughter). However, at a later stage, the officer advised that police attended the residence at Berkeley Vale, and no one was there but the front door was wide open. Police advised us, that we could attend at a later stage for (my daughter) to do a report, but I have been unable to get her to do this…

18. On 23 February 2015, I attended my GP Dr Bester, about the event that took place at Berkeley Vale, and suffering with Panic attacks and to reach out for support for my own health…

19. On the 28 February 2015, I attended Housing NSW and complained that I had put my daughter and myself at risk, because of their request for me to find alternate housing. I gave them paperwork the need to house my daughter urgently. I have attempted to obtain information kept by Housing NSW, about the assault at Berkeley Vale. I attended Blacktown Legal Aid, and a response was given by Housing NSW, that they rejected my request under the privacy act, because there were too many documents to copy and they advised the $30 fee was not sufficient…

35. between 2016 to 2017, I have had to engage with psychologists referred to by victim services for matters nonrelated to this matter and which are post dated January 2015. I have seen Christopher Larkin our Psychologist and Mala Sharma who did a second report for this matter…

36. We are currently engaged with McKillops Family Services who are assisting (my daughter)’s recovery, now she is about to turn 18, 4 years after the Berkeley Vale incident…

37. Due to time frames with victim services, and carer responsibilities, I have not been able to have proper counselling about this incident at Berkeley Vale. It has affected me with family issues, social phobias, being able to hold a relationship with a male, trust issues. I would really like to obtain further help. I suffer with nightmares and hate leaving the home. I am still disconnected with my children on the Central Coast and somewhat, this has been very hard on my mother who just passed away. I have just received a new counsellor referral after contacting victims services about the issues and the need for home visits…

28. I also still suffer with a neck and shoulder condition which was exacerbated from the assault that night….

Dispense with oral hearing

18. Pursuant to s 50 (2) of the CAT Act, the Tribunal determined that the issue for determination, which was whether the criteria for a category C recognition payment under s 35 (3) of the Act are satisfied on the evidence, could be adequately determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal. I therefore dispensed with a formal hearing and reserved the matter for determination on the papers.

Consideration

Act of Violence

19. 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.

20. “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…

21. The onus is on CNB to prove her allegations of assault on the balance of probabilities. There is no dispute that she was the primary victim of an act of violence that occurred on 25 January 2015. Based on the available evidence, I am satisfied that he has established that she was a primary victim of an act of violence in respect of that incident.

22. However, in so finding, I note that there is no contemporaneous evidence that supports CNB’s allegation that she was inappropriately touched on her breasts and “down below” by the alleged offender. It appears that she first alleged “inappropriate touching” during the course of an internal review of the Assessor’s decision and her more detailed allegations post-date the publication and service of the decision by the Senior Assessor.

23. I also note that there is no medical evidence that contains a history of “inappropriate touching” of a sexual nature that occurred on 25 January 2015. I note that CNB provided an explanation as to why she did not report those matters to either police or Wyong Hospital on 25 January 2015, on the basis that these matters were of a “private” nature, this does assist her in discharging her onus of proving that the incidents described in her 2019 statement more probably than not occurred.

Injury

24. Section 20 of the Act defines “injury” as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

25. The Respondent does not dispute that CNB was the primary victim of an act of violence and/or that she suffered physical injuries and a psychological injury as a result of it.

26. However, the respondent determined that the act of violence was in the nature of an assault that caused actual bodily harm. This decision appears to be based upon the decision in R v Donovan [1934] 2 KB 498 at 509, which is authority for the proposition that actual bodily harm means “any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." In making that determination, it placed significant reliance on CNB’s prior history of psychological trauma.

27. The respondent lodged written submissions dated 13 January 2020. The respondent maintained its view that CNB was not eligible for a higher category of recognition payment because the evidence did not establish on a balance of probabilities that she suffered grievous bodily harm as a result of the act of violence. It also disputed that the act of violence involved a sexual act or sexual touching. It argued that the decision of the Senor Assessor should be affirmed.

28. However, the evidence of Mr Larkin and Ms Sharma was discussed by both the Assessor and Senior Assessor and Ms Sharma’s report indicates that as at 17 July 2019, CNB continued to suffer extremely severe levels of depression, anxiety and stress and Event Level testing indicated that the act of violence had a severe impact on her. This occurred on a background of previous psychological trauma. I note that Ms Sharma’s report was issued approximately 4.5 years after the act of violence occurred.

29. In BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, in which there was also evidence of a pre-existing psychological or psychiatric injury, this Tribunal determined that the applicant’s psychological condition was such that the “eggshell psyche” principle espoused by Spiegelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [40] applied.

30. Accordingly, if I am wrong regarding my finding as to the causation of CNB’s current psychological condition, I am satisfied that the “eggshell psyche” principle applies and that her pre-existing “eggshell psyche” was aggravated, exacerbated or deteriorated as a direct result of the act of violence.

31. It is therefore necessary to determine whether CNB suffered “grievous bodily harm” or “actual bodily harm” as a direct result of the act of violence.

32. Some guidance regarding the meaning of “grievous bodily harm” may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui).

33. In Haoui, the Court of Criminal Appeal considered its meaning in the context of the Crimes Act 1900 and Beazley JA stated, relevantly:

137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused “grievous bodily harm” was in dispute. His Honour directed the jury to look at “the seriousness of the injury that Mr Mousselamani suffered”. The trial judge correctly directed the jury as to the meaning of “grievous bodily harm” and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to “grievous bodily harm” which, he explained, “simply means really serious bodily injury”. No challenge is made to this direction, although the adverbial qualification of “simply”, should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to “grievous bodily harm”. His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that “grievous bodily harm” meant that the injury was “a really serious one.”

138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm”, but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12.

140 It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that

“It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm”

However, no authority is cited for the proposition.

141 In my opinion, the jury verdict that Mr Mousselamani suffered “grievous bodily harm” was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was ‘red’ for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.

142 In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.

34. I note that the Court of Criminal Appeal approved the decision in Haoui in AM v R [2012] NSWCCA 203, in which Johnson J stated, relevantly:

70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…

35. Based upon the evidence that CNB suffered a psychological injury as a result of the act of violence on 25 January 2015, and that she continues to suffer significant ongoing symptoms and requires treatment more than 4.5 years later, I am satisfied that her psychological injury can properly be considered as being “really serious”.

36. It follows that I am also satisfied that CNB suffered grievous bodily harm as a direct result of the act of violence and that she is therefore eligible for a Category C recognition payment under s 35 (3) (c) of the Act.

Section 44 of the Act

37. I am required by the Act to consider whether there are any factors under s 44 of the Act that would result in me either declining to approve victims support to CNB or reducing the amount of victims support that is payable to her. Based upon the available evidence, I am satisfied that there are no such issues in this matter.

Orders

The decision of the Senior Assessor dated 30 September 2019 is set aside. In substitution for that decision the following decision is made:

“The applicant is eligible for a Category C recognition payment in the sum of $5,000.”

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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: 29 January 2020