CNM v Commissioner of Victims Rights

[2016] NSWCATAD 193

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNM v Commissioner of Victims Rights [2016] NSWCATAD 193
Hearing dates:	1 July 2016
Date of orders:	24 August 2016
Decision date:	24 August 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The decision of the Senior Assessor dated 14 August 2014 is set aside. In substitution for that decision the following decision is made:  “CNM is given a Category C recognition payment of $4,500”.
Catchwords:	Administrative Review – Victims Rights and Support – Act of violence – Recognition payment – Internal review sought out of time – Application made within a reasonable time of the administratively reviewable decision – Protection of the applicant’s interests – Failure to provide reasonable assistance to Police – Reduction in amount of recognition payment
Legislation Cited:	Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997 Civil and Administrative Decisions Act 2013 (No. 2)
Category:	Principal judgment
Parties:	CNM (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: CNM (Applicant in person) Victims Services (Respondent)
File Number(s):	1610259
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 15 April 2016, the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support that was lodged by the applicant (known by the pseudonym “CNM”).

Background

2. On 14 November 2013, CNM lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), in which he alleged that he was the primary victim of an assault that was perpetrated by an unknown offender on 13 October 2013, while he was walking along Park Beach at Coffs Harbour, NSW. He stated that he was stabbed in the abdomen and sustained injuries that included lacerations to his liver and a psychological injury.

3. I note that CNM was has not been legally represented in relation to his application.

Evidence

4. A Police COPS Event report dated 13 October 2013, indicates that at about 2:50am that day CNM presented at Coffs Harbour Hospital with a 1.5cm stab wound to his right rib cage. He appeared to be “well affected by intoxicating liquor” and was immediately administered Morphine. When hospital staff questioned him about the incident he was “very vague and uncooperative” and was unwilling to provide any information about the name of the female person who brought him to the hospital, the offender and where the incident occurred. Police attended the hospital at about 3:30am and attempted to ask him further questions about the incident’s location and the offender. However, CNM “mumbled something sounding like “stick it up you arse” (verbatim), but a short time later said that the incident had occurred at Park Beach. He did not respond to any further questions and Police were not certain whether this was due to the medication and CNM’s intoxication. At about 4am, CNM was taken away for scans and surgery. The report states, relevantly:

Police suspects that the victim was involved in an incident outside the Empire Kebab, Grafton Street, Coffs Harbour at 1:54am the same morning. At this time, it has been suggested that the victim has assaulted (person named) which is unknown to him by punching him to the face… Police are awaiting CCTV footage of this incident. There has also been some suggestion that the victim took taxi number 23 from the taxi rank at 1:56am to the Tardewins Motel, Ocean Parade, Police have patrolled the area by foot but no crime scene has been located.

Police are of the opinion that the two incidents are not relates (sic) as the victim attended Coffs Harbour Police Station after the assault had taken place.

Police did not sight any swelling or injuries to the victim’s hands except for some dry blood…

13/10/2013 15:12

(CNM) spoken to at Coffs Harbour Hospital Critical Unit. No life-threatening injuries and will be moved to general ward. Has sustained perforated liver with little to no other injury apart from wound itself. Laparotomy (opened his stomach up) performed only to examine if any further internal injury sustained. (He) maintained his silence regarding all aspects of how he came to be injured. No version obtained…

With no co-operation from (CNM) and no information as to an address or location of incident there is very little Police can do…

5. Clinical notes from Coffs Harbour Hospital confirm that on 13 October 2013, CNM suffered a liver laceration secondary to a penetrating abdominal injury. He was unresponsive and noted to be heavily intoxicated when he arrived at the Emergency Department. He underwent a laparotomy and repair of the liver laceration and was discharged on 18 October 2013.

Decision at First Instance

6. On 25 August 2014, an Assessor (Client Claims) determined that CNM had not established that he was the primary victim of an act of violence and dismissed the application. The Assessor determined (relevantly):

13. I have considered the evidence on file. I cannot be satisfied on a balance of probabilities that an ‘act of violence’ is established. The applicant refused to provide any details to police about the alleged offence perpetrated against him, other than that he had been stabbed. With the limited information on file, I am unable to satisfy the elements of section 19 to the required standard.

7. I note that on 1 September 2014, the Respondent posted a copy of the Notice of Decision to CNM under cover of a letter dated 26 August 2014.

Internal Review Decision

8. On 15 January 2016, CNM lodged a further application for victims support in respect of the act of violence on 13 October 2013, in which he indicated that he wished to appeal against the decision dated 26 August 2014. He stated, relevantly:

All I remember I was down the beach, next thing I wake up in hospital and had just been operated on and told I had been stabbed 10 inches deep thru (sic) the liver and am lucky to be alive, the police interviewed me and told them I couldn’t remember I think. I don’t even remember them coming in to see me as I was on Morphine and just come out of an operation.

9. In support of this Application, CNM provided a statement dated 16 January 2016, which the Respondent received on 25 January 2016, in which he stated:

I don’t remember what happened, I was sitting down the beach at my home town, then I woke up in hospital. I don’t know whether I was hit with something and then stabbed or what, but I know I was the victim to a serious assault which nearly took my life.

After I was operated on and dosed up on Morphine and pain killers 2 detectives came to investigate the case which I was hoping they would be able to find out who did this serious assault on me so as they could be put to justice for what they did to me, however I couldn’t remember a thing and they seem to feel I was not co-operating with them, in saying I couldn’t remember what happened…

I was hoping the Police would find out who done this but I haven’t heard anything since, other than I’m not entitled to compensation for a serious assault ‘attempted murder’ because my family and I were so called “uncooperative” with the Police...

There’s a huge difference between not knowing and being uncooperative. I don’t know just how the two detectives came up with uncooperative, when myself and my family just didn’t know.

10. I further note that CNM asserted that in about September 2013, the Respondent approved counselling for him in relation to this act of violence. There is no evidence of this approval in the documents before me but the Respondent did not dispute this assertion during the hearing of this matter.

11. The Respondent treated the second application for victims support as a request for internal review. On 1 February 2016, the Respondent wrote to CNM at an address in Coffs Harbour, NSW, advising that it received the request on 25 January 2016 and that the request was rejected as it was received more than 28 days after the decision was sent. It advised CNM of his external review rights to this Tribunal.

12. The date that the Respondent posted its letter dated 1 February 2016 is not in the documents before me.

13. Application for Administrative Review

14. 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.

Consideration

15. This matter came before me for hearing on 1 July 2016, when CNM appeared in person (by telephone) and the Respondent was represented by Ms Sabesan. Both parties made oral submissions and the Respondent had also lodged short written submissions with its bundle of documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”).

Leave to proceed

16. S 55 (3) of the ADR Act provides that in an application such as this, there is no external review to the Tribunal unless there has been an internal review. However, subsection (4) provides the Tribunal with a discretion to deal with the Application if it is satisfied that:

(a)  the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b)  it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

17. This is not a case to which subsection (4) (a) applies. The Respondent did not unreasonably refuse to consider the request for internal review as it has no discretion to consider an application that is made outside the 28-day review period. However, I am satisfied that this is a case to which subsection (4) (b) applies.

18. Subsection (5) of the ADR Act provides that in determining whether the application was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:

(a)  the time when the applicant became aware of the making of the decision, and

(b)  in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and

(c)  such other matters as it considers relevant.

19. The evidence before me indicates that CNM requested an internal review on 16 January 2016 and that this was shortly after he learned of the Assessor’s decision dated 14 August 2014. The Respondent received this request on 25 January 2016 and advised CNM of its rejection in a letter dated 1 February 2016, which he received on 10 February 2016.

20. I am satisfied that CNM requested an internal review within a reasonable time after he learned of the Assessor’s decision and its outcome. However, the issue relating to the 'applicant's interests' goes to the substance of CNM’s claim and is bound up in the substantive issue of whether or not he was the primary victim of an act of violence that resulted in injury.

21. For the reasons set out below, I am persuaded on the evidence that is before me that CNM was the victim of an assault resulting in grievous bodily harm. I therefore grant leave for the Application for Administrative Review to proceed pursuant to s 55 (4) of the ADR Act.

Act of Violence

22. 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.

23. S 19 (1) of the Act defines “Act of violence” as follows (relevantly):

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.

24. The onus is on CNM to prove his allegations of assault on the balance of probabilities. In relation to this issue, I confirm that during the hearing on 27 May 2016, Ms Sabesan stated that the Respondent conceded, and in my view properly so, that that available evidence establishes that CNM was the primary victim of an act of violence on the balance of probabilities.

25. Based upon a consideration of all of the available evidence, I am satisfied that on the balance of probabilities that CNM was the primary victim of acts of violence (in the nature of an assault) that occurred on 13 October 2013 and that he suffered a laceration to his liver (which required surgery) as a result. However, there is no medical evidence before me that establishes that he suffered a diagnosable psychiatric or psychological injury.

Recognition payment

26. I am satisfied that CNM is eligible for a Category C recognition payment pursuant to s 35 (3) (c) of the Act, as he was the victim of an assault resulting in grievous bodily harm.

Section 44 Consideration

27. I am required by the Act to consider whether there are any factors under s 44 of the Act that would lead me to decline victims support to the applicant or to reduce any amount payable.

28. S 44 of the Act provides, relevantly:

(1)  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, the Commissioner must have regard to the following:

(e)  whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed, …

29. I note that the Assessor determined (relevantly):

13. I have considered the evidence on file. I cannot be satisfied on a balance of probabilities that an ‘act of violence’ is established. The applicant refused to provide any details to police about the alleged offence perpetrated against him, other than he had been stabbed. With the limited information on file, I am unable to satisfy the elements of section 19 to the requisite standard.

30. The Police COPS Event report indicates that Police first attempted to interview CNM shortly after the act of violence occurred, at a time when he was ‘well affected by alcohol and medicated with Morphine. Police reported that when asked about the incident CNM “…mumbled something sounding like ‘Stick it up you arse’ (verbatim) in response and that he did not respond to any further questions. Police attempted to further interview him the next day, when he was medicated with Morphine, and reported that he ‘…maintained his silence regarding all aspects of how he came to be injured’. They also stated that they interviewed CNM’s father and grandmother, neither of whom were able to provide any information about the incident. As a result, Police could not investigate the circumstances surrounding the act of violence.

31. CNM disputes these aspects of the COPS Event report and states that he told Police that he did not know who had stabbed him and that he did not see the alleged offender. However, he concedes that he does not have a clear memory of what he told Police at the time because he was ‘on Morphine’. He also stated that he was “an adult” and that he did not live with either his father or grandmother and that neither of them knew anything about the act of violence. He disputed the assertion that their lack of knowledge was evidence of his non-cooperation with Police.

32. I note that there is no evidence before me that Police attempted to further interview CNM at any later time when he was sober. However, of equal significance in my view is the absence of any evidence that CNM voluntarily provided a statement or version of events to Police that is consistent with his description of the act of violence in the Application for Victims Support at any time. In my view, this is evidence that he failed to provide reasonable assistance to a duly engaged investigative body for the purposes of s 44 (1) (e) of the Act.

33. I have decided that this failure is not grounds for refusing to approve the giving of victims support, but that it is appropriate to reduce the amount of the recognition payment. In relation to this issue, the Respondent submitted that a reduction of 30% is appropriate. However, in the absence of any evidence that CNM knew the identity of the offender and deliberately withheld this information from Police, I am satisfied that a reduction of 10% is appropriate.

Determination

34. Pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Senior Assessor dated 25 August 2014 and I make the following decision in substitution:

1. CNM is given a Category C recognition payment of $4,500.

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: 24 August 2016