CRT v Commissioner of Victims Rights

[2017] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

CRT v Commissioner of Victims Rights [2017] NSWCATAD 174

Hearing dates:

17 March 2017

Date of orders:

02 June 2017

Decision date:

02 June 2017

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1.   The decision of the Respondent dated 7 July 2016 is set aside.

 

2.   In substitution for that decision, the following decision is made:

 CRT is eligible for a Category B recognition payment in the sum of $10,000.

Catchwords:

VICTIMS RIGHTS – administrative review – statutory interpretation – eligibility for recognition payment – whether act of violence resulted in serious bodily injury – whether act of violence involved an offensive weapon

Legislation Cited:

Administrative Decisions Review Act 1997
Civil and Administrative Decisions Tribunal Act 2013 (No. 2)
Courts and Crimes Legislation Further Amendment Act 2010 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Victims Compensation Act 1987 (NSW)
Victims Rights and Support Act 1996 (NSW)
Victims Rights and Support Act 2013 (NSW)
Victims Rights and Support Regulation 2013 (NSW)

Cases Cited:

ATX v Victims Compensation Fund Corporation [2015] NSWCATAP 42
Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724
BDJ v Victims Compensation Fund Corporation (No2). [2014] NSWCATAD 187
Kirk v Independent Liquor and Gaming Authority; Ashton v Independent Liquor and Gaming Authority [2016] NSWCATAD 64 at [27]
Kooragang Cement Pty Ltd v Bates [1994] 35 NSWLR 452
R v Donovan [1934] 2 KB 498 at [38]
Rejfek v McElroy (1965) 112 CLR 517 at 521-522; (1965) 39 ALJR 177; (1966) ALR 270; [1965] HCA 46

Texts Cited:

Macquarie Dictionary

Category:

Principal judgment

Parties:

CRT (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
G Craig (Applicant)
J Singh (Respondent)

File Number(s):

2016/00378293

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.

REASON FOR DECISION

1. In these proceedings, which were commenced by an application (‘the Application”) filed on 23 August 2016, the Applicant sought administrative review of a decision made by a delegate of the respondent in respect of an application for support that was lodged by the Applicant (known by the pseudonym “CRT”).

Background

2. On 8 March 2016, CRT lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), in which she alleged that she was the primary victim of an act of violence in the nature of an aggravated sexual assault that occurred in 1984 at an address in Erskineville, New South Wales. She alleged that she was sexually assaulted while she was at the alleged offender’s home and that he threatened to kill her if she told anyone and that she suffered a psychological injury as a result. She named the alleged offender and stated that she did not report the act of violence to NSW Police at the time because she was only 14 years old and she was, and remains, in fear of her life. She claimed victims support in the form of counselling, financial assistance for immediate needs and a recognition payment.

3. CRT was not legally represented in relation to this Application (up to and including internal review stage). However, she is legally represented by Women’s Legal Services in relation to the current application for administrative review.

Decision at First Instance

4. On 15 June 2016, an Assessor (Client Claims) determined CRT’s application and determined that she was eligible for a Category C recognition payment under s 35 (3) (a) of the Act. The Assessor provided the following reasons:

…

7. According to the application form, during 1984 the Applicant was a victim and sustained injury as a result of a sexual assault which occurred during her adolescence and was committed by the alleged offender at Erskineville in New South Wales.

…

9. I have reviewed the medical evidence that has been provided in support of this application. I note that a report was made by the Applicant and (name provided), her psychologist to the Department of Human Services in relation to her history of childhood sexual assault and seeking assistance as a result.

10. Further to this, is a more detailed counselling report from (the psychologist) dated 3 December 2015 in which gives more specific information of the Applicant’s experience of sexual abuse which includes information to indicate that the Applicant’s emotional wellbeing was affected by her experience of the violence.

11. There was also correspondence received from Dr (name provided) on 20 November 2015 which notes that the Applicant suffered from anxiety, depression and also symptoms of post-traumatic stress disorder as a result of her experience of sexual abuse.

12. Based on the evidence, I find that sections 19 (1) (a) and 19 (1) (b) of the Act are satisfied on the balance of probabilities as the act apparently occurred in the course of the commission of an offence and involved violent conduct…

Recognition payments

…

18. On the evidence before me, I am of the view that the Applicant is eligible for a category C recognition payment for sexual assault other than one referred to in section 35 (2) (b) (section 35 (3) (a)). A category C recognition payment is approved under section 36 (1) (d) of the Act in the amount of $5,000.

5. On 17 June 2016, CRT requested an internal review of the Assessor’s decision on the following grounds:

In the case of #228157, the category I claimed is of “Aggravated sexual assault”, due to the verbal and physical threats made against my life by the offender, which is why I am and have been in fear of my life… Therefore, I am asking the assessors to urgently review their decision concerning the category of my claim, due to the aggravated nature of these threats upon my life…

6. On 7 July 2016, the Senior Assessor determined the application for internal review and issued a Notice of Review Decision. The Senior Assessor determined, relevantly:

Recognition Payments

…

43. On the evidence before me, I consider the Applicant a victim of a sexual assault.

44. In review correspondence dated 28 June 2916, the Applicant submits the act of violence should be classified as an ‘aggravated sexual assault’ and therefore, approved a category B recognition payment.

45. To be approved a category B recognition payment, the evidence must establish:

- The sexual assault resulted in serious bodily injury or involved an offensive weapon or was carried out by 2 or more persons (section 35 (2) (a)) or

- Was a sexual (assault), indecent assault or attempted sexual assault involving violence that was one of a series of related acts (section 35 (2) (b)).

46. It is the Applicant’s submissions that immediately after the sexual assault she was threatened by the alleged offender. I have accepted this description and concluded these actions by the alleged offender form part of the same act of violence. I do not accept that the sexual assault and threat are considered separate acts. I find they were committed in the context of the sexual assault and therefore, this is considered a single act of violence. I am not satisfied this forms a series of related acts for the approval of a category B recognition payment.

7. The Senior Assessor approved a category C recognition payment under s 36 (1) (d) of the Act.

8. I note that a copy of the Review Decision was sent to CRT by post under cover of a letter from the Commissioner dated 8 July 2017. However, the date upon which it was posted is not indicated in the documents before me.

Application for Administrative Review

9. On 23 August 2017, CRT applied for administrative review of the Senior Assessor’s decision on the following grounds:

In 1984, (initials of the offender) threatened to kill me with a 6ft metal pole that was in the corner of the room if I did (or ever said) anything about the sexual assault before it took place. I made an application to VS Dec. 2015, after I was confronted by (initials of the offender) in Oct. 2015. VS did not recognize my applications for ‘aggravated sexual assault’ or ‘relocation assistance’, when it was because of him I relocated to (place named) – 2015 – then to (State named) – July 2016, and the violent nature of the attack should be categorized as ‘aggravated sexual assault’ and ‘relocation assistance’ granted.

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 (‘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 for Administrative Review came before me for Directions on 16 December 2016. Ms Craig appeared for CRT and the Commissioner was represented by Mr Singh. The documents provided by the Commissioner under s 58 of the ADR Act appeared to be comprehensive and complete. Ms Craig indicated that she wished to request the file from FaCS regarding her client’s report of the act of violence that occurred in 1984. Accordingly, the matter was adjourned for further directions on 20 January 2017.

12. On 20 January 2017, the same legal representatives appeared before the Tribunal. Ms Craig advised that she had requested the relevant file from FaCS, but it had not yet been received. Accordingly, the matter was adjourned for further directions on 17 February 2017.

13. On 17 February 2017, the same legal representatives appeared before the Tribunal. Ms Craig advised that she had received a letter from FaCS advising that no records could be located. The matter was listed for hearing on 17 March 2017 and CRT was given leave to participate in the hearing by telephone as she lives interstate.

14. On 16 March 2017, Ms Craig filed and served a Statutory Declaration from CRT dated 15 March 2017, in which she provided considerable detail in relation to the act of violence, as follows:

…

7. Not long after arriving there my sister asked (the offender) if she could use the toilet. (the offender) got up from the table and took her to the bathroom. When (he) came back to the table (he) asked me to follow him and said words to the effect, “I’ve got something to show you”. I went with (him), I had no negative impressions of (him) and he appeared to be a family man. I followed (him) through the open plan living area, where his children were, across the main hallway towards the front entrance door. The main bedroom was located near the front of the house just before the main entrance. The main bedroom door was open and the interior light was off. (He) took me inside the room. I recall that there was a window with a thin white lace curtain. I could see through the curtain to the street light outside. The street light was the only source of light in the room. Soon after we entered the room (he) pointed to a long metal post that was in the right hand corner of the room. The post was the length and width of a street sign post. As (he) pointed to the post he said to me words to the effect, “I will kill you with that post if you say or do anything about this ever”.

8. After (he) said these words to me he sexually assaulted me by forcing his penis into my vagina. I remember lying on the bed while he assaulted me. I don’t recall how I got on the bed or what happened to my clothes. The assault was very painful. I was a virgin.

9. Even now I still find it difficult to comprehend how this happened let alone describe it or explain my reaction. In hindsight I must have gone into some form of shock, disbelief and shame at what was happening. I remember feeling an overwhelming sense of fear and dread in light of what was happening and the threat he had made to kill me.

10. After the assault he again threatened to kill me. (He) pointed to the pole and said words to the effect, “if you scream or say anything I will kill you”. I remember being very aware of the others in the house but I was too scared to say or do anything.

11. I got dressed and followed (him) back to where the others were. He carried on as if nothing had happened. From that point on I felt my feelings shut down and felt myself closing off from others around me. I was scared and believed him when he said that he would kill me. I didn’t talk about it to anyone at the time and only talked about it with my sister months later and to counsellors years later.

12. I did not see (him) again until 2015 when I ran into him at the Aboriginal Medical Service. When I saw (him) at the Medical Service I became increasingly anxious again and scared for my life.

Submissions

15. On 15 December 2016, Ms Craig filed written submissions in support of the Application, in which she stated, relevantly:

Grounds of Review

14. The Applicant complains of the following errors:

a. The decision maker erred in not giving sufficient weight to the Applicant’s evidence proving the Applicant’s eligibility for category B recognition payment.

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

15. The Applicant also seeks to rely on the additional evidence supplied by the Applicant.

Full Particulars of Grounds of Review

Error: The decision maker erred in not giving sufficient weight to the Applicant’s evidence proving the Applicant’s eligibility for category B recognition payment

Act of violence

16. In order to be eligible for a recognition payment, the Applicant must establish on the balance of probabilities that she is a victim of an act of violence (s 19).

…

20. The Applicant makes a claim for a recognition payment on the basis she was the primary victim of an act of violence, namely unlawful sexual intercourse. The Applicant relies on her Statutory Declaration dated 15 March 2017 as evidence of the act of violence. In her Statutory Declaration the Applicant outlines that on an evening in 1984 the Applicant attended the home of the offender. When her sister left the room to go to the bathroom the Offender took her into his bedroom. The Offender threatened to kill her with a metal pole that was in the corner of the bedroom and then proceeded to sexually assault the Applicant by forcing his penis repeatedly into her vagina. Following the sexual assault, the Offender again threatened to kill the Applicant if she said anything about the assault.

21. We note that the Assessors in both the original decision dated 14 June 2016 and the Internal Review dated 7 July 2016 found that the Applicant was the victim of an unlawful sexual assault in 1984 by the Offender and that she was the victim of an act of violence.

Category B Recognition Payment

…

23. It is our submission that there is sufficient evidence available for the decision maker to be satisfied that the Applicant should be awarded a Category B recognition payment as she was the victim of a sexual assault that:

a. resulted in serious bodily injury; and/or

b. involved an offensive weapon; and/or

c. was one of a series of related acts.

Serious Bodily Injury

24. The Applicant submits that she has suffered serious psychological injury as a direct result of the sexual assault perpetrated against her by (the offender). The Applicant’s injury includes Post Traumatic Stress Disorder (PTSD), anxiety and depression. Her injury is serious, long term and has had a significant impact on her social functioning. The offence falls within the most serious of sexual assaults as the Applicant was a child at the time of the offence and serious threats to kill the Applicant were made in the commission of the offence.

…

26. The Applicant submits that psychological or psychiatric injury falls within the definition of “bodily injury”.

27. “Serious bodily injury” is not defined in the Victims Rights and Support Act 2013.

28. Section 18 stipulates that “injury” means “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

29. The matter of BDJ v Victims Compensation Fund Corporation (No. 2) [2014] NSWCATAD 187 (3 November 2014) provides authority for the Applicant’s submission that psychological or psychiatric harm falls within the definition of “bodily harm”. The following was stipulated…:

a. In R v Donovan [1934] 2 KB 498 when discussing harm the Court said, “its ordinary meaning includes any hurt or injury calculated to interfere with the health or comfort of V. Such hurt or injury need not be permanent but must, no doubt, be more than transient or trifling” (at paragraph 38).

b. “Actual bodily harm came to be seen as including psychological or psychiatric harm following Donovan. The Court said that, “if a person is caused hurt or injury resulting, not in a physical injury, but an injury to his state of mind for the time being, that is within the definition of “actual bodily harm” R v Miller [1953] 2 All ER 529 at 534” (at paragraph 38).

c. “Later in the Australian Case of T v The State of South Australia & Anor (1992) Aust Tort Reports 87-167, which related to a criminal injuries compensation case, the Court said, “If the practical effect of the relevant conduct was to bring about a morbid situation in which there had been something more than transient deleterious effect upon an applicant’s mental health and wellbeing, so as to adversely to affect the person’s normal enjoyment of life beyond a situation of mere transient sorrow and grief then, in the relevant sense, the person has sustained mental injury.” The Court specified that this must be more than mere sorrow and grief” (at paragraph 28).

30. In relation to “serious bodily injury” BDJ … draws references to the interpretation of “serious bodily injury” under the previous legislation. It is stated that:

Having regard to the 16 years of cases dealing with victims compensation under the old Act, it is clear that Category 3 sexual assault provisions were to deal with the most serious matters. Usually a category 3 award involving serious bodily injury arises in an instance where an offender injures the victim in such a way so as to either disable the victim (long or medium term), or where the sole sexual assault or unlawful sexual assault, is accompanied by the most violent assaults.”

31. The Applicant submits that the threshold for “serious bodily injury” is lower than the test for “grievous bodily harm”. The matter of BMF v Commissioner of Victims Rights [2016] NSWCATAD 64 (22 March 2016) provides that grievous bodily harm is “really serious bodily harm” (at paragraph 27).

32. The Applicant submits that the injury that she has suffered as a direct result of the assault by the offender is long term and has had a significant and extremely detrimental effect on her life and ability to perform normal day to day functions and as such clearly meets the criterial for “serious bodily injury”.

…

16. After addressing the available medical evidence, CRT’s solicitor continued as follows:

33. The Applicant submits that this act of violence can be clearly distinguished from later abuse suffered by the Applicant and that the evidence provides that the psychological injury suffered by the Applicant can clearly be linked to this assault.

…

34. As to the significance of this assault on the Applicant’s mental wellbeing this was the first of the sexual assaults to occur, the Applicant was only 14 years old and it was her first sexual experience.

Offensive Weapon

35. It is the Applicant’s evidence that at the time of the assault the offender threatened to kill (her) with a 6ft metal pole that was in the corner of the room. The Applicant describes the weapon and the threat made to kill her in her Statutory Declaration dated 15 March 2017.

36. The Applicant concedes that the metal pole was not specifically referred to in her original application for Victims Support. It is however open to this Tribunal to accept fresh evidence in relation to the appeal. We ask that this Tribunal take into account the above disclosure provided by the Applicant in her Application for Administrative Review, her Statutory Declaration dated 15 March 2017 and the medical records provided by (name provided), psychologist, wherein the Applicant has disclosed that “CRT stated that she reported to [FaCS] the aggravated sexual assault by (Offender’s initials provided) in 1984. (She) states that in the documentation she read there has been an omission of the threat to her life before the assault started. (She) believed she reported that the perpetrator threatened to kill her using a 6ft metal pole that was in the corner of the room if she said anything now or in the future. As such (she) did not report the assault to the police.”

37. While the pole was not specifically referred (to) in her original application this evidence is consistent with the description of events that was provided by the Applicant. We note, for example in her application form the Applicant provided evidence that “(her sister) went out the back to go to the toilet when he took me into his bedroom and raped and threatened to kill me if I said anything”. On 17 June 2016 the Applicant emailed Victims Services and requested a review of the recognition payment. In her email the Applicant claimed that she had been the victim of “an aggravated sexual assault due to the verbal and physical threats made against my life by the offender, which is why I have been in fear of my life and why I seek urgent relocation assistance.”

38. The evidence submitted with this application clearly establishes that the Applicant is an extremely vulnerable woman who has been the victim of multiple traumas in her life. She filed her original application and her application for internal review unassisted and without the benefit of legal advice. At the time of filing the application she was homeless and seeking the assistance of multiple services. We submit that this adequately explains the omission.

39. We also draw the decision maker’s attention to the comment made by the Assessor of the Internal Review wherein it is stated that “I consider her reports to be of credible historian who clearly identifies the impact that this violence has caused to her health and wellbeing.”

Sexual Assault involving violence that is one of a series of related acts

40. In the alternative, the Applicant submits that the incident that occurred in 1984 can be seen to include two acts of violence:

a. unlawful sexual assault;

b. Assault by way of threats to kill the Applicant.

…

Error: The decision maker erred in not interpreting the Act as beneficial legislation

42. Recognition payments under the Victims Rights and Support Act 2013 are a symbolic acknowledgment of pain and suffering and a recognition that a wrong has been done. For victims of sexual assault in particular, the significance in being believed and in validation of their experiences of trauma by way of an award of compensation (a recognition payment) can be a significant contributor to their recovery.

43. We submit that the purpose of the Act is beneficial and therefore ought to be interpreted liberally and beneficially (Fleming v White [1981] 2 NSWLR 719 at 722) and in favour of the grant of benefits to an Applicant (Elena Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604).

44. We submit that the decision maker has erred in failing to interpret this claim beneficially…

17. On 16 March 2017, the Commissioner lodged written submissions in response to the current application. I have summarised these relevantly as follows.

Standard of Proof to establish an “Act of Violence”

5. The recent case of ATX v Victims Compensation Fund Corporation [2015] NSWCATAP 42 (“ATX”) concerned an applicant for statutory compensation who claimed to be the victim of sexual assaults and domestic violence perpetrated by her former husband from 1 June 1994 to 14 September 2009. The Appeal Panel of the Tribunal considered whether evidence in the form of a report to Police (which did not detail any criminal conduct), journal entries detailing offences, a history given to a psychologist and photographs of bruising were sufficient to support the finding of an act of violence for the purposes of section 6 of the Victims Support and Rehabilitation Act 1996.

This evidence must be assessed to determine whether, on the balance of probabilities, ATX was the victim of an act of violence. The phrase “on the balance of probabilities” has been interpreted to mean that, “the mind has only to be reasonably satisfied”. Reifek v McElroy [1965] HCA 46; 112 CLR 517 at 521-522. Although the Tribunal is not bound by the rules of evidence, we should take into account the matters listed in s 140 of the Evidence Act 1995 (NSW) when making findings of fact. That provision states that:

140 Civil proceedings: standard of proof

(1) in a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject matter of the proceeding, and

(c) the gravity of the matters alleged.

The ‘gravity of the matters alleged’ is a relevant factor. Allegations of domestic violence and sexual assault are serious matters but there is no general rule… that such allegations must be corroborated by other cogent evidence.

The evidence in the hand written notes is not inconsistent with the evidence and material obtained from police and the accounts of her adult daughter. ATX refers to the fact that she was being treated by a psychiatrist at the time. Because of the nature of these proceedings ATX’s evidence has not been tested. Despite that, it does not appear to us to be exaggerated or fanciful. In addition, it is sufficiently detailed for us to regard it as credible. Based on all the evidence we find that ATX is the victim of an act of violence… we find that the series of related acts claimed by ATX constitute one act of violence for the purposes of the repealed Act.

6. Rothman J commented on Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724 that “there seems to be some level of injustice associated with any Tribunal making findings which, in effect, are findings against the credit of the Applicant in circumstances where the Applicant has not been heard or cross-examined; and in circumstances where there is no evidence that contradicts the evidence of the Applicant. Nevertheless, the mere fact that evidence is adduced before a tribunal, and not contradicted, does not require the tribunal to be satisfied that the evidence is true or accurate” (ibid at [58]).

Requirements for a category B recognition payment

7. Section 35 of the Act sets out the requirements that must be met with respect to an act of violence in order to determine the applicable category of recognition payment payable to an applicant. Regulation 12 of the Victims Rights and Support Regulation 2013 identifies the amount payable with respect to the different categories of recognition payment.

8. The requirements for a category B recognition payment are set out at section 35 (2) of the Act…

Issue – Does the evidence support a category B recognition payment?

9. By reference to section 35 (2) of the Act, … there are two basis (sic) upon which an act of violence may fall within a category B recognition payment. The Applicant has submitted that the act of violence falls within the ambit of a category B payment for three reasons:

a. The application for administrative review refers to the offender’s threat to kill the Applicant with the use of a “6ft metal pole that was in the corner of the room if I did (or ever) said anything about the sexual assault before it took place.” The respondent assumes that the Applicant’s position is that this particular brings the application within the ambit of section 35 (2) (a) of the Act on the basis that the 6ft metal pole satisfies the definition of an “offensive weapon”;

b. The sexual assault resulted in serious bodily injury (section 35 (2) (a) of the Act);

c. The Applicant submitted at the initial hearing of the matter on 16 December 2016 that the threat made to the Applicant by use of the 6ft metal pole is a separate act of violence such that the sexual assault combined with the physical threat are “one of a series of related acts” satisfying the requirement of section 35 (2) (b) of the Act.

Respondent’s submissions

10. With respect to the submission made by the Applicant and referred to in paragraph 8 (sic) (a) above, the Respondent submits:

a. The Tribunal must be satisfied on the balance of probabilities that the act of violence involved the use of an “offensive weapon”. The Respondent submits that:

i. at no time prior to the filing of the application for administrative review did the Applicant claim that the act of violence involved the use of a 6ft metal pole.

ii. Whilst the respondent accepts that there is good reason for the Applicant not disclosing the incident to the police, from an evidentiary point of view, the absence of a police report (or any other detailed disclosure) of the incident and the Applicant’s failure to raise the issue of the metal pole in prior submissions is a matter that must be considered in accepting the Applicant’s version of events with respect to the use of the weapon.

iii. The application for victims support lodged 8 March 2016 refers to sexual assault and the threat to kill the Applicant. The application does not refer to the weapon used.

iv. There is a reference to verbal and physical threats against the Applicant in an email to Victims Services on 17 June 2016 (at the time a request was made for internal review). On 27 June 2016, a request was made by Victims Services that the Applicant provide any further submissions in support of her application. No documents were provided to evidence the use of a weapon.

b. By reference to paragraph a, it cannot be established on balance of probabilities that an offensive weapon was used at the time the act of violence was committed.

11. With respect to the submission made by the Applicant and referred to in paragraph 8 (sic) (b) above, the respondent makes the following submissions regarding the Applicant’s evidence:

a. The report from Partners in Recovery refers to the Applicant having symptoms of PTSD however does not say that those symptoms arise from the act of violence the subject of this application;

b. The report from (name provided), psychologist, dated 12 November 2015 states that the Applicant is suffering from post-traumatic stress disorder in response to “early sexual assaults and subsequent traumatic events”. The report does not substantiate the extent of the Applicant’s PTSD that may have been exasperated (sic) by the act of violence the subject of this application. The subsequent report from (the psychologist) dated 3 December 2015 also does not address this issue and does not provide a diagnosis of PTSD.

c. The report from Dr (name provided) dated 20 November 2015 similarly notes the Applicant’s anxiety, depression and PTSD but does not substantiate the extent of the Applicant’s PTSD that may have been exasperated (sic) by the act of violence the subject of this application.

d. The report from (name provided), psychologist dated 20 November 2015, refers to significant events in the Applicant’s file (in addition to the act of violence the subject of this application) that have resulted in PTSD. A significant reason appears to be due to stalking and threats against her life by her son’s father (not being the offender in this application).

12. The respondent submits that, by reference to paragraph 11 above, the evidence does not establish on balance a “serious injury” that results from the act of violence.

13. With respect to the submission made by the Applicant and referred to in paragraph 8 (sic) (c) above, the respondent makes the following submissions:

a. All sexual assaults by its definition and nature involve a level of violence, intimidation and threat. The Tribunal must be cautious in finding that a presence of threat and intimidation in sexual assault matters results in a “series of related acts”. The respondent submits that there must be something more involved in the secondary act of violence, where it is a physical threat or intimidation, which distinguishes it from the primary act of violence, being the sexual assault. The Tribunal may find that the use of an offensive weapon is sufficient to establish a secondary act of violence.

b. For the reasons stated in paragraph 10 (a) above, it cannot be established on balance that an offensive weapon was used at the time the act of violence was committed.

c. Before an application for recognition payment can be approved, specific documentary evidence is required pursuant to section 39 of the Act. This includes a police report or a report to a Government Agency regarding the act of violence. The sexual assault appears to have been reported to the Department of Human Services on 16 November 2015 (sic). The NCAT proceedings were adjourned on a number of occasions to allow the Applicant to obtain documents from FaCS that may evidence report of the threats made to the Applicant’s life (with the use of the metal pole) by the offender. The Applicant’s representative has advised NCAT that FaCS do not have any documents that evidence the reporting of the incident.

d. For the reasons set out in paragraph (c) above, the respondent submits that the documents as required by section 39 of the Act have not been provided with respect to the secondary act of violence and hence the Tribunal is unable to make a finding that there is a “series of related acts” which would bring the Applicant’s claim within the ambit of a category C (sic) recognition payment.

Consideration

18. As is apparent from this decision, much of the argument and submissions in this matter related to whether the available evidence establishes on the balance of probabilities that the Applicant suffered serious bodily injury as a result of the sexual assault and/or whether sexual assault involved an offensive weapon, for the purposes of s 35 (2) (a) of the Act.

19. The parties also made submissions as to whether more than one act of violence was established, which the Commissioner described in submissions as the primary and secondary acts of violence. However, for the reasons set out in this decision, I do not consider that it is necessary for this Tribunal to determine whether the sexual assault was one of a series of related acts for the purposes of s 35 (2) (b) of the Act.

20. Much of the argument in this matter relates to CRT’s allegation concerning the presence of a “6 ft. metal pole” within the location where the sexual assault occurred and that the offender threatened to kill her using that pole if she said or did anything about the sexual assault – both before and after it occurred.

21. In relation to this allegation, the Commissioner places significant reliance upon the fact that CRT had not referred to the “6 ft. metal pole” in her application for victims support and/or in her application for internal review of the decision at first instance. This was first described in her evidence filed in support of the current application for administrative review.

22. The Commissioner refers to the decision of Rothman J in Aldridge v Victims Compensation Fund Corporation [2008] NSWSC 724, that “there seems to be some level of injustice associated with any Tribunal making findings which, in effect, are findings against the credit of the Applicant in circumstances where the Applicant has not been heard or cross-examined; and in circumstances where there is no evidence that contradicts the evidence of the Applicant. Nevertheless, the mere fact that evidence is adduced before a tribunal, and not contradicted, does not require the tribunal to be satisfied that the evidence is true or accurate” (ibid at [58]).

23. The Commissioner also submits that there is no evidence that CRT made any report to Police or a Government Agency concerning the alleged use of the “6ft metal pole” and notes that while CRT alleges that she reported these matters to FaCs “on 16 November 2015”, that Agency could not locate any documents relating to the report.

24. In my view, this submission by the Commissioner is misconceived as the Tribunal has before it evidence in relation to these matters, including CRT’s Statutory Declaration dated 15 March 2017 and medical records provided by her treating psychologist. The latter reports a history that CRT “…reported to [FaCS] the aggravated sexual assault by (Offender’s initials provided) in 1984. (She) states that in the documentation she read there has been an omission of the threat to her life before the assault started. (She) believed she reported that the perpetrator threatened to kill her using a 6ft metal pole that was in the corner of the room if she said anything now or in the future. As such (she) did not report the assault to the police.”

25. While the Commissioner accurately notes that the current proceedings were adjourned to enable CRT to attempt to obtain relevant records relating to her report to FaCS from that agency, and that no records were ultimately produced, the Commissioner wrongly submitted that the report was made on 16 November 2015. The fact that the agency could not locate any records relating to CRT’s report of the sexual assault is unfortunate, but it does not justify a finding that CRT failed to report the matter.

26. I reject the Commissioner’s submission to the effect that in the absence of corroborating evidence, the Tribunal cannot be satisfied on the balance of probabilities that the events that CRT now describes actually occurred.

27. Section 35 (2) of the Act provides (emphasis added):

A category B recognition payment is a payment given in respect of an act of violence of the following kinds:

(a)  a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b)  a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts.

28. In the current matter, there is no dispute that CRT was the primary victim of an act of violence in the nature of a sexual assault and that she 14 years old when this occurred. However, there are disputes as to whether she suffered “serious bodily injury” as a result of the sexual assault and whether the sexual assault “involved an offensive weapon”. If CRT can establish either of those matters on the balance of probabilities she will be eligible for a category B recognition payment pursuant to s 35 (2) (a) of the Act.

Serious bodily injury

29. The available evidence indicates that CRT suffered a psychological or psychological injury as a result of the sexual assault. However, there is a dispute as to whether CRT suffered “serious bodily injury” as a result of the sexual assault.

29. The Commissioner submits to the effect that due to supervening events (including other acts of violence) the Tribunal cannot be satisfied on the balance of probabilities that CRT’s current psychological and psychiatric symptoms result from the sexual assault in 1984. The Commissioner refers to an “exasperation” of symptoms as a result of these later events, although this appears to be a submission to the effect that the symptoms resulting from the sexual assault have been exacerbated by later the events.

30. Section 19 (1) (c) of the Act requires CRT to establish on the balance of probabilities that she suffered injury as a direct result of the act of violence. However, it does not require her to establish that the act of violence was the sole cause of her injury.

31. Unlike the Victims Support and Rehabilitation Act 1996 (“the Old Act”), which provided for the apportionment of compensable injuries (and the statutory compensation payable with respect to those injuries) between multiple causes, the Act makes provision for a lump sum payment to a primary victim to acknowledge the violence and trauma. The amount of the payment varies depending on the nature of the act of violence.

32. Section 18 of the Act defines “injury” as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm…” However, the Act does not define the term “serious bodily injury” and this must be interpreted based upon ordinary dictionary definitions.

33. The Macquarie Dictionary defines “serious” (relevantly) as follows:

1.  of grave or solemn disposition or character; thoughtful.

2.  of grave aspect.

3.  being in earnest; not trifling.

4.  demanding earnest thought or application: serious reading; serious music.

5.  weighty or important: a serious matter.

6.  giving cause for apprehension; critical: a serious illness.

35. In the context of the current matter, to establish that she has suffered “serious bodily injury” as a result of the sexual assault, CRT must prove on the balance of probabilities that she suffered psychological or psychiatric harm that is more than trifling; is of grave aspect; and/or gives cause for apprehension.

36. However, the Act does not require CRT to prove that the sexual assault is the sole cause of her current psychological or psychiatric injury, provided that the evidence establishes that the injury directly resulted from the act of violence.

37. The available evidence indicates that CRT suffered psychological or psychiatric injury, including symptoms of anxiety, depression and PTSD, as a direct result of the sexual assault and that her symptoms have continued for approximately 32 years and have been exacerbated by later events.

38. The Commissioner has made submissions to the effect that the Tribunal cannot be satisfied that the current psychological and psychiatric symptoms results from the sexual assault by reason of the exacerbation caused by later events.

39. In the matter of Kooragang Cement Pty Ltd v Bates (“Kooragang”) 35 NSWLR 452, the Court of Appeal considered the meaning of “results from” in the context of workers compensation claims. Kirby P held (at 463G-464B):

The result of the cases is that each case where causation is in issue in a workers compensation claim, must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’, is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation. In each case, the question whether the incapacity or death ‘results from’ the impugned work injury (or in the event of a disease, the relevant aggravation of the disease), is a question of fact to be determined on the basis of the evidence, including, where applicable, expert opinions.

40. Although the current matter is not a workers compensation claim, it is a claim for compensation and in my view it is appropriate to adopt the approach taken by Kirby P in Kooragang and to make a common sense evaluation of the causal chain relating to CRT’s psychological or psychiatric injury.

41. In my view, there no evidence that supports a finding that CRT recovered from the effects of the psychological or psychiatric injury that resulted from the sexual assault in 1984 at any time before the later events occurred. As a result, I am satisfied that there is an unbroken chain of causation between the sexual assault in 1984 and CRT’s current psychological or psychiatric condition.

Involved an offensive weapon

42. CRT alleges that both before and after the sexual assault occurred, the offender threatened to kill her with a “6ft metal pole”, if she said or did anything about the sexual assault. There are disputes as to whether the allegation that these threats were made by the offender to CRT both before and after the sexual assault occurred means that the sexual assault “involved an offensive weapon” and whether the pole itself an “offensive weapon” for the purposes of s 35 (2) (a) of the Act.

43. The term “offensive weapon” is not defined in the Act, and this must be this interpreted based upon its ordinary dictionary definition. I note that the Macquarie Dictionary defines “offensive weapon” as, “(in law) any weapon made or adapted for use for causing injury to the person, or intended for such use by the person having it.”

44. In my view, the “6ft metal pole” described by CRT is capable of being used to cause injury to a 14-year-old child and as the offender specifically referred to it as a means of harming her both before and after the sexual assault occurred clearly suggests that it was his intention to use the pole for that purpose. It follows that I am satisfied that the “6 ft. metal pole” satisfies the definition of an “offensive weapon” for the purposes of s 35 (2) (a) of the Act.

45. The Commissioner has expressed reservations regarding the existence of, and threatened use of the pole, on the basis that CRT did not expressly refer to it in her application for victims support and application for internal review. I accept the Commissioner’s reservations in relation to this issue. However, I note that CRT was not legally represented in relation to the application for victims support and application for internal review and there is no evidence that she obtained any legal advice regarding the conduct of those proceedings.

46. Nevertheless, in her submissions in support of an application for internal review, CRT argued that she had been the victim of “aggravated” sexual assault. With the benefit of legal advice in the current proceedings, CRT has lodged a Statutory Declaration dated 15 March 2017, in which she provides considerable detail concerning the events that occurred in 1984 and the impact these events have had upon her during the ensuing 32 years.

47. Based upon this evidence, which was not available to the Commissioner, I am satisfied that the events described in CRT’s statutory declaration are established on the balance of probabilities. I am therefore satisfied that CRT was the primary victim of a sexual assault resulting in serious bodily injury or which involved an offensive weapon.

48. As a result, CRT is eligible for a Category B recognition payment pursuant to s 35 (2) (a) of the Act.

Orders

49. I make the following orders:

1.   The decision of the Respondent dated 7 July 2016 is set aside.

2.   In substitution for that decision, the following decision is made:

CRT is eligible for a Category B recognition payment in the sum of $10,000.

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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: 07 June 2018