CVP v Commissioner of Victims Rights

[2017] NSWCATAD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CVP v Commissioner of Victims Rights [2017] NSWCATAD 90
Hearing dates:	20 January 2017
Date of orders:	28 March 2017
Decision date:	28 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The decision of the Senior Assessor dated 12 September 2016 is set aside and the following decision is made in substitution. 2. The applicant is eligible for a Category D recognition payment in the sum of $1,500.
Catchwords:	Victims Rights and Support – administrative review –recognition payment - Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment
Legislation Cited:	Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (No. 2)
Category:	Principal judgment
Parties:	CVP (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: CVP (Applicant in person) J Singh, Victims Services (Respondent)
File Number(s):	2016/00378485
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 9 November 2016, the applicant sought administrative review of decisions made by a delegate of the respondent in respect of an application for support that was lodged by the applicant (known by the pseudonym “CVP”).

Background

2. On 22 April 2015, CVP lodged an Application for Support under the provisions of the Victims Rights and Support Act (“the Act”), which alleged that she was the primary victim of an assault that was perpetrated by (name provided) on an unspecified date in March 2015, at Silverwater in New South Wales. She alleged that while she was an inmate (on remand) in the Mulawa Women’s Correctional Centre, she was assaulted by another inmate and that she suffered physical injuries as a result. She applied for counselling and a recognition payment.

3. CVP was not legally represented in relation to her application for victims support.

Evidence

4. The available evidence indicates that on 25 March 2015, CVP reported the assault to Police and provided a statement and that the reporting Constable witnessed a bruise to her arm, which resulted from the assault.

5. However, the alleged perpetrator provided a conflicting version of events. The reporting Constable viewed the CCTV footage, but formed the view that it was not possible to determine what happened as it was filmed from a fair distance away and that given the angle of the camera it was not possible to determine who hit first or the full extent of the incident.

6. I note that one of the Correctional Officers provided a statement on 24 March 2015, as follows:

At approximately 2:50pm on 24 March 2015

…I was standing in the officers station in Willet when I seen out of the corner of my eye inmates known to me as (CVP) and (the alleged perpetrator) in the laundry. I proceeded to look into the laundry to see (CVP) standing facing toward the officer station and (the alleged perpetrator) facing the window. I then witnessed (the alleged perpetrator) push (CVP) into the crick wall with the window. I ran from the officers station as I witnessed (CVP) and (the alleged perpetrator) pushing each other. I got to the laundry where I immediately yelled “stop it”. I attempted to push both inmates off one another when (CVP) bit (the alleged perpetrator) on the left forearm near her elbow. (the alleged perpetrator) said “Miss, she is biting me”. I took (CVP’s) mouth off (the alleged perpetrator’s) arm when First Class Correctional Officer (name provided) and Casual Correctional Officer (name provided) entered the laundry. They both grabbed (the alleged perpetrator) and took her to her cell and locked her in. I held (CVP’s) hands behind her back until (the alleged perpetrator) was locked in her cell. I then took (CVP) to her cell where (name provided) locked her in.

7. The COPS Event Report dated 27 April 2015, names CVP as “the victim”. It indicates that prior to the incident on 24 March 2015, CVP had an altercation with the alleged perpetrator, where the alleged perpetrator offered her what she believed to be “ice”. She declined the offered “ice” and reported the incident to the manager of security. As a result, the alleged perpetrator’s cell was raided and she was dealt with accordingly. Since then, there had been “issues” between them. It also indicates:

… Approximately 2:45pm on Tuesday 24th March 2015, the victim was in the laundry checking her clothes that were in the dryer. A few moments later, the person (of interest) walked in behind her and said “Why did you go into the office?” The victim said “Move, get away from me”.

When this conversation took place, the person named was right in the victim’s face with virtually no room between their bodies. In an attempt to create room, the victim has placed both her open hands on the person named’s chest and moved her backwards as she felt scared and intimidated. As a result, the person named has charged at the victim with a closed left hand and punched the victim to the right side of her face, causing her immediate pain. The person named then grabbed the victim with both her hands on her upper arms very forcefully and pushed her into the wall and part of the washing machine.

Once the victim hit the wall, the person named grabbed the victim by the right side of her head and slammed the left side of her head into the window very forcefully, causing the victim immediate pain. Whilst this was occurring, the victim was attempting to push the person named off her before 2 or 3 officers dragged her off the victim.

8. Vicki Garner, approved counsellor, issued a Progress Report to Victims Services on 1 October 2015. This indicates that the Commissioner had approved 10 hours of counselling for CVP and that all approved hours had been utilised. She noted that CVP’s mood during their sessions was good, but that she often expressed angry thoughts and feelings and reported feeling moderately depressed and de-motivated for 3 to 4 days out of a week. However, she also continued to report angry thoughts about the assault and about being put into gaol in the first place and occasionally had a nightmare about being in gaol. Most of her distress now related to the charges against her and the unfair treatment by the legal system with which her barrister agreed. It was noted that further counselling regarding those matters would continue under a Mental Health Treatment Plan. She also noted that CVP had obtained casual employment.

Decision at First Instance

9. 4 July 2016, an Assessor (Client Claims) issued a Notice of Decision pursuant to s 43 of the Victims Rights and Support Act 2013 (“the Act”) and determined that an act of violence was not established on the balance of probabilities. The application was therefore dismissed.

10. I note that in making that decision, the Assessor failed to address the fact that the Commissioner had approved 10 hours of counselling pursuant to s 26 (1) (a) of the Act.

11. Section 32 of the Act provides:

32   Authorisation of payments for approved counselling services

(1)  The regulations may make provision for or with respect to the authorisation of payments for or in relation to approved counselling services provided to victims of acts of violence (whether resident in Australia or elsewhere), including the application (with or without modification) of the provisions of this Act relating to financial support or recognition payments.

(2)  The regulations may make provision for or with respect to the provision of approved counselling services, and authorisation of payments for such services, to persons who are relatives of primary victims who have died as a result of an act of violence, but who are not family victims within the meaning of this Act.

12. Clause 5 of the Victims Rights and Supports Regulation provides, relevantly:

5   Authorisation of payments for approved counselling services

(1) For the purposes of section 32 of the Act, the Commissioner may authorise payments for approved counselling services for a victim (other than a family victim or relevant family member):

(a)  for a period of up to 10 hours of counselling (including counselling for the purposes of an application for continued counselling), and

(b)  for such further periods of counselling as the Commissioner may consider appropriate.

(2)  The Commissioner may consider a person to be a victim (other than a family victim or relevant family member) referred to in sub clause (1), for the purposes of authorising payments for an initial period of 2 hours of counselling for the person, if satisfied that counselling may assist in establishing whether or not the person is a victim.

13. The date that the Commissioner posted a copy of the Notice of Decision to CVP is not indicated in the documents before me. However, I note that CVP requested an internal review of that decision on 2 August 2016. I am therefore satisfied that a copy of the decision was properly served upon her.

Internal Review Decision

14. On 12 September 2016, the Senior Assessor issued a Notice of Review Decision. The Senior Assessor determined that CVP was the primary victim of an act of violence. However, there are significant issues under s 44 (1) (d) of the Act. The application was therefore dismissed.

15. The documents before me do not indicate the date on which a copy of the Review Decision was posted to CVP.

Application for Administrative Review

16. On 9 November 2016, CVP applied for administrative review of the Senior Assessor’s decision at first instance on the following ground:

I was the victim of the assault. I was in gaol and should not have been there in the first place. I have also provided a copy of the results for all of my charges (not guilty). I believe I have been unfairly treated and ask for a review.

17. 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.

Extension of Time

18. The Application for Administrative Review came before me for Directions on 16 December 2016, when CVP appeared in person 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.

19. The Tribunal noted that the Application was filed out of time and ordered CVP to file and serve a Statutory Declaration setting out her reasons for filing the application late.

20. On 16 December 2016, CVP signed a Statutory Declaration in which she stated:

I was not aware in regards to only having 28 days to lodge a review. When I received the letter of decision from Victims Services my focus was to finish my Trial and to prove my innocence. I have suffered emotionally and psychologically from what I have encountered from accusations (false), false imprisonment and an assault to top it off. I personally have to take one legal matter at a time due to getting very stressed on myself and my family. The inmate that assaulted myself was a (main) inmate and should not have been in protective custody.

21. In view of the matters that CVP raised in her statutory declaration, I am satisfied that it is appropriate to extent the time for filing the current Application under s 41 of the Civil and Administrative Decisions Tribunal Act 2013 (No. 2) (“the CAT Act”). I extend the time for filing the application to the date that it was filed.

Hearing

22. At the hearing on 20 January 2017, CVP again appeared in person and Mr Singh appeared for the Commissioner.

23. The Tribunal noted that while the Commissioner had produced a DVD that contained the CCTV footage of the incident, this was in a “locked format” and it could not be viewed. The Tribunal determined that the matter should proceed by way of oral submissions from both parties and that the matter would then be reserved to enable the Commissioner to produce the CCTV footage in format that the Tribunal could view.

Consideration - Merits of the Application for Victims Support

Act of Violence

24. Section 23(1) of the Actprovides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

25. “Act of violence” is defined in s 19 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.

26. The onus is on CVP to prove her allegations of assault on the balance of probabilities.

27. Based upon a consideration of all of the available evidence, I am satisfied that an act of violence has been established on the balance of probabilities, as CVP was the victim of an assault and suffered injury as a result.

Recognition Payment

28. During the hearing, CVP submitted that as a result of the assault, she suffered bruising (which was the subject of photographs taken by Police) and she suffered pain for a period of about 2 weeks. She said that she had received Counselling from Ms Garner but had not seen her since 1 October 2015.

29. Mr Singh submitted that CVP is eligible for a Category D recognition payment pursuant to s 35 (4) (d) of the Act as she was the victim on an assault occasioning actual bodily harm.

30. As there is no evidence of any injury sufficient to satisfy the criteria of “grievous bodily harm”, I am satisfied that CVP is eligible for a Category D recognition payment.

Section 44 Matters

31. Section 44 (1) of the Act provides relevantly:

44   Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(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:

(a)  any behaviour (including past criminal activity), condition, attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim,

…

(d)  whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed…

32. The Senior Assessor decided not to approve the giving of victims support under s 44 (1) (d) of the Act. In so deciding, the Senior Assessor placed greater weight upon the statements provided by the Correctional Officers who entered the laundry to break up the altercation between CVP and the alleged perpetrator. The Senior Assessor stated, relevantly:

24. Although there is some discrepancy on the evidence about who initiated the altercation, it is apparent that (CVP) and the inmate were equally involved in the commission of the act of violence. After reviewing the medical evidence and the incident report, the injuries suffered by both parties are comparable. If (CVP) had suffered significant injury, it may have persuaded me to form the view that the inmate participated in the act of violence to a greater extent and was the overall aggressor.

25. In my view, both (CVP) and the inmate are equally contributable in their involvement in the act of violence. In finding this to be the case, I consider the issues are significant and warrant a dismissal of the application for victims support.

33. This Tribunal has had the opportunity of viewing the CCTV footage of the act of violence and notes that while the view of the laundry is partially obscured, it appears to support CVP’s evidence regarding the sequence of events that occurred on 24 March 2015. CVP is clearly seen to enter the laundry and is shortly after followed by the alleged perpetrator, who stood very close to CVP. I accept CVP’s evidence that she felt scared and intimidated by the presence of the perpetrator.

34. In my view, the Senior Assessor erred in determining issues under s 44 (1) of the Act based upon a comparison of the injuries suffered by CVP and the alleged perpetrator. It is fortunate that CVP did not suffer any significant injuries as a result of the assault, but I fail to understand how the degree of injury suffered is relevant to the determination of whether there any of the matters set out in s 44 of the Act exist and, if so, the impact of their existence upon the application for victims support.

35. Even if the Senior Assessor’s decision that CVP and the alleged perpetrator had contributed equally to the act of violence, in my view this did not justify the decision to decline to approve any award of victims support on behalf of CVP.

36. Unlike the Senior Assessor, the Tribunal had the opportunity of observing CVP and hearing her oral submissions. I was impressed by her forthrightness and candour and note that she did not seek to cavil with the fact that she bit the alleged offender during the course of the assault. However, I accept her evidence that she acted in self-defence.

37. I am therefore satisfied that there are no factors that warrant either the reduction in victims support or a decision not to approve victims support in this matter.

Orders

38. I make the following orders:

1. Pursuant to s 63 (3) (c) of the ADR Act, I set aside the decision of the Senior Assessor dated 12 September 2016 and make the following decision in substitution:

1. The applicant was the primary victim of an act of violence, in the nature of an assault occasioning actual bodily harm.

2. The applicant is eligible for a category D recognition payment in the sum of $1,500 pursuant to s 35 (4) (d) of the Act.**********

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: 28 March 2017