DEP v Commissioner of Victims Rights

[2018] NSWCATAD 99

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DEP v Commissioner of Victims Rights [2018] NSWCATAD 99
Hearing dates:	16 March 2018 and on the papers
Date of orders:	14 May 2018
Decision date:	14 May 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	The decision of the Respondent dated 31 July 2017 is affirmed.
Catchwords:	ADMINSTRATIVE LAW - Victims Support –requirement for documentary evidence- whether applicant primary victim – secondary victim not entitled to financial support – summons
Legislation Cited:	Administrative Decisions Review Act 1997 Children and Young Persons (Care and Protection) Act 1998. Civil and Administrative Tribunal Rules 2014 Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 (Repealed)
Cases Cited:	Nil
Category:	Principal judgment
Parties:	DEP (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors:   Applicant: Self-represented Victims Services Legal (Respondent)
File Number(s):	2017/00266274
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited.A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

Reasons for decision

Introduction

1. The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (the Act).

2. In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault) or a secondary victim (a witness or other limited circumstances relating to an eligible primary victim). As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant has failed to establish that she was a victim of crime in accordance with the Act and as a result her application for review will be dismissed and the decision of the respondent will be affirmed.

Background

3. On 18 August 2017 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with her application for Victims Support.

4. The application for review set out the following grounds:

I was not advised that I had to subpoena the D.O.C.S. report which I did not remember I had made anonymously after a customer service conduct matter with a local Police Officer.

Pursuant to paragraphs 11 & 12 I have confirmation from a Senior D.O.C.S. employee that confirms reports on the 06/12/2015 and causes for the non-availability under the Children Young Person (Care and Protection) Act 1998.

I have been discriminated against on the grounds of a medical disability and carers responsibility.

Psychologist ‘I. K.’ (Vic Services approved) has not responded to any phone calls or physical visits to his premises related to appointments in 2016 nor 2017 in the crime progression matter of ‘T.S.’ Grafton Court AVO.

Legislation

5. On 3 June 2013 the Victims Rights and Support Act 2013 replaced the former Act – the Victims Support and Rehabilitation Act 1996. (the 1996 Act). Both schemes provided for similar eligibility criteria, with the main difference being the manner in which they provided support and assistance. The current Act replicated the 1996 Act central provisions as to an eligible victim of crime. The relevant current provisions are set out in the following sections of the Act:

5 Meaning of “victim of crime”

(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.

(2) A person suffers harm if, as a result of such an act:

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person’s property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person’s immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person’s immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

….

19 Meaning of “act of violence”

(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.

(s-19 has seven further subsections that are not relevant to this determination)_

….

20 Meaning of “primary victim”

(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.

(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:

(a) trying to prevent another person from committing that act, or

(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or

(c) trying to arrest another person who is committing, or who has just committed, that act.

….

21 Meaning of “secondary victim”

(1) A secondary victim of an act of violence is a person who is injured as a direct result of witnessing the act of violence that resulted in the injury to, or death of, the primary victim of that act.

(2) A secondary victim of an act of violence extends to a person who is injured as a direct result of subsequently becoming aware of the act of violence that resulted in the injury to, or death of, the primary victim of that act, but only if:

(a) the person is the parent or guardian of the primary victim of that act, and

(b) the primary victim was under the age of 18 years at the time of that act, and

(c) the person did not commit that act.

The person is taken, for the purposes of this Act, to have witnessed the act of violence.

(3) For the purposes of this section, a primary victim does not include a person who is a primary victim only because of the operation of section 20 (2).

6. The pathways under the Act which lead to a recognition payment are a necessary threshold precondition to access benefits of the victims of crime scheme. The administrator (the Commissioner of Victims Rights) understandably focussed on these threshold issues in both the initial decision and the Internal Review (the decision under review). It is therefore necessary to examine threshold matters, and these reasons (as did the limited discussions at the hearing) focus on this issue.

Jurisdiction

7. There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal.

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

8. Nor was there any dispute that the application had been lodged within the 28 day period provided for by the operation of the s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil andAdministrative Tribunal Rules 2014.

9. The application under s 51 of the Act followed an internal review under s 49 of the Act. That review on 31 July 2017 reached the same decision as the original decision maker, and dismissed the application as the applicant had not established that she was the victim of an act of violence (as defined in the Act). The application to the Tribunal was subsequently lodged on 18 August 2017.

10. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.

Hearing

11. At the hearing the applicant appeared in person and the respondent was represented by an employee solicitor. The following material was filed by the parties in support of the respective positions:

Applicant’s written evidence

12. The applicant filed a large amount of written material which it was submitted was in support of her application. Much of this material was repetitive in nature involving reiterations of the same arguments and submissions, and duplication / multiple copies of certain material.

13. The Tribunal understands that much of this material was according to the application directed towards the substance of her claim, however it was agreed at hearing that the Tribunal would assess the material in the absence of the parties and determine what weight if any should attach to the filed material, having regard to the totality of the claim and material before the Tribunal.

14. I note that none of the material rebuts or otherwise traverses the written submissions of the respondent which detail sections 19, 20, 21 and 39 of the Act. However the main items which can be properly described are set out below:

• Application for Administrative Review dated 18 August 2017 including grounds - Exhibit ‘A-1’.

• Statutory Declaration of applicant 8 February 2018.

• Statutory Declaration of applicant 9 January 2018.

• Statutory Declaration of applicant 22 November 2017.

• Bundle of material filed 24 January 2018 comprising police contact card, copies of provisional AVO, medical certificate / report from GP concerning Court licence suspension.

15. In addition there was a large volume of material filed by the applicant in respect of summons material which she sought to have produced to the Tribunal from NSW Police. In particular there was a further statutory declaration of the applicant dated 5 February 2018 which annexed approximately 40 folios of material. Much of this material concerned various interactions with Family and Community Services, real estate agents, banking institutions as well as complaint handling bodies such as the Commonwealth Office of the Information Commissioner, the Law Enforcement Conduct Commission, the Health Care Complaints Commission, and the NSW Anti Discrimination Board.

16. I observe that this material appears somewhat related to a broader grievance that the applicant ran through her appearances before the Tribunal (directions and hearing) as well as the majority of her documentation. These matters can be summarised as matters concerning: paternity, legal status of certain carers, welfare of young children both in care and otherwise, allegations of some irregularity in the approval and placement of various carers, children and matters relating to generalised ‘corruption’ not restricted to matters concerning child welfare, debt recovery and other proceedings.

17. By necessity NSW Police material and references to police are regularly located throughout this material. The central part of this broader grievance has a relationship to the applicant’s victims of crime claim, in that both matters in some way are concerned with the alleged abuse of young children by adult perpetrators. I will return to these matters below.

Respondent’s written evidence

18. The respondent’s written evidence were the documents filed under s 58 of the ADR Act -127 Pages – Exhibit ‘R-1’.

19. The respondent also filed and served written submissions dated 22 January 2018, and final / further submissions 16 April 2018.

The administrator’s decisions

20. The application to the Commissioner of Victims Rights concerned matters alleged to have occurred from 5 December 2015 to 6 December 2015. (Pgs 2 and 3 of Exhibit ‘R-1’ contain the relevant details). When asked to nominate some description or details of the claim in accordance with the Commissioner’s requirements the applicant stated:

Part 3 : Briefly Describe what happened*

‘I was under the Charter of Victims Rights Act when I witnessed an assault upon an infant by an immediate family member of an employee with the Dept. of Human Services. I attended a Police Station to report the assault when I was harassed and dissuaded.’

21. Earlier in Part 3 of the application form when asked to nominate where the incident occurred the applicant states: ‘Dwelling (private residence)’ but also completes the following option ‘And also in Toukley Police Station’.

22. The initial assessment of the claim occurred on 14 March 2017. The decision maker recorded the following:

6. [‘DEP’] is applying as a ‘primary victim’. Pursuant to section 20, a primary victim of an act of violence is defined as a person who sustains an injury as a direct result of that act.

7. According to the application form, between 5 December 2015 and 6 December 2015 [‘DEP’] was a victim and sustained injury as the result witnessing an assault upon an infant by an immediate family member of an employee with the Department of Human Services. [sic] [‘DEP’] indicates that she was harassed and dissuaded when she attended a police station to report the assault.

23. The decision maker went on to find that there was insufficient evidence provided by the applicant to establish the requisite matters (concerning an act of violence) to the requisite civil standard, and that it was incumbent on the applicant under the Act to obtain the reporting records of the incident. The claim was therefore dismissed.

24. On 31 July 2017 on review the Senior Assessor traversed the same path as the initial decision maker. Various additional ‘review’ grounds were made by the applicant and these were set out in the decision.

• [‘DEP’] was already being counselled for childhood sexual; abuse when this incident occurred between September 2015 and March 2016.

• [‘DEP’] made a Charter complaint about the bullying and victimising behaviour of a police officer she went to for assistance at Toukley.

• The witnessing of such an act of aggression against a toddler was such that [‘DEP’] was compelled to take action in attending a police station knowing that she was exposing herself to psychological damage.

25. The Senior Assessor concluded that the applicant had not provided sufficient evidence (to the standard required under the Act), to establish (that she was the victim of) any act of violence. In concluding the Senior Assessor observed the following on the information provided by the applicant.

19. I would like to also advise [‘DEP’] that even if there was sufficient documentary evidence to establish that she did witness an assault against an infant, this would indicate that she was the secondary rather than the primary victim of an act of violence. Secondary victims are not eligible to receive any financial support or a recognition payment.

26. As a result the application was dismissed and an application for administrative review was made to the Tribunal. There is no dispute that the application was received within time required under the legislation.

The hearing

27. The majority of the applicant’s evidence was considered on the papers, as this was the preferred approach of the parties. Due to the somewhat disjointed and at times discursive material of the applicant, and noting that the summons to New South Wales Police was to be re-issued, the following orders were made at the hearing on 16 March 2018:

1. Summons to NSW Police Wyong Detectives is re-issued returnable 3 April 2018;

2. Applicant to put on any further submissions in respect of the summons material on or before 27 April 2018;

3. Respondent to put on any further submissions re: summons material (if any) on or before 27 April 2018;

4. Matter reserved as at 27 April 2018 to determine on the papers.

28. The summons referred to in the orders of 16 March 2018 has been complied with. In addition on 18 April 2018 the respondent provided their submissions in response in conformity with order (3). As a result the timetable for all actions of the parties and third parties has now concluded and the matter can be determined without further delay.

Applicant’s arguments / evidence

29. The applicant had on a number of occasions sought to obtain information in support of her application. This was understandable having regard to the two decisions of the delegates of the Commissioner of Victims Rights. However as set out above much of the material was information which might have some relevance to the applicant’s general grievances and concerns, but did not appear specifically on point with the observations made by previous decision makers, nor was it the type of information that the Tribunal had directed at the two previous directions listings.

30. The scope and nature of the summons was narrowed by the Tribunal on two occasions in order to ensure that the summons was appropriate to the matters before the Tribunal and not constitute an abuse of process. Following the last listing the summons was re-issued and was responded to on 29 March 2018. At the return of summons on 5 April 2018 both parties or their representatives were present and were given access to the material provided in response.

31. The NSW Police response to the summons was by way of an e-mail dated 29 March 2018. That response stated that there were no records of any report made by the applicant on either 5 or 6 December 2015. In addition the summons sought any material relating to the applicant and DSC Margi. NSW Police advised that in respect of the second prong of the summons, there were three current cases relating to DEP all of which are current investigations. The Police claimed public interest immunity over the release of any such documents, as the release of them may prejudice an ongoing investigation.

32. Importantly in respect of the summons material, the following is in my view relevant. From the outset the applicant’s claim is enmeshed with an allegation of improper treatment by police officers at the time of a purported report at Toukley Police Station in or around 6 December 2015. The details of the victims of crime claim state:

… I attended a Police Station to report the assault when I was harassed and dissuaded. (pg 3 Ex ‘R-1’)

33. Central to the applicant’s case before the Tribunal is her assertion that there is a record of this report notwithstanding her references to being ‘harassed and dissuaded’ (from making such a report). The position that a report exists has been in some ways the central tenant of the applicant in both establishing some contemporaneous record of an act of violence, and traversing section 39 of the Act.

34. I observe that s 39 introduces a requirement not seen in the 1996 Act. The section provides:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is a police report or report of a Government agency and a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

35. The 1996 Act s 25 (2) (b) is in identical terms to the current s 39 (1). However there is no equivalent to the current requirements of s 39 (2), especially noting the words: ‘… to be required:’ as they appear in the section. It is clear that both of the earlier claims were in part dismissed because of the failure of the applicant to meet this requirement. The consequences of the lack of evidence due to this failure ultimately caused the decision makers to conclude that the essential elements of section 19 had not been traversed, and the claim was as a result dismissed.

36. I am satisfied that the summons has been appropriately responded to. I am also satisfied on the evidence before me (the terms of the application at page 3 of 'R-1' and as set out at paragraph 28 - above, and the police response to the summons), that no official report was made to police at the time and in the manner nominated by the applicant.

37. In the applicant’s Statutory Declaration dated 8 February 2018 the following information relevant to the matter is submitted.

• There is a history of sexual assault, child sexual assault between 1972 and 1988 when the applicant was in schooling and employed at banks. It is unclear whether the applicant was a direct victim of this alleged behaviour at this time or that she left the area in 1988 as a result of the overall impact of the allegations being ‘unrecorded’ / ‘unreported’.

• The applicant gives evidence of prior victims of crimes claims before the former Victims Compensation Tribunal some successful and some unsuccessful.

• References were made to civil compensation and sentencing issues arising in criminal proceedings involving ‘repeat offenders’.

• In May 2014 the applicant returned to the Central Coast and made criminal reports in the nature of fraud to Toukley police. The next event concerns the reports central to these proceedings which were allegedly made in December 2015 and referred to as ‘an assault crime’. The applicant attests that on both occasions she was subject to: ‘unprovoked abusive conduct and unwarranted discrimination’.

• The applicant has reported 20 or more crimes to police, and tendered Event number cards. Further between March and April 2017 the applicant has reported a further 10 crimes committed against her and submits 10 Event cards.

• Evidence was also given concerning the raising of these matters in the last 12 months with the Law Enforcement Conduct Commission.

38. A Statutory Declaration of 9 January 2018 the following matters are submitted:

• The applicant and her daughter are victims of multiple crimes.

• The applicant has GIPA (access to government information) applications in train seeking information from NSW Police.

• The applicant and members of her extended family have been ‘targeted’ with commercially related business crimes with references to debt collection agencies and banking institutions being inappropriately involved.

• Further references to prior victims compensation claims, violence in the nature of domestic violence directed at female members of the applicant’s extended family and dealings with the Royal Commission into Institutional Responses to Child Sexual Abuse.

39. A further Statutory Declaration of 22 November 2017 seeks to rectify the deficiencies identified by the original decision makers. The content is detailed and appears partially on point with the relevant issues in the claim and refers to detailed attachments which establish the reporting of matters, apparently in an attempt to satisfy the requirements of s 39 of the Act.

Respondent’s submissions

40. In written submissions the respondent stated that the applicant has not established that she is a primary victim of an act of violence and is not eligible for a recognition payment.

41. The respondent submitted that whilst the applicant has provided lengthy submissions and documentary material, none of the evidence meets the threshold outlined in s39(2)(b) being a police report or report of a Government agency and medical, dental or counselling report verifying that the applicant (who is claiming as a primary victim) has been injured as a result.

42. The respondent also submitted that the application (on the current material before the Tribunal) should also be dismissed on the basis that the evidence could only establish standing as a secondary victim, not a primary victim of an act of violence.

Consideration

43. The evidence in the current case is on my assessment largely irrelevant to the matter central to the applicant’s claim. In part the voluminous material submitted by the applicant illustrates a life journey beset by numerous difficulties at various times. I make that observation only on the basis of the material filed. No doubt there have been many instances where the applicant’s life has been positive, and unproblematic.

44. I also observe that the applicant presented with genuine concern for the welfare of others and notwithstanding my findings, appeared honest and genuine in her beliefs. It appears that it is uncontested that the applicant has at various times been a genuine victim of violent crime.

45. The totality of evidence paints a picture of financial distress, domestic violence, concerns for safety and welfare of her family, and the associated traumas arising from being the primary and secondary victim of violent crime and subject to other (non-violent) crime.

46. However on the crucial matters before me I need to be satisfied to the civil standard that the applicant is a primary victim of a violent crime whereby she suffered injury (an act of violence as referred to in s 19 of the Act).

47. The applicant has understandably focused her application before the Tribunal on overcoming the documentation issue created by s 39 of the Act. However in this regard I note the police response to the summons on the crucial issue of the alleged incident described in Exhibit ‘R-1’. Whilst it appears uncontroversial that the applicant has effectively caused a number of criminal complaints and police inquiries to occur, those matters illustrate incidents (alleged or otherwise) which on my assessment are not part of this claim.

Findings

48. In respect of the reporting of the matter to police on 5 or 6 December 2015, I make a finding on the available evidence that no such report exists. That is not to say that the applicant did not attempt to report the matter, and I note her own evidence is that she was ‘harassed and dissuaded.’ But even if a verbal report was made (and I make an open finding on this issue), that does not cure the s 39 impediment.

49. As a primary victim (as claimed) the applicant would need to establish the final element of ‘act of violence’ which refers to having sustained injury as set out in s 19(1)(c).

19 Meaning of “act of violence”

(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.

50. In addition I find that there is no evidence that a primary victim claim would successfully traverse s 19(1)(c) of the Act.

51. Further, even if a report was made, and a Cops Event provided in response to the summons, the current evidence identifies that if the matters are accepted as an act of violence, then the applicant is a secondary victim.

28 Composition of support—secondary victims

The support under the Scheme for which a secondary victim of an act of violence is eligible comprises approved counselling services with respect to the act of violence.

52. Finally, if I was to make a positive finding that the applicant was a secondary victim, such a victim would be ineligible for victims support by way of financial assistance or a recognition payment. This would be further grounds as to why such an application (in the form before the Tribunal) must be dismissed by virtue of the operation of s 29 of the Act.

53. For the reasons outlined above I find that the application as a primary victim of an act of violence is not made out.

54. In addition I find that even if the applicant had traversed s 19 of the Act in establishing an act of violence, the applicant has not been able to satisfactorily discharge her obligation under s 39 of the Act, in that the available evidence on my assessment does not meet the requirements of the section.

Conclusion

55. For the reasons outlined above, the application must be dismissed and the decision of the respondent affirmed.

Orders

1. The decision of the respondent dated 31 July 2017 is affirmed.

********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 14 May 2018