DMB v Commissioner of Victims Rights

[2019] NSWCATAD 9

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DMB v Commissioner of Victims Rights [2019] NSWCATAD 9
Hearing dates:	28 September 2018; Submissions closed:22 October 2018
Date of orders:	04 January 2019
Decision date:	04 January 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1)   The decision of the respondent dated 14 May 2018 is affirmed. (2)   The application is dismissed.
Catchwords:	VICTIMS Support – Administrative law – act of violence – whether deceased died due to the unlawful action of another or others – homicide – family victim – standing as family victim subject to act of violence - sufficiency of evidence - whether deceased primary victim a victim of an act of violence causing death
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Coroners Act 2009 Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 (repealed)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DMB (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: DMB (Self Represented) (Applicant) H Martin (Victims Services Legal) (Respondent)
File Number(s):	2018/00171778
Publication restriction:	S 64 (1) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.

REASONS FOR DECISION

Introduction

1. The applicant asserts that she is a victim of violent crime as an eligible “family victim” in that the deceased primary victim, her father, died due to the criminal act of another. The applicant asserts that her father was murdered and as a result she is eligible for victims support as a family victim under the Victims Rights and Support Act 2013 (the Act). The victims of crime scheme provides that eligible family victims may receive victims support by way of a grant (payment) as well other financial grants for specific purposes and access to the provision of services. Whilst as the daughter of the deceased the applicant would be classed as an eligible family member, after considering all of the available evidence the Tribunal finds that the deceased was not the victim of an act of violence. As a result the applicant is not eligible for any victims support as a family victim.

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 or family 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 not established to the civil standard that her father, the deceased, was the primary victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, which resulted in his death. As such the applicant as a member of the immediate family of the deceased is unable to receive a recognition payment as a family victim.

Background

3. On 31 May 2018 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with her initial application and internal review for Victims Support.

The application for review set out the following grounds:

I do not agree with the decision of the Senior Assessor (name) not to grant my recognition payment in relation to the death of my father (name) which I believe is the result of a homicide.

4. The applicant’s father died in late August 2015. In the week following the applicant made an initial application for victims support for immediate needs by way of financial assistance. The applicant wished to install a CCTV system in her home as she was living there only with her two young children. That application referred to a view that her father had been murdered in the backyard of his home in daylight. The applicant referred to other concerns based on suspicions about both the circumstances of her father’s death and the safety of her own residence.

5. The applicant stated that she was fearful for her life and that she was concerned about her two young children’s safety. At the time of the application she had been staying with a friend. That application was considered on 4 December 2015 after obtaining information from NSW Police. Whilst the actual reasons are brief the matter was deferred by the Assessor (Client Claims) it appears on the basis that they were awaiting more information from Police. This was because at that time their investigations were continuing. The matter was deferred because:

Conclusion

11. Therefore I will defer further consideration of (DMB’s) application pending the Coroner publishing its findings.

6. On 7 July 2016 the Registrar of the Coroner’s Court wrote to the applicant to advise her that the Coroner proposed to dispense with an inquest into the circumstances of the death of her father. The letter set out reasons for the preliminary position that based on the extensive police inquiries, after reviewing all of the material it appeared to the Coroner that the deceased took his own life.

7. The applicant sought assistance from Legal Aid who provided some initial information in writing to the applicant prior to meeting with her. That information set out how the Coroner determines matters to the civil standard (or balance of probabilities). The Legal Aid Solicitor noted the difference in the reference to the injury to the deceased between the notes of the attending ambulance officer / paramedic, and that of the autopsy. The specific conflict related to the apparent observation of more than one entry wound by the attending paramedic whereas a single wound was identified during the post mortem examination.

8. After making further inquiries with Police the Coroner decided in September 2016 to dispense with an inquest being of the view that:

a self-inflicted stab wound is established on the evidence.

9. Part of the Police material considered by the Coroner in reaching their position was a statement of the lead investigator Detective Sergeant Daley of November 2016. Amongst other matters the Detective noted that the deceased was:

19. …. A caring father and grandfather and a person with no enemies. All witnesses have consistently informed police that they are not aware of any persons who would want to harm the deceased. There are no holdings on the New South Wales Police System suggesting the deceased had any enemies or conflicts.

10. The application under s 51 of the Act followed an internal review under s 49 of the Act. That review on 14 May 2018 reached the same decision as the original decision maker had on 18 April 2018. Both decisions found that the applicant was not a family victim as the primary victim had not died due to an act of violence.

Legislation

11. 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.

12. Eligibility is based on an individual being the victim of an act of violence (which involves an assault resulting in injury including death). Family victims are the surviving relatives of the deceased, who receive victims support upon establishing two crucial preconditions: the deceased died due to the unlawful act of another, and any applicant meets the definition of a member of the immediate family of the primary victim who dies as a result of the act of violence as set out in s 22 (3).

13. The relevant statutory 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.

(2)   For the avoidance of doubt, the reference to an offence in subsection (1) (a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment.

(3)   For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4)   Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a)   they were committed against the same person, and

(b)   in the opinion of the Tribunal or the Commissioner:

(i)   they were committed at approximately the same time, or

(ii)   they were committed over a period of time by the same person or group of persons, or

(iii)   they were, for any other reason, related to each other.

(5)   An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6)   An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7)   For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

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.

……

22 Meaning of “family victim”

(1)   A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act.

(2)   It is immaterial whether or not the person suffers an injury in connection with the act of violence or death.

(3)   A member of the immediate family of a primary victim is:

(a)   the victim’s spouse, or

(b)   the victim’s de facto partner who has cohabited with the victim for at least 2 years, or

(c)   a parent, guardian or step-parent of the victim, or

(d)   a child or step-child of the victim or some other child of whom the victim is the guardian, or

(e)   a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim.

Note. “De facto partner” is defined in section 21C of the Interpretation Act 1987.

(Emphasis added)

14. The threshold issue is to determine whether the deceased died due to the unlawful act of another. Understandably, this issue has occupied the preparation of material pre and post hearing and has been the sole focus of the hearing before the Tribunal.

Jurisdiction

15. 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.

16. The 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.

Hearing

17. At the hearing the applicant appeared in person and the respondent was represented by an employee Solicitor. The procedure of the Tribunal was explained to the applicant and at the conclusion of the hearing directions were made for the filing and serving of written submissions. The matter also involved prehearing directions dates where issues such as the issuing of summons on behalf of the applicant were determined as well as the necessary evidence to traverse the threshold issues. I am satisfied that particularly in respect of the applicant the provisions of s 38 (5) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) have been satisfactorily discharged especially in respect of the applicant’s need to provide evidence and submissions to support her case.

18. The applicant filed written material in support of her application in the nature of evidence and submissions.

19. The respondent also filed and served s-58 documents and written submissions both before and after the applicant’s material.

The administrator’s decisions

20. Both decisions determined that on the available evidence, the deceased was a not a primary victim of an act of violence. In summary the decision makers (after deferring a final decision until further coronial findings) were not satisfied that the deceased died due to the act or acts of another.

Applicant’s arguments / evidence

21. At hearing the applicant gave evidence that she believed that the cause of her father’s death was three stab wounds. Her view was based on both the initial police and paramedic records when her father’s body was first independently identified, and her own beliefs as a result of gathering evidence over the intervening three years.

22. The applicant gave evidence that she had lodged her application initially to seek immediate financial assistance to secure her safety. Her father’s funeral was funded by a $6,000.00 contribution and a $10,000.00 loan. The applicant’s evidence was that initially there was a significant risk or threat to her safety in that her father’s death was treated as suspicions by the police.

23. The applicant’s evidence at hearing was that she had spoken to her father that morning about matters where he had concerns. Later that day she took a phone call from her mother’s phone. The call was actually from her sister who told her that ‘dad has been killed’. The applicant gave further evidence about conversations that she had had with people in the weeks and days leading up to her father’s death. In one conversation a week prior to the death her youngest sibling said to the applicant that her father had said: ‘Take as much as you can as I won’t be here next week’.

24. The applicant gave evidence about a number of other matters which in her view were indicative of suspicious activity directed towards her father or her whole family. On the day of the applicant’s birthday there were helicopters hovering over the house. There was also evidence of suspicious comings and goings in the quite suburban street where her father lived.

25. The applicant believed that there was significant evidence about a lime green Ford sedan with adult males that had not been properly pursued or followed up by the investigating police.

26. The applicant also gave evidence about an issue involving the resident of the street and their friendship with her father, and that this friendship may have been motivation for a third party to kill her father.

27. However the most significant basis (according to the applicant) for the murder of her father, was a matter that the applicant had been told about prior to her father’s death, but had only pursed in detail following his death. According to the evidence of the applicant, her father had a conversation with her before he died about finding out that he was adopted, and matters relating to the identity of his birth father.

28. Her evidence was that her father had told her directly that his birth father (and family) were very wealthy and he had tried to make contact with the family. The applicant gave a significant amount of oral and written evidence about this issue. In order to avoid constructive identification of the applicant it is necessary to outline this evidence here (and in later analysis) in general terms. This is also true of the other matters put forth by the applicant as motivations for her father’s murder (such as the neighbourhood issue at [25] and [26]).

29. The applicant obtained under summons the full post-mortem brief for her father and a large amount of material concerning the police investigation. In addition the applicant provided a large amount of material concerning the paternity / inheritance murder theory as outlined at [27] and [28]. That material provided a context to the life of the (alleged) biological father of the deceased, a suite of material concerning that person’s business interests, standing in the Australian community and further matters relating to the circumstances of the biological father’s own death and matters relating to probate and the distribution of his estate. I shall refer to this matter later as the ‘paternity theory’.

30. All of this material has been considered by me in determine the threshold (but substantive) issue as to whether the deceased father of the applicant died due to the unlawful act of another. In my view it is unnecessary to set out that material in any great detail in these reasons for decision. As indicated above, partly the detail would facilitate the identification of the applicant either directly of indirectly through identification of significant matters on the public record. In addition that detail is well understood by the Tribunal and the parties and for that additional reason there is no need to reproduce it in these reasons.

Respondent’s submissions

31. In written submissions, in summary, the respondent submitted that the official medical evidence should be given greater weight than other evidence when determining the cause of death of the deceased. Both assessor’s (first instance and on review) found that the totality of the evidence was consistent with the Coronial finding that the deceased died due to a single ‘self-inflicted’ stab wound to the chest.

32. The respondent submitted that the applicant had not provided any evidence to establish that her father died as a result of an act of violence. In conclusion the respondent submitted that the decision of the assessor should be affirmed and the application before the Tribunal dismissed.

The issue for consideration in these proceedings is whether the evidence supports a finding that the deceased primary victim died due to the unlawful act of another person or persons – that is were they a victim of an act of violence that resulted in their death?

33. I note that the applicant’s view concerning her father appears to have arisen immediately following the news of his death. The circumstances of the death are somewhat unusual in that the applicant’s father was found (deceased) in the back yard of his house, a residence in a Sydney suburb. The evidence indicates that his wife found him in the back yard lying on the ground and that (whilst this is later retracted in part) the main evidence is that the deceased was ‘cold’ when his wife touched his body.

34. The significant issue is that the initial attending police officer and the attending paramedics are recorded as having observed ‘multiple stab wounds to his body’. This evidence appears to have convinced the applicant (and other members of her family) that foul play was involved. In my view that position held by family members is understandable based on that initial evidence.

35. However as that evidence was ultimately discounted by officials involved in the investigation as to both the circumstances and cause of the death, principally the applicant (and to some extent others), have embarked on an evidence gathering exercise to support their genuinely held initial view. This occurred counter to the official and expert evidence which over a period built to the contrary view. The contrary (and ultimately the view accepted by the State) is that the deceased died due to a single self- inflicted stab wound to the chest– not intentional.

36. In September 2016 a Notice of Particulars of Death arising from a finding by the NSW Coroner was issued. The Coroner has a number of functions in respect of inquiries, inquests, post mortem examinations and dispensing with such matters. Certain deaths are reportable to the Coroner and other deaths may be referred to the Coroner. Whether the Coroner decides or declines to hold an inquest into a death is within the power of that Office. However persons may seek an order of the Supreme Court of NSW if there are matters which they wish to be reviewed arising from certain coronial decisions. The Coroner has other specific functions in addition to those outlined in summary above.

37. The purpose of the Coroner and their Office in New South Wales is set out in the Coroner’s Act 2009. At section 3 the objects of that Act are set out. The matters relevant to the background to these proceedings can be gleaned form s-3 and in particular subsection (c). The section provides:

3 Objects of Act

The objects of this Act are as follows:

(a)   to provide for the appointment of coronial officers,

(b)   to provide that Magistrates are coroners by virtue of office,

(c)   to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths,

….

38. The Notice of Particulars of Death of the deceased was issued by the NSW Coroner on 1 September 2016. Section 34 of the Coroners Act sets out the circumstances when such a Notice may issue. The section provides:

34 Notice of particulars of death to be given to Registrar of Births, Deaths and Marriages(cf Coroners Act 1980, s 16A)

(1)   A coroner must, for the purpose of enabling registration of the death of a person to be effected or completed, give written notice to the Registrar of Births, Deaths and Marriages of such particulars as are known to the coroner relating to the death of the person if the coroner:

(a)   holds an inquest concerning the death, or

(b)   dispenses with the holding of an inquest concerning the death, or

(c)   suspends an inquest concerning the death.

(2)   If a coroner is satisfied (whether before or during an inquest concerning the death of a person) that there will be a delay in concluding the inquest and that the coroner is able, on the basis of such evidence as the coroner considers sufficient, to determine the particulars relating to the death of the person, the coroner may, for the purpose of enabling registration of the death of the person to be effected or completed, make that determination and give written notice of the determination to the Registrar of Births, Deaths and Marriages.

(3)   A notice under this section must not include any matter that incriminates any person.

(4)   For the purposes of this section, particulars relating to the death of a person are:

(a)   the identity of the deceased person, and

(b)   the date, place and cause of death of the deceased person.

39. Contrary to the wishes of the family, the Coroner made a decision based on an examination of all of the available evidence, to dispense with an inquest.

40. In addition I note the applicant’s own evidence from NSW Police on 3 July 2018 that the former State Coroner Mr Barnes and the later State Coroner Mr Mabbutt have both also refused to order an inquest into the deceased’s death, consistent with the initial decision of Deputy State Coroner Grahame. (Applicant’s bundle filed 20 August 2018).

41. The Police investigation into the death concluded with a finding in July 2016 that the death was not a homicide. Whilst the circumstances were treated by investigating police as suspicious, initially neither self harm or misadventure were ruled out during that investigation.

42. The background investigation looked at the deceased’s life, his family relationships and friendships, as well as hobbies and other personal interests and habits. In my view it is unnecessary to go into detail about much of this material as it does not advance the issue before the Tribunal in any meaningful way.

43. The evidence of the members of the deceased’s family at the time of his death does not in my view advance the matter either way. The middle daughter of the deceased made a statement which attributes the death to matters going on in the neighbourhood between the deceased and a man ‘N’.

44. The applicant’s contemporary statement talks about unusual thoughts or behaviours of the deceased. The following is stated at [8] of the applicant’s Police Statement 1 September 2015.

‘I asked him what he was thinking about and dad told me I am thinking about what I am going to do. I thought that, that was a bit odd, because I felt like he was contemplating that he could be considering that he wanted to end his own life.

45. The applicant concludes with similar views to her sister in that she attributes the death to something to do with the apparent neighbourhood dispute.

46. The youngest sibling’s contemporaneous Police Statement refers to some minor matters concerning the unusual behaviour of the deceased in the days prior to his death. There is a brief reference to a missing pet bird at the deceased’s residence, whereby the bird had been let out of it’s cage, and the blanket for the bird was over the deceased’s legs as he lay on the ground in the back yard. The relevance of this evidence to the applicant is that when she left earlier that day her father was asked to take the bird outside for some fresh air but declined to do so and instead put the blanket over the cage indoors.

47. The youngest sister says that she spoke to some neighbours about whether they had seen or heard anything and that she told the neighbours that her father had been murdered. The sister then telephoned the applicant to tell her about her father. The sister refers to the fact that her father had recently been worrying a lot about her, and checking on her welfare. In a separate statement she refers to her father’s minor drug use and that he would grow cannabis plants for a hobby and only ‘sell to friends’. This evidence is received in the context of a sale ledger found in the kitchen a week after the death.

48. The deceased’s wife disclosed a number of matters to the Coroner about the deceased. Many of these matters are consistent with other material from this witness provided by the applicant in support of the claim. In summary the spouse refers to the neighbourhood issues and the green Ford motor vehicle.

49. A note placed under the door by a concerned neighbour subsequently ‘went missing’. The neighbour told the spouse that she received an anonymous telephone call about the deceased being murdered because the caller said ‘ he was having an affair with my missus’.

50. Further references are made to the deceased’s strange comments concerning foreign people and UFO sightings and that these matters are not in any way unusual. No diagnosis had apparently been made concerning the deceased.

51. The spouse also sets out a theory that the deceased was having an affair with a neighbour. In addition significant motivations for his death are put forth by circumstantial evidence based largely on inferences. There is also a theory that the bird was released from the cage in order to prevent it making a commotion during some violent struggle between the deceased and his attacker(s).

52. The spouse (being the first to find the deceased) says in August 2016, 12 months after his death, that his body as warm to touch when she first touched him. Various other comments and observations are made about the initial ‘crime scene’.

53. All family members refer to the absence of defensive wounds and put forth theories that the deceased may have been restrained or other viable explanations as to how he may have been fatally attacked without any defensive wounds.

54. The concluding view of the spouse on behalf of the immediate family members is that:

It is the view of my family that given the violent way in which (the deceased) was injured and the above aspects of the evidence that remain unanswered, that it cannot be safely concluded that the wound was self-inflicted.

55. The issue about the discrepancies between whether the deceased had one wound or wounds has not been examined by way of an inquest or other investigation. In my view the findings of the autopsy, and my own examination of the detailed post mortem photographs prior to any forensic procedure, and other forensic evidence make it clear that the deceased had a single ‘stab’ wound in accordance with those referred to in written findings of the Coroner. The brief observations of an attending police officer and paramedics do not account for the primary evidence concerning the actual wounds, but rather refer to what was then a crime scene, where there was a significant amount of blood and post injury material present with the deceased.

56. In my view the findings of the official who examined the body and ultimately prepared the Autopsy Report (Dr Vuuren) carry significant weight and dispel any initial, information that there were multiple or more than one stab wound.

57. In addition I note that on the one had members of the family believe at various times that the deceased was under some external pressure in the months leading up to his death. A wide and varied number of explanations are put forth as to what caused that pressure on the deceased.

58. Some theories relate to adultery, others relate to drug supply, and further theories relate to a paternity discovery that would cause a significant estate to be subject to a legal challenge, resulting in some presumed detriment to the estate and potentially the reputation of that deceased person.

59. Countered with those matters are the police evidence whereby many of the neighbourhood theories / suspicions are refuted as a result of their inquiries. There is evidence of recreational drug use of cannabis, which long term use can create a level of paranoia in users. Whilst no expert evidence is before the Tribunal on this issue I note that this is a commonly accepted view in medical and legal circles. There is evidence before the Tribunal that the deceased, a middle aged man regularly used cannabis even if his quantities were limited. In observing this I make no finding relating any drug use to an health issue, nor do I find that the applicant used drugs or had mental illness.

60. The theories about unusual activity in the days leading up to the death, being the presence of the green motor vehicle, the helicopter flying over the property, the reported break ins and other matters at family and neighbours residences, are evidence that does not in my view establish that the deceased was murdered.

61. The evidence from the youngest sister about her father’s concern for her and her children is in my view unremarkable. His daughter did not have full time custody or access to her children, had been recovering from some medical issues and was trying to get her life back on track. With the confluence of these matters I find it unremarkable (even if it seemed unusual or different to his prior behaviour) for the deceased to be concerned about his youngest daughter’s welfare and general well being and that of her children. The same could be said for the other members of the family.

62. Other evidence concerned the location of orange box cutters a significant time after the death. When these matters were brought to police attention understandable they discounted their evidentiary value as their provenance to the crime scene could not be established.

63. In respect of the paternity theory, as being some basis or grounds for the murder of the deceased, this theory was only advanced as the application before the Tribunal progressed, with some material being filed just prior to the hearing, with much of the evidence given at hearing relating to that theory.

64. I note that included in the material is a number of legal letters and correspondence from lawyers engaged by the applicant, both in respect of the coronial matters and the paternity theory. The applicant indicated that her father had only made the connection not long before his death and in some ways the applicant believes that this matter explains his recent allegedly unusual behaviour.

65. There was evidence given at hearing at to the circumstances of the biological father’s illness and death and that this as somehow suspicious due to the value of the estate. A theory was put forward in evidence that some malfeasance was involved and her father’s discovery of his true parentage only escalated that mischief. The theory being that the deceased was murdered in order to prevent a claim on the Estate and or / sullying of the corporate and personal reputation of his biological father.

66. Evidence was given that the biological father had significant business interests in two unrelated fields and was a prominent player in the corporate world and mixed in the highest business and political circles.

67. The applicant also gave evidence that her father told her about his attempt to meet with members of the Corporation and how he was refused access. The applicant reiterated her belief that the biological fathers death was somehow suspicious just as was her father’s death (the subject of this application).

68. I note that the applicant’s father died well after his purported biological father died. I also note that the applicant has received independent legal advice outlining that her late father would have had no legal rights to claim against the estate of his biological father due to his formal adoption as a young child.

69. Other than to observe that this evidence at best could be a motive for the killing of the applicant’s father, I find that in that regard this evidence (on that limited basis) even if established, is of minimal weight. In my view to the extent that it is relevant the applicant has not established the paternity of her father because that evidence has not been tested and further that is not the role of this Tribunal. The paternity theories in general take on a flavour of conspiracy theories, and require a significant leap especially as the deceased and the father never knowingly met, and the theory manifested after the first of them died.

70. The Tribunal does not examine theories leading to a possible motive where the evidence of the circumstances of a death are unclear. The starting point is to examine the circumstances of a person’s death and then if a finding is made to the civil standard that they died due to the unlawful act of another, then that would be the end of the matter (subject to contributory or criminal behaviour on the part of the deceased in accordance with s-44 of the Act).

71. I note that the NSW Police have discounted all possible theories as to the deceased being murdered and only provide a theory as to the reasons or basis that the deceased took (or may have taken) his own life.

Findings

72. Having considered all of the available evidence I make the following findings.

73. Having regard to the evidence and the requisite standard, on the balance of probabilities I find that the deceased died due to a single stab wound to the chest which pierced vital organs, and those actions were on the available evidence self inflicted. It is unclear as to whether the deceased intended to take his own life or not. In any event, the matters which caused him to desire or attempt to take his own life are not relevant to these proceedings.

74. The various theories meritorious or otherwise do not advance the matter having regard to the findings that I have made.

75. This is a tragic matter whereby on all accounts the deceased was a well regarded family man who loved his family and especially his grandchildren. The police concluded that the deceased had a range of interests and no known enemies or persons who wished him harm. The evidence of minor drug matters was raised by one of the children in the police investigation and was submitted by the applicant to this Tribunal. It has not ben tested and does not stand against his character or reputation.

76. The applicant has therefore been unable to establish that her father died due to an act of violence (as defined under the Act), and as a result he does not meet the definition of a primary victim. In those circumstances the applicant (or her family) are not considered family victims for the purposes of the Act.

77. The various authorities including the Coroner (in deciding to dispense with an inquest) acknowledged the loss of a beloved family member, and in this regard the Tribunal observes that this is a tragic matter which understandably has had a significant impact on the family members including the applicant.

78. I note that the Commissioner’s delegates have observed that should fresh evidence come to light to establish unequivocally that the deceased died due to an act of violence, the applicant and or her family have two years from that time to resubmit an application for recognition, assistance or other support.

79. In observing that matter regarding fresh evidence and time limits (as per s- 40 (2) and (3) of the Act), I include it in these reasons as the legislation is beneficial and it remains possible that the applicant will be assess as a victim of violent crime. In doing so I reiterate that no finding to that end has been made by this Tribunal in these reasons.

Conclusion

80. For the reasons outlined above, the applicant is unable to claim a recognition payment or other victims support as a result of the tragic death of her father in Sydney in 2015.

80. As a result of those findings the decision will be affirmed and the application for administrative review will be dismissed.

Orders

1. The decision of the respondent dated 14 May 2018 is affirmed.

2. The application is dismissed.

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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

Amendments

04 January 2019 - Paragraph 40 typographical error corrected.

Decision last updated: 04 January 2019