DUD v Commissioner of Victims Rights

[2019] NSWCATAD 163

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DUD v Commissioner of Victims Rights [2019] NSWCATAD 163
Hearing dates:	9 August 2019
Date of orders:	15 August 2019
Decision date:	15 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 15 March 2019 is set aside. In substitution for that decision the following decision is made:  “The applicant is eligible for a Category C recognition payment in the sum of $5,000.”
Catchwords:	Victims Rights and Support – administrative review –grievous bodily harm
Legislation Cited:	Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013 Administrative Decisions Review Act 1997 Crimes Act 1900 Civil and Administrative Tribunal Act 2013
Cases Cited:	AM v R [2012] NSWCCA 203 BJR v R [2008] NSWCCA 43 BMF V Commissioner of Victims Rights [2016] NSWCATAD 54 BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 BQG v Commissioner of Victims Rights [2015] NSWCATAD 63 BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 CZU v Commissioner of Victims Rights [2017] NSWCATAD 240 Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 DEL v Commissioner of Victims Rights [2017] NSWCATAD 376 Haoui v Regina [2008] NSWCCA 209 Overall v R 71 A Crim R 170 Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 R v Blevins 1988 SASR 65 R v Donovan [1934] 2 KB 498 Regina v King [2003] NSWCCA 399 R v Perks 1986 SASR 355 R v Remilton [2001] NSWCCA 546 R v Sergi [1974] VR 1 Regina v Shannon [2003] NSWCCA 106 Regina v Sumeo [2002] NSWCCA 271 Regina v Williams [2005] NSWCCA 14 R v Woodland [2007] NSWCCA 29 R. v. Miller [1951] VLR 346 Roger Lee Vann v Craig Michael Palmer [2001] ACTSC 12 Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DUD (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: B Piggott (Applicant) S Sabesan, Victims Services (Respondent)
File Number(s):	2019/00090436
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. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 22 March 2019, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support that was lodged by her solicitor. The applicant is known by the pseudonym ‘DUD’.

Background

Application for Victims Support

2. On 27 May 2015, DUD’s solicitor, Mr B Piggott, lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that DUD was the primary victim of an act of domestic/family violence that occurred over a period of time from 10 May 2011 to 6 May 2014, at Hurstville, New South Wales, as follows:

(Name provided) (husband) threatening wife (DUD) to kill her, son (name provided) Mother in Law (DUD’s Mother). (DUD) applied AVO on (husband) after that incident. Oral abuse has been happening since early stage of marriage and never stopped.

3. The application alleged that DUD suffered a psychological injury as a result of the act of violence and that she sought counselling, financial assistance for immediate needs or economic loss and a recognition payment.

4. The act of violence was initially reported to NSW Police on 7 November 2012, and Police applied for an Apprehended Domestic Violence Order against the alleged perpetrator. However, while the matter was listed for hearing at Sutherland Local Court on 5 December 2012, the alleged perpetrator persuaded DUD to withdraw the matter.

5. A Police COPS Event report dated 18 August 2014, indicates that on 7 May 2014, the alleged perpetrator reported that on 6 May 2014, he returned home from work and found that all of the furniture in the house was gone and so were his wife and child. It also indicates that on 6 May 2014, DUD attended Leichhardt Police Station and reported that she had left the alleged perpetrator and was living in a women’s refuge in Glebe with their Son. She was concerned that the alleged perpetrator may report them as missing persons. The report also indicates that on 9 August 2013, DUD contacted Police and reported that she had been having an ongoing verbal argument with her husband, who will not stop calling her when she is at work and he attends her workplace unannounced. It noted a prior history of stalking and intimidation and that in November 2012, the alleged perpetrator was the subject of a mental health assessment after making threats to harm himself and DUD. Police spoke with the alleged perpetrator at DUD’s request and reported that they suspected that he suffered from “an undiagnosed mental illness”.

Decision at First Instance (Recognition Payment)

6. On 30 October 2017, an Assessor (Client Claims) issued a Notice of Decision and determined that DUD was the primary victim of an act of violence over the period from 10 May 2011 and 5 May 2014. The Assessor found, relevantly, that the evidence indicated that DUD had suffered symptoms consistent with PTSD following her experiences of domestic violence by the alleged perpetrator, which included a pattern of escalating violence including threats of serious harm over the course of the relationship. The assessor found that the acts of violence were a series of related acts pursuant to s 19(4) of the Act and that pursuant to s 19(7), they constitute a single act of violence and determined that there were no relevant factors under s 44 of the Act.

7. The Assessor approved a Category D recognition payment in the sum of $1,500 on the basis that the evidence indicated that DUD was the victim of an assault that did not result in grievous bodily harm.

8. I note that a copy of this decision was posted to DUD’s solicitor on 2 November 2017, under cover of a letter of that date from the respondent.

Internal Review

9. On 24 November 2017, Mr Piggott signed an Internal Review request form, in which he submitted that DUD had suffered grievous bodily harm as a result of the act of violence and that a Category C recognition payment should have been approved. He cited two decisions in support of this submission, namely: (1) Casey v Del-Air Aviation Pty Ltd: Helm v Pel-Air [2015] NSWSC 566; and (2) BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197.

10. On 30 November 2017, the Senior Assessor deferred determination of the review decision for the following reasons:

6.   (DUD)’s solicitor referred to 2 cases on the internal review form, both of which relate to the characterisation of psychological injury as “bodily harm”. I note that the decision in Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566 had been overturned at the Supreme Court before the internal review form was lodged- see Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32. I have taken (DUD)’s internal review request to be in relation to the category of recognition payment approved by the original decision maker.

7.   (DUD)’s solicitor has not provided submissions in support of the internal review, though I note he has been requested to do so on multiple occasions.

8.   I am deferring (DUD)’s internal review for a period of 8 weeks, to allow for her solicitor to provide submissions.

11. On 1 February 2019, Mr Piggott provided the following written submissions to the respondent:

1.   My client suffered “grievous bodily harm”. This phrase has been the subject of judicial consideration on many occasions. I note that in BMF v Commissioner of Victims Rights [2016] NSWCATAD 144 (6 July 2016)

I quote the relevant paragraph numbers of that decision.

(I note that the quoted paragraphs are from the Tribunal’s earlier decision in BMF v Commissioner of Victims Rights [2016] NSWCATAD 54):

22.   In effect s 35(3) (c) of the Act provides that a Category C Recognition Payment is given in respect of an act of violence involving an assault resulting in grievous bodily harm. However, the term “grievous bodily harm” is not defined in VRSA.

23.   At the hearing on 5 February 2016, BMF appeared in person and Mr S Matulewicz appeared for the Commissioner. I considered all of the evidence lodged with the Tribunal, including the Section 58 documents lodged by the Commissioner, and I also heard oral submissions from the parties.

24.   BMF submitted that she suffered both physical and psychological injuries as a result of the assault and she is still had treatment for those injuries. In effect, she submitted that her injuries are “really serious” and that the assault caused “grievous bodily harm” and she is entitled to a Category C recognition payment.

25.   On behalf of the Commissioner, Mr Matulewicz submitted that established case law indicates that “grievous bodily harm” means “really serious injury”. He submitted that the evidence of nerve root impingement in the lumbar spine would satisfy that definition, subject to the Tribunal being satisfied that the pathology causing that impingement resulted from the assault. However, he submitted that there is insufficient evidence to satisfy that definition solely on the basis of the alleged psychological injury as there is no evidence that a formal diagnosis has been made by a psychologist or psychiatrist.

26.   In relation to the issue of statutory interpretation, I note that in Project Blue Sky v ABA 194 CLR 355, the High Court of Australia stated (per Brennan CJ):

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction [56] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out [57]:

The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases, the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore, there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example, the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with. (footnotes omitted)

27   Some guidance regarding the meaning of “grievous bodily harm” may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209. In Haoui the Court considered its meaning in the context of the Crimes Act 1900 and Her Honour stated (relevantly):

137   The trial judge informed the jury that the third element of the offence, namely, that the impact caused “grievous bodily harm” was in dispute. His Honour directed the jury to look at “the seriousness of the injury that Mr Mousselamani suffered”. The trial judge correctly directed the jury as to the meaning of “grievous bodily harm” and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to “grievous bodily harm” which, he explained, “simply means really serious bodily injury”. No challenge is made to this direction, although the adverbial qualification of “simply”, should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to “grievous bodily harm”. His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that “grievous bodily harm” meant that the injury was “a really serious one.”

138   The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139   However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm,” but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12.

140   It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that:

It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm.

However, no authority is cited for the proposition.

141   In my opinion, the jury verdict that Mr Mousselamani suffered “grievous bodily harm” was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was ‘red’ for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.

142   In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.

28.    I note that this decision was cited with approval by the Court of Criminal Appeal in AM v R [2012] NSWCCA 203, in which Johnson J stated (relevantly):

70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209… While I note that this decision was served upon BMF, the evidence before me does not indicate the date and method of service.

2.   The effect of the case and the other authorities cited is that “grievous” simply means “really serious”. The difficulties experienced by my client for an extensive time after she was finally able to separate from her husband were such that she required extensive treatment and counselling. This was not alleviated and was in fact exacerbated by the suicide of her husband. She has a daily reminder of her former difficult life because she has the care of their son whom she dearly loves.

3.   The various reports that were obtained by Victims Services detail her difficulties. I note that Victims Services did not obtain reports from all the medical/counselling people she consulted (and advised Victims Services of) as they has (sic) offered to do but I believe that the reports that are to hand address the main issues. Her psychological problems are persistent and created difficulties in her ordinary life and in her family dynamics and work and study activities. They were life threatening and they caused suicidal ideation and prolonged mood swings. She has shown determination to overcome her problems and move forward probably because of her care for her son. On any fair assessment, she had a ‘really serios” (sic) issue which was addressed.

12. On 5 March 2019, the Senior Assessor issued a Notice of Review Decision, which determined that DUD was the primary victim of an act of violence and that she was eligible for a category D recognition payment in the sum of $1,500. The Senior Assessor determined, relevantly:

16.   As (DUD) relies on a psychological injury as evidence of grievous bodily harm in order to be eligible for a Category C recognition payment, I must take into account whether the evidence establishes a “really serious” psychological injury. One of the factors to consider is the impact to her day to day functioning and overall impairment…

20.   I cannot find that (DUD)’s current functioning has been impacted solely as a “direct result” of the domestic violence; noting the childhood traumas, as well as the impact of the offender’s suicide.

21.   I refer to the report of Victims Services Approved Counsellor (name provided), with whom (DUD) consulted in December 2017. (She) describes (DUD) as being angry about her current circumstances, including that she financially supported both of her parents as well as her young child.

22.   Overall, having considered the medical reports from various mental health professionals, I have not found evidence of (DUD)’s psychological injury being “really serious” to the extent of justifying the approval of a Category C recognition payment. I absolutely do not discount the serious nature of any psychological harm arising as the result of domestic violence, and I readily acknowledge that (DUD) has unfortunately suffered psychologically. Noting her ability to function in the paid workforce, care for her young child and support her parents – much to her credit – I am not of the view that the extent of the psychological harm is akin to “grievous bodily harm.” …

13. The Respondent served a copy of this decision upon DUD and her solicitor by email dated 7 March 2019.

Application for administrative review

14. The current application for administrative review was filed on 22 March 2019 and I am satisfied that it was filed within time.

15. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

16. The Application came before me for Directions on 17 May 2019, Mr Piggott appeared for the applicant and in person and Ms S Sabesan appeared for the respondent. The matter was adjourned for further directions on 14 June 2019 and the respondent was ordered to file and serve any material upon which it intended to rely by 24 May 2019.

17. The Application came before Senior Member McAteer for directions on 14 June 2019, when the same representatives appeared. The documents provided by the respondent under s 58 of the ADR Act were comprehensive and complete. The Senior member ordered the respondent to file and serve any written submissions by 5 July 2019 and he ordered the applicant to file and serve any written submissions in reply by 19 July 2019. He listed the matter for hearing on 9 August 2019.

18. However, on 19 July 2019, Mr Piggott sent an email to the Tribunal (copied to the Respondent), advising that he was instructed to obtain an updated report from “Justin Goldin to address concerns raised by the Commissioner”. He requested leave for the applicant to file and serve that report and submissions in reply by 30 July 2019. On 29 July 2019, the Registrar amended the orders dated 14 June 2019 in the manner requested by the applicant.

Applicant’s further evidence and submissions

19. On 8 August 2019, the applicant filed a report from Amina Bounouar, Counsellor, dated 7 August 2019. However, I note that it was not filed in accordance with the orders made on 14 June 2019.

20. At the hearing on 9 August 2019, the respondent did not object to the late filing of Ms Bounouar’s report. Accordingly, in the interests of justice, I have decided to extend the time to file that report to 8 August 2019 and to admit it into evidence.

21. Mr Piggott relied upon undated written submissions, which essentially repeat the matters set out in his submissions dated 1 February 2019, but with the following additions:

4.   My client continues to undertake counselling and reports are before the Tribunal.

5.   the report of Amina Bounouar delineates between the Applicant’s earlier traumatic experiences and the later episode which is the subject of the claim. But for the domestic abuse she suffered at the hands of her deceased husband the applicant would be in a much different situation.

Respondent’s submissions

22. The respondent relied upon written submissions filed on 5 July 2019, which provide relevantly:

The test for grievous bodily harm

9.   The act of violence referred to in the application for victims support is domestic violence. It does not involve sexual assault or physical assault of a child. Therefore, the only other category of recognition payment that may be applicable (other than the Category D recognition payment already approved by Victims Services) is a Category C recognition payment that falls within the ambit of s 35(3) (c) of the act. In order for a category C recognition payment to be applicable, the assault must result in “grievous bodily harm”.

10.   The Tribunal’s decision in BQG v Commissioner of Victims Rights [2015] NSWCATAD 63 provides guidance as to what is required to establish grievous bodily harm, as follows:

a.   Grievous bodily harm includes any permanent or serious disfiguring of the person. Grievous bodily harm requires that an injury be a really serious one, but does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening: Haoui v R [2008] NSWCCA.

b.   The Butterworths Concise Australian Legal Dictionary (Second Edition) defines the legal term ‘grievous bodily harm’ as:

i.   Abbr – CGH Bodily injury of really serious kind: R v Sergi [1974] VR 1: R v Blevins (1988) SASR 65.

ii.   At common law, the expression has no fixed legal meaning and should be left to the jury to interpret in accordance with the ordinary current meaning of the words: Director of Public Prosecutions (Vic) v Miller [1951] VLR 346; R v Perks (1986) SASR 355; 20 A Crim R 201.

c.   The words grievous bodily harm are not expanded upon in the Act other than in relation to the extension arising from the decision of R v King (2003) 59 NSWLR 472, which held the destruction of the foetus of a pregnant woman was ‘grievous bodily harm’. Of note is the definition of ‘injury’ at section 18, which lists ‘grievous bodily harm’ as distinct from ‘actual bodily harm’ or ‘psychological or psychiatric harm’.

d.   Whether the injury sustained can be characterised as a particular type of harm (such as ‘grievous bodily harm’) is a question of fact. Specific evidence of injury is required to enable a decision maker to determine whether the injury falls within the scope of grievous bodily harm.

11.   The Tribunal has recently affirmed the above approaches to grievous bodily harm in CZU v Commissioner of Victims Rights [2017] NSWCAT 240 and DEL v Commissioner of Victims Rights [2017] NSWCATAD 376. In both cases the injuries claimed were psychological, and therefore provide some guidance in relation to the types of evidence which may assist in determining whether a psychological injury is sufficiently serious to be considered grievous bodily harm, for the purposes of approving a Category C recognition payment.

12.   In CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, it was acknowledged that the applicant had been significantly impacted by the act of violence, however the evidence was found to be insufficient to substantiate that she had sustained grievous bodily harm, in making this finding, the Tribunal noted that “there was no evidence… that supports a finding that her condition required treatment by a specialist psychiatrist or medication.”

13.   In DEL v Commissioner of Victims Rights [2017] NSWCATAD 376, it was accepted that the applicant had sustained psychological harm as a result of the act of violence. To measure the seriousness of that harm her level of functioning was considered. It was concluded that her ability to maintain a relationship with her partner and continue working indicated that the harm suffered was not sufficiently serious to be considered grievous.

14.   In the recent unpublished decision of DOC v Commissioner of Victims Rights, psychological injury was considered in the context of pre-existing conditions. In that decision, the Tribunal noted that there is no provision in the Act for “an injury which is the exacerbation, aggravation, acceleration or deterioration of an existing condition”. The Tribunal found that a decision-maker must therefore ascertain the level of damage specifically attributable to the act of violence. In other words, the applicant’s injuries arising from the act of violence must be considered separately from any pre-existing conditions.

Evidence of injury

15.   For an application for a recognition payment, section 39 of the Act requires that medical evidence or counselling reports be provided which “verify” that the applicant has been injured as a result of an act of violence. Reading this requirement in conjunction with section 36(1)(c) of the Act, it is submitted that the medical evidence or counselling reports provided must verify that the applicant has sustained grievous bodily harm in order for a Category C recognition payment to be approved.

16.   It is accepted that the applicant sustained psychological injury as a direct result of the act of violence which occurred from 2011 to 2013.

17.   In the counselling report provided by Julie Rea from the counselling session on 7 December 2017, the report states “[the applicant] is very angry with her current circumstances. Both her parents (who have separated) live with her and her young son. [the applicant] financially supports them both.

18.   In counselling report provided by Nina Melksham, approved counsellor, dated 19 June 2014, the report states “(DUD) has a history of several traumatic events including childhood sexual assault, a motorcycle accident and involvement in a natural disaster (earthquake) in 2009. (She) reports she was raised in a hospital and was regularly exposed to traumatic life-threatening physical injuries of patients, which caused her vicarious trauma.

19.   The reports provided by Justine Goldin, clinical psychologist, indicate the following:

a.   In the report dated 14 June 2015: “[the applicant] has recently started a new job which seems to have had a positive effect on her confidence and her mood.”

b.   In the report dated 18 June 2015: “[the applicant] is a survivor of childhood trauma which has led to longstanding mental health issues.”

c.   In the undated report: “It is also significant that [DUD] has suffered from longstanding mental health issues. [She] is a survivor of childhood sexual abuse, which she experienced for several years throughout her childhood. She suffered from post-natal depression following the birth of [her son]. The accumulation of these past and current stressors cause [her] overwhelming feelings of anxiety, leading her to feel she has no control in her life and believing she is vulnerable to harm.”

d.   In the report dated 12 June 2019 (filed by the applicant on 14 June 2019): “Over the past five years, [DUD] has struggled with several significant psychological, occupational, social and financial issues.”

20.   The evidence from the medical reports indicates that the applicant has had long standing mental health issues. Whilst the respondent recognises the trauma faced by the applicant from the various stressors of her life, the evidence does not establish that the applicant suffered a psychological injury that is “really serious” as a direct result of the act of violence from 2011 to 2014.

21.   The respondent submits that the applicant’s ability to function, as evident from her joining the workforce, find housing, care for her child and her parents, indicates a high level of functioning. The respondent submits that the applicant’s demonstrated capacity to perform these functions indicate that her psychological injury are (sic) not sufficiently serious to be classified as grievous bodily harm.

22.   The respondent submits that the evidence available of the applicant’s psychological injuries does not verify that she has sustained injuries in the nature of grievous bodily harm. It is therefore unnecessary to determine the proportion of psychological harm attributable to the act of violence, and that which related to her other stressors in her life.

23. Accordingly, the respondent submitted that the correct and preferable decision is to affirm the decision that is under review.

Consideration

Act of Violence

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

25. “Act of violence” is defined in s 19 (1) 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.

(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…

26. The onus is on DUD to prove her allegations of assault/domestic violence on the balance of probabilities. Based on the available evidence, I am satisfied that she has discharged her onus of proving that she was the primary victim of an act of violence that occurred over a period of time from 2011 to 2014 on the balance of probabilities.

27. I am further satisfied to the required standard that the acts of violence alleged in the Application for Victims Support constitute a series of related acts.

Injury

28. Section 20 of the Act defines “injury” as meaning “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 Respondent does not dispute that DUD was the primary victim of an act of violence and/or that she suffered a psychological injury as a result of it.

30. However, the respondent determined that the act of violence was in the nature of an assault that caused actual bodily harm. This decision appears to be based upon the decision in R v Donovan [1934] 2 KB 498 at 509, which is authority for the proposition that actual bodily harm means “any hurt or injury to a person, which does not have to be permanent, but is more than merely transient or trifling." In making that determination, it placed significant reliance on DUD’ prior history of psychological issues.

31. While the respondent has submitted to the effect that the Act requires the act of violence to be the sole cause of the injury, I note that s 19 of the Act does not state that the act of violence must be the sole cause of the injury, but that the injury must directly result from the act of violence.

32. In my view, the available evidence does not support a finding that DUD required any ongoing psychological treatment for her prior psychological issues when the act of violence occurred. The Tribunal has had the benefit of a reports from Justine Goldin dated 12 June 2019 and Amina Bounouar, Counsellor, dated 7 August 2009, which were not before the Senior Assessor when the review decision was made.

33. Ms Goldin reported that over the past five years, DUD has struggled with several significant psychological, occupational, social and financial issues, She stated that as a result if the complex trauma that DUD suffered as a result of the act of violence, she had suffered several mental health issues including PTSD, Depression and anxiety. She struggles with a number of debilitating symptoms that negatively impact her functioning, including disturbed sleep, poor concentration, panic attacks, becoming easily overwhelmed and anxious, depressed mood, inability to feel joy and see the positive side of life, clouded thinking and an inability to settle her mind, feeling disconnected from others, loss of confidence and an inability to cope with stress. The abuse that she suffered in her marriage has also impaired her ability to form trusting relationships, to work and study successfully, to parent effectively and to manage general day to day functioning, She opined that this psychological condition was caused by the act of violence.

34. Ms Goldin also stated that DUD has received psychological and psychiatric treatment over the last five years, with little improvement. She concluded that although DUD’s condition has stabilised, she requires ongoing psychological support and would also benefit from a review by a psychiatrist.

35. Ms Bounouar reported that she perused a statement from DUD and reports from Justin (sic) Goldin dated 12 June 2019 and Dr Chaudhary dated 30 July 2019 and she had also spoken with DUD. She took a history that DUD was a victim of childhood sexual abuse, but that after finally moving away from the source of that abuse, she successfully finished school and tertiary training. She was involved in a few stable personal relationships before she moved to Australia. She completed a Master of Professional Accounting degree and a financial adviser’s course in Australia. Her marriage was initially happy, but this broke down in its first year and her husband became controlling and suspicious of her and constantly demanded to know what she was doing every day and he telephoned her constantly on a daily basis while he was away from her. He would not let her drive a motor vehicle and began making disparaging remarks about her and the baby and expressed disdain and contempt for them. He kept threatening to harm the baby and himself if she did not comply with his demands.

36. Ms Bounouar expressed the opinion that DUD had largely recovered from her childhood traumatic experiences and made good progress through life and she was not on any medication for any mental health conditions at the time of her marriage. However, her experiences during her marriage were confronting and her family life became daunting and potentially dangerous. She ultimately separated from her husband and sought refuge in a women’s shelter due to a desperately felt need to protect herself and her child. She has relied heavily on her father for support since he came to live with her. She has had counselling from time to time and is currently engaged with Justine Goldin and is taking medication for her stress related problems. She opined that DUD was suffering from PTSD with associated depression and anxiety, which was more likely than not directly related to the prolonged domestic abuse suffered during her marriage to the alleged perpetrator. But for that episode in her life, she would be symptom-free and would not require counselling and medication.

37. I am therefore satisfied on the balance of probabilities that DUD’s current psychological injury resulted from the act of violence.

38. In BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, in which there was also evidence of a pre-existing psychological or psychiatric injury, this Tribunal determined that the applicant’s psychological condition was that such that the “eggshell psyche” principle espoused by Spiegelman CJ in State Transit Authority of New South Wales v Chemler [2007] NSWCA 249 at [40] applied.

28. Accordingly, if I am wrong regarding my finding as to the causation of DUD’s current psychological condition, I am satisfied that the “eggshell psyche” principle applies and that her pre-existing “eggshell psyche” was aggravated, exacerbated or deteriorated as a direct result of the act of violence.

29. It is therefore necessary to determine whether DUD suffered “grievous bodily harm” or “actual bodily harm” as a direct result of the act of violence.

30. Some guidance regarding the meaning of “grievous bodily harm” may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui).

31. In Haoui, the Court of Criminal Appeal considered its meaning in the context of the Crimes Act 1900 and Beazley JA stated, relevantly:

137   The trial judge informed the jury that the third element of the offence, namely, that the impact caused “grievous bodily harm” was in dispute. His Honour directed the jury to look at “the seriousness of the injury that Mr Mousselamani suffered”. The trial judge correctly directed the jury as to the meaning of “grievous bodily harm” and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to “grievous bodily harm” which, he explained, “simply means really serious bodily injury”. No challenge is made to this direction, although the adverbial qualification of “simply”, should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to “grievous bodily harm”. His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that “grievous bodily harm” meant that the injury was “a really serious one.”

138   The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139   However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm”, but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12.

140   It is also apposite to refer to the Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)), where a comment is made at 19.140.1 that

“It can be argued that one uncomplicated fracture of any of the limbs or the nose, jaw or cheekbone would on its own not normally amount to grievous bodily harm”

However, no authority is cited for the proposition.

141   In my opinion, the jury verdict that Mr Mousselamani suffered “grievous bodily harm” was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was ‘red’ for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.

142   In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.

43. I note that the decision in Haoui, was cited with approval by the Court of Criminal Appeal in AM v R [2012] NSWCCA 203, in which Johnson J stated, relevantly:

70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…

44. In view of the evidence that DUD suffered a psychological injury as a result of the act of violence between 2011 and 2014, and that she continues to suffer significant ongoing symptoms approximately five years later, which requires psychological support and medication, I am satisfied that her psychological injury can properly be considered as being “really serious”. It follows that I am satisfied that she suffered grievous bodily harm as a result of the act of violence and that she is therefore eligible for a Category C recognition payment under s 35(3)(c) of the Act.

45. While I note that the respondent has cited decisions from this Tribunal that express a different view as to whether a psychological injury can constitute grievous bodily harm, I am not bound by decisions of other Senior Members. There does not appear to be any appellate decisions in relation to the issue and there is no indication that the approach that I adopted in the decision of BMF v Commissioner of Victims Rights, which I have cited in this decision, was overturned on appeal.

Section 44 of the Act

46. I am required by the Act to consider whether there are any factors under s 44 of the Act that would result in me either declining to approve victims support to DUD or reducing the amount of victims support that is payable to her. Based upon the available evidence, I am satisfied that there are no such issues in this matter.

Orders

1. The decision of the Senior Assessor dated 15 March 2019 is set aside. In substitution for that decision the following decision is made:

“The applicant is eligible for a Category C recognition payment in the sum of $5,000.”

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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: 15 August 2019