DVS v Commissioner of Victims Rights

[2019] NSWCATAD 169

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DVS v Commissioner of Victims Rights [2019] NSWCATAD 169
Hearing dates:	9 August 2019
Date of orders:	20 August 2019
Decision date:	20 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 29 November 2018 is affirmed.
Catchwords:	Victims Rights and Support – administrative review –primary victim of an act of violence – burden of proof
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Interpretation Act 1987 (NSW) Victims Rights and Support Act 2013 (NSW)
Cases Cited:	R v Butcher [1986] VR 43 R v Knight 35 A Crim R 314 R v Lapa [2004] NSWDRGC 1
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	DVS (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: DVS (Applicant in person) Victims Services Legal (Respondent)
File Number(s):	2019/00129024
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 26 April 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 she lodged on behalf of her Son on 29 November 2018. The applicant is known by the pseudonym ‘DVS’.

Background

Application for Victims Support

2. On 4 March 2017, DVS signed an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”) on behalf of her Son (known as DXH), which alleged that he was the primary victim of an act of violence that occurred over a period of time from March 2015 to June 2015, at Penrith in New South Wales, as follows:

(Son) witnessed a dismembered corpse on 30/04/15 and two students videoed the mutilated body and were bullying (him) by replaying the video again and again against (his) wishes. The boys threatened to harm (him) if he told anyone about the video. (He) was bullied physically and psychologically by these boys.

3. The application alleges that these events occurred at Penrith railway Station and Penrith High School and that they caused DXH to suffer both physical and psychological injuries, which required treatment in hospital. It claimed victims support in the form of counselling, financial assistance for immediate needs and a recognition payment.

4. The application alleged that DXH 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.

5. A Police COPS Event report dated 14 August, 2018, indicates that on 31 August 2015, Police attended DVS’ home in relation to DXH (then aged 13 years) who was having a violent mental health episode. However, when Police arrived, he was calm and he remained calm. DVS explained to Police that her son was being bullied at the school he attended in Penrith and the bullying is continuous (and had already been reported to Police). About three months ago, her son saw a male commit suicide by jumping in front of a train while he was on his way to school. Her son saw that the male had his head decapitated, and his arms and legs dismembered, which traumatised him, and he developed PTSD as a result. She said that her son was watching TV and saw a similar thing on the news on 31 August 2015, which resulted in him starting to hyperventilate and to go into shock from the trauma. DVS called an Ambulance and Police were also dispatched as it was thought that her son was being violent. The ambulance attended and the child was scheduled as he stated that he wanted to kill himself as a result of what he had seen on the TV. Her son walked to the ambulance and was taken to Westmead Children’s Hospital.

6. The Police COPS Event report made no reference to the act of violence that is the subject of the application for victims support.

Decision at First Instance (Recognition Payment)

7. On 10 September 2018, an Assessor (Client Claims) issued a Notice of Decision and determined that the evidence did not establish on the balance of probabilities that DXH was the primary victim of an act of violence as required by s 19 of the Act. The application for victims support was therefore dismissed.

8. However, the Assessor also determined that this application was a duplicate of another claim that DVS had lodged on behalf of her son (Victims Services reference 229309), in respect of which a recognition payment had been awarded.

9. I note that a copy of this decision was posted to DVS under cover of a letter from the respondent dated 26 September 2018. However, the date upon which the decision and letter were posted is not indicated in the documents before me.

Internal Review

10. On 20 October 2018, DVS sent an email to the respondent requesting an internal review of this claim on the following grounds:

This is a request for an internal review for the dismissal of claim 252819 which is not a duplicate of claim 229309.

Claim 229309 was a physical assault in a train in February 2015 which did not result in hospitalisation.

Claim 252819 was a repetitive forced exposure under restrain (this is an act of violence) to view a mutilated corpse by two boys which were not the boys involved in the physical assault in Feb 2015. The PTSD as a result of the video playback is entirely a different event from 229309.

The other pending claim 233104 in 2013 was at primary school and the act of violence is a separate incident carried out by a different individual.

There is no duplication in the claims – please check the individual names of the perpetrators. I confirm that these are not related acts of violence, but a individual unrelated act of violence.

Please note the timeframe, claim 229309 was in Feb 2015 and this claim 252819 was much later and resulted in a 3-month hospitalisation from June to September and my financial losses of work etc. were never considered in claim 229309, it is impossible for this to be a duplication.

I am asking for an internal review for (DVS) (252821), (name provided) (252824) and (name provided) (252817) based on the facts of the above and that the claim 252819 has made the rest of family primary victims due to the psychological effects.

11. On 23 October 2018, the respondent acknowledged receipt of the request for internal review.

12. On 29 November 2018, the Senior Assessor determined that the available evidence does not establish, on the balance of probabilities, that the applicant was the primary victim of an act of violence pursuant to sections 19 and 20 of the Act. The application for victims support was therefore dismissed.

13. The Senior Assessor referred to the available evidence, including the Police report, and noted that this addressed both School bullying generally and the witnessing of the aftermath of a suicide incident. Most significantly, it was created in relation to the highly distressed state of DXH at that time, which led to his hospitalisation. The Senior Assessor stated, relevantly:

15. As discussed in the original decision, (DXH) was found to be eligible for a recognition payment on application 229309, in relation to other bullying incidents. That act of violence involved related acts of violence committed by other school students that included physical assault.

16. It is submitted on review that the act of violence that is the subject of application 229309 is different to the bullying that is referred to in the application under review.

17. While I do not dispute that this may be the case, the police report above refers to incidents of school bullying generally, and also suggests that these incidents occurred before the suicide aftermath, as witnessed by (DXH). This therefore could be a reference to the earlier act of violence that is the subject of application 229309, however, this is not clear.

18. The report does not refer to the filming of the suicide aftermath by students, or a subsequent forced showing of this to (DXH). The report does indicate that (he) was re-traumatised by seeing something on television that reminded him of the incident, and that this was reported to be the primary trigger for the mental health episode.

19. Therefore, I do not consider that the police report contains evidence of reporting of a distinct act of violence, involving bullying by separate offenders that could be considered criminally offensive.

20. While highly distressing to (DXH), the aftermath of the incident witnessed by him from the train does not meet the criteria of an act of violence.

21. I have also considered the reports of (DXH)’s Approved Counsellor, Mr Michael Kirton.

22. The reports do discuss bullying; specifically mentioning the incidents that occurred at Penrith Train Station, which are the subject of application 229309. Negative interactions with teachers are also referred to by the Counsellor. The reports do not refer to cyberbullying, or the witnessing of the aftermath of a suicide.

23. I acknowledge that the conduct described in this application: of forcibly showing distressing images to (DXH), could be considered offensive and potentially of a violent nature. However, I am not satisfied that there is sufficient supporting evidence to establish a distinct act of violence involving bullying, in association with the aftermath of a suicide…

14. The Respondent served a copy of this decision upon DVS under cover of a letter dated 3 December 2018. However, the date upon which the letter and decision were posted is not indicated in the documents before me.

Application for administrative review

15. The current application for administrative review was filed on 26 April 2019. While the application was lodged out of time, on 14 June 2019, Senior Member McAteer made an order extending the time for lodging the application to the date filed under s 41 of the Civil and Administrative Tribunal Act 2013 (the CAT Act).

16. 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.

17. The Application came before Senior Member McAteer for Directions on 14 June 2019, when DVS appeared in person (by telephone) and Ms Habashy appeared for the respondent. The documents provided by the respondent under s 58 of the ADR Act were comprehensive and complete. The Senior Member made an order under s 64(1)(a) of the CAT Act, which prohibited the publication or broadcast of DVS’ name. He ordered the respondent to file and serve any written submissions by 5 July 2019 and ordered DVS to file and serve any further evidence and submissions by 26 July 2019. He listed the matter for hearing on 9 August 2109.

Further evidence and submissions

18. On 26 July 2019, DVS emailed written submissions to the Tribunal (the original was received by mail on 7 August 2019), as follows:

These are further submissions prior to the hearing on 9th August 2019 which are due today…

Timeline of events: Repetitive forced video playback from August 2015 to June 2015 of a dismembered corpse by bullies resulted in PTSD and subsequent hospitalisation.

(My Son) was in hospital from 21 June 2015 til 16 September 2015 (medical certification provided).

On 31/08/15, (he) was still an inpatient at Westmead Children’s Hospital and at home on a gate pass when an ambulance was called and police accompanied. He saw a scene on television which resembled the video images he had been bullied with and threatened with violence of intent to harm. These television images triggered his PTSD symptoms and an ambulance was called by myself.

Previous documentation provided which mentioned bullying on trains by Suparna Karne, Blanche Savage and Sandra Begg (specific to playing of this video).

Please see attached documents

Dr Panetta’s letter of elaboration is in progress. Counselling by Dr Panetta, (my Son) had disclosed this matter of the forced video playback to Dr Panetta in 2015/16 and again on 8 July 2019.

Attached: Email to Sandra Begg School Counsellor at (name provided) HS on 16/09/19 explaining the fear and the replaying of the video. The incident was never properly addressed by the school and (my Son) had to leave the school in fear of reprisals.

Attached: Email from Dr Panetta’s GP Practice to explain that the medical notes need to be transferred from his previous practice of work and then a letter elaborating the details of the bullying and forced video playback based on the letter of 1 April 2016 (already submitted) will be provided. My email to Dr Panetta on 8/07/19. (My Son) attended this appointment and refreshed Dr Panetta regarding the details.

The forced viewing of this video is clearly an act of violence which caused (my Son’s) hospitalisation. The symptoms which were experienced from April 2015 to June 2015 were that of PTSD which was diagnosed by the medical team at the Westmead Children’s Hospital. After admission to hospital the symptoms worsened and once diagnosed with PTSD certain triggers (in this case the viewing of the body on the tv) can worsen and the symptoms of PTSD can precipitate.

Please take this extra information into your consideration in your review decision and I also kindly request we wait for Dr Panetta to write his letter (if that will assist) explaining what (my Son) has disclosed to the details of this forced video playback…

19. An email from DVS to Sandra Begg dated 16 September 2015, provides:

I have received the transport form. Thank you.

Also regarding the bullying (replaying of video and substance in mouth) I spoke to (DXH).

At this stage he seems reluctant and scared of sharing detailed information due to any repercussions as he has be (sic) threatened that if he tells anyone he will be harmed. I will wait till he returns to school and need be he can raise the issues directly with you once his health is more robust.

It will be 3 months on 20/09/15 since (he) was first admitted to hospital.

The ongoing bullying since 19/2/15 (assault at Penrith Station) never stopped and has landed (him) in hospital with PTSD and anxiety.

You are aware of the bullying and trauma to (DXH) as he diligently reported events. I trust (the school) will endeavour to put measures in place to provide a safer environment for (him) and really put a stop to the bullying.

20. An email from DVS to Dr Panetta dated 8 July 2019, provides, relevantly:

Please send the letter with reference to your previous letter from 1 April 2015, regarding the repetitive forced viewing of the video of the dismembered body and the resulting PTSD and hospitalisation. Please include the timeframe from April to June 2015, approx. 2 months. Kindly include the symptoms (nightmares, weight loss, anxiety, poor urine control, loss of vision, hearing etc) leading up to hospitalisation and conversion disorder…

21. An email from Panetta Family Medical Practice to DVS dated 19 July 2019, provides:

…I confirm that your email has been received.

(Your son) attended this clinic on 8/7/19 and we obtained a Patient File Transfer Request Form which has been forwarded to Merindah Rd Medical Centre sending us a copy of his file.

Once this is received, please make an appointment so your request can be actioned…

22. I also note that on 8 August 2019, the day prior to the hearing of the matter, DVS sent an email to the Tribunal, attaching a medical certificate from Dr S Daneshjoo dated 8 August 2019. This stated that DVS was unfit for normal work from 8 August 2019 to 9 August 2019.

23. The respondent filed written submissions on 4 July 2019. The respondent conceded that the current application for victims support is not a duplicate to application no. 229309 and noted that this application concerns “a specific incident” in which DXH was bullied into watching a video of a dismembered body. The respondent submitted, relevantly:

6. …The respondent submits that there is insufficient evidence as required by section 39 of the Act to establish that he was forced to watch a video at all. The Tribunal must be satisfied on the balance of probabilities that evidence as described in section 39 of the Act supports the finding that an act of violence has occurred as claimed, and further that the applicant has been injured as a result of this claimed act of violence. If the Tribunal is not so satisfied, it must, as per section 40(3) of the Act, dismiss the application…

Evidence required to establish an act of violence

9. In order to be eligible for victims support, an application must be supported by evidence as outlined in section 39 of the Act.

10. As at 11 April 2017, the date the application was submitted, section 39 of the Act stated:

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

11. In summary, the applicant’s application for victims support must be supported by the following:

a. Police report or Government report establishing that act of violence; and\

b. Medical, dental or counselling report verifying injury.

The evidence does not establish an act of violence

12. Police Report E59055838 states the following:

a. Police attended the applicant’s residence on 31 August 2015 after the applicant was allegedly having a violent mental health episode.

b. About three months prior to 31 August 2015, the applicant had witnessed a suicide at the station. On 31 August 2015, the applicant was watching television and saw a similar thing on the news which resulted in him hyperventilating.

13. The report does not refer to the filming of the dismembered body by students, or the forced showing of this to the applicant. The respondent submits that the evidence does not support the applicant’s submissions that he was forced to watch any video. It is evident that the report does indicate that the applicant was re-traumatised by seeing something on television that reminded him of the incident, and this this was reported to be the primary trigger for the mental health episode.

14. The various medical reports do not establish that the applicant was injured as a result of the incident:

a. Report by Suparna Karpe dated 21 July 2015, details various difficulties suffered by the applicant, including bullying, witnessing the dismembered body at first instance and the distance travelling to school have contributed to his challenging situation. There is no reference to being forced to watch the video by other students.

b. report by Sandra Begg dated 24 July 2015. This is a report for a school transfer application. It is evident that the School Counsellor has not completed an independent assessment of the applicant. This report has low probative value as the writer simply reports what the applicant’s mother has stated and has not independently investigated or looked into the applicant’s issues. This report does not establish that an act of violence has occurred.

c. Report by Blanche Savage dated 1 October 2015. This report does not make reference to being forced to watch a video, only to witnessing the dismembered body first hand.

d. Report by Dr Michael Panetta dated 1 April 2016. This report makes reference to physical bullying and witnessing the dismembered body first hand, but it does not make reference to being forced to watch a video of the body.

15. The respondent submits that the applicant has not provided evidence as required under section 39 of the Act to indicate that he was forced to view a video of a dismembered body, or that such viewing caused him injury. The existence of the types of evidence described in section 39, and satisfaction to the requisite standard of proof based on this evidence, is precedent to the Commissioner’s approval of victims support. Likewise, the Tribunal, in conducting a merits review, must eb similarly satisfied. It is, of course, open to the tribunal to request such evidence be submitted.

The viewing of a video is not an act of violence

16. The Tribunal has requested submissions specifically on whether forceful viewing of a video can constitute an act of violence. The respondent has submitted that the requisite section 39 evidence does not establish that such an incident occurred. Notwithstanding this, as requested, the Respondent submits that being induced to watch a video does not constitute an act of violence for the purposes of section 19 of the Act. The incident does not involve violent conduct against one or more persons…

24. The respondent submitted that while ‘violent conduct’ is not defined in the Act. However, guidance can be taken from its ‘extended’ meaning in section 19(3) of the Act, which provides, “violent conduct extends to sexual assault and domestic violence”. Section 19(8)(f) of the Act provides that these include personal violence offences within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (CDPV Act), provided that the offences are apparently committed within the context of prescribed relationships. By virtue of s 19(3) of the Act, the stalking and intimidation offences outlined in s 13 of the CDPV Act, involves violent conduct within domestic relationships.

25. The respondent also submitted that as the Crimes Act 1900 does not prescribe an offence relating to being forced to watch a video, it does not establish violent conduct for the purposes of s 19 of the Act. Further guidance on violent conduct is found in the following cases:

1. In R v Lapa [2004] NSWDRGC 1, it was held that “words alone, to constitute an assault, must put the victim in fear of immediate physical violence”.

2. In R v Butcher (1986) VR 43, Justice Meagher stated that if actual force is not used, then the menace or threat must be such as to cause personal intimidation, or be intended to cause intimidation or submission.

3. In R v Knight (1988) 35 A Crim R 314, it was accepted that mere words cannot constitute an assault; when words are such that they could create in the mind of the victim a reasonable apprehension of immediate physical violence, then the offence of assault is capable of being established.

26. Otherwise, the respondent submitted that under s 34 of the Interpretation Act 1987, consideration may be given to the ordinary meaning conveyed by the text of a provision, raking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made. Relevantly, the Macquarie dictionary provides the following definitions:

1. “violent” is defined as: (a) acting with or characterised by uncontrolled, strong, rough force; (b) acting with, characterised by, or due to injurious or destructive force; and (c) intense with force, effect, etc; and

2. “conduct” is defined as: (a) personal behaviour, way of acting, deportment; (b) direction or management, execution; and (c) to direct in action or course, manage, carry on.

27. Therefore, the ordinary meaning of “violent conduct” can be construed as “actions using rough or destructive force”. There is no evidence that actual force was used to make the applicant view the video and in the absence of such evidence, violent conduct cannot be established and therefore an act of violence is not established.

28. Accordingly, the respondent submitted that the correct and preferable decision is for the Tribunal to affirm the Senior Assessor’s decision.

29. As DVS submitted a medical certificate advising that she was unable to attend the hearing on 9 August 2019, by reason of an unspecified illness, the Tribunal contacted her by telephone and offered her the opportunity to participate in the hearing by telephone. DVS accepted that offer and the matter proceeded. Ms Sabesan appeared for the respondent.

30. In her oral submissions, DVS maintained her allegation that the students had restrained her son and had forced him to watch their video of the dismembered body while he was on the train, and that this occurred over a period of six to 8 weeks and that this occurred about two to three times per week. She reported these incidents to Sandra Begg, but she conceded that these particular incidents were not reported to the Police or any other Government Agency. She stated that her son had mentioned these matters to Dr Panetta, but he has not provided a report at this time.

Consideration

Act of Violence

31. 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.

32. “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…

33. The onus is on DVS to prove that her son was the primary victim of an alleged act of violence on the balance of probabilities.

34. However, based upon the available evidence, I am not satisfied that she has discharged her onus of proof.

35. The incidents alleged in the application were not reported to the Police or other Government Agency, as required by s 39 of the Act, and there is no medical report or counselling report that verifies that he suffered an injury as a direct result of those alleged incidents. On the contrary, the available evidence supports a finding that DXH suffered the mental health episode, and required hospitalisation, after viewing footage on the television news that reminded him of the earlier incident when he witnessed the aftermath of a suicide at Penrith Railway Station. Those incidents are not the subject of the application that is the subject of this review.

Orders

36. For these reasons,

1. The decision of the Senior Assessor dated 29 November 2018 is affirmed.

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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: 20 August 2019