DXF v Commissioner of Victims Rights

[2019] NSWCATAD 210

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXF v Commissioner of Victims Rights [2019] NSWCATAD 210
Hearing dates:	6 September 2019
Date of orders:	14 October 2019
Decision date:	14 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The decision of the Senior Assessor dated 8 May 2016 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 – act of violence - grievous bodily harm
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes Act 1900 Victims Rights and Support Act 2013 Victims Rights and Support Regulation 2013
Cases Cited:	AM v R [2012] NSWCCA 203 BJR v R [2008] NSWCCA 43 BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 HAOUI v Regina [2008] NSWCCA 209 Overall v R (1993) 71 A Crim R 170 at 173 R v Donovan [1934] 2 KB 498 at 509 R v Remilton [2001] NSWCCA 546 R v Woodland [2007] NSWCCA 29 at [35] Regina v Shannon [2003] NSWCCA 106 Regina v Sumeo [2002] NSWCCA 271 Regina v Williams [2005] NSWCCA 14 Roger Lee Vann v Craig Michael Palmer [2001] ACTSC 12 State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249 at [40] Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333
Category:	Principal judgment
Parties:	DXF (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: DXF (Applicant Self-represented) NSW Department of Communities and Justice (Respondent)
File Number(s):	2019/00176617
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 6 June 2019, in which the applicant’s representative sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘DXF’.

Background

Application for Victims Support

2. As DXF is a minor, on 17 May 2016, her mother lodged an Application for Victims Support on her behalf under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that she was the primary victim of acts of violence in the nature of assault and home invasion that was perpetrated by named offenders on 19 April 2016 and over a period of time from 27 March 2016 to 19 April 2016, at her home in Cranebrook and at her aunt’s home in Nowra, New South Wales, as follows:

(DXF) was pushed backwards down stairs as the defendants broke in. Prior to this, she has received verbal abuse, voice messages, FB messages and texts with threats.”

3. The application alleged that DXF suffered both physical and psychological injuries as a result of the acts of violence and that she sought counselling, a recognition payment and financial assistance for immediate needs, including: costs for a removalist/storage, rental assistance and relocation to a safer place.

4. The act of violence on 19 April 2016 was reported to Police and a COPS Event Report number E61621169 was created. This names DXF, her mother and another child (name provided) as victims and indicates that during the previous three weeks, the other child had been residing with them. It stated, relevantly:

About 8:15pm on Tuesday the 19th of April, DXF, (her mother) and (the other child) were at home at (address provided) in Cranebrook when they heard a knock at the door. (DXF’s mother) opened the door to find (the other child’s mother) standing at the door. (The other child’s mother) asked to see (the other child). (DXF’s mother) called out to (the other child). (DXF) walked towards the front door to see what was happening. (The other child) ran to a nearby bathroom inside the house to hide as she did not want to see her mother.

Simultaneously, (the other child’s biological father and 4 other named persons) have appeared from around the side of the house and together with (the other child’s mother) have entered the house and stated calling out to (the other child). During this time (DXF’s mother) has started screaming “Get out of my house what are you doing, get out of my house”. There have been a number of words exchanged between all parties. (The other child’s biological father), began screaming in an attempt to locate her. A heated verbal argument started between all parties at the house in relation to the care of (the other child). (DXF’s mother) was attempting to get everyone out of her house when (the other child’s mother) has scratched her left arm and pulled her hair. (DXF was left standing near the hallway that led to where (the other child) was hiding. (The other child’s biological father) pushed (DXF) on the chest/collar bone area causing her to fall backwards down one step.

During the heated incident, a number of persons attempted to open the doorway leading to (the other child). When access has been gained several people have crowded around (the other child), who was crouched on the floor, hiding in the corner of the bathroom next to the toilet. (The other child’s biological father) has eventually picked up (the other child) who was crying, kicking and screaming and carried her out of the house. (The other child) was screaming out “I don’t want to go” whilst trying to break from her father’s grip.

(DXF’s mother) and (DXF) felt pain when they were assaulted however do not have any visible injuries. They did not consent to being assaulted. When all persons did enter she repeatedly asked all parties to leave her premises.

When a number of persons attempted to gain access to the hallway leading to (the other child) the door has swung open and hit the wall. There was no door stop on the door and the door was open (sic) with such force that it has caused the door handle to hit the wall behind it and make an indentation of the door handle in the wall. (DXF’s mother) is the sole tenant on the lease … and … did not give anyone permission to damage her family.

There are no Family Court orders in place in relation to the care of (the other child). (The other child’s mother) made a verbal agreement with (DXF’s mother) three weeks ago, for (the other child) to stay in the care of (DXF’s mother). FACS were made aware of the incident however there was no report generated…

5. The COPS Event report also indicates that both DXF and her mother held grave concerns for their safety and the safety of the other child and feared that they would be assaulted by the named persons who entered their property. Police feared that they would be assaulted, intimidated or threatened by those persons and they decided to charge the other child’s biological father with Common assault (x 2) and malicious damage and issued an AVO against him. They also decided to charge the other child’s mother with Domestic assault/trespass.

6. Both persons of interest were arrested and interviewed by Police. However, they denied the allegations of assault and trespass and asserted that there were no issues with them entering into DXF’s mother’s premises. (The other child’s mother) denied assaulting DXF’s mother. (The other child’s biological father) asserted that (the other child) had stayed with (DXF’s mother) for a couple of nights for the school holidays, but that he had agreed with (the other child’s mother) that she would stay with him at his house that week. Four days previously, (DXF’s mother) refused to return (the other child) to her mother and asserted that she was not a fit mother. He then contacted (the other child), who told him that she wanted to stay with him and she did not want to live with her mother. He then agreed with (the other child’s mother) that they would go to DXF’s mother’s house to collect/speak with (the other child). He denied that there are any stairs at the property and asserted that (the other child) left DXF’s mother’s premises calmly. Both persons of interest denied smashing a door causing damage. Police determined that there was insufficient evidence to proceed with charges against the persons of interest.

Decision at First Instance

7. On 4 December 2017, an Assessor (Client Claims) issued a Notice of decision, which determined that DXF was the primary victim of an act of violence and that she was eligible for a Category D recognition payment in the amount of $1,500. That payment was to be held in trust for her by the NSW Trustee and Guardian and is to be paid to her when she reaches the age of 18 years. In making that determination, the Assessor noted that a counselling report of Ms Kelly Gay dated 12 December 2016, indicated that DXF’s daughter experienced distress as a result of the incidents and that the assault did not result in grievous bodily harm.

8. I note that a copy of this decision was posted to DXF on 11 December 2017, under cover of a letter from the respondent of that date.

Internal review

9. On 29 December 2017, DXF’s mother applied for an internal review of the Assessor’s decision on DXF’s behalf, in which she stated:

My daughter was assaulted not by a family member. This male person is not known to (DXF) nor has there been a domestic relationship ever. He came later after (the other child’s) mother knocked on the door. Broke in and assaulted her. Should be a category C. I have proven this in 4 prior matters of (DXF’s) yous (sic) declined at NCAT…

10. On 14 February 2018, DXF’s sister wrote a letter to the Respondent in support of the request for internal review. She asserted that the “defendant” was not a family member and has not had a domestic relationship with DXF. She also stated:

…I support the belief that he entered the home after family members, with a violent rage. It’s basically a separate incident. My sister was pushed backwards being hit in the chest area. Falling back on the stairs. In my opinion this assault and was very distressing for (DXF) as she doesn’t know him.

Please consider her recognition payment to category C. I will support my sister, even with evidence if this referred to NCAT and I’m sure my other siblings and grandmother whom lives with my mother will support the facts…

11. On 15 February 2018, the Respondent wrote to Nepean Hospital seeking copies of DXF’s medical records, and those records were subsequently received. It also served a Notice for Production on “Tranquil Minds Psychology and Psychiatry Services”. In response, Chris Larkin, Psychologist, issued a report dated 8 March 2018. He took a history that in the months following the assault, DXF became increasingly reclusive and anxious, refused to leave her room, did not sleep and avoided all social contact. He opined that this indicated an aggravation of existing trauma symptoms that made the symptoms more severe, more complex and more resistant to treatment. He also stated that DXF’s chronically elevated stress levels may have been associated with her presentation on 1 June 2017 to Nepean Hospital with neurological symptoms that resulted in a diagnosis of Bell’s Palsy.

12. On 8 May 2018, a Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that DXF was the primary victim of an act of violence and that she was eligible for a Category D recognition payment. The Senior Assessor stated, relevantly:

19. I note that while violence was said to occur over a period of time, the evidence on file does not indicate this to be the case. The police and counselling reports confirm this incident happened on a single day only…

21. I have considered the medical evidence on file. Firstly, the counselling report dated 12 December 2016 confirms the above incident and states (DXF) was very distressed as a result. The report indicates she was having ‘meltdowns’ and ‘won’t leave the house’. Her prognosis was noted to be poor due to her environment, social isolation and social phobia.

22. I have also considered a counselling report by Mr Chris Larkins dated 8 March 2018. This report was written in relation to the subject incident…

23. I am satisfied the evidence establishes an ‘injury’ for the purpose of s 19 (1) (c) of the Act.

24. Mr Larkins also confirmed that (DXF) presented to Nepean Hospital on 1 June 2017 with neurological symptoms which resulted in a diagnosis of Bell’s Palsy. I have sighted medical records which confirm this; however I do not find this is an injury as a direct result of the act of violence…

The Senior Assessor determined that DXF suffered actual bodily harm as a result of the act of violence and that she did not satisfy the criteria for a category C recognition payment.

13. I note that a copy of the Senior Assessor’s decision was posted to DXF on 16 May 2018, under cover a letter from the respondent dated 8 May 2018.

Application for administrative review

14. 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.

Extension of time

15. The current application for administrative review was filed on 8 June 2019 and it was therefore filed late. In relation to this issue, the Application asserts that DXF did not receive a copy of the review decision because the Respondent posted it to an old address. I note that a copy of an email from the respondent to DXF’s mother dated 4 February 2019, which attached copies of the review decision and covering letter, is attached to the Application. Accordingly, the application was filed more than 4 months after DXF’s mother received it.

16. The matter came before me for Directions on 9 August 2019, when DXF’s mother appeared as her representative and Ms Habashy appeared for the respondent. The respondent did not object to the Application proceeding despite its late filing.

17. I note that s 41 of the Civil and Administrative Tribunal Act 2013 No 2 (“the CAT Act”) provides, relevantly:

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

18. The Tribunal is satisfied that DXF, who is not legally represented, lodged the current application for administrative review within a reasonable time after she received a copy of the review decision. Accordingly, I extend the time for filing the application to the date it was filed.

19. The respondent filed documents provided under s 58 of the ADR Act and I ordered the Respondent to file and serve any written submissions by 30 August 2019. I also directed DXF to file and serve any further evidence upon which she relied by 30 August 2019 and I listed the matter for hearing on 6 September 2019.

20. On 6 September 2019, DXF’s mother appeared as her representative and Ms Srikanth appeared for the respondent. DXF’s mother argued that the respondent’s s 58 documents were incomplete as Victims Services had issued directions for production to DXF’s treating practitioners that had incorrectly named her and, as a result, no documents had been produced.

21. The Tribunal asked the respondent to investigate this allegation and to take all reasonable steps to obtain DXF’s medical records from her treating practitioners and to file and serve them by 26 September 2019. I also ordered DXF to file and serve any further evidence by 26 September 2019.

22. Pursuant to s 50 (2) of the CAT Act, the Tribunal determined that the issue for determination, which was whether the criteria for a category C recognition payment under s 35 (3) of the Act are satisfied on the evidence, could be adequately determined in the absence of the parties by considering any written submissions or other documents or material lodged with or provided to the Tribunal. I therefore dispensed with a formal hearing and reserved the matter for determination on the papers once the parties had complied with the directions.

Consideration

Act of Violence

23. 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.

24. “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…

25. The onus is on DXF to prove her allegations of assault and home invasion on the balance of probabilities. There is no dispute that she was the primary victim of an act of violence that occurred on 19 April 2016. Based on the available evidence, I am satisfied that he has established that she was a primary victim of an act of violence in respect of that incident.

26. However, while the application for victims support also alleges an act of violence that occurred over a period of time from 27 March 2016 to 19 April 2016, I am not satisfied that the evidence before me establishes on the balance of probabilities that an act of violence occurred before 19 April 2016.

Injury

27. 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.”

28. The Respondent does not dispute that DXF was the primary victim of an act of violence and/or that she suffered a psychological injury as a result of it.

29. 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 DXF’s prior history of psychological issues.

30. On 7 April 2016, Dr Rastogi, consultant psychiatrist, issued a medical report to solicitors acting for DXF in relation to a claim for damages as a result of a motor vehicle accident on 29 March 2014. However, the doctor did not report any specific history regarding the act of violence in question and I note that the report indicates that DXF was first diagnosed with PTSD in January 2015.

27. On 1 November 2016, Women’s Legal Service NSW wrote to FACS, complaining about the length of time taken by Housing NSW to determine DXF’s mother’s application for a priority transfer on the basis that she was ‘at risk’ of domestic violence. They submitted that both DXF and her mother are victims of serious and ongoing domestic violence perpetrated by members of DXF’s mother’s family, including physical assault, abusive behaviour, verbal and written threats, damage to property and psychological abuse. They also stated, relevantly:

On 19 April 2016 a serious domestic violence incident occurred at (DXF’s mother’s) residence. (DXF’s mother and DXF) were both injured in this incident. The NSW Police attended and obtained Provisional ADVO’s against two perpetrators (names provided). Final orders were made at the Nowra Local Court on the 26 April 2016 and 27 April 2016 respectively…

The Housing NSW Policy Statement states “Children and young people who witness domestic and family violence may be at risk of serious physical and psychological harm.” (DXF) has suffered terribly through the exposure to domestic violence. (DXF) has withdrawn from social activities and friends, is depressed to the point of non-attendance at school and being a recluse in her bedroom…

32. On 22 August 2019, the Tribunal received a statement that was signed by DXF’s mother on her behalf, which states, relevantly:

…I have now been referred to a new counsellor, due to moving.

I am now on a disability pension at the age of 17, due to severe PTSD. This is considered long term from the affects of various assaults upon me at different times from different offenders. The defendant was never charged in this event, but not all police do this as there were family involved.

Chris Larkin states this is retraumatising in a separate event. I have also now developed an ongoing disability of dissociated rage, especially from this serious trauma.

I cannot understand why victims services have offered a category D…

33. Dr Bester, treating general practitioner, issued a report to the Tribunal dated 23 September 2019. He stated that he has treated DXF for the past ten years and that she has suffered from Anxiety and PTSD since the act of violence in April 2016. He also stated that she was diagnosed with Bell’s Palsy on 6 June 2017, Anxiety Disorder/PTSD and Social Phobia on 4 September 2019.

34. Tahlia Roberts, a Youth Hope Caseworker employed by Nepean Community and Neighbourhood Services, issued a report to Wentworth Housing on 31 August 2017. She stated that DXF, DXF’s mother and DXF’s mother’s mother were currently working with the Youth Hope Program, which is funded by Family and Community Services, in an attempt to develop and strengthen family relationships. It provides parents and children opportunities to participate in a range of services and activities designed to enhance and improve their parenting skills and social life skills. She stated, relevantly:

(DXF) has limited education access as she has a vast trauma background and finds it difficult to engage in schooling or leaving the home. Her academic levels only extend to year 9 of High School, but she functions at the level of an 11 year old due to her developmental delay. Because of (her) lack of education and confidence, she finds it difficult to engage with other peers. Her mother… has attempted 19 times to enrol (DXF) into schooling and have failed so far. The only schooling (DXF) has been able to engage in successfully is when she resided in the Central Coast. (She) wishes to return back to the Central Coast as she still travels up there on weekends with her mother… to revisit her friends she made up there. (Her mother) has only accepted the house in Cranebrook as this was her only option until another home could become available up the Central Coast. (she) is in consultations with Wentworth Housing by way of making contact and enquiring about inspection times and is confident in following through from a property inspection to filling out the appropriate paperwork… and the recent break in to the home has (DXF’s) anxiety levels heightened. (DXF) does not sleep unless she knows her mother… is awake.

(DXF’s mother and DXF) currently live far away from their family, which has been a strong reason as to why (DXF) attended school in the Central Coast and are very reliant for support. (DXF) does not feel safe since the home invasion and will not leave the home in case she is attacked by the same people…

(DXF) has the support of the NDIS service provider and is liked with Daniel Puffy, who is organising assistance for (her)…

35. While I note that DXF’s mother advised the Tribunal that DXF was currently receiving counselling from Dr Sharma and that her next appointment was scheduled for 11 September 2019, no evidence from Dr Sharma is before me.

36. The respondent filed the following further documents:

1. A Mental Health Treatment Plan issued by Dr Bester on 21 August 2019;

2. Clinical notes from Lithgow Hospital;

3. Clinical notes from Wyong Hospital; and

4. Counselling report from Dr Sawle, clinical psychologist, dated 17 November 2015.

37. I note that with the exception of the Mental Health Treatment Plan, which is based upon a diagnosis of “Mixed Anxiety and Depression”, none of these medical records disclose a history of the act of violence in April 2016.

38. The respondent lodged written submissions dated 29 August 2019 and 25 September 2019, respectively. In the submissions dated 29 August 2019, the respondent maintained its dispute that DXF had suffered grievous bodily harm as a result of the act of violence and it argued, relevantly:

18. 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 condition…

39. In the submissions dated 25 September 2019, the respondent argued, relevantly:

4. At the hearing the representative for the applicant indicated that (DXF) had recently seen Mala Sharma, psychologist for initial counselling sessions. Unfortunately no report from MS Sharma is available with Victims Services at this time.

Conclusion

5. From the various applications for victims support submitted on behalf of the applicant between 2014 and 2019, and the medical reports on file, it is evident that the applicant has a history of many traumatic events happen in her life. In addition to the various acts of violence, the report of Dr Richa Rastogi, consultant psychiatrist, previously submitted by the applicant indicates that (DXF) has also sustained trauma associated with rehousing difficulties and bullying at school, all of which culminated in her long standing mental health issues.

6. The respondent submits that the evidence does not establish that the applicant sustained a serious exacerbation of her psychological injuries in the nature of grievous bodily harm, as a direct consequence of the incident that took place on 19 April 2016.

7. Accordingly, the respondent submits that the Tribunal ought to affirm the decision of the respondent made on 4 December 2017 and dismiss this application for administrative review.

40. While the respondent has argued 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 rather that the injury must directly result from the act of violence.

41. The available evidence indicates that DXF suffered a severe exacerbation and/or aggravation of her pre-existing psychological condition as a result of the act of violence on 19 April 2016. I am therefore satisfied on the balance of probabilities that her current psychological injury resulted from the act of violence.

42. 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 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.

43. Accordingly, if I am wrong regarding my finding as to the causation of DXF’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.

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

45. 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).

46. 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.

47. I note that the Court of Criminal Appeal approved the decision in Haoui 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…

48. Based upon the evidence that DXF suffered a psychological injury as a result of the act of violence on 19 April 2016, and that she continues to suffer significant ongoing symptoms that require treatment by way of psychological support and medication more than three and a half years later, I am satisfied that her psychological injury can properly be considered as being “really serious”.

49. It follows that I am also satisfied that DXF suffered grievous bodily harm as a direct 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.

50. 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 decision on this issue and there is no indication that the approach adopted in BMF v Commissioner of Victims Rights, which I have relied upon in making this decision, has been overturned on appeal.

Section 44 of the Act

51. 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 DXF 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 8 May 2016 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: 14 October 2019