DZE v Commissioner of Victims Rights

[2020] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DZE v Commissioner of Victims Rights [2020] NSWCATAD 21
Hearing dates:	8 November 2019
Date of orders:	20 January 2020
Decision date:	20 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1)   The decision of the Senior Assessor dated 11 June 2019 is affirmed.
Catchwords:	Victims Rights and Support – administrative review – act of violence – standard of proof
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW)
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1930] AC 1; (1938) 12 ALJR 100; [1938] ALR 334; [1938] HCA 34 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; (1982) 40 ALR 45; [1982] HCA 15 Helton v Allen (1940) 63 CLR 691; (1940) 14 ALJR 196; [1940] ALR 298; [1940] HCA 20 Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALJR 395; [1959] ALR 367; [1959] HCA 8 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; (1990) 64 ALJR 316; 105 ALR 51; 19 ALR 607; 13 ALR 447; [1990] HCA 20 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 West v Government Insurance Office of NSW (1981) 148 CLR 62; [1981] HCA 38
Category:	Principal judgment
Parties:	DZE (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Applicant (Self Represented)) Victims Services (Respondent)
File Number(s):	2019/00246345
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 8 August 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’s representative is known by the pseudonym ‘DZE’.

Background

Application for Victims Support

2. On 31 May 2018, DZE lodged an Application for Victims Support on behalf of her husband (“the applicant”) under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that he was the primary victim of an act of violence, in the nature of an assault, which was perpetrated by a named offender on 20 April 2018. The alleged act of violence occurred at a caravan park in Mulawa, New South Wales, and the application describes it as follows:

My husband (name provided) was going to the laundry to put washing on for me, (the alleged offender) was at is bus (my husband) said to him are you going away, (the alleged offender) said get lost don’t talk to me, then ended up they pushed, I was at the caravan when a resident came and got me, (my husband) was bleeding, nose, head, mouth and eye and cheek swollen and caved in, I know he had kneed him to face.

3. The application alleged that the applicant suffered both physical and psychological injuries as a result of the act of violence and that he sought counselling, a recognition payment and financial assistance for immediate needs, including: costs of refuge accommodation, rental assistance, essential home items and travel to attend Court.

4. In a supporting statement, which contains entries dated between 20 April 2018 and 7 May 2018, DZE stated, relevantly:

On the 20th April 2018 at about 10am I sent my husband (name provided) to the laundry to out the washing on, at Hargreaves Caravan Park (address provided). I was in our caravan where we live…, all of a sudden around 10:30am Kerry a permanent resident ran over to tell me (my husband) had taken a turn, I ran like anything to the laundry, (he) was slumped over the washing machine, I screamed)… what has happened, as (he) turned and looked up at me his left eye was just bulging out, and blood, I walked out, and standing there was (the alleged offender) and his wife Cheryl, I screamed what have you done to him, and (the alleged offender) said your husband stuck his fingers up my wife’s arse, when we went on a bus trip at the start of November 2017, I said you are a liar he did no such thing, then both of them called me a liar about (my husband’s) cancer, how come his still here after 18 months you bloody liar, then Cheryl gives her mouthful that I am lying to Centrelink at a job I got 2 weeks ago, I got 2 days cash in hand and the other 2 days on the books, not that any of that is there business.

I got back to the van and sat (the applicant) down and rung the ambulance, this about 10:40, (he) had a huge lump on the back of his head, his eye and cheek on the left hand side were bleeding and swelling, (he) started vomiting up blood, then his nose was pouring blood, as I was trying to grab things like bucket to vomit in, face washers, to try to stop the bleeding from the back of the head and nose, the lady talking to me on the phone, till the ambulance got there was telling me to turn (him) on his side…

(The applicant) has terminal lung cancer, chronic heard failure, asthma and diabetes…

…the police went and interviewed (the alleged offender) and Cheryl and a group of about 4 friends of there’s (sic) on the corner block near the main toilets and shower block, they also spoke interviewed Shelley (surname provided), they spoke to me for about 1 minute a Sergeant Jackson, saying that my husband… became aggressive, I know he would not have been happy to get accused of sticking his fingers up Cheryl’s arse, Sergeant Jackson said she would interview (my husband) when he could talk. (The alleged offender) and Cheryl have been back at the park for about a month, and he accused (the applicant) of this, the bus trip we went on was in November last year 2017, Cheryl went to Bingo with me on Monday night and never said one word. (The alleged offender) as already been up on assault charges for another woman in the caravan park and has been told to leave Mulawa Ski Club, drunk and disorderly.

At Wangaratta hospital they do a brain scan, cervical spine, bone scan, they find lots of fractures to his bones on the left side of his face…

Our world is turned upside down because of this assault…

On the 4/5/2018 my daughter (name provided) and I take (the applicant) into the Royal Melbourne Hospital… they get (him) ready for the operation..

We have a follow up with the doctors at Royal Melbourne on 10th May to make sure the plates are all in place, and some stitches out. Then the 11th May we drive back to … Hargreaves Caravan Park to see Police Sergeant Jackson to give (the applicant’s) statement and to try to sell our caravan and get ministry housing, as I am now too scared to live there…

In my closing I do not understand how a man could just knee a person to do the damage (the alleged offender) has done to (the applicant)… (The alleged offender) and Cheryl both know how ill he is. We have lived at the park permanent for 20 months and have never caused any problems, we keep very much to ourselves, now I am too scared to live there with this mand, so now I have to try and find us somewhere to live when we only get $600 per week, this time should have been relaxing and peace for (my husband) for how long he has left, and if a person accuses you of something why are they not talking about it and wait and assault someone after 6 months, so so untrue and unfair.

5. The alleged act of violence was reported to Police on 20 April 2018 and a COPS Event Report number E67761819 was created. However, this names the alleged offender as the victim and the applicant as the alleged perpetrator of an assault upon the alleged offender. It indicates, relevantly:

Several months ago a pub crawl was organised between some of the residents and whilst they were getting on the bus PN 1 (the applicant) said as they were getting on the bus, “I’m gunna stick me fingers so far up your arse”. (Name provided) another resident said ,“Pull up…”

PN 2 (the alleged offender) wife was in front of (the applicant) and took great offence to what was said on the day but did not confront him about the inappropriate remark as (the applicant) would have argued and ruined the day…

Today about 9:30 am on the 20th April 2018 (the applicant) approached (the alleged offender) whilst he was at his touring bus and said, “Hi (alleged offender) how are you. You heading north already?” (The alleged offender) said, “I don’t want to talk to you just go away”. (The applicant) said, “What’s wrong”. (The alleged offender) said, “what you said to my wife on the bus”. (The applicant) said, “I said it to Julie not Cherylle”. (The alleged offender) said, “You’re a liar, just stay away from me. Just go.” Both persons moved out the front of the property on the gravel drive way. (The applicant) said, “I’ll do you” and lunged at (the alleged offender). (The alleged offender) grabbed (the applicant) and used his weight to shift him to the side and they both fell on the ground. (The alleged offender) sustained a graize (sic) and bruising to his left elbow and knee. (The applicant) is a large male and fell on the side of his face which connected with the gravel ground. (The applicant) eventually got himself up and went into the toilet block. (The alleged offender) went back to his site. (The applicant) was still very angry as he walked away making further threats to (the alleged offender) and said, “You’d want to watch your back and have eyes in the back of your head”…

This was witness (sic) by (name provided) from site 50 and she stated (the applicant) lunged at (the alleged offender).

Vic Ambulance was called for (the applicant) and due to his own poor health and injury was transported to Wangaratta Base Hospital. (The applicant) to be interviewed upon his return from hospital.

Decision at First Instance

6. On 24 January 2019, an Assessor (Client Claims) issued a Notice of decision, which determined that an act of violence was not established on the balance of probabilities. In so determining and dismissing the application, the Assessor stated, relevantly:

6. Without wishing to further distress the applicant, it is necessary to consider the available evidence in some detail. Submissions made with the application refer to the applicant being injured in a physical engagement with another resident, when he was kneed to the head.

7. In the applicant’s statement to NSW Police made on 24 May 2018 he refers to the fact that the two parties “grabbed each other I grabbed (the alleged offender) with both my hands and he grabbed my head”.

8. NSW Police COPS Event E67761819 refers to investigations into the matter, noting a report that the applicant had lunged toward the other person during a verbal confrontation.

9. In relation to how injury was caused to the applicant, the applicant has indicated that he fell and indicates in his statement to police he does not recall the other person hitting him, but does believe there was crack in his jaw before hitting the ground. Police records refer to the applicant likely being injured when he fell and through contact with the ground. Medical records refer to different forms of assault to the applicant and also that he reported being pushed and falling to the ground.

What is the relevant law?

10. An act of violence is defined by section 19 of the Act as:

a) an act or series of acts has been committed 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.

11. In order to find that an act of violence has occurred, all three elements must be present.

12. In order to be considered a primary or secondary victim of the act, an applicant must have been injured or died as a result of the act (s 20) or been injured as a result of witnessing the act, or subsequently becoming aware of it in some circumstances (s 21).

13. Here the evidence does not establish that the applicant has been the victim of an act of violence. In particular, considered overall the available evidence indicates that the other party was likely responding to an apparent threat and not himself committing an offence. I note the applicant’s statement that the parties grabbed each other and his not recalling being hit, together with reports to police that the applicant appeared to lunge at the other party.

14. While there are reports of the applicant having indicated he was kneed or punched to the face in submissions and medical reports, this is not apparent from the applicant’s statement to police. It is also the case that medical records are inconsistent as to how injury occurred, with a discharge summary of Northeast Hospital Wangaratta on 21 April 2018 indicating the applicant reported being shoved and falling face forward onto concrete, while the report of scanning on 20 April 2018 indicates a report that the applicant had been punched to the face and falling backwards. The notes of Melbourne Health indicate claims of being kneed and falling to the ground.

15. In my view, the evidence overall indicates it is likely that the other party was resisting the applicant physically and that injury arose when the applicant fell to the ground. There is insufficient evidence in my view that any injury arose from the commission of an offence.

16. Considered overall, the available evidence does not establish that there has been any offence here by any other party such that a relevant act of violence can be established. This is because the only other party to this dispute appears to have been reacting to a physical incident, rather than committing any relevant offence against the applicant. This means there is no apparent offence by the other party, nor injuries which can be said to have resulted from an act of violence.

17. I acknowledge that the applicant has unfortunately received significant injury and is facing a range of very difficult circumstances. The incident has had a significant impact on both himself and his family according to the available submissions. The law however requires that a relevant act of violence must be identified to establish that a person is a primary or secondary victim and that is not the case here. Therefore I cannot find the applicant to be either a primary or secondary victim of an act of violence in relation to this incident…

7. I note that a copy of this decision was posted to DZE under cover of a letter from the respondent dated 13 February 2019. However, the date of posting is not indicated in the evidence before me.

Internal review

8. DZE submitted an undated Internal Review Request form to the respondent, which cited the following reasons:

To whom it may concern I am totally not happy at all with what has been stated in this letter, when a person asks how you are, are you leaving to go away and the other person says, f—k off I should smash you for saying you would stick your fingers up my wife’s arse.

(The applicant) replied I didn’t say or do that, and if (the alleged offender) had not been drunk on the bus, he would have heard another old lady Julie could not get up the steps, so (the applicant) said do you want a push up the arse, all a joke and 8 months later (the alleged offender) brings this crap up, (he) knew that (my husband) had so strength so even if (the applicant) pushed, it would have been nothing, (the applicant) had a cut at the back of his head so I cannot understand for a minute how use could come to the decision that this is how his face got smashed that even a child would know, if you fall on the back of your head, then how on hells earth can your bones in your face crack.

When I took (the applicant) back to the van he was bleeding from the head, the face, vomiting up blood and didn’t know sometimes where he was…

The ambulance took him to Wangaratta Hospital, then he had to go to the Royal Melbourne for facial surgery. So for all that time everyone that was (the alleged offender’s) friends which are nearly all of them that lives there permanent made there reports to Senior Constable Jackson, (the applicant) didn’t get to take his until he got out of hospital. Then in the first report of Senior Constable Jackson was all wrong and I put in a complaint, so then it all went to a higher authority, to Inspector Yonan of Urana Police… as many mistakes on her report, so an investigation officer had to go though it all again. I am not after money or anything. I am after justice for man that could have ended up killing my husband and use say my husband was the aggressive one he can’t even put his undies on, let alone throw punches.

Please sit down and look at the photos, how do you get back bruises under your chin unless your kneed or punched heaps, and if you fall on the back of your head, how do you get fractures in your face.

I cannot believe that a man has been badly injured and (the alleged offender) who did this does not have a mark on him was not taken to hospital, could remember everything and Shelly (surname provided) is his wife’s best friend, if (the alleged offender) says (the applicant) was the aggressive one, why then are there no injuries to him, please think about it.

If this is the way the law works no wonder people don’t trust…

9. On 11 April 2019, the Respondent wrote to NSW Police and requested copies of the reports and statements obtained during the investigations into the alleged act of violence.

10. On 4 May 2019, Senior Constable Jackson responded as follows:

Background

On Friday 20th April 2018 I attended the address of Hargreaves Caravan Park… in relation to an incident between (the applicant) and (the alleged offender) both who were residents of the Park. At the time I took brief details from (the applicant) as he was transported to hospital for observation. The matter was investigated further where I obtained statements from two independent witnesses and statement from (the alleged offender). The status of the investigation is now listed as Investigation Complete. Both persons involved have been interviewed by way of E.R.I.S.P… (The alleged offender) supplied a version that was supported by an independent witness.

Comment

After a full investigation in this matter, a Future Court Attendance notice was prepared for a charge of Common Assault against (the applicant). After further consultation with Legal Services, the charge has been withdrawn prior to proceeding through court. A full brief is available to be viewed if required.

11. On 11 June 2019, a Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that the applicant was not the primary victim of an act of violence and the application was dismissed. The Senior Assessor stated, relevantly:

The grounds for internal review

4. In summary, (the applicant)’s grounds for internal review focus on what occurred during the incident. (DZE) submits that her husband suffered significant harm after the alleged offender assaulted him. (DZE) has elaborated on what occurred and indicated how unhappy she is with the decision..

Prior deferral

5. On 10 April 2019, I formally deferred this internal review. I informed (the applicant) there were several issues with his application. Foremost, whether he was the primary victim of an act of violence. I also indicated that if (the applicant) was found to be a primary victim, there were significant section 44 issues I had identified.

6. I requested further information from NSW Police concerning the outcome of the investigation.

7. On 6 May 2019, Victims Services received a further police report and additional material such as statements from all witnesses and Electronically Recorded interviews (E.R.I.S.P.) from (the applicant) and the alleged offender…

Consideration of the documentary evidence

Reports to police and charges

18. I have considered police COPS report E67761819. The police report summarises what occurred on the day of the incident – 20 April 2018. The report confirms that several months prior to the incident, (the applicant and the alleged offender) were involved in a verbal altercation where (the applicant) is alleged to have said that he would “stick me fingers so far up your arse”. (The alleged offender’s) wife took offence to what was said and confronted him about the inappropriate nature of the remark.

19. On 20 April 2018, (the applicant and the alleged offender) were involved in a verbal altercation where they both came together and grabbed each other. As a result of that physical altercation, they both fell onto the ground. Once both parties got to their feet, they both walked away from the location.

20. Later that day, (the applicant) was transported to Wangaratta Base Hospital. Medical reports from hospitals confirm that (he) suffered a serious injury, with fractures to his facial region requiring surgery.

21. In the follow-up police report from the investigating officer, police confirmed that a charge of common assault was issued for the assault on (the applicant). The report does not clarify whether this related to (the alleged offender)…

12. While the police report indicates that the applicant was charged with perpetrating a common assault upon the alleged offender, it also indicates that the charge was withdrawn before it proceeded to court.

13. After discussing the statements obtained by police in some detail, the Senior Assessor found, relevantly:

Is (The applicant) a primary victim of an act of violence?

38. I have considered the two versions provided by (the applicant) and (the alleged offender) to police. The evidence establishes that (he) and (the alleged offender) were involved in a physical altercation when they both grabbed each other after a verbal argument at the caravan park. Once they grabbed each other, I accept on balance that both parties fell to the ground. (The applicant) fell onto his stomach and (the alleged offender) fell on his side. They both suffered injuries. Although (the applicant) claims that (the alleged offender) had assaulted him following the fall, there is no evidence that I can point to that verifies this occurred. (He) did suffer really serious injury, however, based on the available evidence, I accept on a balance of probabilities that this was caused by him falling onto his face.

39. I have heavily on version provided by independent witness, SJ, who said that she witnessed both parties grabbing each other and then falling onto the ground. She confirms in her statements that she went over to where (the applicant and the alleged offender) were and asked, along with (the alleged offender), whether (the applicant) needed assistance getting back up. He refused and verballed some words before grabbing his laundry basket and walking away. SJ does not state that (the alleged offender) had assaulted (the applicant) at his point or any stage prior other than both parties grabbing at each other and falling to the ground. There is no evidence to suggest that she had any reason to fabricate her evidence in favour of (the alleged offender). SJ only told police what she witnessed.

40. While it is unfortunate that (the applicant) suffered significant physical injury as a result of this incident, I am unable to find that an act of violence was perpetrated towards him. This is because there is insufficient evidence to establish that the injuries arose from the commission of an offence. (The alleged offender) was only reacting to the circumstances that were presented to him and they both admitted to engaging in a mutual physical altercation…

14. I note that a copy of the Senior Assessor’s decision was posted to DZE under cover of the respondent’s letter dated 11 June 2019. However, the date of posting is not indicated in the evidence before me.

Application for administrative review

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 matter came before me for Directions on 8 November 2019, when DZE appeared in person (by telephone) and Ms Sabesan appeared for the respondent. The respondent did object to the Application proceeding.

17. 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 6 December 2019. I also directed DZE to file and serve any material in reply by 20 December 2019.

Extension of time

18. The application for administrative review was filed on 8 August 2019, and it asserts that DZE received the Review Decision on 25 July 2019. However, this appears to be the date of a letter issued by the Tribunal to DZE, which acknowledged receipt of her application and advised her that a filing fee was payable.

19. I note that DZE’s supporting submissions are date-stamped as received by the Tribunal on 24 July 2019, which indicates that she received the review decision before 25 July 2019. However, the date on which she received it is not indicated in the evidence before me and it is possible that the application was filed late.

20. Section 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.

21. The Tribunal is satisfied that DZE, 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, for abundant caution, I extend the time for filing the application for administrative review to the date upon which it was filed.

Dispense with oral hearing

22. Both parties requested that the Tribunal should determine the application without an oral hearing.

23. Pursuant to s 50(2) of the CAT Act, the Tribunal determined that the issues for determination could be adequately determined in the absence of the parties by considering 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.

Submissions

24. DZE lodged submissions in support of this application as follows:

I have inclosed (sic) documents sent to me from Victims Crime Service, I am not happy at all with there response to my husband (name provided) having had his face injured badly, which he had to have plates and screws put in, the man who caused these injuries (name provided) had a few minor scratches on his knee, and in the report Shelley (surname provided) who gave a report, how on earth she could hear if she had a lawn mower going, and she is also friends with (the alleged offender and his wife). My husband landed on the back of his head, cause that is where he was bleeding from, and why he was in and out of not knowing where he was or what had happened, then his face on the right side was sunk in, the eye bulging and puffed and bleeding you can’t do that, if you fall on the back of your head, even a dumb person like me knows that, my husband was either kneed or punched several times for his face to be the way it was, and I (name provided) did yell and scream cause (the alleged offender and his wife) were swearing and yelling at me, as I was trying to get my husband back to the caravan to ring the ambulance, as (the alleged offender and his wife) and Shelley (surname provided) didn’t ring to get help for my husband.

How can (the alleged offender) do that much damage to a person and not be accountable for serious injury it’s a joke,

I have inclosed (sic) the report and would very much like you to look into it, as maybe the next time Mr (the alleged offender) does this the person will be dead…

25. On 25 November 2019, the respondent filed submissions, which stated, relevantly:

10. The Police evidence includes:

a. Statement of (The applicant) dated 24 May 2018, where (he) states “we grabbed at each other I grabbed (the alleged offender) with both my hands and he grabbed at my head”.

b. Police report E67761819 states the following: “(The applicant) said, “I’ll do you” and lunged at (the alleged offender). (The alleged offender) grabbed at (the applicant) and used his weight to shift him to the side and they both fell on the ground… (The applicant) is a large male and fell on the side of his face which connected with the gravel grounds. (He) eventually got himself up.”

c. Statement of the alleged offender (name provided) dated 20 April 2018 provides details that the parties engaged in a mutual altercation.

d. Statement of independent witness, Shelley (surname provided), dated 10 July 2018. She states “I saw (the applicant) lunge at (the alleged offender) and saw him grab him and then (The applicant) fell on his side. (The alleged offender) was on his left side.”

e. Statement of independent witness, Colleen (surname provided) dated 18 July 2018 which details her hearing raised voices between (The applicant) and the alleged offender.

f. Transcript of Police interview with (the applicant) and (the alleged offender). In the applicant’s transcript, at A53 he confirms that the parties were engaged in a mutual altercation, stating “probably the same reason he was grabbing at me. We were both together. We were both grabbing at each other. I grabbed him and he grabbed me. Or he grabbed me, I grabbed him. Whichever way you want to look at it.”

11. The Police evidence, in particular the statement from the independent witness indicates that the parties engaged in a mutual altercation. An act of violence as per s 19 of the Act has not been established as the evidence does not support that an offence involving violent conduct was committed against him.

12. The applicant’s medical evidence includes:

a. Royal Melbourne Hospital report dates: “Injury sustained from an alleged assault, knee to face on 21 April 2018”.

b. Yarrawong Medical Clinic report states the applicant sustained multiple facial fractures due to assault.

c. Wangaratta Base Hospital states the applicant received a punch to the face and fell backwards.

13. Sustaining an injury is one component of the act of violence under s 19 of the act. However, the applicant has not established that the injury arose as a result of the commission of an offence. The respondent submits the evidence indicated the parties engaged in a mutual altercation; there was no act of violence against the applicant.

26. The Respondent argued that the correct and preferable decision is for the Tribunal to affirm the Senior Assessor’s decision.

27. DZE did not file any further material in reply.

Consideration

Act of Violence

28. 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.

29. “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…

30. The onus is on DZE to prove the allegation that the applicant was assaulted by the alleged offender on the balance of probabilities. However, the available evidence indicates a significant dispute as to what actually occurred on 20 April 2018.

31. I note that there are significant discrepancies between the medical histories recorded by the applicant’s treating doctors and hospitals and the versions provided to NSW Police by the applicant, DZE, the alleged offender and the independent witnesses.

32. DZE has made extensive submissions in support of the application and she disputes the versions provided by the alleged offender and the independent witnesses. However, she did not actually witness the verbal altercation between the applicant and the alleged offender or the subsequent physical altercation that occurred and her submissions are therefore dependent upon the accuracy of the applicant’s version of events.

33. While I am not bound by the Rules of Evidence in determining whether an act of violence occurred, the supporting evidence must be logical, relevant and probative.

34. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (‘Nguyen’), McDougall J (McColl and Bell JJA agreeing) said at [44]–[48]:

44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.

45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161–162, and Mason J (with whom Brennan J agreed) in the same case at 168.

46. It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.

47. In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.

48. On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the events having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.

35. Accordingly, it is necessary to determine the respective probabilities of the act of violence alleged by DZE having occurred or not occurred and the available evidence must establish a fair climate for finding that it is more probable than not that this act of violence occurred.

36. In this matter, the assessment of the probative value of DZE’s submissions is complicated by the absence of any evidence that corroborates the applicant’s version of events. In my view, the conflicting evidence about what actually occurred, and the sequence in which the relevant events occurred, does not establish a safe climate that enables me to find that more probably than not the act of violence described in the application for victims support, namely that the alleged offender kneed the applicant to the face, occurred.

37. Further, while DZE’s submissions posed an alternate hypothesis, that the applicant’s facial injuries were caused by the alleged offender either punching or elbowing the applicant to the face, there is simply no evidence that supports this and these submissions are at best speculative.

38. While there is no apparent dispute that the applicant and the alleged offender became involved in a verbal altercation on 20 April 2018,which escalated into a physical confrontation between them, there is no evidence that corroborates the applicant’s allegation that it was the alleged offender who instigated the physical altercation.

39. Rather, the evidence from NSW Police, including the recorded interview with the applicant and the statements obtained from the independent witness, suggests that the applicant first “grabbed” at the alleged offender and that the alleged offender reacted by “grabbing” at the applicant. This does not support the allegation that the alleged offender perpetrated an assault upon the applicant.

40. For these reasons, I am not satisfied that the applicant was the primary victim of an act of violence for the purposes of s 19 of the Act.

Orders

1. The decision of the Senior Assessor dated 11 June 2019 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 January 2020