EGM v Commissioner of Victims Rights

[2020] NSWCATAD 181

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EGM v Commissioner of Victims Rights [2020] NSWCATAD 181

Hearing dates:

3 July 2020

Date of orders:

15 July 2020

Decision date:

15 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the Senior Assessor dated 24 February 2020 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:

Victims Rights and Support Act 2013

Victims Rights and Support Regulation 2013

Administrative Decisions Review Act 1997

Crimes Act 1900

Civil and Administrative Tribunal Act 2013

Cases Cited:

AM v R [2012] NSWCCA 203

BJR v R [2008] NSWCCA 43

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]

Roger Lee Vann v Craig Michael Palmer [2001] ACTSC 12

Regina v Shannon [2003] NSWCCA 106

Regina v Sumeo [2002] NSWCCA 271

Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566

CNB v Commissioner of Victims Rights [2020] NSWCATAD 31

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EGM (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
P Davis, Womens Legal Service NSW (Applicant)
P Srikanth, Victims Services (Respondent)

File Number(s):

2020/00094535

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.

REASON FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 26 March 2020, 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. The applicant is known by the pseudonym ‘EGM’.

Background

Application for Victims Support

2. On 25 May 2018, EGM lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that she was the primary victim of an act of violence in the nature of domestic/family violence that was perpetrated by a named offender between 1 January 2016 and 31 December 2017, at Taree, New South Wales, as follows:

I experienced emotional and physical domestic violence in my relationship with (the offender). On one occasion in particular he assaulted me including pulling me by the hair and bashing me in the head causing bruising on by ribs; lumps on my head.

3. The application alleged that EGM suffered both physical and psychological injuries as a result of the act of violence and that she sought a recognition payment.

4. The act of violence was reported to NSW Police on 9 February 2016. The COPS Event report indicates that on 9 February 2016, a heated argument commenced between EGM and the named offender, during which EGM told the named offender that she was going to pack up her belongings and leave him. She started to pack her bags and the named offender got tight up into her face and started tapping her on the head with his forehead and repeatedly said, “You’ll never leave me. You’ll never leave me.” The named offender then said, “I told you to make the f***ing bed”. EGM said, “I promise to make the bed. Just get the pillows and bag off the bed and I’ll make it”. The named offender then drew his right fist back and punched EGM to her mouth. EGM felt a pins and needles and numbness to her mouth area. The named offender punched EMG several more times to the head. The named offender then turned towards the bed and started to move toward it, which gave EGM the opportunity to push him onto his back. EGM was then able to unlock the sliding door and run outside to the office to call for help. Police were called and attended the scene. Police obtained a statement from EGM and arrested and cautioned the named offender. He was charged with common assault.

Decision at first instance

5. On 2 September 2019, an Assessor (Client Claims) issued a Notice of Decision, which determined that EGM was the primary victim of an act of violence that occurred over a period of time from 1 January 2015 to 31 December 2017 and approved a Category D recognition payment. The Assessor held, relevantly:

Evidence of physical or psychological harm

1. In order to be considered for a recognition payment or financial assistance for economic loss, the required evidence is a documentary report to police or a government agency and medical, dental evidence or a report from a counsellor.

2. I have reviewed (EGM’s) counselling report dated 6 December 2018 which states the impacts she has sustained from experiencing an abusive relationship with the offender. She has ongoing flashbacks, sleep disturbances, anxiety and intense distress when exposed to triggers.

…

Related acts

1. Under section 19 of the Act, an act of violence can be either a single act or a series of related acts. A single assault for example would be considered an act of violence.

2. If there were a series of individual acts they are considered to be related if they are against the same victim at the same time or over a period of time and committed by the same person or group of persons. From the evidence above it has been established that there has been a series of related acts which are therefore considered to be a single act of violence.

   6. The Assessor determined that there was no reason to reduce or withhold the approval of victims support under s 44 of the Act. However, the Assessor approved a Category D recognition payment in the sum of $1,500 on the basis that EGM was the victim of an assault not resulting in grievous bodily harm.

   7. I note that a copy of this decision was posted to EGM’s solicitors under cover of a letter from the respondent dated 11 September 2019. However, the date of posting this letter is not indicated in the evidence before me.

Internal review

8. EGM applied for an internal review of the Assessor’s decision.

9. On 20 December 2019, EGM’s solicitors made written submissions to the Respondent in support of the application for internal review. They argued that EGM suffered grievous bodily harm as a result of the act of violence and stated, relevantly:

It is established legal principle that grievous bodily harm extends to serious psychological injury (Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd [2015] NSWSC 566). This principle has been applied to decisions under the Victims Rights and Support Act 2013. In BWQ v Commissioner for Victims Rights [2015] NSWCATAD 197, the Tribunal found (at paragraphs 16 to 17):

…evidence before the Tribunal [that] establishes a serious psychological or psychiatric condition arising as a direct result of the violence and having a debilitating and serious long term impact and effect on the applicant. The evidence indicates that the psychological symptoms continue.

In my view, the applicant is significantly impaired in her functioning and based upon the available evidence I am satisfied that she is entitled to a category C recognition payment on the basis that she suffered grievous bodily harm arising from a psychological condition that has had a serious impact upon her.

10. On 6 December 2018, Ms Barbara Squires issued a report, in which she noted a history of multiple experiences of domestic violence perpetrated against EGM by the named offender and egregious emotional abuse, which preyed upon her trauma from childhood sexual abuse. Ms Squires diagnosed PTSD and expressed the opinion that recovery would be a very long term process for EGM.

11. EGM’s solicitors cited my decision in CRT v Commissioner of Victims Rights [2017] NSWCATAD 174 as authority for the proposition that while the Act requires an applicant to establish, on the balance of probabilities, that they suffered injury as a direct result of the act of violence, the act of violence does not have to be the sole cause of the injury. They referred to reports from Ms Natalie Green issued in 2007 and 2008, which outline EGM’s prior history of injury and argued that the available evidence indicates that she suffered psychological or psychiatric injury as a direct result of the acts of violence and that the resulting symptoms have continued for a very lengthy period of time.

12. EGM’s solicitors also stated, relevantly:

CRT provides authority that decision makers should apply a ‘common sense evaluation of the causal chain relating to CRT’s psychological or psychiatric injury’ (relying on Kirby P’s decision in Kooragang Cement Pty Ltd v Bates 5 NSWLR 452 at [39]). It is (EGM’s) submission that the principles applied in CRT at paragraphs [38] to [41] are relevant to a consideration of her claim in that there is no evidence that supports a finding that she recovered from the effects of the psychological or psychiatric injury that resulted from the child sexual assaults at (location provided) at any time before the later events occurred and accordingly, it is appropriate to find that there is an unbroken chain of causation between the child sexual assault and (EGM’s) current psychological or psychiatric condition.

Finally, the Act is beneficial legislation and we submit that the Applicant ought not to be disadvantaged by the complexities of her circumstances…

13. EGM’s solicitors concluded that their client is entitled to a category C recognition payment in the sum of $5,000.

14. On 24 February 2020, a Senior Assessor issued a Notice of Review Decision, which determined that the evidence established that EGM 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:

1. I have considered written submissions from (EGM’s) representatives. In summary, these submissions are that (EGM) has suffered serious psychological harm and that injury extends to grievous bodily harm, that (she) does not need to establish that the claimed act of violence is the sole cause of her current psychological injury and that a ‘common sense’ evaluation of the causal chain be applied.

2. I have considered a detailed psychological report by Natalie GREEN DATED 22 August 2007 which largely relates to a history of childhood sexual abuse. The opinion was that (EGM) met the criteria for post-traumatic stress disorder (PTSD) and that she has been significantly affected at all levels of functioning socially, emotionally and interpersonally. A number of diagnoses were reported. It is noted she has had a fear of venturing out to crowded and public places and appears to meet the criteria for agoraphobia and possibly social phobia.

3. I have considered a further report by Natalie Green dated 27 June 2008. This report largely relates to (EGM’s) experience of domestic violence in various relationships. The opinion was that (EGM) likely suffers from complex PTSD and recurrent major depressive disorder, as a result of the domestic abuse she has endured.

4. In respect of injury as a result of this claimed act of violence, I have reviewed a counselling report by Barbara Squires. The diagnosis of PTSD is confirmed. A number of symptoms were noted, and the report states: “(EGM) avoids people and places – “I stay inside”.”

5. In terms of considering the long terms effects of emotional and psychological impact for victims, this can be considered grievous if an applicant can demonstrate they have suffered a diagnosed psychological or psychiatric injury, and this injury has caused a significant impact to their day to day functioning and overall impairment. Consideration needs to be had to their pre-existing conditions and functioning.

6. I have therefore considered the current injury with reference to the historical medical evidence and most recent medical evidence. I must also take into account (EGM’s) history of psychological injury, level of functioning and impairment as a result of a long history of traumatic events and acts of violence.

7. The historical medical evidence contained on file supports a diagnosis of complex PTSD and major depression. Other trauma related symptoms are noted, along with agoraphobia and social phobia disorders.

8. The medical evidence contained on file, in respect of the claimed act of violence, confirms these diagnosis (sic) and trauma symptoms. However, it does not support the injury has had an impact on (EGM’s) current day to day level of functioning and impairment that it could be considered to be an injury consistent with grievous bodily harm.

9. While I accept that (EGM) has suffered further harm as a result of what has occurred, there is insufficient evidence to determine that the psychological harm is indicative of grievous bodily harm.

   15. I note that a copy of the Senior Assessor’s decision was emailed to EGM’s solicitors under cover of a letter from the respondent dated 24 February 2020.

Application for administrative review

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 current application for administrative review raised the following grounds:

4. The decision maker erred in not giving sufficient weight to the applicant’s evidence proving the applicant’s eligibility for category C recognition payment.

5. The decision maker erred in not interpreting the Act as beneficial legislation.

   18. The matter came before me for Directions on 8 May 2020, when Ms Davis appeared for EGM and Ms Sabesan appeared for the respondent.

   19. The respondent filed documents provided under s 58 of the ADR Act. I ordered the applicant to file and serve all evidence replied upon on or before 29 May 2020. I ordered the respondent to file and written submissions by 19 June 2020 and allowed EGM to respond prior by 26 June 2020. I listed the matter for hearing on 3 July 2020.

   20. The respondent filed written submissions on 1 July 2020 and EGM’s solicitors filed submissions on 29 May 2020. No further evidence was filed in support of the application.

Consideration

Act of Violence

21. 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.

22. “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…

   23. The onus is on EGM to prove her allegations of assault on the balance of probabilities. There is no dispute that she was the primary victim of an act of violence that occurred over a period of time from 1 January 2016 to 31 December 2017. Based on the available evidence, I am satisfied that he has established that she was a primary victim of an act of violence and that she was the victim of a series of related acts.

Injury

24. 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.”

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

26. 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 EGM’s prior history of psychological trauma.

27. In its written submissions dated 3 July 2020, the respondent maintained its view that EGM was not eligible for a higher category of recognition payment because the evidence did not establish on a balance of probabilities that she suffered grievous bodily harm as a result of the act of violence. It argued that the decision of the Senor Assessor should be affirmed.

28. However, the report of Ms Squire dated 6 December 2018 indicates that EGM continued to suffer complex PTSD and major depressive disorder and that the act of violence had a severe impact on her. This occurred on a background of previous psychological trauma. I note that this report was issued almost 1 year and 10 months after the assault reported by NSW Police and approximately 12 months after the end-date of the period alleged in the application for victims support. There is no evidence before me that supports a finding that EGM has recovered from the effects of the injury that directly resulted from the act of violence.

29. 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.

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

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

32. 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).

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

1. 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.”

1. 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.

2. 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.

3. 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.

1. 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.

2. 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.

   34. 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…

35. Based upon the evidence that EGM suffered a psychological injury as a result of the act of violence, and that she continues to suffer significant ongoing symptoms, I am satisfied that her psychological injury can properly be considered as being “really serious”.

36. It follows that I am also satisfied that EGM 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.

Section 44 of the Act

37. 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 EGM 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 24 February 2020 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.”

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 15 July 2020