Ejy v Commissioner of Victims Rights

[2020] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EJY v Commissioner of Victims Rights [2020] NSWCATAD 285

Hearing dates:

6 November 2020

Date of orders:

17 November 2020

Decision date:

17 November 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The decision of the respondent dated 7 July 2020 is set aside and the following decision is made in substitution.

(2) The applicant is eligible for a Category C Recognition Payment in the amount of $5,000 for an assault resulting in grievous bodily harm;

(3) The application is otherwise withdrawn and dismissed.

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) 225 A Crim R 481; [2012] NSWCCA 203

BJR v R 185 A Crim R 360; [2008] NSWCCA 43

BWL v Commissioner of Victims Rights [2015] NSWCATAD 235

CNB v Commissioner of Victims Rights [2020] NSWCATAD 31

Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209

R v Donovan [1934] 2 KB 498 at 509

R v Overall (1993) 71 A Crim R 170 at 173

R v Remilton [2001] NSWCCA 546

R v Shannon [2003] NSWCCA 106

R v Sumeo [2002] NSWCCA 271

R v Williams [2005] NSWCCA 14

R v Woodland (2007) 48 MVR 360; [2007] NSWCCA 29 at [35]

Singh v Director of Public Prosecutions (NSW) (2006) 164 A Crim R 284; [2006] NSWCCA 333

Vann v Palmer [2001] ACTSC 12

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EJY (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
EJY (Applicant)
Victims Services (Respondent)

File Number(s):

2020/00220256

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 28 July 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 ‘EJY’.

Background

Application for Victims Support

2. On 7 February 2020, EJY 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 assault that was perpetrated by a named offender on 28 April 2018, at Rockdale in New South Wales, as follows:

The offender punched the applicant in the jaw with a closed fist

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

4. The application indicates that the act of violence was reported to NSW Police on 29 April 2018. However, a copy of the Police report is not in evidence before me.

Decision at First Instance (Recognition Payment)

5. On 7 July 2020, an Assessor (Client Claims) issued a Notice of Decision and determined that EJY was not the primary victim of an act of violence as required by s 19 of the Act. The Assessor stated, relevantly:

What must be established for (EJY) to receive victims support?

1. For (EJY) to be considered eligible for victims support, the documentary evidence must establish that she was a victim of an act that apparently occurred in the course of the commission of an offence, which has involved violent conduct and has resulted in injury (physical or psychological) or death (s.19). When all of these elements are established, she is considered to be a primary victim of an act of violence.

2. It is necessary for documentary evidence to be provided together with the application for victims support (s.39). For financial support for economic loss or a recognition payment, the following documents are required:

   1)   a police report or a report of a government agency

   2)   a medical, dental or counselling report verifying the primary victim has been injured as a result of the act of violence.

3. This documentary evidence along with other material submitted by the applicant will be considered by an assessor on the balance of probabilities. This means I must be satisfied that it is more probable than not that an act of violence was committed against (EJY).

CONSIDERATION OF THE DOCUMENTARY EVIDENCE

Reports to police and court outcomes

1. I have viewed police evidence, consisting of a COPS report (number provided). According to the report, at the relevant time, (EJY) and the offender worked at the same studio in Rockdale. On 28 April 2018, the offender was witnessed to be heavily drinking alcohol throughout the day whilst working.

2. Later that evening, the offender’s behaviour began to intensify and she became aggressive towards (EJY). She began to yell and swear at her and approached her as she was going to hit her. Another staff member attempted to de-escalate the situation and pacify the offender however she was not successful.

3. The offender grabbed (EJY) by the strap of her top and then punched her in the jaw with a closed fist. The punch caused (EJY) to feel immediate pain and her inside of her bottom lip began to bleed. A bruise later began formed (sic) on her lip. (EJY)’s colleague managed to grab the offender and pulled her back into a staff room whilst police were summoned.

4. The offender was charged with a number of offences including “assault occasioning actual bodily harm” and “stalk/intimidate intend fear physical etc. harm (personal)”. An AVO was also granted to protect (EJY) from further assaults.

Evidence of physical or psychological harm

1. I have reviewed medical evidence including medical records received from Miranda Medical Centre and Caringbah Medical and Dental Centre. Extensive records were carefully perused. Unfortunately, there is no mention of the subject incident in the records nor any resulting injury which would match the injury sustained as described in the police report…

   6. A copy of the Notice of Decision was posted to EJY under cover of a letter from the respondent dated 7 July 2020.

Internal Review

7. On 8 July 2020, EJY requested an internal review of the Assessor’s decision by way of an email, in which she stated, relevantly:

…I am just letting you know that you can do an internal review I don’t agree with the decision at all, because of the following reason I was threatened by my bosses and work place and my safety.

So I am not prepared to wait 90 days for an internal review decision as I have waited for 1 hear and half. Victim services were delayed in cases for over six months.

You can do an internal review no problems my claims are always getting rejected from victim services.

8. On 8 July 2020, the respondent acknowledged receipt of the request for internal review.

9. On 13 July 2020, EJY sent an email to the respondent in which she stated:

I got text msgs from the 05/04/2018 when I was assaulted at the work place how I got threatened regards losing ,y job and to drop all charges from the owner. So that’s why I was scared due to the constant threats by management that’s why I didn’t go to the doctor’s.

I note that printouts of text messages are contained in the documents before me.

10. On 24 September 2020, the Senior Assessor issued a Notice of Review Decision, which determined that EJY was the primary victim of an act of violence, but that as no evidence verifying her injuries has been produced, the application is dismissed. The Senior Assessor noted that EJY alleged that she suffered both physical and psychological injuries as a result of the act of violence and stated, relevantly:

1. Police report, COPS event reference number (provided), dated 28 April 2018, provides details of the incident described in the application form. According to the report, (EJY) was at work and the offender, who she worked with, had been drinking heavily. The offender became verbally abusive towards (EJY) and began threatening her and waving her arms aggressively to intimidate (EJY), making her feel fearful and very shaken.

2. (EJY) retreated to a room and was standing near the window when the offender punched the glass, shattering the window. The offender then attempted to grab (EJY) through the window. As (EJY) fled the room the offender grabbed her by her top and punched her to the jaw. (EJY) reported she felt immediate pain and the inside of her bottom lip began to bleed. A bruise later formed on her lip.

3. The offender was convicted of Stalk/intimidate intend fear physical etc harm and Assault occasioning actual bodily harm in relation to the assault… A 12-month Apprehended Violence Order was made for (EJY)’s protection from the offender.

Evidence of physical or psychological harm

1. No evidence to verify injuries sustained as a result of the incident has been provided. As indicated in by Deferral of Review Decision, (EJY) directed Victims Services to obtain medical records from Miranda Medical Centre and Caringbah Medical and Dental Centre. Victims Services has received (EJY)’s records from Miranda Medical Centre and note that despite the records spanning the period before and after the assault occurred, between January 2011 and July 2019, there is no reference to (EJY) attending the centre for treatment in relation to the assault on 28 April 2018..

2. Victims Services has twice requested (EJY)’s medical records from Caringbah Medical and Dental Centre but these requests have not been responded to.

3. (EJY) has been advised in my Notice of Decision of 7 Jul 2020, by telephone communication on 8 July 2020 and in my Deferral of Review Decision, that medical evidence of injury is required in support of her claim. (EJY) has been advised that the evidence she requested Victims Services to obtain on her behalf does not support her claim. Despite this advice, (EJY) has not produced anything further.

FINDINGS

Is (EJY) a primary victim of an act of violence?

1. Having considered the police report and court outcomes I am satisfied that (EJY) was the victim of an assault and intimidation. I accept based on the police report that (EJY) suffered an injury to her lip as a result of the assault. I therefore find that all the elements of s 19 (1) of the Act are satisfied, and that (EJY) was the victim of an act of violence.

2. Having considered the evidence on the balance of probabilities, I find (EJY) is the primary victim of an act of violence that occurred on 28 April 2018 at Rockdale, in New South Wales…

Recognition payment

…

1. In order to approve a recognition payment section 39 (2) (b) (i) and (ii) of the Act requires the applicant to provide a police report which establishes the applicant was a victim of an act of violence and relevantly, “a medical, dental or counselling report verifying that the applicant… has actually been injured as a result of an act of violence.”

2. While the police report establishes that (EJY) sustained a physical injury to her lip as a result of the assault, the Act requires me to have a medical, dental or counselling report before me which verifies (EJY)’s injuries before a recognition payment can be approved…

   11. A copy of the Notice of Review Decision was posted to EJY under cover of a letter from the respondent dated 24 September 2020.

Application for administrative review

12. The current application for administrative review was filed on 28 July 2020 and I am satisfied that it was filed within time.

13. 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.

   14. The Application came before me for Directions on 4 September 2020, when EJY appeared in person and Ms Srikanth appeared for the respondent. The documents provided by the respondent under s 58 of the ADR Act were mostly complete, although I note that a further copy was lodged on 8 September 2020, which included a few missing pages. I ordered the matter to be listed for hearing on 6 November 2020 and granted both parties leave to participate in the hearing by telephone.

   15. At the hearing of the matter on 6 November 2020, EJY appeared in person and Mr Ting appeared for the respondent.

EJY’s oral submissions

16. EJY stated that the Police witnessed her physical injuries and provided a description in the COPS Event report. She also stated that as a result of the assault, she has a scar on the inside of her hip and some alteration of sensation. She also asserted that she suffered from a psychological injury, but she did not receive any specific treatment for that injury.

17. EJY argued that she is eligible for a category C recognition payment on the basis that she was the victim of an assault causing grievous bodily harm.

Respondent’s written submissions

18. The respondent filed written submissions on 5 November 2020, which provided, relevantly:

Evidentiary requirement for physical or psychological harm is not satisfied

1. The medical evidence on file does not support a finding of an injury that has resulted from the act of violence that occurred on 28 April 2018. The delegate deferred the review application for the applicant to provide medical evidence of an injury sustained by her as a result of the act of violence. This evidence was not received.

The requirements of section 39 are not satisfied

1. In summary, the application for victims support must be supported by the following:

   i.   A Police report or Government report establishing the act of violence; and

   ii.   Medical, dental or counselling report verifying injury.

2. The medical evidence on file does not support a finding of injury that has resulted from the act of violence that occurred on 28 April 2018. As the requirements of section 39 are not fulfilled, there is insufficient evidence to establish on the balance of probabilities that the applicant was the primary victim of an act of violence.

Conclusion

1. The respondent believes that the correct and preferable decision is to dismiss the application as the applicant has not established an act of violence in accordance with s 19 of the Act as the requirements of s 39 are not satisfied.

2. The respondent submits that the Tribunal ought to affirm the decision of the respondent made on 24 September 2020 and dismiss this application for administrative review.

Respondent’s oral submissions

19. At the hearing of this matter, Mr Ting conceded, and properly so in my view, that the fact that the Police report describes the physical injuries suffered by EJY is sufficient to establish injury for the purposes of the Act.

20. As a result, EJY is eligible for a recognition payment and Mr Ting argued that the Tribunal should approve a category D recognition payment on the basis that EJY was the victim of an assault occasioning actual bodily harm.

21. At the completion of the hearing, the Tribunal reserved its decision.

Consideration

Act of Violence

22. 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.

23. “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…

   24. The onus is on EJY to prove her allegations of assault on the balance of probabilities.

   25. There is no dispute that EJY was the primary victim of an act of violence that occurred on 28 April 2018. Based on the available evidence, I am satisfied that she has established that she was a primary victim of an act of violence.

Injury

26. 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.”

27. Following the respondent’s concession of the issue of “injury” at the hearing, it argues 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."

28. I have perused the large volume of medical records contained in the s 58 documents and note that none specifically refer to the act of violence or document any specific treatment for any injury suffered as a direct result of it. However, the respondent’s decisions document that the Police report describes the physical injuries that EJY suffered as a result of the assault as being a cut lower lip with bruising. The respondent has not produced a copy of that report to the Tribunal, on the basis that it is no longer authorised by NSW to produce it under s 58 of the ADR Act. However, this Tribunal is not bound by the rules of evidence and I am satisfied that the respondent’s decisions, which directly refer to the Police report, provides probative evidence as to its contents. I am therefore satisfied on the balance of probabilities that EJY suffered physical injuries as a direct result of the act of violence.

29. However, there is no medical evidence before me that supports a finding that EJY suffered a psychological injury as a direct result of the act of violence.

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

31. 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).

32. 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.

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

3. 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…

   34. In view of the evidence that EJY suffered a physical injury to her lower lip as a result of the act of violence in 2018 and that she continues to suffer ongoing symptoms, including scarring and sensory loss, approximately two and a half years later, I am satisfied that this injury can properly be considered as being “really serious”. It follows that I am satisfied that she suffered grievous bodily harm as a result of the act of violence and that she is therefore eligible for a Category C recognition payment under s 35 (3) (c) of the Act.

Section 44 of the Act

35. 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 EJY 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.

Resolution of the dispute

36. On 10 November 2020, Mr Ting sent an email to the Tribunal in the following terms:

Dear Registrar,

I represent the respondent in the above matter. On Friday 6 November 2020 the above matter was heard, and Senior Member Riordan reserved her decision. In the interests of efficiently concluding this matter, following the hearing, the parties agreed to settle the matter on the following terms:

In NCAT Proceedings 2020/220256 - (“EJY”) v Commissioner of Victims Rights:

1.   The applicant is approved a Category C Recognition Payment in the amount of $5,000.00 for an assault resulting in grievous bodily harm;

2.   The application is otherwise withdrawn and dismissed.

I have copied the applicant in to this email so that she can confirm her agreement.

Please let me know if you require anything further to enter and issue the above as orders of the Tribunal, so that we can commence processing support for (EJY).

Yours sincerely, …

37. On 10 November 2020, EJY also sent an email to the Tribunal, in which she stated:

Yes I agree to the decision and withdraw my application.

38. Section 59 of the Civil and Administrative Tribunal Act (NSW) 2013 (No. 2) provides:

59   Powers when proceedings settled

1. The Tribunal may, in any proceedings, make such orders (including an order dismissing the application or appeal that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties in the proceedings if—

   (a)   the terms of the agreed settlement are in writing, signed by or on behalf of the parties and lodged with the Tribunal, and

   (b)   the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.

2. The Tribunal may dismiss the application or appeal that is the subject of the proceedings if it is not satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement.

   39. In the current matter, I am satisfied that the Tribunal has the power to make a decision in the terms of the agreed settlement or in terms consistent with the terms of the agreed settlement. I am also satisfied, for the reasons set out previously in this decision, that the settlement agreed by the parties is appropriate.

Orders

40. Accordingly, I make the following orders:

1. The decision of the respondent dated 7 July 2020 is set aside and the following decision is made in substitution.

2. The applicant is eligible for a Category C Recognition Payment in the amount of $5,000 for an assault resulting in grievous bodily harm;

3. The application is otherwise withdrawn and dismissed.

**********

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: 17 November 2020