Eqf v Commissioner of Victims Rights

[2021] NSWCATAD 236

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EQF v Commissioner of Victims Rights [2021] NSWCATAD 236

Hearing dates:

6 August 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1)   The decision made by the Senior Assessor dated 5 March 2021 is set aside;

(2)   A category D recognition payment is approved in the sum of $1,500.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – Alleged offender not charged with any offence – Act of violence established on balance of probabilities – Eligibility for victims support –Application of s 44 (1) of the Victims Rights and Support Act 2013

Legislation Cited:

Victims Rights and Support Act 2013

Victims Rights and Support Regulation 2019

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1930] AC 1; (1938) 12 ALJ 100; (1938) 12 ALJR 100; (1982) 44 ALR 334; [1938] ALR 334; [1938] ALR 342-3; [1938] HCA 34

DZE v Commissioner of Victims Rights [2020] NSWCATAD 21 at [30]-[35]

Fox v Percy (2003) 214 CLR 118; (2003) 77 ALJR 989; (2003) 197 ALR 201; (2003) 38 MVR 1; [2003] HCA 22

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at 161-162, 168; (1982) 40 ALR 45; [1982] HCA 15

Golden v Hotchkiss (1959) 101 CLR 298 at 305; [1959] ALR 367; [1959] HCA 9

Helton v Allen (1940) 63 CLR 691 at 712; (1940) 14 ALJR 196; [1940] ALR 298; [1940] HCA 20

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 642-643; (1990) 64 ALJR 316; 105 ALR 51; 19 ALR 607; 13 ALR 447; (1990) Aust Torts Reports ¶81–022; [1990] HCA 20

Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]-[48]

R v Butcher [1986] VR 43; (1994) 16 A Crim R 1; [1986] VR 43

West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66; [1981] HCA 38

Texts Cited:

None cited

Category:

Principal judgment

Parties:

EQF (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Marrickville Legal Centre (Applicant)
Victims Services (Respondent)

File Number(s):

2021/00088541

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 30 March 2021, 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 ‘EQF’.

Background

Application for Victims Support

2. On 10 January 2020, EQF lodged an Application for Support for primary victims 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 an assault that was perpetrated by an unknown offender on 22 February 2018, at Blacktown in New South Wales, as follows:

I knocked on the door requiring Police assistance, for him to call the Police for me as I had been threatened by another man & instead of calling Police he knocked me out, I came to when I realised he was dragging me down the driveway then he threw me into the air, my head hitting and bouncing off the concrete.

3. EQF alleged that she suffered physical injuries as a result of the alleged act of violence.

4. EQF stated that she reported the assault to Police at Redfern in New South Wales on 22 February 2018 and that she attended Marrickville Medical Centre and Ashfield Medical Centre for treatment of her injuries. She sought counselling, a recognition payment and financial assistance for medication costs.

Decision at First Instance

5. On 13 November 2020, an Assessor (Client Claims) issued a Notice of Decision and determined that an act of violence was not established on the balance of probabilities as required by s 19 of the Act and that the documentary evidence requirements under s 39 of the Act were not met. He dismissed the application. The Assessor stated, relevantly:

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

7. For (EQF) 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, he is considered to be a primary victim of an act of violence.

8. 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 report of a Government

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

9. 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 (EQF).

Consideration of the documentary evidence

Evidence of physical or psychological harm

12. 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.

13. I have considered clinical medical notes from Dr (name provided) which confirms (EQF) attended for consultation on 26 February 2018. The notes state that (EQF) reported she went to pick up some money from an ex-friend and he hit her and then his neighbour also hit her. The Dr observed bruising to her arms, thighs and buttocks. (EQF) reported pain in her back and neck and she had multiple grazes.

FINDINGS

Is an act of violence established?

14. I am satisfied, based on the medical evidence I have reviewed, that an act of violence is established for the purpose of being able to consider financial assistance for immediate needs only. While it difficult to establish precisely what occurred, I am satisfied that (EQF) was the victim of an act of violence.

Are the section 39 documentary requirements met in order for a recognition payment to be approved?

15. (EQF) has made a claim for a recognition payment. As set out in paragraph 9 above, for a claim for a recognition payment to be approved, a police report or a report of a Government Agency or any other agency that provides support services to victims of crime is required.

16. (EQF) has indicated in her application that the act of violence was reported to police. The alleged offender’s name has not been provided, nor has the police report number.

17. Unfortunately, base don the limited information that has been provided to Victims Services, I have been unable to locate any record of the matter being reported to police or the court records relating to any criminal proceedings.

18. On that basis, I am unable to establish that (EQF) was a primary victim of an act of violence in order to award a recognition payment. Therefore, the claim, for a recognition payment is not approved.

6. I note that a copy of the Assessor’s decision was forwarded to EQF under cover of the Respondent’s letter dated 13 November 2020. However, the date upon which the letter was posted is not indicated in the documents before me.

Internal review

7. I note that on 9 February 2021, EQF’s solicitor sent an email to the Respondent, enclosing the following documents: (1) An Internal Review Request dated 9 February 2021; and (2) Marrickville and Redfern Local Area Command Police Event number (number provided).

8. I refer to the Internal Review Request which stated, relevantly:

Re para 17 of decision, please find attached police records from Marrickville local area command and Redfern local area command evidencing the report made to police event no. (number provided) – 23/02/18 and 27/2/18.

9. On 5 March 2021, a Senior Assessor issued a Notice of Review Decision, which determined that there was insufficient evidence to establish, on the balance of probabilities, that (EQF) was the primary victim of an act of violence. Accordingly, the application for victims support was dismissed. The Senior Assessor stated, relevantly:

Consideration of the documentary evidence

Reports to police and court outcomes

14. I have considered police cops event (number provided), where the applicant is named as the person of interest. According to the police report, (EQF) attended the home of a person known to her on the night of 22 February 2018 at Seven Hills, to collect money. The police were called to the scene in response to a report of (EQF) appearing agitated. Upon arrival, the police noted that (EQF) was heavily intoxicated. Due to her level of intoxication, the police conveyed her to the police station where she waited for her sister to pick her up.

15. On 27 February 2018, (EQF) contacted Newton Police station to report that she had been assaulted during the incident on 22 February 2018 at Seven Hills. (EQF) reported that she had attended her ex-partner’s home in Seven Hills to get back money he owed to her. When the offender did not return her money, (EQF) went to the home across the road from her ex-partner, asking the resident to call the police. (EDQ) informed police that the resident – the person living across the road from her former partner – physically assaulted her.

16. The police spoke with the alleged offender and obtained his version of what had happened. He advised police that (EQF) came to his front door, asking him to phone the police. He reported that (EQF) was smoking a cigarette, and the fumes were entering his home. He reported that he asked her to stop smoking into his home, he asked her to leave his premises. When she did not leave, the alleged offender reported that he opened the door, took (EQF) by the arm and walked her out of his property. He reported that when he let go of her arm, she fell to the ground.

17. Having considered all versions of the incident, the police deemed that no assault had occurred. They noted that (EQF) had sustained bruising as a result of the incident, however these were noted to be consistent with a fall.

Evidence of physical or psychological harm

18. I have had regard to the clinical notes from (medical centre named). (EQF) attended the medical centre on 26 February 2018 and consulted Dr (name provided). According to (the doctor’s) clinical notes, (EQF) reported that she alleged offender dragger her and hit her on concrete. (EQF) was noted to have bruises on her buttocks and left flank, neck pain and multiple grazes.

10. The Senior Assessor noted that it was not disputed that (EQF) sustained bruising and grazes as a result of the incident that occurred on 22 February 2018 and did not doubt that she was genuine in her assertion that she was assaulted. However, the police investigated the report by taking to the involved parties and formed the view that no offence was occurred. Clearly, there were conflicting versions of what occurred and the Senior Assessor noted that (EQF) was significantly intoxicated at the time of the incident, which could have impaired her ability to properly recollect what happened. The alleged offender admitted to using a degree of physical force to remover (EQF) from his property as a result of her refusing to leave. The Senior Assessor was satisfied that (EQF) fell to the ground after the offender let go of her arm, causing her to sustain bruising and grazing, and was not satisfied that there was sufficient evidence to find that the alleged offender committed a criminal offence involving violent conduct against her.

11. I note that a copy of the review decision was sent to (EQF) under cover of the Respondent’s letter dated 5 March 2021. However, the date on which the letter was posted is not indicated in the documents before me.

Application for administrative review

12. The current application for administrative review was filed on 30 March 2021 and it indicates that EQF was informed of the review decision on 24 March 2021. I am therefore satisfied that the application 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 Senior Member McAteer for Directions on 7 May 2021, when Ms Winfield appeared for EQF and Ms Douch appeared for the Respondent. The matter was stood over for a further Directions hearing on 4 June 2021 as a summons had been issued to NSW Police.

15. Senior Member McAteer conducted a further directions hearing on 4 June 2021, when Ms Winfield appeared for EQF and Ms Douch appeared for the Respondent. EQF was ordered to file and serve all evidence and material relied upon by 25 June 2021 and the Respondent was ordered to file and serve all material relied upon by 16 July 2021. The matter was listed for hearing on 6 August 2021.

16. I conducted a hearing of the application on 6 August 2021, at which Ms Winfield appeared for and with EQF and Ms Douch appeared for the Respondent. In view of the current COVID-19 restrictions, the hearing proceeded by way of an audio-visual link.

Applicant’s further evidence

17. I note that EQF filed a Statutory Declaration, which she affirmed on 2 July 2021, in which she deposed, relevantly:

2. I was the victim of an act of violence perpetrated against me on the evening of 22 February 2018.

3. I wanted to get a former partner, (name provided) to repay me money that he had used on my credit card without my permission or knowledge when we were in a relationship.

4. (He) said to me on 22 February 2018 “Come over tonight and I will pay you”.

5. I was a bit nervous about seeing (him) again because I was tired of his constant lies but I needed my money back, so I had a few alcoholic drinks to feel better at ease.

6. A friend of mine dropped me off at the residence of (name provided) in Seven Hills on the evening of 22 February 2018.

7. I went to (his) house and said to him “Can I have my money please so I can leave”.

8. I had to repeat this several times in a louder voice, as he did not give me the money, and looked like he was not going to give me the money as he had promised me earlier in the day.

9. (He) then threatened me and said “If you don’t shut up I will hit you”.

10. I left the house and tried to call the police, but my phone would not work.

11. I knocked on the door of (his) neighbour, but there was no answer, so I then walked across the road to the neighbour opposite.

12. The neighbour opposite lived in a house with a driveway and I walked up two steps to the porch by the front door and knocked on the door.

13. A man answered and I said to him “Can you call the police please, I have just been threatened by my ex-partner”.

14. He said words to the effect “Your cigarette is bothering me”, I then stepped back and put the cigarette behind me so that it would not bother him.

15. I said to him again “Can you please call the police for me”.

16. He then backed away from the door and pulled the door almost shut. I thought he was calling the police.

17. I then got rid of the cigarette and I stepped just inside the front door because I thought he was calling the police for me.

18. I do not recall precisely what happened whilst I was briefly inside the house, but I must have been instantly knocked out inside, because my next recollection is me coming to, and the man holding me under the arms and dragging my feet on the concrete of his driveway.

19. Once the man reached the top of the driveway, he threw me up into the air like he was throwing me away.

20. I came crashing down and my head hit the concrete of the driveway and I must have passed out for the second time.

21. When I came to for the second time, there were several police around me – 3 male and 2 female police. The man who assaulted me was not there.

22. My first words to the police were “I have just been assaulted by the man in that house”. I remember pointing to the house.

23. I repeated this couple of times to the police outside the house and again when I was back at the police station.

24. I tried several times at several different police stations, over the next few days including Burwood, Ashfield and Newtown, but nobody was interested in taking my statement. The police kept saying that I was intoxicated but although I did have some drinks, I do recall what happened on the night I was assaulted.

25. I was badly injured after the assault and could not sit down for a week.

26. I went to (name provided) medical centre the day after the assault, and my GP in Ashfield as soon as she was working, for treatment of my injuries.

27. I recall Redfern Police came to my house. They took photographs of my injuries from the assault, which are attached to this Statutory Declaration.

18. I had to have ongoing counselling from (name provided). I got unexplained headaches, and flashbacks and had physical pain for some months after the assault…

20. I still get unexplained headaches to this day, and when I cry my head feels like it has been hit by a baseball bat, in the same area where I hit the concrete at the time of the assault.

18. In addition to the Statutory Declaration and attached photographs, EQF also sought to give oral evidence and she did so under affirmation. EQF noted that the alleged offender had told police that she had fallen down stairs, but she insisted that she did not fall down any stairs on 22 February 2018, and that there were no stairs anywhere. However, I note that the latter statement directly contradicts the evidence I paragraph 12 of the Statutory Declaration.

19. EQF then stated that she did once fall down some stairs while she was living in Ashfield and her injuries were “completely different” and this is why she knows that her injuries were not caused by a fall down stairs.

20. EQF also stated that when she came to on the alleged offender’s driveway, police told her that she had called them and asked her to end the call and she did so. She stated that she did not think that she had called the police because her phone was not working and that is why she went to the house across the street to request that the police be called.

21. EQF stated that the police did not investigate her complaint or interview the alleged offender until 28 March 2018, which was about five weeks after the incident occurred and they took no further action. She also stated that she had obtained the medical records from the first medical centre that she attended and had provided these to her solicitor, but that these could not be located.

18. Ms Douch did not seek to cross-examine EQF.

Applicant’s Submissions

23. Ms Winfield relied upon written submissions dated 5 July 2021. I note that these submissions largely repeated the version of events contained in EQF’s Statutory Declaration, but argued, relevantly:

The act of violence for the purposes of ss 18 and 20 of the Act

30. The Applicant submits that the bruising and injuries she sustained on the night of 22 February 2018 are the result of an act of violence committed against her by the offender.

31. The Applicant submits that the police did (not) take her complaint of assault with due seriousness purely on the basis of their assessment that she was intoxicated.

32. The Applicant submits that she lost consciousness twice because of the acts of the alleged offender.

33. Although she cannot recollect clearly the initial event inside the offender’s home that caused her to lose consciousness, she has a clear recollection of the act of violence perpetrated whilst being dragged up his driveway.

34. The Applicant is a person of low weight and relatively short stature, and she submits, despite this, the offender did not take due care in ensuring that she was not injured by placing her on the ground at the top of his driveway, rather he committed an act of violence by purposely pushing her upwards and then letting go of her, causing her head and body to crash to the concrete ground.

35. The use of physical force resulted in the Applicant sustaining significant bruising and grazing to her body and headaches.

36. The Applicant submits there is sufficient evidence to make a finding that the offender did commit a criminal act in using force involving violent conduct against the Applicant.

24. Ms Winfield also made oral submissions to the effect that the alleged offender did not give an accurate version of the events that occurred on 22 February 2018 and because the police did not interview him until some five weeks after the event, they did not take any steps to verify his version of events. In any event, the standard of proof in this matter is the balance of probabilities and based upon EQF’s evidence, the Tribunal should din that she was a primary victim of an act of violence and that she suffered injury as a result. Therefore, the Tribunal should approve a category D recognition payment on the basis that EQF was the victim of an assault occasioning actual bodily harm and that there should not be any deduction made under s 44 of the Act.

Respondent’s submissions

25. Ms Douch relied upon written submissions filed 26 July 2021. The Respondent stated that EQF’s evidence in this matter is inconsistent with the records provided by NSW police and the alleged offender’s account of the incident on 22 February 2021. Further, the COPS report indicates that police received various calls in relation to EQF’s conduct prior to attending the scene of the alleged assault and the record from 10:06pm states:

IP FM POI (EQF) (58 old) is screaming in the street that she wants her lighter and knocking on nbours doors, NSW, FM POI has fallen down some stairs, Ambo declined, FM POI desc as cauc app, very skinny bld, blonde/brown long hair, wearing long black dress carry handbag. Chks OTW.

26. That COPS report also indicates that police received a call from EQF at approximately 10:12pm, and states:

Inft very erratic and kept repeating she had been ass, during call. Pol arrived on scene and told inft to terminate the call which she did, NFI, Chks OTW.

27. Further, the COPS report states:

About 2150 on Thursday 22 February 2018, the IP was dropped at the location by a friend to collect money from one of her friends due to a civil dispute. The IP became agitated and left the location and began screaming in the street and asking the nearby neighbours to contact police.

Police attended at 2210 and addressed the situation. Money was sorted but due to the intoxication, police had a duty to take care of the IP. IP was conveyed back to Blacktown Police Station and waited in the foyer until her sister, (name provided) arrived to pick her up and take her home.

28. On 27 February 2018, police attended EQF’s home to take a statement. EQF reported that the cheque she received from her former partner was a dud and police advised her that they could not assist her with that because it was a civil claim. EQF subsequently referred to the assault and the COPS report indicates:

Once the police told the P/R this she started to refer to the assault stating that she could not get through to Blacktown police. Police contacted the officer in charge of the incident Cst Dryden where police told him of the assault claim. Cst Dryden advised police that the P/R was extremely IP on the night of the incident and that they had multiple calls about her behaviour yelling and screaming on the street knocking on peoples doors being a nuisance. Cst Dryden advised police that the P/R did make a claim of assault but not until they returned to Blacktown Police Station where she told police they were treating her like a criminal. Cst Dryden informed police today that one of the claims claimed the P/R who has IP was falling over and had fallen down stairs at the Seven Hills location.

Police note today that they have observed some bruising to the P/R mainly to her buttock area. The P/R also pointed out scratches to her legs. These injuries would be consistent with a fall especially down stairs. Police did not note any heavy bruises to her arms which one would have if like to P/R is suggesting she was picked up and thrown to the concrete by the neighbour.

Pictures uploaded to case file…

29. The Respondent also noted that on 25 February 2020, Marrickville Medical Centre advised Victims Services that it did not have any medical records for EQF. While EQF attended Ashfield Medical Centre on 26 February 2018, she did not report that she had been knocked out twice or that she lost consciousness on 22 February 2018.

30. The Respondent referred to the decision in DZE v Commissioner of Victims Rights [2020] NSWCATAD 21 at [30] – [35], in which the Tribunal found:

The onus is on DXE to prove the allegation that the applicant was assaulted by the alleged offender on the balance of probabilities…

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.

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

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.

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.

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 or a party or witness.

In Malec v JC Hutton Pty Limited (1980) 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.

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 a 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.

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.

31. The Respondent argued, based on the view formed by the police and the alleged offender’s statement that he grabbed EQF on the arm to escort her off his premises, that there was no violent conduct towards EQF and no assault had occurred.

32. Accordingly, the Respondent argued that the correct and preferable decision for the Tribunal to make is to affirm the decision to not approve a recognition payment for EQF. Alternatively, the Respondent argued that if the Tribunal finds that EQF was the primary victim of an act of violence, it should approve a Category D recognition payment and make an appropriate deduction under s 44 of the Act.

Consideration

Act of Violence

33. 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.

34. “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…

35. The onus is on EQF to prove her allegation of assault on the balance of probabilities.

36. In this matter, there is conflicting evidence as to what events actually occurred on 22 February 2018. The Tribunal’s role in fact finding is complicated by the uncontested evidence from both EQF and the police that she was intoxicated at the time that the alleged act of violence occurred and while EQF has declared and affirmed that she told police that she had been assaulted by the alleged offender while they were at the scene, the evidence from police is that she did not complain of any assault until after she had been conveyed to Blacktown Police Station.

37. In the matter of Fox v Percy (2003) 214 CLR 118, the High Court of Australia (Gleeson CJ, Gummow and Kirby JJ.) considered the manner of assessment of evidence by appellate Courts where an appeal proceeds by way of re-hearing. They stated (relevantly):

26. After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde [39], Abalos v Australian Postal Commission [40] and Devries v Australian National Railways Commission [41]. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

27. The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

28. Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons [42]. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings [43].

29. That this is so is demonstrated in several recent decisions of this Court [44]. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable"[45] or "contrary to compelling inferences" in the case [46]. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

30. It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses [47]. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [48]:

... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

31. Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances [49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

38. Unlike the previous decision makers, I have had the benefit of hearing the oral evidence given by EQF during the hearing and observing her demeanour. Having done so, I am impressed by her forthrightness and I note that while her recollection of the alleged events has been challenged by the Respondent, her candour has not been challenged. She clearly believes that she was assaulted by the alleged offender.

39. The Tribunal’s role is not assisted by the fact that the contemporaneous medical records from Marrickville Medical Centre relating to the alleged act of violence were misplaced by EQF’s solicitors. While I note that the clinical notes from Ashfield Medical Centre report a history from EQF that the alleged offender dragged and hit her on concrete and that she was hit on the head, it does not indicate a history that she was knocked out by the alleged offender when she stepped inside his front door or that she “came to” while being dragged up the driveway. The records do not document any investigations for a head injury or diagnosis of concussion. For this reason, I am not satisfied on the balance of probabilities that the alleged offender knocked EQF out in the manner alleged.

40. However, I am satisfied on the balance of probabilities that the alleged offender physically removed EQF from his property by dragging her up his driveway on 22 August 2018, and that this involved an unreasonable use of force and that she suffered abrasions and bruising as a result.

41. Accordingly, I am satisfied that EQF has established on the balance of probabilities that she was the primary victim of an act of violence that occurred in NSW for the purposes of s 19 of the Act.

Recognition payment

42. I am satisfied to the required standard of proof that the act of violence resulted in actual bodily harm and that EQF is eligible for a Category D recognition payment pursuant to s 35 (4) of the Act.

Section 44 considerations

43. Section 44 (1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to the following matters:

(a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, …

(d) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed,

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed,

(f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed,

(g) such other matters as the Commissioner considers relevant.

44. In this matter, while there is evidence that EQF was intoxicated when the act of violence occurred, there is no evidence before me that justifies a decision to either refuse to approve victims support or to reduce the amount of victims support that should be approved.

Determination

45. Pursuant to s 63 (3) (c) of the ADR Act, I have decided that the correct and preferable decision for the Tribunal to make is to set aside the decision of the Senior Assessor dated 5 March 2021 and to make the following decision in substitution:

1. The available evidence establishes on the balance of probabilities that EQF was the primary victim of an act of violence, in the nature of an assault pursuant to s 19 and s 20 of the Act.

2. EQF is eligible for a category D recognition payment in the sum of $1,500 pursuant to section 35 (4) (d) of the Act and cl 14 (e) of the Victims Rights and Support Regulation 2013.

3. There are no grounds pursuant to s 44 (1) of the Act that support a decision to either refuse to make an award of victims support or to otherwise reduce the amount of support that is approved.

Conclusion

46. I make the following orders:

1. The decision made by the Senior Assessor dated 5 March 2021 is set aside;

2. A category D recognition payment is approved in the sum of $1,500.

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

Registrar

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: 13 August 2021