Eru v Commissioner of Victims Rights

[2021] NSWCATAD 312

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

ERU v Commissioner of Victims Rights [2021] NSWCATAD 312

Hearing dates:

1 October 2021

Date of orders:

28 October 2021

Decision date:

28 October 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The decision under review is set aside.

(2) In substitution I make the following decision:

a. ERU was the primary victim of an act of violence pursuant to ss 19 and 20 of the Victims Rights and Support Act 2013 (NSW) (the Act).

b. ERU is eligible for a Category C recognition payment in the sum of $5,000 under s 35(2)(b) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW), as she was the victim of assault resulting in grievous bodily harm.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – act of violence - series of related acts – grievous bodily harm

Legislation Cited:

Victims Rights and Support Act 2013 (NSW)

Victims Rights and Support Regulation 2019 (NSW)

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

AM v R [2012] NSWCCA 203

BJR v R [2008] NSWCCA 43

BWL v Commissioner of Victims Rights [2015] NSWCATAD 235

BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197

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

DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270

Haoui v R [2008] NSWCCA 209

R v Donovan [1934] 2 KB 498

R v Overall (1993) 71 A Crim R 170

R v Remilton [2001] NSWCCA 546

R v Shannon [2003] NSWCCA 106

R v Sumeo [2002] NSWCCA 271

R v Williams [2005] NSWCCA 14 9 Feb 2005

R v Woodland [2007] NSWCCA 29

Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333

State Transit Authority of New South Wales v Chemler [2007] NSWCA 249

Vann v Palmer [2001] ACTSC 12

Haoui v Regina [2008] NSWCCA 209

Texts Cited:

Local Court Criminal Practice, New South Wales (as at Service 34, May 2008, Marsic, Longville and Rattenbury (Authors), Dillon (Advisory editor)

Category:

Principal judgment

Parties:

ERU (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Elizabeth Evatt Community Legal Centre (Applicant)
Victims Services (Respondent)

File Number(s):

2021/00186622

Publication restriction:

A non-publication Order is made under s 64(1) of the Civil and Administrative Tribunal Act 2013 (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 1 July 2021, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of two Applications for Victims Support (numbered 003333465 and 00355854, respectively). The applicant is known by the pseudonym ‘ERU’.

Background

2. On 20 February 2020 and 8 October 2020, ERU made applications for counselling, financial assistance and/or recognition payments concerning alleged acts of violence that were committed by the same offender. ERU had previously received approvals for counselling in application 00333465 and financial assistance for immediate needs was approved in application 003355854.

3. ERU alleged that she was the victim of domestic/family violence that occurred between 8 April 2018 and 7 September 2020, at Pottery Estate in New South Wales, which was perpetrated by her partner at the time and that the violence included “strangling and assaulting me”. She also alleged that the perpetrator pushed her down, held her down with his body, rupturing her appendix and threatening to cut her with scissors and held them to her throat. She alleged that she suffered physical and psychological injuries as a result and that she reported the matters to police.

Decision at first instance (Recognition payment)

4. On 15 January 2021, an Assessor (Client Claims) issued a Notice of Decision and determined that ERU not eligible for a recognition payment in respect of either of the applications because:

1. In application 00333465 there was no medical, dental or counselling evidence verifying injury as from any act of violence; and

2. In application 003355854 there was a series of related acts with the acts considered in application 00333465, and these should be treated as a single act of violence for the purposes of the claims for recognition payments.

5. The Assessor noted that NSW Police and Court records indicate that ERU has, over time, reported physical assault during her relationship with the offender and during periods when that relationship had ceased and that on this particular occasion she was fearful of formally reporting abuse because of concerns about the consequences. The Assessor also noted that the offender pleaded guilty to being armed with intent to assault ERU and that he intimidated her and breached an ADVO by his actions on 7 September 2020 and the most-recent ADVO was made on 3 December 2020.

6. In relation to the evidence, the Assessor stated that Anthony Wood, a social worker with NSW Health, completed a Government-funded organisation report in support of the application. Mr Wood reported a number of assaults upon (ERU) by the alleged offender between October 2018 and January 2020, and noted that the assault in January 2020 caused an injury to an eye socket, but ERU did not seek medical treatment at that time.

7. The Assessor also noted that ERU’s solicitor also completed a Government-funded organisation report, which indicates that ERU came into contact with the Elizabeth Evatt Community Legal Centre in relation to a protection order and that she disclosed that she was subjected to domestic violence by the alleged offender and that this commenced about six-months into their relationship. The domestic violence included physical assaults and damage to property. The violence escalated towards the end of the relationship in February 2020, when the alleged offender tried to strangle ERU and broke her eye socket.

8. The Assessor also referred to the discharge referral paperwork of (name provided) Hospital dated 15 September 2020, which records that ERU was transferred to it from another Hospital on 15 September 2020, in order to undergo a laparascopic appendectomy. The transfer was required because ERU complained of increasing pain in her appendix region and a CT scan confirmed a diagnosis of appendicitis. Following the surgery, ERU was discharged and referred for follow-up treatment.

9. The Assessor found that the available evidence was previously found to be sufficient to determine that ERU was the victim of an act of violence for the purposes of considering her claims for counselling and immediate needs support and that financial assistance for immediate needs was approved on 27 October 2020. However, it was necessary to consider whether there was sufficient evidence to support the approval of a recognition payment.

10. The Assessor found that the acts of violence alleged by ERU between 8 April 2018 and 7 September 2020 constitute a series of related acts that should be treated as a single act of violence for the purposes of the Victims Rights and Support Act 2013 (NSW) (the Act), because the violence was apparently perpetrated by the same offender over a specific period of time.

11. The Assessor stated, relevantly:

“Recognition payments

Application 003333465

27. As noted above the acts of violence are a series of related acts and should be treated as a single act of violence. I am considering whether a recognition payment can be approved in application 003333465.

28. In my view, while there is sufficient evidence to find an act of violence against the applicant for the purpose of counselling and immediate needs support, the available evidence is not sufficient to support approval of a recognition payment.

29. This is because such an approval requires that there is medical, dental or counselling evidence which verifies injury to the applicant from the act of violence.

30. Here I note that in both the internal review decision of 21 August 2020 and the decision to support immediate needs on 27 October 2020 it was noted that the current material referred to above did not apparently meet the requirement for approval of a recognition payment.

31. The reports of Mr Wood and Ms Keat do not provide sufficient medical, dental or counselling evidence of any injury to applicant, but rather they provide a background as to the reporting of the abuse which has occurred. I do not regard these reports as medical, dental or counselling reports sufficient to be considered verifying injury to the applicant.

32. In relation to the information about treatment through (names provided) Hospitals in September 2020, the available reports do not make mention of the injury arising from violence towards the applicant.

33. the applicant has been put on notice of the need for relevant evidence in connection with both applications and despite some indication that material would be provided over time there is no such evidence currently before me.

34. As a result, I do not find the available evidence is sufficient to approve a recognition payment in application 003333465 and I do not approve a recognition payment in that application.

Application 00355854

35. In relation to application 00355854, I have found that the acts referred to in that application are a series of related acts with those in application 003333465 and should be treated as one act of violence for the purposes of these applications.

36. As a result, I do not approve support through a recognition payment in that application, because such support is being considered through application 003333465.

37. The same forms in support in relation to a series of related acts forming one act of violence can only be considered through a single application. Here counselling support has been supported through application 003333465 and immediate needs have been supported through application 00355854.

38. Because a recognition payment for the act of violence is considered through application 003333465, it cannot be approved through the later application.

39. I note that even were such support considered through application 00355854, the same difficulty would remain regarding the evidence available to support a recognition payment.

40. The outcome is that while it is clear that (ERU) has sadly been the victim of violent conduct, the available material is unfortunately not sufficient to approve any recognition payment in relation to these applications.”

12. The Assessor found that there were no factors under s 44 of the Act for either declining the approval of victims support or reducing the amount that would otherwise be approved.

13. I note that a copy of the decision was posted to ERU under cover of a letter from the Respondent dated 15 January 2021.

Internal review decision

14. On 15 April 2021, ERU’s solicitors applied for an internal review of the Assessor’s decision and made submissions in support. They argued that the two applications should not be treated as related acts for the purposes of s 19(5) of the Act because the acts of violence are substantively different and separated in time. They also requested that a decision on the recognition payment be deferred until they could provide evidence of injury and stated that they were awaiting evidence from the treating psychiatrist. The submissions are summarised below:

Background

15. ERU and the perpetrator were in a de-facto relationship for about 2.5 years and lived at her home, but about 6 months into their relationship, the offender began to perpetrate domestic violence against her. On or around 12 February 2020, the offender strangled and assaulted ERU. This was later reported to Police and an ADVO was issued at Lithgow Local Court in late-February 2020.

16. On 20 February 2020, ERU lodged her first application for victims support with respect to acts of violence that occurred between 6 April 2016 and 12 February 2020. For a period of time after this application was lodged, ERU and the offender lived separately under the same roof until she demanded that the offender move out and he did so.

17. On 7 September 2020, the offender came to ERU’s house and threatened her with scissors and assaulted her, in contravention of the ADVO. The offender was later charged and pleaded guilty with being armed with intent to assault, intimidation and contravention of the ADVO. The ADVO was also varied to prohibit the offender from having contact with ERU or approaching her home.

18. On 8 October 2020, ERU made the second application for victims support (application 0035584) in respect of the act of violence on 7 September 2020.

Grounds for internal review

19. The grounds for internal review are as follows:

1. The applications involved substantially different offences, as those in the first application included assault, while the second included breaching the ADVO.

ERU’s solicitors stated, relevantly:

We note that in DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270 (“DJK”) it was found that there were two ‘separate acts of violence’ involving twelve incidents, over a 10-year period. Whilst all the incidents involved ‘the same parties’ and involved ‘violent conduct’, five of the twelve incidents were deemed to be ‘distinct’ from the other seven incidents. This was because the five incidents ‘all occurred’ in circumstances where an enforceable AVO was in place protecting the applicant’ while the other incidents occurred when there was no ADVO in place.

We submit that DJK should apply in this matter as the first application and second application can be distinguished in a similar way and therefore ‘ought not to be treated as related acts’ as provided under section 19(5) of the Act.

2. The actions are separate in time.

ERU’s solicitors argued that the time period between the events in the two applications involves a period of 6 months, which is a substantial period demarcated by the ADVO being made in late-February 2020 and its contravention on 7 September 2020. During this period, the relationship between ERU and the offender had ended and the offender had moved out.

20. ERU’s solicitors submitted that for these reasons, and noting that the Act is beneficial legislation, s 19(5) of the Act should apply and the acts of violence should not be treated as related acts and each application should stand alone.

21. On 31 May 2021, a Senior Assessor issued a Notice of Review Decision in relation to both applications 00333465 and 00355854 and determined that in each matter, while ERU was the primary victim of an act of violence, the evidentiary requirements for a recognition payment were not met and the application for a recognition payment must be dismissed.

22. In both applications, the Senior Assessor found, relevantly:

“10. I have considered the deferral request however, noting that the earlier application was lodged in February 2020; that notice has been given previously of the evidentiary requirements; and further noting that the 90-day and 42-day timeframes for internal review have expired, I am of the view that sufficient time has been given and the internal review should proceed…

Requirement for evidence of physical or psychological harm

24. 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.

25. The report from Mr Wood, a social worker, describes second-hand reporting of physical injury, however direct medical evidence of these injuries has not been provided. Mr Wood’s report does not include a finding of psychological injury.

26. I have also considered the evidence from (name provided) Hospital. This evidence post-dates the incidents that are the subject of this application and does not refer to injury arising from the actions of the offender. The report states that (ERU) complained of increasing pain in her appendix region and a scan confirmed that she was suffering from appendicitis, for which she underwent a laparascopic appendectomy.

27. Based on the available evidence, I am not satisfied that that the documentary evidence requirements for approval of a recognition payment have been satisfied.

(ERU)’s supporting documentation

28. I have considered the content of the Immediate Needs Support Package applications and (ERU)’s statutory declaration.

FINDINGS

29. Based on the application and supporting documents (and noting previous findings that are not in dispute) the evidence establishes that (ERU) is a primary victim of an act of violence.

30. The act of violence, which consisted of related acts of domestic violence, occurred between 8 April 2018 and 12 February 2020 at Pottery Estate, New South Wales and continued to an incident that occurred on 7 September 2020.

31. Because the evidence establishes a series of individual acts committed against the same victim over a period of time by the same person, I am satisfied that they constitute a single act of violence consisting of related acts under section 19(4).

32. I have not determined whether the acts that form the two applications ought to be treated as separate acts of violence for the purposes of considering recognition payment, because there is insufficient evidence available to consider recognition payment eligibility…”

23. I note that copies of the internal review decisions were posted to ERU’s solicitors under cover of a letter dated 31 May 2021.

Application for administrative review

24. The current application for administrative review was filed on 29 June 2021 and I am satisfied that it was filed within time.

25. 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.

26. The Application came before me for Directions on 6 August 2021, when Ms Keat appeared for the Applicant and Ms Douch appeared for the Respondent. I ordered the Applicant to file and serve any further evidence by 17 September 2021. I ordered the Respondent to file and serve the documents required under s 58 of the ADR Act by 19 September and to file and serve an outline of legal arguments by 24 September 2021. I listed the matter for hearing on 1 October 2021 and granted both parties leave to participate in the hearing by telephone.

27. On 17 September 2021, the applicant filed further evidence, namely:

1. Clinical notes from (name provided) medical centre from 14 October 2019 to 27 November 2020;

2. Mental Health Progress Notes of Mr Woods dated 4 February 2020;

3. Email from Ms Keat to Mr Woods dated 26 February 2021; and

4. Letter/report from Dr Stanek dated 28 May 2021.

28. At the hearing of the matter on 1 October 2021, Ms Keat appeared for the Applicant and Ms Douch appeared for the Respondent.

Applicant’s written submissions

29. Ms Keat filed written submissions dated 28 September 2021. She argued that the acts of violence in the second application should be treated as separate to those in the first application in accordance with s 19(5) of the Act and that the Tribunal ought to exercise its discretion in this way because the acts of violence in each application are “significantly different in nature and impact and separated by time and one being after the Applicant and Perpetrator had separated”. She also argued that the first application relates to a pattern of domestic violence that occurred while the parties were living together in a de facto relationship and that the second application concerns a one-off act of violence that was also a contravention of the ADVO that was in place. She maintained her reliance on the Tribunal’s decision in DKJ v Commissioner of Victims Rights [2018] NSWCATAD 270 in relation to this issue.

30. In relation to injury, Ms Keat argued that the records from (name provided) Medical Centre for the period 14 February 2019 to 22 April 2020 and (name provided) Community Mental Health Progress Note for 4 February 2020 establish that on the balance of probabilities the Applicant was injured as a result of domestic violence by the perpetrator during the period of the application.

31. In particular, the clinical notes of Dr Trevana (a treating GP) indicate that the Applicant disclosed the domestic violence by the perpetrator and said that this was a stressor in her life and that she was distressed because she wished to leave the perpetrator because of the domestic violence. On 6 January 2020, the Applicant also disclosed that she was struck in the eye by the perpetrator about six weeks previously and temporarily lost vision on her eye for three to four days, but she was still suffering pain associated with her eye.

32. Further, on 4 February 2020, Mr Woods noted that the Applicant “is depressed and lacks sleep, having only 10 hours sleep in the last week” and that she was “distressed and said she was at the end of her limit saying ‘I cannot take any more from [the perpetrator]’.”

33. Further on 22 April 2020, Dr Ramachandra (also a treating GP) completed a Mental Health Plan for the Applicant in response to a request for counselling from the Mental Health Team. This led to a referral to Dr Stanek, psychiatrist, whom the Applicant first saw on 5 May 2020. The Mental Health Care Plan indicated that presenting issues included “depression, anxiety and PTSD” and that PTSD was not a previous historical issue and that testing indicated that her symptoms were in the moderate distress range.

34. On 28 May 2021, Dr Stanek issued a medical report in which he stated:

“…It became clear to me on a further review on 2 February 2021, that [the Applicant] had suffered from significant psychological distress due to the assaults by her partner [the perpetrator]. Her mood had become more unstable, and she had become increasingly overwhelmed by the usual activities of daily living…

In summary, [the Applicant] suffered a significant deterioration in her mental illness after a series of assaults by her partner, in the second half of 2020. Her deterioration has been consistent with these assaults. This led to a major deterioration in her functioning which requires a significant increase in the level of support that she required in the community.”

35. Ms Keat argued that the Applicant has suffered serious psychological injuries as a direct result of the perpetrator’s violent behaviours and that this warrants a finding of grievous bodily harm. As a result, she argued that the Applicant is entitled to two Category C recognition payments under s 35(3)(c) of the Act. She stated, relevantly:

“34. It is an 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).

35. This principle has been applied to decisions under the VRS Act. In BWQ v Commissioner of 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.’

36. We submit that the medical and counselling evidence is sufficient to establish that on the balance of probabilities, that the acts of violence committed against the Applicant have caused her psychological injuries and have had a serious and ongoing impact on her day to day functioning and seen a deterioration in her mental health.

37. We submit that the psychological injuries suffered by the Applicant is (sic) “really serious” in its effects have clearly had a detrimental impact on her well-being and day to day functioning. The impact of the violence is cumulative and ongoing and amounts to grievous bodily harm.”

36. Ms Keat also stated that the Applicant has a long history of mental illness in the nature of depression and anxiety and that the “eggshell psyche” principle should apply to these applications because her condition deteriorated as a direct result of the acts of violence. She stated, relevantly:

“39. In BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, the Tribunal held the view that despite the applicant having pre-existing psychological issues including depression, alcoholism, PTSD, Bipolar Mood Disorder and Alcohol Dependency Syndrome, these conditions were such that the eggshell psyche principle espoused by Spigelman CJ in State Transit Authority of New South Wales v Chemler applies (see paragraph 21).

40. As noted in the supporting documents, the Perpetrator’s acts of violence have deteriorated the Applicant (sic) mental illness and her functioning and that the Applicant will need ongoing and a significant increase in the level of support to recover from the psychological harm caused by these acts of violence.

41. For these reasons and noting that the VRS Act is beneficial legislation, we submit that evidence establishes that the Applicant is a primary victim of acts of violence perpetrated by the Perpetrator across two different periods, the first between 8 April 2018 to 12 February 2020 and the second on 7 September 2020, which resulted in her sustaining grievous bodily harm in both the first and second applications.

42. We therefore submit that the Applicant is eligible for two Category C Recognition Payments for assault resulting in grievous bodily harm, in accordance with sections 19, 20 and 35(3)(c) of the VRS Act.”

Respondent’s submissions

37. The Respondent filed written submissions on 29 September 2021, which are summarised below.

38. The Respondent argued that the Applicant’s medical evidence does not support a finding that she suffered grievous bodily harm as direct result of the acts of violence. Some guidance regarding the meaning of “grievous bodily harm” may be obtained from the decision of the Court of Criminal Appeal (Beazley JA (as her Honour then was), Johnson & McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui) (at [137]):

“137. …His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to “grievous bodily harm”. His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that “grievous bodily harm” meant that the injury was “a really serious one”

138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]…

141 In my opinion, the jury verdict that Mr Mousselamani suffered “grievous bodily harm” was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was ‘red’ for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.

142 In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.”

39. In relation to application 00333465, the Respondent argued that while the Mental Health referral indicates that the Applicant has a history of schizophrenia, depression and anxiety, and that she presented with PTSD, it did not indicate the cause of the PTSD and it therefore cannot be used to verify that she suffered PTSD as a conscience of the alleged assault. The Respondent did not dispute that the Applicant suffered an injury to her left eye as a result of the act of violence noted by the GP in the entry dated 6 January 2020, but she disputed that his injury does not support a finding of grievous bodily harm.

40. In relation to application 00355854, the Respondent’s medical evidence indicates that she suffered from appendicitis and required surgery for this, but it does not refer to the act of violence on 7 September 2020 or verify that the condition was a consequence of it. Further, while the treating GP noted that the Appellant attended on 27 November 2020 to discuss the stress caused by the incident on 7 September 2020, she told the GP that Victims Services had requested evidence that the appendicitis was brought on by trauma caused by the perpetrator hurting her abdomen. The treating GP did not verify that there was any causal connection between the incident on 7 September 2020 and the appendicitis condition.

41. While the evidence of Dr Stanek indicates that the Applicant suffered a significant psychological injury as a consequence of the incident on 7 September 2020, there is insufficient evidence to establish that this meets the threshold for a finding of “grievous bodily harm”.

42. The Respondent also argued that the acts of violence should be regarded as a series of related acts for the purposes of s 19(4) of the Act, as the acts of violence were committed over a period of time by the same person and that there is no particular act that should be considered a separate and distinct act of violence.

43. Accordingly, the Respondent concluded that the correct and preferable decision is for the Tribunal to set aside both review decisions and substitute a decision to the following effect:

1. The Applicant was the primary victim of an act of violence being a series of related acts between 8 April 2018 and 7 September 2020; and

2. The Applicant is eligible for a Category D Recognition payment.

Oral submissions

44. Ms Keat and Ms Douch each spoke to their written submissions.

45. However, Ms Keat argued, in the alternative, that if the Tribunal was satisfied that the acts of violence were a series of related acts, the correct and preferable decision would be to set aside the decision under review and to approve a Category C recognition payment on the basis that ERU was the victim of an assault that resulted in grievous bodily harm.

Consideration

Act of Violence

46. 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.

47. “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…

48. The onus is on ERU to prove her allegations of domestic violence on the balance of probabilities.

49. There is no dispute that ERU was the primary victim of an act of violence that occurred over a period of time from 8 April 2018 to 12 February 2020 and on 7 September 2020. Based on the available evidence, I am satisfied that she has established that she was a primary victim of an act of violence.

50. I am satisfied that the available evidence supports a finding that ERU was the primary victim of domestic violence that occurred between 8 April 2018 and 7 September 2020 and that the domestic violence was committed by the same offender. Accordingly, I am satisfied that the acts of violence are properly regarded as a series of related acts for the purposes of the Act.

Injury

51. 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.”

52. The Respondent initially determined that the medical evidence did not support the approval of a recognition payment and it maintained that view upon internal review.

53. However, in these proceedings, the Respondent submitted that the available evidence supports a finding that ERU suffered actual bodily harm as a result of the acts of violence and that she is eligible for a Category D recognition payment in the sum of $1,500.

54. The Respondent’s submission on this issue 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 submission, the Respondent placed significant reliance on ERU’s prior history of mental illness and psychological symptoms and asserted that ERU’s medical evidence did not satisfy the relevant threshold for a finding of grievous bodily harm.

55. In my view, the medical evidence clearly indicates that prior to the acts of violence ERU suffered a psychiatric condition (schizophrenia) and symptoms of depression and anxiety. However, it also indicates that after the acts of violence occurred, ERU was first diagnosed with PTSD and on 5 May 2020 she was referred to Dr Stanek, psychiatrist, for treatment.

56. In his report dated 28 May 2021, Dr Stanek expressed the opinion that ERU suffered significant psychological distress due to the assaults, her mood had become more unstable and she became increasingly overwhelmed by the usual activities of daily living. He diagnosed a significant deterioration in her mental illness following the acts of violence “in the second half of 2020” and a major deterioration in her level of functioning which required a significant increase in the level of community support that she requires. There is no evidence before me that supports a finding that these injuries have resolved.

57. I am satisfied, on the balance of probabilities, that ERU suffered a significant deterioration in pre-existing psychiatric condition and psychological symptoms as a direct result of the acts of violence.

58. In BWL v Commissioner of Victims Rights [2015] NSWCATAD 235, in which there was evidence of a pre-existing psychological or psychiatric injury, the 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.

59. Accordingly, I am wrong in my finding regarding the cause of ERU’s current psychiatric and psychological conditions, I am satisfied that the “eggshell psyche” principle applies and that a significant deterioration in the pre-existing conditions directly resulted from the acts of violence.

60. It is therefore necessary to determine whether ERU suffered grievous bodily harm or actual bodily harm as a result of the acts of violence. Some guidance regarding the meaning of “grievous bodily harm” may be obtained from the decision of the Court of Criminal Appeal (Beazley JA, as her Honour then was, Johnson and McCallum JJ agreeing) in Haoui, which is set out at [38] of this decision.

61. In AM v R [2012] NSWCCA 203, Johnson J cited the decision in Haoui, with approval and 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…”

62. I have found that ERU suffered injuries as a direct result of the acts of violence that occurred over a period of time between 8 April 2018 and 7 September 2020 and that she continues to suffer ongoing symptoms and requires ongoing psychiatric treatment and psychological and community support and medication.

63. It follows that I am satisfied that her injuries can properly be considered as being “really serious” and that she suffered grievous bodily harm as a result of the act of violence. As a result, ERU is eligible for a Category C recognition payment under s 35(3)(c) of the Act.

Section 44 of the Act

64. 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 ERU 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

65. I make the following orders:

1. The decision under review is set aside.

2. In substitution I make the following decision:

1. ERU was the primary victim of an act of violence pursuant to ss 19 and 20 of the Victims Rights and Support Act 2013 (NSW) (the Act).

2. ERU is eligible for a Category C recognition payment in the sum of $5,000 under s 35(2)(b) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW), as she was the victim of assault resulting in grievous bodily harm.

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

Registrar

Decision last updated: 28 October 2021