FFI v Commissioner of Victims Rights

[2023] NSWCATAD 92

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FFI v Commissioner of Victims Rights [2023] NSWCATAD 92

Hearing dates:

31 March 2023

Date of orders:

21 April 2023

Decision date:

21 April 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J McAteer Senior Member

Decision:

(1) The decision of the respondent of 28 July 2022 is set aside.

(2) In substitution of that decision FFI is found to be the victim of an act of violence within the meaning of s 19 of the Victims Rights and Support Act 2013.

(3) The matter is listed for directions before the Tribunal on 26 May 2023 at 9:30am to determine the future conduct of the proceedings.

Catchwords:

Victims Support – Administrative law – act of violence – whether evidence satisfied elements of act of violence – whether evidence established on balance of probabilities as an act or series of related acts - whether medical evidence verifies injury– sufficiency of evidence

Legislation Cited:

Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Civil and Administrative Tribunal Rules 2014

Crimes (Administration of Sentences) Act 1999

Crimes (Administration of Sentences) Regulation 2014

Victims Rights and Support Act 2013

Victims Support and Rehabilitation Act 1996 (repealed)

Victims Support and Rehabilitation Regulation 2019

Cases Cited:

Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409

DZE v Commissioner of Victims Rights [2020] NSWCATAD 21

Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604

R v Donovan [1934] 2 KB 498

Victims Compensation Fund Corporation v Brown [2003] HCA 54

Texts Cited:

Nil

Category:

Principal judgment

Parties:

‘FFI’ – Applicant
Commissioner of Victims Rights - Respondent

Representation:

Counsel:
T Bagley (Applicant)

Solicitors:
M J Corbett (Applicant)
Victims Services Legal (Respondent)

File Number(s):

2021/00313202

Publication restriction:

S 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 applies to the identity of the applicant.

REASONS FOR DECISION

Introduction

1. The applicant has made a claim seeking a recognition payment under the victims of crime scheme. The applicant asserts that he is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may recover financial grants and access to the provision of services under the Victims Rights and Support Act 2013 (‘the Act’).

2. In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must pass through various factual thresholds as set out in the Legislation in order to receive benefits under the scheme. In the current matter, the applicant was a convicted inmate serving a custodial sentence at the time of the incident upon which his claim is made. This matter was established after significant investigation during the prehearing processes before the Tribunal. The matter is significant because as a starting point under the scheme, convicted inmates are ineligible to receive support under the scheme unless they can establish an exception.

3. As for the reasons set out below, the Tribunal finds that the applicant was a primary victim, and is therefore qualified to receive support subject to establishing an exception to his ineligibility. These reasons do not address the issue of an exception, as they only deal with the first threshold issue by way of a preliminary hearing.

4. These reasons only concern whether the applicant in his claim has established that he was a victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, and is potentially entitled to a recognition payment, or other support under the Victims of Crime Scheme.

Background

5. The applicant lodged an application for administrative review with the Tribunal on 4 November 2021. The applicant in these proceedings before the Tribunal is referred to as ‘FFI’, in conformity with an order made under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) on 10 December 2021. The section provides:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

Summary of the claim:

6. Below is a summary of the violent conduct as set out in FFI’s claim lodged on 1 June 2018.

1. Claim 00275456 (Victims Services)

1. I was assaulted by Corrections Officers x 4 and had my pants removed by force after I was punched kicked and choked unconscious

2. FFI claimed that the assault occurred at Cessnock in August 2016 and that he suffered physical and psychological injuries as a direct result of the assault.

3. FFI states in his application that the matter was reported in September 2016 to the NSW Ombudsman and Prison Staff at Kempsey.

(It was later clarified before the Tribunal and conceded by the respondent that the claim was based on matters alleged to have occurred on or about 19 September 2016 at Cessnock Correctional Centre)

7. In order to understand the basis of the claim, the administrative review and the position of Victims Services it is necessary to briefly examine the legislation relevant to this claim.

Legislation

8. The Victims Rights and Support Act 2013 continues a scheme which provides eligibility criteria for victims of violent crime to receive support and assistance. The current Act replicated the former Victims Support and Rehabilitation Act 1996 (the former Act) but maintained its central provisions as to an eligible victim of crime, in that claimants are required to establish that they are a victim of an ‘act of violence’. The relevant current provisions are set out in the following sections of the Act:

5 Meaning of “victim of crime”

(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.

(2) A person suffers harm if, as a result of such an act:

(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or

(b) the person’s property is deliberately taken, destroyed or damaged.

(3) If the person dies as a result of the act concerned, a member of the person’s immediate family is also a victim of crime for the purposes of this Part.

(4) If a person dies as a result of the act concerned and there is more than one member of the person’s immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.

….

19 Meaning of “act of violence”

(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.

(3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence.

(4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:

(a) they were committed against the same person, and

(b) in the opinion of the Tribunal or the Commissioner:

(i) they were committed at approximately the same time, or

(ii) they were committed over a period of time by the same person or group of persons, or

(iii) they were, for any other reason, related to each other.

(5) An act is not related to another act if, in the opinion of the Tribunal or the Commissioner, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.

(6) An act is not related to any earlier act in respect of which support is given under this Act if it occurs after the support is given.

(7) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.

20 Meaning of “primary victim”

(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.

(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:

(a) trying to prevent another person from committing that act, or

(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or

(c) trying to arrest another person who is committing, or who has just committed, that act.

….

9. The Act provides for a number of areas of support for victims of violent crime. This review concerns an area of support referred to as a recognition payment. Section 34 of the Act defines the term Recognition payment.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence.

10. Prior to accessing a recognition payment an applicant must satisfy the criteria set out in s 39 of the Act. This requires that the incident be reported to relevant entities. This requirement is in addition to establishing that they are the victim of an ‘act of violence’. The section has been amended since the V S and R Act commenced. The section currently provides:

39 Documentary evidence

(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.

(2) Without limiting subsection (1), the documentary evidence to be required:

(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report or a report by an agency that provides support services to victims of crime) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is:

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.

11. These pathways or preconditions under the Act which lead to a recognition payment are a threshold issue to an applicant accessing the benefits of the victims of crime scheme. Once an eligible victim (of an act of violence) has passed through the initial threshold, an assessment of the circumstances of the incident(s) and level of injury is carried out to determine the appropriate recognition payment.

12. However in order to be eligible to claim victims support, an applicant must not only be a victim of an act of violence, but also otherwise eligible to claim. Section 25 of the VR and S Act sets out the circumstances whereby an otherwise eligible victim is not eligible to receive support under the scheme. The section provides:

25 Persons not eligible for support

(1) Claimants for court compensation awards A person is not eligible to receive victims support in respect of an act of violence or act of modern slavery if the person has been paid, or is entitled to be paid, compensation awarded by a court in respect of that act under Part 6 or if the person’s application for such compensation is pending.

(2) Motor vehicle accidents A person is not eligible to receive victims support in respect of an act of violence if that act took the form of, or the injury arose as a consequence of, a motor accident within the meaning of the Motor Accidents Compensation Act 1999.

(2A) Exception to ineligibility for motor vehicle accidents Despite subsection (2), a family victim is eligible to receive victims support in respect of an act of violence referred to in that subsection if—

(a) the act of violence took the form of the intentional killing of the primary victim, and

(b) a person has been charged with murder in relation to the death of the primary victim.

(2B) Exception to ineligibility for motor vehicle accidents Despite subsection (2), a primary victim and a family victim are eligible to receive victims support in respect of an act of violence that was a terrorist act within the meaning of the Terrorism (Police Powers) Act 2002.

(3) Offenders A person is not eligible to receive victims support in respect of an act of violence if it occurred while the person was engaged in behaviour constituting an offence.

(4) Convicted inmates A person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence or act of modern slavery if it occurred while the person was imprisoned as a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (unless the person was imprisoned only because of the person’s failure to pay a pecuniary penalty).

(5) Exception to ineligibility of convicted inmates However, any such convicted inmate may, in special circumstances, receive victims support. Any such support is not to be given unless the Commissioner is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted inmates.

(6) Without limiting subsection (5), the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence or act of modern slavery concerned.

(7) Regulations may be made for the purposes of this section prescribing the persons, or class of persons, who are not eligible to receive victims support in respect of an act of violence or act of modern slavery.

(Emphasis added)

13. Section 34 of the Act specifies the types of recognition payments and particularises the factual circumstances of the act of violence (including injury) necessary to enliven the particular category of recognition payment. The section provides:

34 Definitions

In this Division—

category of recognition payment means a category of recognition payment described in section 35.

recognition payment means a payment made in recognition of the trauma suffered by a victim of an act of violence or act of modern slavery.

series of related acts has the same meaning as in section 19 (4).

sexual assault has the meaning it has in paragraph (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in section 19 (8).

sexual touching or sexual act means sexual touching (within the meaning of Division 10 of Part 3 of the Crimes Act 1900) of a person without his or her consent or sexual touching of a child under the age of 16 years or the carrying out of a sexual act (within the meaning of that Division) with or towards a child under the age of 16 years.

35 Categories of recognition payment

(1) A category A recognition payment is a payment given in respect of an act of violence or act of modern slavery that apparently occurred in the course of the commission of a homicide.

(2) A category B recognition payment is a payment given in respect of an act of violence or act of modern slavery of the following kinds—

(a) a sexual assault resulting in serious bodily injury or which involved an offensive weapon or was carried out by 2 or more persons,

(b) a sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts.

(3) A category C recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following—

(a) a sexual assault other than one referred to in subsection (2) (b),

(b) an attempted sexual assault resulting in serious bodily injury,

(c) an assault resulting in grievous bodily harm,

(d) physical assault of a child that is one of a series of related acts.

(4) A category D recognition payment is a payment given in respect of an act of violence or act of modern slavery involving any of the following—

(a) sexual touching or sexual act,

(b) an attempted sexual assault involving violence other than one referred to in subsection (3) (b),

(c) a robbery involving violence,

(d) an assault (not resulting in grievous bodily harm).

(Emphasis added)

14. These matters are only enlivened once a person is determined to be a primary victim of an act of violence and are not deemed ineligible by the provisions of s 25 of the Act.

The claim

15. In the initial decision of 21 August 2020 the Assessor described the act of violence in the following terms:

4. According to the application form (FFI) was the victim of assault [sic] committed by an alleged offender. The violence occurred between 1 August 2016 and 16 September 2016 at Cessnock in the State of New South Wales.

5. (FFI) describes the act of violence as follows:

I was assaulted by corrections officers x 4 and had my pants removed by force after I was punched, kicked and choked into unconsciousness.

16. The initial Assessor appears not to have considered whether FFI was the victim of an act of violence and made any findings in this regard, instead moving to evidentiary matters under s 39 of the Act and then to s 25 of the Act. In respect of s 25 of the Act the Assessor makes their first and only finding being that FFI is ineligible because he was a convicted inmate at the time and the evidence concerning:

16. .. the nature of the injuries sustained by the applicant are not considered serious and permanent in order to apply the exception under section 25 (5) & (6) of the Act.

17. The application for victims support must therefore be dismissed.

17. On Internal Review on 9 September 2021 the Senior Assessor appears to make a finding that FFI was the victim of an act of violence, but dismissed the claim due to the ineligibility provisions in s 25 of the Act. Whether a finding on s-19 (Act of violence) is made is not in my view entirely clear, but on balance from the reasons for decision a finding appears to have been made in the following terms where at [11], [12], [13], and [14] reference is made to the claimed act of violence or alleged act of violence. [15] under the heading ‘Findings’ the Senior Assessor concludes:

FINDINGS

(FFI) a convicted inmate at the time of the claimed act of violence

15. The Department of Corrective Services has confirmed that (FFI) was a convicted inmate at the time the claimed act of violence was said to have occurred.

What is the relevant law?

16. Section 25 (4) of the Act states that a ‘person is not except as provided by subsection (5) eligible to receive victims support in respect of an act of violence if it occurred while the person was imprisoned as a convicted inmate’. Furthermore sections 25 (5) & (6) of the Act provide exception to ineligibility of convicted inmates in special circumstances if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.

Reasons for dismissal

17. Due to section 25 (4), (FFI) is not eligible to receive victims support in relation to an act of violence that occurred while he was a convicted inmate. While section 25 (5) and section 25(6) outline that there is an exception to this ineligibility if special circumstances are established, I have not been presented with any evidence that his exception would be applicable to the claimed act of violence. No evidence has been submitted that would suggest that (FFI) was seriously and permanently injured as a result of any incident that occurred in 2016 while he was incarcerated. More importantly, I have not been presented with evidence that the claimed act of violence was reported to the police or a government agency (as required by section 39).

18. The Senior Assessor concludes by dismissing the Internal Review.

19. On 4 November 2021 FFI lodged an application for administrative review in the Tribunal. As FFI was notified of the decision on 10 September 2021 the application for administrative review was received out of time, being outside the 28 day period provided for by the operation of s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil andAdministrative Tribunal Rules 2014. However the Tribunal extended time under s 41 of the NCAT Act at the first return of the process on 10 December 2021.

Jurisdiction

20. With the s 41 order in place there is no dispute that the Tribunal has jurisdiction to hear the administrative review. Section 51 of the Act provides for administrative review by the Tribunal.

51 Application to Tribunal for administrative review of decision concerning recognition payment

(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.

(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.

21. The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.

22. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

Proceedings before the Tribunal

23. By way of consent orders dated 27 April 2022 the matter was remitted to the Commissioner of Victims Rights for reconsideration by a senior assessor pursuant to s 65 (1) of the ADR Act. A future directions date after 7 June 2022 was requested in those consent orders.

24. The consent orders were made in chambers so the Tribunal is unaware of the specific basis that the respondent agreed to a remittal but it appears (from an analysis of the further decision) that the remittal was based on an acceptance that the previous decision makers had not engaged on and made findings in respect of the threshold issue of act of violence. In addition the claim would be reconsidered based on further material filed before the Tribunal.

25. The matter was deferred at Victims Services on 6 May 2022 because the new decision maker required information on the outcome of the Police investigation and information from FFI and Justice Health and Corrective Services.

26. On 28 July 2022 a new decision was made dismissing the application because the Senior Assessor found that there was insufficient evidence to establish on the balance of probabilities that FFI was the victim of an act of violence. In reaching their decision the Senior Assessor noted that FFI was not a convicted inmate at the time of the reported incident central to the claim.

27. The matter returned before the Tribunal and various summons were issued over the following months for records from NSW Police and Corrective Services. FFI’s Solicitor also advised that the matter of the Police investigation of the incident had been referred to the Law Enforcement Conduct Commission (LECC) in August 2022 and were awaiting advice as to whether the LECC was pursuing any matter arising from the incident. These matters and the need to re-examine the convicted inmate status of FFI (noting the most recent adjudication) delayed the matter for some months.

28. It was subsequently confirmed in the following months that FFI was a convicted inmate in accordance with the provisions of the Crimes (Administration of Sentences) Act 1999 as at 19 September 2016. On this basis, noting the protracted history of the matter, and that any evidence required to establish any exception to FFI’s ineligibility to receive support may take further time and be both detailed and complex, the parties agreed in early February 2023 to proceed on reviewing the act of violence threshold issue as a preliminary point.

The Hearing

29. The preliminary matter concerning whether FFI was the victim of an act of violence was heard on 31 March 2023 where both parties representatives made oral submissions to supplement the written submissions. A number of items were received into evidence from both parties, some of the material having been obtained by summons issued by the Registrar on the application of the Commissioner and FFI as well as material prepared by the parties. FFI attended the hearing and gave evidence and was subject to cross examination.

FFI’s evidence:

• LECC correspondence dated 18 August

• Police Statement of FFI dated 18 June 2021.

• Statement of FFI dated 30 March 2022.

• Statement of FFI dated 17 August 2022.

Received as Exhibit ‘A-1’.

30. FFI also filed written submissions.

Commissioner’s evidence:

• Documents filed pursuant to s 58 of the ADR Act 1997 (Received as Exhibit ‘R-1’).

• USB Key containing Corrective Services video footage Cessnock Correctional Centre (Received as Exhibit R-2).

• Copy of Email communications between respondent and Corrective Services re: convicted inmate status (Received as Exhibit ‘R-3’)

• Copy of Corrective Services Investigation report - received under summons (received as Exhibit ‘R-4’)

31. The Commissioner also filed written submissions on the threshold issue.

The Commissioner’s decision

32. These are summarised briefly above. The Senior Assessor reviews the information from NSW Police provided to FFI’s Solicitor including a statement made by FFI to Police on 18 June 2021 as part of their investigation. The Senior Assessor also reviews the further formal statement FFI prepared which was provided to Police and the Police outcome of the investigation. The Senior Assessor noted that Police report that:

18. ....an extensive formal investigation in relation to the allegations of assault made by (FFI) was conducted by the Police Corrections Intelligence Unit. This investigation included review of the statements made by FFI, review of the available medical evidence and interviews with Correctives [sic] staff.

19. This investigation was unable to identify that an assault of (FFI) occurred as alleged.

33. The Senior Assessor goes on to state at [30] that the matter was not reported to Police. They also refer to the difference between the threshold necessary for criminal charges and the standard to determine a claim for victims support. In referring to the Police material the Senior Assessor states that:

31. … the thorough investigation into the incidents itself and subsequent medical treatment being provided by (FFI) does not state that perhaps there was insufficient evidence to pursue prosecution of any alleged offender. The information states that there is no evidence to suggest that an assault occurred as stated by (FFI).

34. It appears that on this basis the Senior Assessor is unable to establish an act of violence and the matter is dismissed. As noted the Senior Assessor made a further finding that FFI was not a convicted inmate at the time of the incident and both parties accept this as being an error.

FFI’s evidence at hearing

35. In evidence in chief FFI adopted his written statements of 18 June 2021, 30 March 2022 and 17 August 2022. FFI said that he was in the maximum security remand wing which is one of two section inside Cessnock Prison.

36. FFI recalled the incident and said that he was in a cell alone (as in without cellmates) having been transferred in from another prison. The following day there was a ‘lock in’, which was followed by the instigation of a random search of prisoners and their cells. FFI stated that he told the searching officers that he had ‘just been searched off the truck’ referring to the procedure when a prisoner is transferred to a facility. When the searching officers advised that they were still going to search him FFI said he stated to them that he was ‘not going to spread his cheeks’ referring to a full body search. FFI admitted that as a result he was non-compliant and also made that concession and admitted as much in his evidence.

37. FFI said that he was cuffed and Officer ‘H’ stated that ‘payback is a bitch’ which FFI said related to a matter relating to FFI’s friendship with some prisoners of Arabic background and bikies who caused problems for some corrections officers during an earlier incident. FFI said that he was then taken to a segregation cell where he was ‘hogtied’ and thrust headfirst into the floor between the wall and the toilet. FFI believes that he passed out as a result of this and when he came to he said that he was lying face down in the same position, the handcuffs were off and that his trousers were down around his knees.

38. FFI said that he was moved from Cessnock to Kempsey prison two days later after spending 48 hours in solitary. He said that he was seen by the Prison Nurse who check all prisoners prior to transfer and it was in this context that he was able to report the assault and his injuries. Prior to that he had been in solitary confinement.

39. In cross examination FFI was asked about some inconsistencies in his various statements in Exhibit ‘A-1’. FFI said that when his leg started to go numb the nurse provided him with painkillers.

40. The Tribunal asked questions of FFI consistent with the powers and provisions under s 38 of the NCAT Act. FFI confirmed that the incident occurred on the morning of 19 September 2016. When asked about his ongoing and existing pain FFI said that when he was previously in prison in 2010 to 2014/2015 he required surgery.

41. FFI’s Counsel submitted the nature of the evidence before the Tribunal compared to the reports relied upon by the respondent is compelling. FFI’s evidence at hearing had been tested and was consistent and should be preferred.

42. It was submitted that the respondent’s position is based on a mixture of signed and unsigned statements and the Tribunal must come to their own conclusion on the veracity of FFI’s evidence. There was clear evidence that FFI would have been a person who had difficulties with Corrective Services officers, but such a submission does not sanction the claimed act of violence. It was submitted that Exhibit R-4 (the Corrective Services Investigation Report) contains factors that are consistent with an opportunity for such an incident as claimed to have occurred.

43. In respect of the Video footage Counsel submitted that it clearly shows that FFI is taken by officers to a place where there is no CCTV footage available.

44. Contrary to the relevant protocols Counsel submitted that a hand held CCTV camera was not utilised when dealing with an inmate who was resisting or otherwise non complaint in the searching process. The purpose of a hand held camera footage in such instances is to ensure that there is evidence or a record of the matter (whether a complaint arises or not).

45. FFI had made an early report of the matter citing paragraphs 9.30 and 9.36 of the Corrective Services Report (R-4) whereby FFI told his grandfather in a telephone call that he had ‘had a recent rumble with the squad after refusing to spread my ass cheeks’. [9.30] At [9.36] where detailing the incident to a fellow prisoner on 27 September 2016 (not 2017 as recorded as the investigation report is dated June 2017), the report records that FFI says: ‘and he goes to me when he drags me down the cell, when he had me cuffed and that getting into me, he goes mate Bandito’s scum he goes pay backs a bitch’.

46. Counsel submitted that whilst all of the versions do not match up and have some inconsistencies, the Tribunal should be mindful that FFI was face down for much of the incident, he was unconscious for part of the time and that the matter was some years ago.

47. FFI also submitted that as the V R and S Act is beneficial legislation it should be interpreted liberally and beneficially to the benefit of the applicant seeking a benefit under the scheme.

48. In oral submissions FFI submitted that the Tribunal must consider whether medical evidence is strictly required to establish all aspects or facets of injury.

Consideration of Commissioner’s submissions

49. In written submissions the Commissioner referred to the medical evidence and the Corrective Services Investigation. They submitted that the Corrective Services report concluded that there was not enough evidence to take into account both the legal and criminal burdens of proof.

50. The Commissioner submitted that there was no government agency report that supports a finding on the balance of probabilities that FFI was a victim of an act of violence, as required by s 39 of the Act.

51. In earlier submissions the Commissioner referred to the case of DZE v Commissioner of Victims Rights [2020] NSWCATAD 21 where the Tribunal considered whether there was an act of violence to the requisite standard.

52. At [36] of DZE the following was relied upon by the Commissioner:

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

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

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

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

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

44. A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.

45. Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (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] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161–162, and Mason J (with whom Brennan J agreed) in the same case at 168.

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

47. In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:

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

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

45. 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.

53. Reliance was placed on correctional prisoner management provisions and subordinate legislation obviating the commission of any offence against FFI thus extinguishing one of the prongs of s 19 of the Act. Reference was made to the Crimes (Administration of Sentences) Regulation 2014 sanctioning the level and use of force in the circumstances.

54. The majority of the Commissioner’s submissions focused on the necessary prerequisites to a finding of act of violence and that the available evidence did not establish that matter to the requisite standard.

Consideration

55. I observe that the scheme is a beneficial scheme and the Legislation should as such be applied beneficially to victims of violent crime. The changes to the former and current scheme to create a general ineligibility for convicted inmates are not designed to extinguish the rights of such persons to claim, but put strict criteria on their ability to recover or obtain ‘support’ under the scheme in its current form. As the Tribunal is dealing with a preliminary threshold issue in my view the general beneficial provisions of the legislation should apply.

56. For those reasons the findings of the Supreme Court in the case of Harvey (Harvey v Victims Compensation Tribunal & Anor [2001] NSWSC 604) continue to apply.

55. In addition for the same reasons the findings of the High Court (in reference to the former Act) in the case of Victims Compensation Fund Corporation v Brown [2003] HCA 54 as to the beneficial approach to the legislation continue to apply.

56. Broadly FFI’s claim should be treated like any other claimant in determining act of violence. This is because it is necessary to determine whether FFI is a primary victim (which includes act of violence) before his status (as a convicted inmate) is assessed, and then the high threshold of s 25 (5) and (6) must be considered. It is the apparent failure to adopt this approach that the initial decisions prior to the lodgement of the administrative review fall down.

57. The approach taken by those decision makers has been corrected by the remitted decision. However in determining act of violence (as a preliminary position) FFI has the same rights and expectation that his claim will not be scrutinised contrary to the manner of all other claimants.

58. It is only after FFI passes successfully through the s 19 act of violence gateway that his status as a convicted inmate becomes relevant.

59. I note the Commissioner’s reliance on DZE. However DZE deals with a different fact scenario whereby the Tribunal observed that the other party perceived they were responding to a threat by the applicant. At [13] of DZE the Tribunal observed:

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

62. Whilst the evidence in the current matter could be considered a response to FFI’s aggressive attitude and refusal, I have some concerns that if I accept his version of events, then should I accept that such a position by way of response was sanctioned due to his resistance. In so far as the conduct occurring ‘apparently in the course of the commission of an offence’ to quote the statutory language, the Tribunal must look at all of the evidence concerning the circumstances of the matter.

63. In my view the evidence of an act of violence is significant. There is a report by FFI and contemporaneous medical notes. In establishing act of violence I am not required to determine the extent of any resultant injury, merely that injury be present. Harm must be more than something that is transient and trifling.

64. The case of R v Donovan [1934] 2 KB 498 at 509 provides 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." Whilst that case deals with actual bodily harm, in an instance of psychological harm, the harm must also be more than transient or trifling. Both physical and psychological or psychiatric injuries through different types of evidence constitute harm to the person. The threshold is that the hurt or injury must also be something that has an effect (general or specific) but importantly one that is more than transient or trifling.

65. On my assessment of the observations of the evidence before the Tribunal, FFI has suffered physical harm. The contemporaneous medical evidence refers to pain in FFI’s leg, whilst no redness was observed on the back. A complaint of being kneed in the kidney to the extent that a urine sample was sought by the RN was also made. The medical evidence whilst not detailed and succinct is present and not inconsistent with the reported assault. The initial complaint to medical staff was on the day of the reported incident. The next day FFI reports pian following the assault. He was given pain medication.

66. FFI’s medical expert has reviewed the relevant evidence and makes findings consistent with an assault as reported. Whilst this is a ‘paper based’ review, there is no evidence to challenge the findings of the expert’s report dated 28 November 2022. The author concludes that it seems entirely possible that (FFI) was assaulted in the way he describes and for the absence of visible marks to have been recorded in the health record.

67. In my view the Corrective Services investigation report does not explain the conclusion reached. The report is mainly a review of the existing evidence. The report finds that there were various breaches of procedures in the manner that FFI was dealt with on 19 September 2016 sufficient for me to observe that had those procedures been followed, FFI’s position would have been much clearer much earlier on. The only proactive aspect to the investigation is the obtaining of further evidence from FFI. The complaint by FFI was not reported internally in the proper manner. In addition it identified concerns that bearing in mind FFI’s non compliance, no hand held video was utilised (at [14.17]).

68. The report concludes [14.25] that there was insufficient evidence to make a finding to any standard:

14.25 The Fact Finding investigation identified there is not enough evidence taking into account both levels of civil and criminal burdens of proof, to support the allegations of assault by (FFI)

69. However in my view the report does not explain why this is the case and broadly restates the version of events by way of a review of earlier material. As noted above the only fresh material obtained by this investigation was the approach to FFI to provide an updated version of events. The rest of the investigation constituted a paper based review of the earlier material.

70. Having examined the Police material I agree with FFI’s submission that Police have recorded and reported the matter and adopted broadly the findings of the above investigation.

71. The Commissioner submitted that the elements of s 39 of the Act had not been met. However there is now a Police report and a medical report. Section 39 does not require that a Police report be determinative on the issue of act of violence, merely that the report includes the requisite information for the fact finder (Assessor or Tribunal) to determine (to support rather than establish) that an act of violence has occurred. If s 39 was to be read down to require the content of the report to emphatically determine or establish an act of violence then there would be no work for the fact finder to undertake.

72. Such a report is for those reason only required to be at s 39 (2) (b):

(i) a police report, or a report by a Government agency or any other agency that provides support services to victims of crime, sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence or act of modern slavery, and

(ii) a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence or act of modern slavery.

(Emphasis added)

…sufficient to support a finding, not to establish such a finding. The s 39 provisions are twofold, to ensure some adherence or consideration of the requirements in s 44 (1) (f) of the Act, and to provide the decision maker with cogent material to enable a consideration of the act of violence threshold.

73. Contrary to some findings in the Senior Assessors decision on remittal at [30], the insertion of s 39 in the terms above in effect requires all incidents subject of Victims Support claims to be reported to Police. This is the practical consequence of the section.

74. In my view there is sufficient evidence to establish on the balance of probabilities that FFI was the victim of an act of violence on 19 September 2016 at Cessnock Correctional Centre, and I so find. Bearing in mind his stated version of events then no policy provisions would have sanctioned the manner and level of force as reported by FFI. In this regard should he pass the further threshold (which is uncertain at this stage), there should be no reduction or disentitlement in my view under s 44 (1) (a) of the Act.

75. On the basis of the above finding at [74] the correct and preferable decision is to set aside the decision of the Commissioner / respondent. The applicant (FFI) will need to establish that notwithstanding the fact that he is the victim of an act of violence, that he is eligible to be considered for victims support due to the operation of s 25 (5) and (6) of the Act.

(4) Convicted inmates A person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence or act of modern slavery if it occurred while the person was imprisoned as a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999 (unless the person was imprisoned only because of the person’s failure to pay a pecuniary penalty).

(5) Exception to ineligibility of convicted inmates However, any such convicted inmate may, in special circumstances, receive victims support. Any such support is not to be given unless the Commissioner is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted inmates.

(6) Without limiting subsection (5), the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence or act of modern slavery concerned.

76. At present the provisions of s 25 (4) of the Act apply to disentitle FFI to victims support, subject to enlivening the matters outlined at s 25 (5) and (6) of the Act.

77. Because of these findings the decision of the Commissioner of Victims Rights Delegate will be set aside following administrative review as that decision concerned a negative finding on act of violence. The matter will however need to be relisted before the Tribunal for the second aspect of the application to progress.

Conclusion

78. The Tribunal makes the following orders:

Orders

1. The decision of the respondent of 28 July 2022 is set aside.

2. In substitution of that decision FFI is found to be the victim of an act of violence within the meaning of s 19 of the Victims Rights and Support Act 2013.

3. The matter is listed for directions before the Tribunal on 26 May 2023 at 9:30am to determine the future conduct of the proceedings

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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: 21 April 2023