FLR v Commissioner of Victims Rights

[2022] NSWCATAD 402

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FLR v Commissioner of Victims Rights [2022] NSWCATAD 402

Hearing dates:

3 November 2022

Date of orders:

20 December 2022

Decision date:

20 December 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1.    The decision of the Respondent dated 26 May 2022 is set aside and I make the following decision by way of substitution:

   (a)   FLR is the primary victim of an act of violence that is a series of related acts.

(b) I approve victims support in the sum of $4,000, representing a Category C recognition payment less a 20% reduction under s 44 of the Act.

Catchwords:

ADMINISTRATIVE LAW – administrative review –period of act of violence – whether application made within time – whether applicant was a victim of domestic violence - recognition payment – factors for reducing the amount of victims support approved under s 44 of the Victims Rights and Support Act 2013 (NSW)

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Mental Health Act 2007 (NSW)

Private Health Facilities Act 2007 (NSW)

Victims Rights and Support Act 2013 (NSW) Victims Support and Rehabilitation Act 1996 (NSW)

Cases Cited:

Fox v Percy (2003) 214 CLR 118

R v Butcher (1986) VR 43

Texts Cited:

Meriam Webster Dictionary

Cambridge Dictionary

Macquarie Dictionary

Category:

Principal judgment

Parties:

FLR (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
K Douch, Victims Services (Respondent)

File Number(s):

2022/00186494

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons

REASONS FOR DECISION

Background

1. These proceedings relate to a claim for victims support in the form of counselling, financial assistance and a recognition payment lodged by the applicant known by the pseudonym FLR initially before the Commissioner of Victims Rights (“the Respondent”).

2. The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 21 December 2021. FLR alleged that she was the primary victim of an act of violence in the nature of assault that occurred at Blackheath, in New South Wales, over a period of time from 31 May 2019 to 27 July 2021, as follows:

Unstable neighbour regular rants of vandalism, verbal & physical violence. Stalking & intimidations of wall, door banging & relentless unreasonable complaint to social housing provider & police.

3. FLR alleged that she suffered “physical injury” and “psychological injury” as a result of the act of violence.

Decision at first instance

4. On 27 January 2022, an Assessor (Client Claims) issued a Notice of Decision, which determined that FLR’s application was lodged out of time and that the application must be dismissed. The Assessor stated, relevantly:

Reports to police and court outcomes

7. I have before me records made in NSW Courts Matter (number provided), which relate to an application for an apprehended personal violence order (APVO) made for the protection of (FLR).

8. According to the records, (FLR) and the named offender are neighbours. On 4 November 2019, (FLR) was inside her residence when she heard the named offender at the front door. At this time, the named offender has begun shouting at (FLR) and then knocked over a metal stand that were holding a number of pot plants. The named offender has then kicked (FLR’s) front door.

9. As a result, a provisional APVO was made on 26 November 2019, with a final order made on 16 December 2019. Records in NSW Courts matter (number provided) also confirm that the named offender was charged with stalk/intimidate intend fear physical etc harm (personal). This charge was dismissed for the named offender to undergo a mental health assessment. Additionally, the named offender was charged with common assault for an incident on 12 September 2019 (NSW Courts matter (number provided)), this charge was also dismissed for the named offender to undergo a mental health assessment.

10. Victims Services has also accessed NSW Police COPS Report (number provided), which is dated 18 July 2021. According to this report, a witness (another resident of the unit complex where the named offender and FLR reside) contacted police stating that the named offender told him that she had seizures after being filmed by (FLR). (FLR) was contacted by police, where she was advised that she was at the shops when she noticed that she was being followed by the named offender, so she started to film her. No further charges were laid after this incident.

Reports to Government-funded agencies

11. In addition to the police records, I have to form a report prepared by Jenny Gill from Blue Mountains Women's Health and Resource Centre. This states that FLR was referred to the agency on 11 February 2020 and that she consulted with Ms Gill on 21 February 2020. during this consultation, (FLR) disclose that she was assaulted by neighbours and that there were several apprehended violence orders in place as a result.

Evidence of physical or psychological harm

12. Following an earlier application for counselling, (FLR) has consulted with Deirdre Ikin, Victims Services Approved Counsellor. According to a report dated 10 July 2020, (FLR) displayed symptoms of psychological injury including hyper-vigilance, preoccupied and persistent thoughts, decreased ability to focus, and increased states of worry and anxiety. (FLR) also disclosed that she was being treated for post-traumatic stress disorder (PTSD) and anxiety by her GP.

13. I also have read a certificate of injury completed by Dr Kathryn Gardiner on 14 December 2021. This states that (FLR) was the victim of an assault by the name defender on 12th September 2019 where she suffered superficial abrasions to the face, bruising to the upper arms, and PTSD.

14. A further certificate of injury completed by Ivana Borrett, Clinical Psychologist on 16 December 2021, states that (FLR) is the victim of verbal, physical an ongoing psychological abuse by her neighbours. As a result, Ms Borrett provides a provisional diagnosis of PTSD.

(FLR)’s supporting documentation

15. I have also read the additional documents provided by (FLR), including charges sent to the name offender (as detailed in the court record summary above).

5. The Assessor determined that under s 40 of the Act, the relevant timeframe in which FLR could make an application for victims support (excluding counselling) was 2 years from the date of the act of violence. In relation to this issue, the Assessor stated, relevantly:

20. I have carefully considered the available evidence. From what’s before me, react to violence that was perpetrated against (FLR) occurred between 31 May 2019 and for November 2019 (the date in which the incidents that are detailed in (the Court matter number occurred).

21. I know that there was a later police report made, however this relates to the named offender allegedly having a seizure after (FLR) filmed her. there is no evidence that any offence occurred in this instance which means that this could be considered as part of the act of violence. I also note that the certificate of injury completed by Ms Borrett indicates that (FLR) has been subjected to ongoing psychological abuse, however there is insufficient detail in this or any other record for me to establish that this could also be a part of the act of violence.

22. Accordingly, The relevant active violent state is between 31 May 2019 and for November 2019 as this is the day in which the act of violence occurred. this is supported by the police and court records, as well as these certificates of injury which state that (FLR) was assaulted on 19 September 2019 and 4 November 2019.

23. (FLR) was required to lodge the application for financial support and recognition payment on or before 4 November 2021. Unfortunately, the application for financial support and recognition payment was lodged on 20 December 2021, which is not within two years from the date of the act of violence.

6. I note that a copy of the notice of decision was emailed to FLR on 27 January 2022, on the cover of a letter from the Respondent. Accordingly, I am satisfied that the decision was served in accordance with the Act.

Internal review

7. On 27 April 2022, FLR completed an Internal Review Request Form, which sought a review of the decision regarding a recognition payment. I note that she submitted further documentation with this request, including: (1) Further notes to summary of events – service communications; and (2) further verification of violence attachments of police reports, medical documentation, community support references & further evidence.

8. I confirm that I have read the additional material submitted by FLR in support of her request for internal review, but I have not extracted it in this decision. I do note that she alleged that she was the victim of acts of violence on multiple further occasions until at least 16 October 2021.

9. On 26 May 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FLR’s application for victims support was not lodged within time and therefore dismissed it.

10. I note that the Senior Assessor did not specifically refer to or address the further information that FLR submitted in support of the request for internal review.

11. I note that a copy of the Notice of Review Decision was emailed FLR on 27 January 2022 under cover of a letter from the Respondent. Therefore, I am satisfied that the decision was served in accordance with the Act.

Application for Administrative Review

12. 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.

13. On 23 June 2022, the Tribunal received the current application for administrative review, which sought review of the decision dated 16 May 2022 on the following grounds:

Please see application text attached

with Victim Services Decisions documents on 28Jan21 & 26May22 (2xfiles)

with (FLR) 27Apr22 Reply of Appeal (without attachments) (2xfiles)

14. In a document headed “NCAT Victim Services Recognition Payment Appeal” dated 23 June 2022, FLR asserted that she has been and is “dangerously exposed to the continuation of being” the victim of continued (past Nov2019) violence from her social housing (Mission Australia (MAH)) neighbours. She asserted that she still (to varying degrees) is experiencing ongoing “escalated & malignant misunderstandings, exaggerations & fabrications against me, in attempts, by the perpetrators of this violence, to have me unfairly evicted.”

15. FLR stated, relevantly:

According to the Crimes (Domestic and Personal Violence) Act 2007 No 80 I am defined as being in a domestic relationship with the people in my social housing arrangement & these incidences of domestic violence from tenants of (address details & names provides) towards me are insane, unsustainable & unjust.

This Act also describes “the meaning of domestic violence offence” Section 11 that:

(d) that domestic violence extends beyond physical violence and may involve the exploitation of power imbalances and patters of abuse over many years. And

(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

5 Meaning of “domestic relationship”

(e) is living or has lived as a long-term resident in the same residential facility as the other person and at the same time as the other person (not being a facility that is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 or a detention centre within the meaning of the Children (Detention Centres) Act 2987, or

For the purpose of this application, the time frame of these events in their sovereignty, depict acts of unstable, controlling, unacceptable perpetrations of domestic violence to which I am a victim. And evidence of other incidence of the past informs “the balance of probability” regarding my claim to being a victim of an act of violence within the last 2 years…

16. FLR alleged that end-date of the act of violence was in April 2022, and argued to the effect that her application for victims support was lodged within time. She also stated that she has been unable to fairly advocate her claim as she suffers from an intellectual disability in the form of autism and complex trauma. She also stated, relevantly:

To substantiate the reality of unfairness in my circumstances I note again the endless attempts to receive support. Here now particularly in relation to Justice Advocacy Services & Victims Services, rejecting on numerous occasions in 202 & 2021, my requests for assistance to complete application for recognition payment, with Victim Services, in which to move when a transfer could be established. This misinformation continued & the application was further delayed beyond my control by the restructure of Victim Services geographic boundaries, Victim Services (& Domestic Violence Court Support) Staff changes & a change to location of Victim Services information, which delayed the receipt of my original Victim Services application & created further confusion around eligibility & who was best placed to assist me in the application. During unprecedented times of pandemic outbreak & shut downs. So that this search for adequate support is in breach of the Charter of Victims Rights points 2 & 3…

Beyond this, during this 2-year timeframe MAH Real Estate & Police have routinely ignored my concerns & (in bias & scapegoating systemic frustrations) and taken distorted versions of truth, in which to try & manage the situation of being continually, unreasonably & aggressively complained to. These acts of aggression, control and fear inciting from my neighbours with involvement from authorities (despite the unsubstantiated nature of their complaints), continues to unfairly vilify me, (as I am the victim) when (even according to NCAT results with MAH) I have never been in breach of my agreements, deserve to be evicted or continually threatened such.

Due to the systemic issues within my case, the nature of violence through attempt to control and evict me unjustly and the overall exhausting nature for everyone, much of the violence has not either not been correctly reported, not reported at all & therefore mostly acted on incorrectly, as there can be no just resolve.

Where not surprisingly, (as I am already a vulnerable person and cannot continued to withstand the pressure/bear the brunt of systemic shortcomings, upon me). I have been scapegoated (used to excuse perpetrators violence) into irreversible trauma & inevitable homelessness. As living under the oppression of, ongoing psychological (& legal/systemic) torment & ongoing threat of another (the next) inevitable physical attack, is insanity & unsustainable. Having irreversibly accentuated my pre-existing conditions of

•   Autoimmune disease (Chrones, Arthritis, Siriasis, Asthma, Chronic Neuro Sensitivity & pain

•   Scoliosis of the spine – spasms, nerve exhaustion & pain

•   Autism Chronic neuro sensitivity & cognitive (social & other necessary) brain function issues

Introducing (significantly life qualify decreasing, expensive (& now drug dependent) new conditions of

•   Severe anxiety

•   Compounded (as (still &) not addressed at time of initial trauma) PTS

•   Restless legs

•   Long term sleep deprivation

•   Sleep terrors, disorientation

•   Incontinence

•   Hyperactivity, over stimulation/stress & exhaustion from said

All of which has been used to unfairly manage the situation, restrict the telling of truth around such, so as to only go against me, in the making of a scapegoat (systemic). So that to speak of, is too dangerous, exhausting & therefore continues to go unreported. Pls see summary of events/violence attached/following for further detail.

Having justified, (as best as anyone could be reasonable requested (esp under the circumstances) to do), the need for recognition that I am a primary victim of crime, violence and harm. For which recognition if required to bring cessation to a mismanaged, social housing, domestic violence situation, accentuated by (esp. legal & victim financial) systemic short comings. In which I am still a victim of this harm & violence, which is unacceptable and requires urgent immediate peaceful & fair resolution.

17. In her document headed “Summary of Events/Violence”, FLR alleged that after November 2019, she was the victim of further acts of violence, including:

1. 5 March 2020 – a named neighbour verbally assaulted her “with physical approach”, which caused her to step into traffic to avoid conflict;

2. 5 April 2020 – named neighbours vandalised her garden & approached her during lockdown;

3. 28 April 2020 – named neighbour waited with another resident to “confront & attack” her, and verbally assaulted her as she was not alone;

4. May/July 2021 – named neighbour continued to stalk/intimidate her;

18. FLR stated that as a result of “unreasonable complaint” against her of “vandalism, noise assaults of wall & door banging, service (garden water, parking & rubbish) interference & pressure on the real estate & police in which to have (her) further unfairly ordered, fined, charged & intimidated (or evicted) out of her home”. She also alleged that a named neighbour continued to initiate conflict with her, “in direct stalk, approach & verbal aggress upon” herself on 18 July 2021, 27 July 2021 and between September and December 2021. She also stated that on 4 April 2022 this named neighbour verbally threatened her in Katoomba Court in AVO proceedings and that she dominated the application “for orders for my protection’s extension with epileptic fit”.

19. FLR concluded:

Much as I am not able to request assistance from strangers during or report further attacks to Police from KS as the Mental Health Act has given her a green light to abuse at will & vilified me (her victim). (named persons) regularly continue to invade my privacy & intimidate me with threatening & derogatory gestures & comments. In addition to the malignant escalation of exaggerations & fabrications to neighbours, MAH & Police.

The hearing

20. At the hearing on 3 November 2022, FLR appeared in person and Ms K Douch, Victims Services, appeared for the Respondent.

21. FLR stated that she is disadvantaged because she is disabled and cannot argue her case and that she was participating in the hearing from the office of a Disability Support provider. She maintained that she is the victim of domestic violence and said that there is nowhere in her unit where she cannot hear the perpetrators and that Victims Services advised her that this was domestic violence. She now suffers from PTSD. She said that she has made 3 separate applications for victims support to the Respondent, which has caused some confusion.

20. In relation to the Respondent’s decision that there is no evidence of any act of violence against her after November 2019, FLR stated that the police records are “incomplete & inaccurate”. She said that she will speak to Police if she has an advocate with her, but she will not speak to them if they knock on her door at night. She also alleged that police reports are biased and that the reports are distorted and that she is the victim. She also alleged that the perpetrators are “using the system” and that her front door was kicked in on 1 November 2022 and she called the police. She also alleged that she has been “bitten”.

21. The Respondent filed submissions on 28 October 2022. The Respondent noted FLR’s allegations of violence after November 2019, but stated that as she applied for a recognition payment on 20 December 2021, the relevant period for the act of violence is between 20 December 2019 and 20 December 2021. The police records, Court records and government funded reports support a finding that FLR was the victim of an act of violence up to and including 4 November 2019, perpetrated by her named neighbour, but as this was more than 2 years before 20 December 2021 the application was made outside the timeframes set by s 40 of the Act.

22. As to whether the further acts alleged by FLR constitute violent conduct, the Respondent referred to the decision in R v Butcher (1986) VR 43, in which the Court considered what constitutes violence and stated, relevantly:

However, if actual force is not used, then the menace or threat must either be such as to cause personal intimidation, or be intended to cause intimidation or submission. In our opinion, if force is used there can be no debate but that this is actual violence. If threats are made personally to intimidate or seeking to intimidate, this is also in our opinion violence. It may be put that the latter is constructive violence, as Wilks J said in Donnally’s case. But both putting a person in fear or seeking to put a person in fear of being “subjected to force” have always been accepted under the common law as violence, sufficient to render a contemporaneous larceny a robbery.

25. The Respondent argued that while insults/slander, property damage and noise complaints may amount to offences (in some circumstances), in the circumstances of this matter, they do not form the basis of an act of violence.

26. The Respondent also noted that the Police records predominantly relate to noise complaints made by neighbours in relation to which FLR is named as the person of interest or person named, but they also include a Noise Abatement Order made against FLR. The records indicate that:

1. There was an incident on 5 April 2020, in which FLR was named as the person of interest after she repeatedly placed planter boxes on her named neighbour’s window sill;

2. On 18 July 2022, FLR alleged a breach of an AVO, but when police reviewed video footage that she had taken, the investigation was suspended and police determined that the interaction between FLR and her named neighbour could not have been avoided. The report does not indicate that there was any violent conduct against FLR; and

3. On 3 October 2021, FLR reported graffiti on the fence opposite her front door, but when police attended the graffiti was worn off and unreadable. FLR told police that she was unaware who damaged her property.

27. Based on this evidence, the Respondent argued that there is no evidence that FLR was the victim of violent conduct during the period of 2 years prior to 20 December 2021.

28. In relation to FLR’s argument that she was the victim of domestic violence, the Respondent noted that the definition of “domestic violence” in s 19(8) of the Act is similar to that in s 5(1)(e) of the Crimes (Domestic and Personal Violence) Act 2007. The Respondent also stated, relevantly:

32. Relevantly, facility is defined by the Meriam Webster Dictionary as something (such as a hospital) that is built, installed or established to serve a particular purpose. The Cambridge Dictionary similarly defines it as a place, especially including buildings, where a particular activity happens. The Macquarie Dictionary defines it as a building or complex of buildings, designed for a specific purpose, as for the holding of sporting contests, launching of rockets etc.

33. The Respondent understands that the applicant resides in a residential building comprising of self-contained units. The Respondent further understands that the applicant occupies a unit subject to the terms of a tenancy agreement with (MAH). The Respondent submits that a residential tenancy within a block of units cannot be characterised as a “residential facility” for the purpose of s 19(8)(v) of the Act.

34. A facility requires that there by a specific purpose to the building, by way of example:

(a) An aged care residential facility or nursing home being a premise which provides accommodation, staff to meet nursing and personal needs, meals and other services;

(b) a mental health facility within the meaning of the Mental Health Act 2007; or

(c) a private health facility within the meaning of the Private Health Facilities Act 2007.

35. This position is consistent with the orders made by the NSW Local Court who issued an apprehended personal violence order to protect the applicant from her neighbours and her neighbours from the applicant. Had the Court considered the parties to be in a “domestic relationship” an apprehended domestic violence order would have been made.

36. It is also consistent with the intention of Parliament to exclude more remote relationships from the definition of domestic violence.

37. The current definition of domestic violence mirrors the definition contained in the repealed Victims Support and Rehabilitation Act 1996 (the repealed Act). The definition of domestic violence was inserted into the repealed Act by the Victims Support and Rehabilitation Amendment Bill 2006 and was intended to narrow the definition of domestic violence to exclude instances of violence occurring in more remote relationships. The intention is evidence from the explanator memorandum which states:

The bill narrows the definition of “domestic violence” to exclude instances of violence occurring in more remote relationships. While it has seldom occurred in practice, the report of the statutory review concluded that the use of the broad definition in the Crime Act could lead to inappropriate compensation payments. For example, a victim who receives an injury inflicted by a former flatmate at a social event would, under the current law, automatically attract the minimum domestic violence award of $7,500. This type of relationship cannot properly be characterised as domestic violence for the purposes of compensation applications. I emphasise that this change will not affect entitlements for victims of (domestic violence).

29. Accordingly, the Respondent confirmed that the correct and preferable decision is to affirm its decision dated 26 May 2022.

Consideration

Act of violence

30. 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.

31. “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.

…

(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…

32. Section 20 of the Act defines “primary victim” as follows:

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

33. The onus is on FLR to prove the allegation that he was the primary victim of an act of violence in the nature of an assault perpetrated by the multiple offenders referred to in her evidence on the balance of probabilities.

34. In determining this issue, I note that in Fox v Percy (2003) 214 CLR 118, the High Court of Australia (Gleeson CJ, Gummow and Kirby JJ.) considered the manner of assessment of evidence by appellate Courts where an appeal proceeds by way of re-hearing. The Court stated relevantly (citations excluded):

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

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

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

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

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

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

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

35. Unlike the previous decision makers, I have had the benefit of hearing the oral submissions made by FLR during the hearing. Having done so, I am impressed by her forthrightness and I note that her candour has not been challenged by the Respondent. She clearly believes that she has been the victim of multiple acts, perpetrated by her named neighbours, which she has perceived as being intimidating etc and that she has suffered a psychological injury in the nature of PTSD as a direct result.

36. In my view, FLR’s attitude towards the police has not assisted her in proving her current case, as she clearly perceives that they are biased against her and prefer the reports made against her (including noise violations) by her named neighbours to her own complaints. Her attitude may possibly be explained on the basis of her pre-morbid disabilities that are set out in her submissions, but it is not necessary for this Tribunal to make any specific finding on that issue.

37. However, I do note the evidence of Dr Gardiner, FLR’s treating GP, dated 9 August 2021. This report was apparently prepared in relation to proceedings against FLR in the Consumer & Commercial Division of this Tribunal. The doctor diagnosed Chronic PTSD/Complex Trauma, Generalised Anxiety Disorder and Autism Spectrum Disorder, which were confirmed by the treating psychiatrist, treating psychologist and a court-appointed psychologist. The doctor stated that the Chronic PTSD/Complex Trauma developed and deteriorated after multiple counts of assault (physical and verbal) from neighbours, and ongoing harassments and difficulties with interactions between neighbours, police, real estate agent and legal proceedings. The dispute has been ongoing for four years and she continued to feel fear over the safety issues with her accommodation and fees that she has no control over her current situation. Sher feels constantly in danger, hyper-aroused, hypervigilant and extremely on edge. She has been “mislabelled and misunderstood throughout these episodes for which she is extremely vulnerable”. The ongoing nature of these incidents results in constant triggering of her PTSD symptoms and extreme difficulty in managing her symptoms.

38. Dr Gardiner stated that FLR’s generalised anxiety disorder results in constant tension and worry, poor sleep, and heightened symptoms when in unfamiliar settings and that she is prone to panic attacks and an increasing inability to manage deadlines and to communicate her needs clearly. She also stated that her Autism Spectrum Disorder and Dyslexia caused longstanding difficulties with social-emotional understanding and processing, especially with non-verbal communicative behaviours such as eye contact and body language and a pattern of rigidity or inflexibility with her thinking patterns, which are accentuated by her “current situation of domestic abuse”. The doctor stated, relevantly:

I believe her behaviour is easily misinterpreted and misrepresented – her constant state of anxiety and hyperarousal makes her easily startled and hyper-responsive. This is compounded by her difficulties with social and emotional expression – which unfortunately for (FLR) are deeply ingrained and not easily changed.

I believe her current accommodation arrangement has resulted in chronic exacerbation of her PTSD, and her other underlying conditions make her vulnerable to further trauma…

39. I note that Dr Gardiner’s report was produced by the Respondent in its s 58 bundle and that it should therefore have been before the Assessor and Senior Assessor when the decision at first instance and review decision were made. However, the report is not referred to in either of those determinations.

40. For these reasons, I am satisfied that FLR was the victim of an act of violence on the balance of probabilities and that this was a series of related acts that were perpetrated by her named neighbours over a period of time up to 9 August 2021 (the date of Dr Gardiner’s report discussed previously in this decision) and that she suffered psychological injury as a direct result.

41. Accordingly, I am satisfied that FLR made her application for victims support within the 2-year time limit prescribed by s 40 of the Act and that she is therefore eligible for victims support.

42. In view of this finding, it is not necessary to determine whether FLR was the victim of “domestic violence”. However, in my view, as FLR was a tenant (under a Tenancy Agreement with MAH) in a residential housing block, she was not a resident of a “residential facility” for the purpose of s 19(8)(v) of the Act at the relevant time. Therefore, I am not satisfied that she was in a domestic relationship with the named perpetrators and she was not the victim of domestic violence.

Recognition payment

43. The Respondent did not address this issue. However, as the medical evidence before me indicates that FLR suffered PTSD and Complex Trauma as a direct result of the act of violence, which occurred over a period of time until 9 August 2021, I am satisfied that she is eligible for a Category C recognition payment on the basis that she was the victim of an assault resulting in grievous bodily harm.

Section 44 Factors

44. Section 44 of the Act provides, relevantly:

44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment

(1) In determining whether or not to approve the giving of victims support, and in determining the amount of financial support to be given or recognition payment to be made, the Commissioner must have regard to the following—

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

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

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

(4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to—

(a) any amount that has been paid to the person or that the person is entitled to be paid—

(i) by way of damages awarded in civil proceedings, or

(ii) under any other Act or law (including workers compensation), or

(iii) under any insurance or other agreement or arrangement, and

(b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person,

in respect of the act of violence or act of modern slavery to which the application for financial support or a recognition payment relates.

…

45. In this matter, there is overwhelming evidence from NSW Police, in the form of multiple reports, which indicate that FLR was the subject of noise complaints – “banging noises” that were made against her by multiple residents of the residential building, during the period in which the act of violence occurred, and that she was at one stage served with a Noise Abatement Order.

46. While FLR asserts that the police reports are biased, the information contained in the multiple reports overwhelming supports a finding that FLR’s actions either directly or indirectly contributed to the act of violence.

47. For this reason, I have decided that it is appropriate to reduce the amount of victims support approved for the applicant to reflect this contribution and I consider that a reduction of 20% is appropriate in all of the circumstances of this case.

48. Accordingly, I approve victims support for FLR in the sum of $4,000, which represents a Category C recognition payment ($5,000), less a reduction of 20% under s 44 of the Act.

Order

49. The decision of the Respondent dated 26 May 2022 is set aside and I make the following decision by way of substitution:

1. FLR is the primary victim of an act of violence that is a series of related acts.

2. The application for victims support was made within the 2-year timeframe prescribed by s 40 of the Act.

3. I approve victims support in the sum of $4,000, being a Category C recognition payment ($5,000) less a 20% reduction under s 44 of the Act.

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: 20 December 2022