FXJ v Commissioner of Victims Rights

[2024] NSWCATAD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FXJ v Commissioner of Victims Rights [2024] NSWCATAD 8

Hearing dates:

8 December 2023

Date of orders:

09 January 2024

Decision date:

09 January 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Victims rights and support – whether an act of violence is established on the balance of probabilities

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

Briginshaw v Briginshaw (1938) 60 CLR 336

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155

Helton v Allen (1940) 63 CLR 691

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jones v Dunkel (1959) 101 CLR 298

Malec v JC Hutton Pty Ltd (1990)

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

West v Government Insurance Office of NSW (1981) 148 CLR 62

Texts Cited:

None

Category:

Principal judgment

Parties:

FXJ (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
FXJ (self represented)
M Ting, Victims Services

File Number(s):

2023/00236322

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 an application for victims support in the form of counselling, financial assistance and a recognition payment lodged by the applicant known by the pseudonym FXJ 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 7 November 2022, in which she alleged that she was sexually assaulted by unknown individuals between 1 October 2018 and 2 November 2022, at Riverwood in New South Wales.

3. FXJ alleged that she was the victim of sexual assault. She said that she did not know the names of the offenders who have been sexually assaulting her since she moved into public housing at (location provided). She is now residing in (suburb provided) and the “same is occurring to me”. She alleged that her “rape allegations” have never been investigated and were “passed over to mental health when it should have been investigated case by case. It’s a travesty of what I’ve been forced to endure”.

4. FXJ alleged that she moved in October 2018, but the first evening she noticed curtains moving back (so someone could see her sleeping(, so she locked the window in her bedroom. She stated, relevantly:

…However, this did not stop the trespassing pervert, who had climbed up a ladder to watch me. Neither did it prevent the sexually assaulting me, as I woke up with a flat blow-up mattress. I was not aware that I’d been assaulted until month’s later and the men made more presence in my waking hours.

The men then attempted to scare me by regularly driving up and down where ever I’m staying. I’m aware of the cars, utes and vans registered to them or their friends and relatives.

I would take medication (when prescribed) to sleep and once I’m sleeping I’m very difficult to wake. The men have then illegally entered my house (with locked and deadlocked windows); drugged me with whatever (I’ve woken up with needle marks all over my body sometimes); then would be physically and sexually assaulted whilst unconscious. I awake hurt, confused and frightened, nursing my injuries and the though that have been degraded yet again.

I’ve been hospitalised with serious health concerns over my injuries. One of the times that I was kept hostage – I remember being pushed down naked on my bed and hit with a bat across my backside (which took 6 months to clear the pooled blood from such a huge and violent act).

My urinary system shut down as a result of my injuries and I needed a catheter for about 3 weeks. There was not one inch of my body that didn’t have a finger mark or from other bruises being beaten. After my facial injuries healed, the men left me alone. It took 3 or 4 police event numbers to get police to attend and when they did, I was just thrown into mental health as an involuntary patient.

The police failed me in the duty of care I’m entitled to. The law was broken by police from not attending and I suffered more being put in a locked mental ward…

Police “pull the mental health card” most times and I’m carted off to a violent and lawless place where anyone can assault you and they will not be punished…

In time, as I’ve been diagnosed with Complex PTSD the memories all return. I suffer from both present and past trauma memories and more than often, debilitating thoughts which affect all aspects of my life…

5. FXJ also alleged that the ongoing physical and sexual assaults have stopped her from gaining custody of her son and that the system had failed herself and her son. She alleged that one morning she developed pins and needs in her left foot and when she got up, “in a drug haze (that was administered to me whilst I slept) I injured my left ankle quite substantially. With every sexual assault the men would target my left ankle, increasing the pain in my ankle. This has occurred way too many times that I want to admit to myself”.

6. FXJ also stated, relevantly:

You could deem me a modern sex slave (and always an unwilling, unconscious participant). The men have already started pimping me out to other men – as I’ve heard new voices being trained in person how to wait until I’m sleeping and over the phone from outside my bedroom window…

I have been diagnosed with Complex PTSD as a result of unsafe housing…

I cannot count the number of times that I have been raped through the same group of men. I can not tell you how many men that I have had unwilling sex with (although, over time whilst the rapists have been sorting the dosage to knock me out with), I can identify 4 men – 3 younger than myself and 1 I presume is one of their fathers…

I had to return to my property and I slept in my car. I woke up with twigs and branches in my hair. My neighbour reported the assaults and the police just drove off…

With the made up diagnosis of being delusional, it’s a slap on my face. Firstly I go into denial, then finally confirm that I’ve been abused in my sleep. Whenever I contacted police regarding a sexual assault I’m informed that I’m delusional, yet when I wake up from the drug administered to me, I assess my physical injuries and go into denial for hours upon hours. These men need to be held accountable for what they’ve done to me and the fact that I can’t parent my only son as my residence is unsafe…

Decision at first instance

7. On 12 December 2022, an Assessor (Client Claims) issued a Notice of Decision under the Act. This determined that an act of violence was not established on the balance of probabilities and the application for victims support was dismissed.

8. The Assessor stated, relevantly:

Reports to police and court outcomes

11. A search of the NSW Police database for the period identified on the application form returned multiple reports made by (FXJ). At least three reports appear to relate to the act of violence described on the application form (event numbers provided).

12. The reports are similar in nature and involve (FXJ) alleging that she has been sexually assaulted by 2 – 4 men who have broken into her unit and drugged her. All the reported sexual assaults occurred while (FXJ) was asleep. She did not wake up during the assaults. (FXJ) reported that when she woke in the morning, she noticed pain and discomfort which led her to believe she had been sexually assaulted. I note that the assaults occurred at different addresses occupied by (FXJ).

13. The reports indicate that on each occasion police investigated the reports made by (FXJ). On each occasion, police attended (FXJ’s) residence and did not find any evidence of forced entry.

14. For instance, following a report made by (FXJ) on 11 December 2021, police attended her home in (suburb provided). Police identified that the windows were glued shut and that there were screws that would have dented the wood frame of the windows if the windows had been opened. Police observed that there were no dents in the wood and no signs of forced entry.

15. Furthermore, (FXJ) told police that prior to going to sleep she had locked the entry door with the deadlock, as well as barricaded the entry door with furniture. (FXJ) showed police a video on her mobile phone which showed her barricading the door.

16. Each police event records similar situations with police unable to find any evidence of forced entry and/or any evidence to corroborate the allegations made by (FXJ).

9. The Assessor referred to the medical evidence that FXJ lodged in support of her claim. These indicate an established diagnosis of PTSD dating back to FXJ’s teenage years as a result of a sexual assault. In June 2020, she reported that she her home had been repeatedly broken into and that she had been repeatedly sexually assaulted by intruders, who also stole her medication and filmed her. Two mental health teams had made a diagnosis of Delusional Disorder.

10. Most-recently, in March 2022, a doctor (name provided) noted that FXJ reported that she continued to be assaulted in her new place of residence, which caused exacerbation of pain in the left ankle, recurrent urinary tract infections and bruising to various parts of her body.

11. The Assessor stated that all of the available evidence was carefully considered, but that an act of violence (as described in the application) was not established on the balance of probabilities. While the medical evidence indicates that FXJ reported the alleged act of violence to multiple practitioners, in view of the evidence in the police reports, those reports were of limited probative value. Therefore, the application for victims support was dismissed.

12. I note that a copy of the decision was emailed to FXJ under cover of a letter from the respondent dated 12 December 2022. I am therefore satisfied that the decision was served as required by the Act.

Internal review

13. On 22 February 2023, FXJ applied to the respondent for an internal review of the decision.

14. FXJ provided lengthy and detailed written submissions in which she largely repeated her previous allegations. She maintained that police did not properly investigate her calls her help and also provided “pictures of some of the injuries I sustained during the attacks”. She also stated:

If you require any more photos, please let me know. Refer to the injuries.pdf document. The photos are over a couple of months. Please also refer to the full and partial rape kits that I completed across Sydney (as I needed to flee for my safety), frequently moving in an attempt to keep safe). (name provided) from the sexual support team in St George Hospital will also assist your findings…

15. On 31 March 2023, a Senior Assessor issued a Notice of Review Decision under the Act. This determined that an act of violence was not established on the balance of probabilities and dismissed the application for victims support.

16. I note that a copy of the Review Decision was emailed to FXJ under cover of a letter from the respondent dated 31 March 2023. I am therefore satisfied that the decision was served as required by the Act.

Application for administrative review

17. 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.

18. On 21 July 2023, the Tribunal received the current application for administrative review, which sought a review of the Senior Assessor’s decision dated 31 March 2023 on the following grounds:

I disagree with the internal review conducted by Victims Services. Unfortunately women who have been sexually assaulted, the chances are increased to being assaulted again. I suffer from Complex PTSD and it’s a daily struggle to do things (such as completing this form).

19. On 11 August 2023, I conducted a directions hearing at which FXJ appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting the publication or broadcast of FXJ’s name. I ordered the respondent to file and serve a bundle of documents under s 58 of the ADR Act by 23 August 2023 and listed the matter for a further directions hearing on 15 September 2023. I noted that FXJ intended to apply to issue a summons to obtain her hospital records.

20. On 15 September 2023, Senior Member McAteer conducted a further directions hearing, at which FXJ again appeared in person and Ms Douch appeared for the respondent. The Senior Member noted that FXJ had not yet applied to issue summonses to two of her four treating hospitals and he listed the matter for a further directions hearing on 27 October 2023.

21. I conducted a further directions hearing on 27 October 2023. FXJ appeared in person and Ms Douch appeared for the respondent. I ordered the applicant to file and serve all evidence on which she relies by 17 November 2023 and ordered the respondent to file and serve a summary of legal arguments by 1 December 2023. I listed the matter for hearing by way of AVL on 8 December 2023.

The hearing

22. At the hearing on 8 December 2023, FXJ appeared in person and Mr M Ting, Victims Services, appeared for the respondent.

Applicant’s further evidence

23. FXJ filed the following further evidence:

1. Lengthy statement marked “Attention Alicia (case manager) Regarding my experiences as a patient at (name of hospital) Community Mental Health)” – undated but received on 2 November 2023;

2. Report of Dr Kuan, radiologist, dated 11 June 2023; and

3. Large bundle of photographs (colour and black & white)

24. I note that the statement largely repeated the history and allegations contained in FXJ’s submissions at first instance and upon internal review.

25. Dr Kuan reported that an MRI scan of the lumbar spine indicated a small disc protrusion at the L3/4 level with mild impingement of the left L3 nerve root, against a clinical history of possible spina bifida.

26. The colour photographs appear to indicate evidence of bruising to limbs, but they are undated and while I note from the applicant’s submissions that she took these over numerous months, there is no evidence before me that establishes that they resulted from an act of violence during the period alleged in the current application.

27. The black and white photographs, which make up the majority of the photographs, do not clearly indicate any visible injury and in my view, they are of little probative value.

Applicant’s oral submissions

28. In her oral submissions, FXJ stated “it happened”; that the perpetrator “hurt me several times” and the police came and searched her backyard, but he had fled in a car. The assaults first occurred at various locations (which she named).

29. The Tribunal noted that FXJ alleged that the assaults etc. occurred whilst she was unconscious and asked her to clarify why she was certain that the act of violence occurred in the manner that she alleged. She replied to the effect that on 11 December 2021, she did not close all of the windows in her house – only that in her bedroom and that a group of men opened the window to her second bedroom when she was in there and they fled when they realised that she was there. However, she did not tell the police everything about this because when she did complain to them of sexual assaults, they put her in a Mental Health unit.

30. FXJ stated that a psychologist (who was a friend) “gave me MDMA” and that she spoke about her childhood experiences. In the end, the psychologist “believed what Public Health were telling them and what police were telling her – that I was delusional”.

Respondent’s submissions

31. The respondent filed written submissions on 6 December 2023, which I have summarised as follows:

The current application has been filed out of time.

32. The time for lodging the application expired on 1 May 2023 and the application was therefore filed 80 days late.

33. The respondent referred to s41 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and noted that the Tribunal has power to extend the time for filing the application and she referred to the decision of the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22, which discussed the factors relevant to an extension of time under s 41.

34. While the respondent conceded that FXJ had provided a reasonable explanation for the delay in filing the application, she did not consent to an extension of time given her position regarding the application’s prospects of success.

The alleged act of violence

35. The onus is on FXJ to prove her allegations on the balance of probabilities. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (at [44]), the Court of Appeal held to the effect that for the burden of proof to be discharged, the finder of fact must feel an actual persuasion of the existence of the fact(s) alleged.

36. The respondent noted that FXJ alleges that alleged ongoing sexual assaults and violence perpetrated against her occurred whilst she was asleep and that during the period of the alleged act of violence, FXJ was the victim of a sexual assault by a known offender (on 23 June 2019). She claimed victims support and a category C recognition payment was approved.

37. The respondent referred to the extensive police COPS event evidence, which was discussed in the decision at first instance and the internal review decision. She also referred to the applicant’s further evidence.

38. The respondent argued that the totality of the evidence before the Tribunal does not support a finding that the applicant was a victim of conduct that apparently occurred in the commission of an offence as required by s 19(1)(a) of the Act on the balance of probabilities.

39. As a consequence, the respondent stated that she is not satisfied that FXJ is the primary victim of an act of violence and she argued that the correct and preferable decision is to affirm the decision under review.

Respondent’s oral submissions

40. Mr Ting argued to the effect that if an act of violence is found to have occurred, the Tribunal would find it very difficult to determine the appropriate category of recognition payment that should be approved.

41. Mr Ting stated that the alleged acts of violence cannot be related acts of violence (as defined in s 19(4) of the Act) and while a category C recognition payment might otherwise be appropriate, s 36 of the Act provides that there can only be a single recognition payment approved in respect of an act of violence and a previous approval was issued in respect of the previous act of violence on 23 June 2019.

40. Mr Ting otherwise argued that FXJ had been inconsistent in what she has said about the police response to her numerous reports.

Consideration

Relevant legislation

43. Section 41 of the NCAT Act provides:

Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

44. At the completion of oral submissions, I determined that I was satisfied that FXJ had provided a reasonable explanation for the late filing of the application for administrative review. I therefore extended the time for filing the application to the date it was filed.

45. 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.

46. “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.

47. Section 20(1) of the Act defines “primary victim” as follows:

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…

48. In Nguyen, the Court of Appeal (McDougall J, Bell & McColl JJA agreeing) stated, relevantly:

Discharge of the burden of proof: the relevant principles

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) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712.

45 Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that “[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161 – 162, and Mason J (with whom Brennan J agreed) in the same case at 168.

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) 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 event’s 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…

49. I am bound by the Court of Appeal’s decision in Nguyen and for FXJ to succeed in her application for administrative review, I must consider the relevant probabilities of the alleged events having occurred or not occurred and I must feel a sense of actual persuasion.

50. Having considered the evidence that FXJ filed in support of her application for victims support and in support of her application for internal review and hearing her oral submissions at the hearing of this matter, there is no doubt that she believes her allegations to be true and correct and that the alleged assaults and sexual assaults occurred in the manner that she has alleged.

51. However, the evidence in the Police COPS event reports is compelling, particularly noting that on the occasions when police did attend her residences, they found no evidence of forced entry etc. I must also consider that FXJ’s case is that the alleged acts of violence all occurred whilst she was sleeping and whilst she may be a sound sleeper when she takes prescription medications, this does not assist her in establishing the events that she alleges occurred whilst she was unconscious.

Conclusion

52. For these reasons, I am not actually persuaded that FXJ was the primary victim of an act of violence that occurred in the manner that she alleges over a period of time from 1 October 2018 to 2 November 2022.

53. Therefore, the correct and preferable decision is to affirm the decision under review.

Order

54. The decision under review is affirmed.

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: 09 January 2024