GHQ v Commissioner of Victims Rights

[2024] NSWCATAD 209

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GHQ V Commissioner of Victims Rights [2024] NSWCATAD 209

Hearing dates:

19 July 2024

Date of orders:

30 July 2024

Decision date:

30 July 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. The decision under review is set aside and I make the following decision by way of substitution.

2. The applicant is a primary victim of an act of violence that comprises a series of related acts.

3. The applicant is eligible for a Category B recognition payment.

4. The amount of victims support approved for the applicant is reduced by 1/10 under s 44(1)(a) of the Act; and

5. Victims support is approved in the amount of $9,000.

Catchwords:

Victims Rights and Support – administrative review – Alleged sexual assaults - Alleged offender not charged with any offence – Act of violence established on balance of probabilities – Eligibility for victims support - Application of s 44(1) of the Victims Rights and Support Act 2013 – calculating the amount of the reduction by way of analogy.

Legislation Cited:

Administrative Decisions Review Act 1997

Victims Rights and Support Act 2013

Victims Rights and Support Regulation 2013

Victims Support and Rehabilitation Act 1996

Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:

BWL v Commissioner of Victims Rights [2015] NSWCATAD 235

EGM v Commissioner of Victims Rights [2020] NSWCATAD 181.

Rejfek v McElroy (1965) 112 CLR 517

Texts Cited:

Macquarie Dictionary Online

Category:

Principal judgment

Parties:

GHQ (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Womens Legal Services NSW (Applicant)
Victims Services (Respondent)

File Number(s):

2024/00141543

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 and a recognition payment lodged by the applicant known by the pseudonym GHQ 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 22 February 2023, and alleged that she was the victim of acts of sexual assault that occurred between 2 July 2021 and 5 July 2021, was perpetrated by a named offender (“the offender”), at Little Bay, in New South Wales. She alleged that she was sexually assaulted on 2 July 2021 and that she was then coerced into having a sexual relationship with the offender on 5 July 2021. She alleged that she suffered a psychological injury as a result of the act of violence and she sought victims support in the form of counselling and a recognition payment.

3. The applicant reported the matter to Police by way of the Sexual Assault Reporting Option (“SARO”). However, Police did not charge the offender with any offence.

Decision at first instance

4. On 16 November 2023, an Assessor (Client Claims) issued a Notice of Decision, which determined that an act of violence as not established on the balance of probabilities. The application was therefore dismissed.

5. The Assessor stated, relevantly:

Reports to police and court outcomes

12. (the applicant) has provided a Sexual Assault Reporting Option form (SARO) which she has lodged with the Police reporting the incidents that are the subject of this application. (The applicant) indicated in her SARO that she met the alleged offender through Gumtree as friends. (The applicant) indicated that the offences took place on 2 July 2021 at Little Bay and 5 July 2021 at the helipad in La Perouse. (The applicant) says she was sexually assaulted by the alleged offender.

13. I note that police have made an application for an Apprehended Domestic Violence Order (AVO) for the protection of the alleged offender, restricting or prohibiting the behaviour of the applicant (case number provided). The applicant has been charged with stalking the alleged offender (number provided). These matters are next before the court on 9 February 2024.

14. I note that the version provided by (the applicant) in her SARO contradicts the description provided in the AVO.

Evidence of physical or psychological harm

15. The applicant has provided her health records from her admission to (name of hospital). The applicant was admitted between 26 October 2022 and 16 November 2022. The notes indicate that on several occasions the applicant referred to the guilt she had over an accidental affair. The notes do not mention injuries that she sustained as a result of the incident.

16. The discharge plan from (name) hospital notes the applicant has post-natal depression, anxiety and complex PTSD and is not coping with motherhood.

17. The (name provided) Centre client intake form indicates that the applicant was referred from (name) hospital. The intake referral notes that the applicant is a first-time mother with a 4 month old child and has limited support as her family lives in Malaysia. The intake referral notes that the applicant was working as a sex worker and that her husband is unaware. The notes also indicate that she has trauma from childhood and adulthood.

18. Progress notes from (name) Centre …indicate that (the applicant) disclosed the incident with the alleged offender however, the notes do not provide a diagnosis or injury due to the incident.

(GHQ)’s supporting documentation

19. (The applicant) has provided an email dated 28 July 2023 she received from Detective Acting Sergeant at Maroubra Police Station. In that email the detective indicates that (the applicant) stated she did not report the matter because she was trying to establish the alleged offender’s identity, however, she knew the alleged offender’s identity by at least 28 March 2022 and did not report the matter until 28 March 2023. The mail indicates that during this time the applicant was still aggressively pursuing a sexual relationship with the alleged offender…

Is there an act of violence, for the purposes of section 19 and 20 of the Act?

…

24. It is not clear from the evidence whether there has been a violent offence committed against the applicant. The evidence that I have from the applicant is contradictory. The applicant says in her SARO that the first encounter was in her car at Little Bay. In (name) Centre progress notes dated 24 January 2023 she states that her and the alleged offender met for coffee and that he came on to her, and in the (name) hospital notes she indicates that it was an accident affair and that she has guilt about this.

25. Furthermore, the AVO description also contradicts the evidence provided by the applicant. I also note that the alleged offender has not been charged with any offences in relation to this incident even though it has been reported to police.

26. I also do not have any evidence that the applicant has been injured in relation to this incident. The (name) admission indicates that the applicant was suffering from post-natal depression, anxiety and complex PTSD and that she is not coping with motherhood. The applicant was referred to (name) Centre from (name) hospital.

27. On the evidence that I currently have it appears (the applicant) was suffering post-natal depression, anxiety and complex PTSD due to not coping with motherhood.

28. Therefore, on the evidence I have the incidents that are referred to in (the applicant)’s application do not satisfy the definition of an ‘act of violence’ as required under section 19 and 20 of the Act. It is not clear due to the conflicting evidence whether there has been an offence committed on (the applicant) by the alleged offender and on the evidence that I have there is no injury described relating to the incidents that (the applicant) has described in her application…

6. I note that a copy of this decision was emailed to the applicant on 12 November 2023, under cover of a letter from the respondent dated 16 November 2023. I am therefore satisfied that the decision was served as required by the Act.

Internal review

7. On 13 February 2024, the applicant’s solicitors applied for an internal review of the Assessor’s decision and they relied upon written submissions, which are summarised below.

Grounds for review

8. The applicant’s solicitors argued that she was the victim of an act of violence, being two sexual assaults committed by the alleged offender and that she suffered psychological harm as a direct result. On that basis, she argued that she was eligible for a Category B recognition payment under s 35(2)(b) of the Act.

9. The applicant’s asserted that the Assessor erred:

1. by failing to find that she was, on the balance of probabilities, a victim of an act of violence perpetrated by the offender;

2. by failing o find that she suffered an injury as a direct result of that act of violence; and

3. in failing to take a beneficial approach to the interpretation of the Act.

10. The solicitors relied upon the following evidence: (1) the SARO; (2) Advice of the Court in relation to the ADVO and criminal charge; (3) progress notes of the (name) Centre; and (4) Certificate of Injury from Ms Karen Jauco dated 25 January 2024.

11. The solicitors submitted that in Rejfek v McElroy (1965) 112 CLR 517, the High Court considered the difference between the civil and criminal standards of proof and stated, relevantly:

11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714. The reservation made in Watts v. Watts (1953) 89 CLR 200 is no longer necessary in Australia having regard to s. 96 of the Matrimonial Causes Act 1959. (at p522)

12. In the SARO, the applicant described the act of violence on 2 July 2021 as follows:

He jumped in my car and I said hello! And he replied hello and instantly sexually assaulted me. He leaned in and kissed me, touched and kissed my breast and my vagina. I froze and was uncertain how to respond to this situation. He then proceeded to lower his pants and ask me to suck his penis. I said this is not what I am looking for. He then pulled his pants up and exited the vehicle.

13. After this act of violence, the alleged offender began texting her, disclosing that he knew her husband and her address and that “you either meet me or I will let your husband know you met me”. She said that she felt coerced by these threats and she met the alleged offender again, at the helipad car park at La Perouse, as follows:

Proceeded to kiss me, touched and kissed my breast, undo my underwear and licked my vagina. He then proceeded to sit and pull down his pants told me to suck his penis a little while he was trying to put a condom on. I did what he told me and then I stopped. I leaned back. He then spread my legs and proceeded to penetrate me until he is finished. Once he is finished, I got dressed and let the car. I was numb… As I drove back I was stress, scared, shivered and I don’t know what to do whether to go straight to the police station or just accept the situation as I thought it was over and done with.

14. The solicitors argued that these descriptions satisfy the definition of an act of violence, in the nature of sexual assault, and that she did not consent to sexual activity on either of those occasions. The applicant disclosed these acts of violence to her counsellor/case worker at the (name) Centre on 7 February 2023 and 6 March 2023.

15. The solicitors asserted that in the decision, the Assessor selectively reported disclosures in the clinical records, but that there were a further five entries in her counsellor’s progress notes that describe the sexual assaults and “coercive control” by the alleged offender as outlined in her SARO. They argued that trauma can often result in inconsistencies in complainant accounts of sexual offences and this is not necessarily indicative of lying or unreliability.

16. In her application for victims support, the applicant described her relationship with the alleged offender as “an affair”. However, the fact that the assaults occurred prior to an affair commencing between the applicant and the alleged offender does not and should not be used to undermine the assessment as to whether an act of violence was established on the balance of probabilities. They stated, relevantly:

The applicant is a vulnerable woman with an extensive history of childhood trauma. It is her evidence that the offender took advantage of these vulnerabilities and engaged in coercive and controlling behaviour both when sexually assaulting her, and thereafter when they began a relationship.

17. The solicitors stated that the applicant defended the charge of stalking and the AVO, which the Assessor used to discount her description of the act of violence, and on 9 February 2024, Magistrate Milledge dismissed both the charge and the AVO. Irrespective of the outcome of the court proceedings, neither the charge nor the AVO have a bearing on the veracity of the applicant’s account of these sexual assaults and relate to conduct sometime thereafter, which she disputed. Therefore, the AVO and criminal charge are now irrelevant when determining whether an act of violence is established on the balance of probabilities.

18. The solicitors argued that the progress notes clearly indicate that the applicant suffered psychological harm as a result of the acts of violence. The Certificate of Injury from Ms Jauco dated 25 January 2024 described the injury as follows:

Highly distressed, worried, nervous, disconnected, reactive, anxious, panic attacks, Teary/crying angry/depressed, low self esteem, low confidence, doubt and memory loss.

19. Ms Jauco noted that the applicant was diagnosed with complex PTSD, depression and anxiety. She stated that the evidence also indicates that the applicant has been a victim of violence perpetrated against her by multiple persons during her childhood, adolescence and adulthood. There is no evidence to suggest that she has recovered from the injuries caused to her as a result of these events.

20. Therefore, the solicitors argued that the acts of violence that are the subject of the application for victims support have aggravated, exacerbated and caused a deterioration in the applicant’s pre-existing mental health conditions and that she continues to receive treatment for their effects. It is not a requirement of the Act that the act of violence be the sole cause of injury, but the injury must be the direct result of an act of violence.

21. Therefore, the solicitors argued that the requirements of s 19 of the Act are satisfied. They relied upon the Tribunal’s decisions in BWL v Commissioner of Victims Rights [2015] NSWCATAD 235 and EGM v Commissioner of Victims Rights [2020] NSWCATAD 181.

22. The solicitors also argued that the purpose of the Act is beneficial and that it must therefore be interpreted liberally and beneficially in favour of the grant of benefits to the applicant. They complained that the Assessor failed to take a beneficial approach in considering the legislation and the evidence before them.

23. The solicitors also asserted that there were no factors under s 44 of the Act that would lead to either the refusal or reduction of victims support.

Review Decision

24. On 22 March 2024, a Senior Assessor issued a Notice of Review Decision, which determined that there is insufficient evidence to establish that the applicant was the primary victim of an act of violence on the balance of probabilities. The application for victims support was therefore dismissed.

25. The Senior Assessor reviewed the material that was before the Assessor at first instance. However, I note that the review decision omitted to refer to or address the grounds of internal review or the applicant’s solicitors written submissions. The respondent has not provided any explanation for this omission.

26. A copy of the Notice of Review Decision was emailed to GHQ on 22 March 2024, under cover of a letter that was also addressed to her bearing that date.

27. However, there is no indication that the decision was emailed to the applicant’s solicitors and as they lodged the application for internal review, their address became the applicant’s address for service.

28. On that basis, it is arguable that the Notice of Review Decision was not duly served by the respondent. However, there appears to be little utility in making a finding to that effect following completion of the administrative review.

Application for Administrative Review

29. 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.

30. On 16 April 2024, the Tribunal received the administrative review application, which sought a review of the respondent’s decision dated 22 March 2024 on the grounds that the decision maker erred: (1) by failing to find that the applicant was a victim of an act of violence, being a sexual assault involving violence that was one of a series of related acts; (2) by failing to find that the applicant suffered an injury as a direct result of the act of violence; and (3) by failing to interpret the Act as beneficial legislation.

Procedural directions

31. The matter came before me for directions on 10 May 2024. Ms A Blacket appeared for GHQ and Ms K Douch 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 broadcast of the applicant’s name. I ordered the respondent to file and serve its bundle of documents under s 58 of the ADR Act by 22 May 2024 and to file and serve a summary of legal arguments by 28 June 2024. I ordered the applicant to file and serve any evidence upon which she relied by 12 July 2024 and listed the matter for hearing by way of AVL on 29 July 2024.

The hearing

32. The matter came before me for hearing on 29 July 2024. Ms Blacket appeared for and with the applicant and Ms Douch appeared for the respondent. The issues for determination were:

1. whether the applicant was a primary victim of an act of violence on the balance of probabilities;

2. if ‘yes’, is she eligible for victims support in the form of a recognition payment;

3. what is category of recognition payment should be approved?; and

4. Are there any factors under s 44(1) of the Act that support a decision to either not approve victims support or to reduce the amount of victims support that is approved?

33. I have considered all of the available evidence in this matter including the documents lodged by the respondent under s 58 of the ADR Act and the police records that the respondent filed with their respondent’s written submissions. However, I have not referred to each document individually in this decision.

Applicant’s evidence

34. On 12 July 2024, the applicant’s solicitors filed the following documents:

1. SARO dated 23 February 2023;

2. Police case report (number provided);

3. (Name provided) Centre progress notes;

4. (Name provided) Hospital progress notes, discharge summary and referral to the (name provided) Centre;

5. Advice of Court Result – Local Court of NSW;

6. Certificate of Injury from Ms K Jauco; and

7. Applicant’s Statement dated 9 July 2024.

35. The evidence in documents (1) to (6) (inclusive) was set out in the respondent’s decisions and the applicant’s solicitors’ submissions in support of the application for internal review. This evidence has been set out previously in this decision.

36. In her statement, the applicant provided extensive evidence in support of her application, which I have summarised as follows:

1. Since childhood, she has experienced sexual abuse from family members and acquaintances, including sexual abuse by a stranger when she was aged 9 years and sexual abuse from her step-brother when she was 12 years old. She was raped by her stepfather as an adult and she was also raped by an acquaintance when she was 19 years old. After she came to Australia, as an adult, she suffered domestic violence from two previous partners.

2. In June 2021, she posted an ad on Gumtree stating that she was looking for work and a man responded – using the name “Kris”. She later learned that this was not his real name. He initially responded seeking sexual services, but she told him that she was not offering this. She stated, relevantly:

4. …We started talking and I thought we had a friendly banter and similar interests. As I had made it clear I was not offering sex, I thought we were becoming friends. It has been hard for me to make friends in Australia as I was not born here. It is not unusual for me to make friends online. Unfortunately, these messages were deleted by Gumtree. I wish I had access to them.

5. The first time (name provided) engaged in non-consensual sexual activity with me was on 2 July 2021. I was driving, running some errands. Around 9pm I texted him to see if he wanted to meet up. I thought we were meeting up as friends. He told me he could meet me at 9:30pm at Little Bay at (location). I found it a bit off because he said he lived in Malabar.

6. As I arrived, I saw him waiting a T-shirt, shorts and thongs. I was wearing a bog grey jumper and a white t-shirt with black dots. He jumped in my car, and I said “Hello” and he replied “Hello”. He leaned in and kissed me, toughed and kissed my breast and my vagina. I froze and was uncertain how to respond to this situation. He then proceeded to lower his pants and ask me to suck his penis. I said this is not what I am looking for. He then pulled his pants up and exited the vehicle.

7. I did not consent for him to touch me or expose his penis to me on 2 July 2021.

8. He messaged me again on 4 July 2021 after I told him I was not interested and sent me a photo of an Octopus which he told me he speared earlier that day. I could tell he wanted to meet up again, but I kept on just talking about other things. On 5 July 2021 morning we talked again and he still insisted on meeting up with me which I politely declined until he sent me a message saying, (her husband’s name and their address)… I froze. I was shocked and had no idea how he found out my husband’s name and home address. I was scared, and I responded “Fuck”. He then began sending me messages using words to the effect of “you either meet me or I will let your husband know you met me”. This caused me a lot of fear and anxiety.

9. Because of these threats I felt I had no choice but to meet up with him. I saw him that morning after the coercion , on 5 July 2021 at the Westpac helipad in La Perouse. This was the second time (he) engaged in non-consensual activity towards me.

10. When I got there, I parked next to his car, exited my vehicle and got into the back of his car. We did not speak at all and he proceeded to hiss me. He touched and kissed my breast. He pulled down my underwear and licked my vagina. He pulled down his pants and told me to suck his penis a little while he was trying to put a condom on. It felt like I froze while he did these things to me. I just did what he told me to. I felt I had no other option. I then leaned back. He then spread my legs proceeded to penetrate me until he finished. Once he finished, I got dressed and left the car. I was numb.

11. I did not consent to this sexual activity. I didn’t feel like I had any other choice. I was fearful he would tell my husband and how my husband would respond.

12. After we had sex, he told me the blackmail was just a “bluff”. This made me so angry. That he would lie and blackmail me, made me question a lot of the information about his life that he had given me, like his name and his relationships. He knew I didn’t want to have sex with him, which is why he blackmailed me. I think (he) liked having power over me.

13. When I got home he texted me “are you okay?”. I responded words to the effect of “I am ok” and “you are lucky it was me, otherwise you could have been in big trouble.” I remember saying this because I thought about reporting him to the Police but I was too scared and embarrassed to take any action. I decided that I wanted to find out who he was and what he had lied to me about so I could know who I was dealing with. I said things to make him feel comfortable. I said to him we could meet again, that I was flattered he was interested in me, that I enjoyed his company. I wanted him to trust me.

14. I experienced sexual abuse as a child in Malaysia. I told my mother, and she sent me away for 3 years to South Africa when I was 15 by myself. I also experienced violence by two of my ex-partners in Australia before I met my husband. After I was assaulted by (the alleged offender) on 2 and 5 July 2021 I had the same feelings of being trapped and lost as I did when I experienced abuse as a child. I did not understand what I was experiencing then because I had never received professional help for this type of abuse. The abuse changed my relationship to sex, and I feel has made me vulnerable to predators.

15. After these two assaults I commenced a sexual relationship with (the alleged offender) until around February 2022, but it was a relationship that was not equal. Initially I began the relationship as I wanted to find out (his) name. I felt ashamed, embarrassed and lost after these two assaults and I thought by finding out his name I might gain back some control. I understand now having engaged in therapy that victim-survivors of abuse may enter unsafe sexual relationships to try to regain power but also as a survival mechanism. This relationship was volatile and I felt like he was very coercive towards me. I was angry from the beginning because he got away with abusing me and I had no power the whole time. I didn’t know his name or where he lived but he knew my husband’s name, where I lived and everything about me.

16. I ended the relationship for 3 weeks in August 2021 because I felt so much shame and confusion. During that time (he) begged and coerced me to see him.

17. In October 2021 I found out I was pregnant. As a result of the hormonal changes, my feelings and thought processes changed. I was really scared (he) was the father of the baby. When I told (him) I was pregnant he freaked out. He told me that if it was his child I wasn’t allowed to “find him”. He made me promise I wouldn’t seek him out. I was so scared and stressed during this time.

18. I do not dispute that I sent (him) sexual messages. (He) also sent me a lot of sexual messages. We were having a sexual relationship at the time those messages were sent but I did not consent to engaging in sexual activity with him on 2 and 5 July 2021.

19. In March 2022, I found out (his) real name through a private investigator. I also found out that (he) was married and that he had children of his own. The private investigator told me to speak to police. I wanted to but I had no support. I was scared and 5 months pregnant. This was my first pregnancy.

20. (The alleged offender) and I continued to send sexual messages to one another even after I found out his name. I felt sick to my stomach about everything. I also had Pubic Symphasis Dysfunction which was really detrimental to my daily mental health.

21. After I gave birth to my son on 29 June 2022 my mental health really declined.

22. In or around October 2022 I sought support from (name) Hospital as an inpatient. I explained the nature of the relationship and they too asked me if I would like to speak to the police but I said I was not ready.

23. When I left (the hospital) they referred me to the (name) Centre for counselling and support because they told me that (the alleged offender) had perpetrated domestic and sexual violence against me. It was not until I got support from a counsellor at the (Centre) that I came to understand that (his) behaviour was abusive, coercive and controlling, and that my response was due to my history of trauma and abuse.

24. I was diagnosed with Complex PTSD by (name) Hospital. I felt that (the alleged offender) took advantage of my vulnerability to get power and control over me. Through engaging with counsellors and allied health I have come to understand that (his) behaviour was domestic violence.

25. I felt hurt, shame and distress because of the sexual assaults and violations of trust by (the alleged offender). (His) sexual assaults, and his desire to dominate and control me made me anxious and depressed. It made my PTSD much worse. I have sought ongoing therapeutic intervention from my counsellor Karen at (name) Centre, to help manage these injuries.

26. In February 2023, I tried to confront (him) one morning about his behaviour. After we spoke he went to police and made false allegations against me of stalking and intimidation.

27. Later that day the police came to my house and told me that I was being charged with stalking and intimidation and an ADVO would be taken out against me. The police separated me and my 6 month old baby for an entire night. My baby was breastfeeding only at the time. I had suicidal feelings at this time.

28. I was so distressed by the police’s behaviour. It was (the alleged offender) who was violent towards me, but I was being charged. I defended this charge and the matter proceeded to a final hearing in Waverley Local Court. The Magistrate did not find (him) to be a credible witness and dismissed the charges against me and the ADVO.

29. I reported (his) sexual assaults and behaviour towards me on 23 February 2023 in my SARO. I started the report at the beginning of February 2023. It took me nearly three weeks to complete it. After I completed it, I spoke with two different detectives via email. I went back and forth with the second detective and by June 2023 the police said there was not enough evidence. I had to go to the police station to meet with the detective and he said there was not enough evidence because in the interview (the alleged offender) denied doing anything.

30. After this I went to speak to the Sex Crime Squad Crimes Manager at a symposium held by Fullstop Australia. She told me to email her my concerns and I did. I was referred to another detective. That detective did not meet with me and confirmed what the previous detective had said.

31. It is really upsetting to me that the police used the charges and the ADVO against me to dismiss my report of sexual assault, particularly as they were dismissed by the Court after hearing the evidence. I feel like I have not been heard and my experience has repeatedly been dismissed and minimised.

32. (The alleged offender)’s violence towards me was a huge violation of my trust. I continue to seek treatment for the impacts of (his) violence. I hope soon I can feel better soon for my son and my husband, and for myself.

Applicant’s submissions

37. The applicant’s solicitors filed written submissions on 12 July 2024. I note that these submissions are largely consistent with those made in support of the application for internal review, which have been summarised previously in this decision. However, they also responded to submissions made by the respondent, as follows:

4.18 In their submissions the respondent acknowledges that the Applicant made disclosures of the assault to (name) Hospital and her counsellor however defer to the decision of the police who note ‘inconsistencies’ in the applicant’s evidence. While not conceding these inconsistencies, we note that Criminal Law has long acknowledged that trauma can result in discrepancies in a complainant’s account of sexual offending and that inconsistency is not necessarily indicative of lying or unreliability. Indeed, since 2008 section 293A of the Criminal Procedure Act 1986 (NSW) has provided that a judge in a sexual offence trial my provide a jury direction to correct the ‘rape myth’ that inconsistency in a complainant evidence is indicative of fabrication. Section 293A provides that a judge may direct a jury that:

(2) In circumstances to which this section applies, the Judge may direct the jury—

(a) that experience shows—

(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and

(ii) trauma may affect people differently, including affecting how they recall events, and

(iii) it is common for there to be differences in accounts of a sexual offence, and

(iv) both truthful and untruthful accounts of a sexual offence may contain differences…

38. The applicant’s solicitors argued that the Tribunal should not be guided by the decision by police to not pursue charges against the alleged offender, because they were applying a different standard of proof and their investigation was unduly influenced by the ADVO and criminal charge that had been laid against GHQ at that time. The ADVO and stalking charge were dismissed after a hearing and there is sufficient evidence to establish that the applicant was a victim of series of acts of violence, in the nature of sexual assault on the balance of probabilities.

39. Otherwise, the applicant’s solicitors repeated their submissions on internal review in relation to grounds (2) and (3) of the current application. They concluded that she is eligible for a Category B recognition payment in the sum of $10,000 and that there are no factors under s 44(1) of the Act that justify either the refusal of victims support or the reduction of the amount of victims support that is approved.

Respondent’s submissions

40. The respondent filed written submissions on 28 June 2024. I note that these rely extensively on the Police investigation report and they were prepared prior to the applicant’s statement.

41. While the respondent concludes that the correct and preferable decision is to affirm the Senior Assessor’s decision, they did not address the Senior Assessor’s omission to address the extensive submissions made by the applicant’s solicitors in support of the application for internal review.

Consideration

Act of violence

42. 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.

43. “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.

…

(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…

44. 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…

45. The onus is on the applicant to prove the allegation that she was the primary victim of an act of violence in the nature of sexual assault that were perpetrated by the alleged offender on the balance of probabilities.

46. I accept the evidence contained in the applicant’s statement dated 9 July 2024. This was not available to either the Assessor (Client Claims), the Senior Assessor. While the statement was filed after the respondent’s submissions, the respondent has not sought to file any submissions in reply.

47. This Tribunal is not bound by the decision made by the Police to take no action against the alleged offender with respect to the incidents on 2 July 2021 and 5 July 2021.

48. In my view, a fair reading of the clinical notes of the (name) Hospital and the (name) Centre, and the Certificate of Injury issued by Ms Jauco dated 25 January 2024, support a finding that the applicant suffered an aggravation, exacerbation or deterioration of her pre-existing complex PTSD, depression and anxiety as a direct result of the incidents on 2 July 2021 and 5 July 2021.

49. Accordingly, I am satisfied that the evidence establishes on the balance of probabilities that the applicant was a primary victim of acts of violence, in the nature of sexual assault, which occurred on 2 July 2021 and 5 July 2021, respectively. Therefore, the requirements of ss 19(1) and (3) of the Act are satisfied.

50. I am also satisfied that the acts of violence are a series of related acts as defined by s 19(4) of the Act, as they were both sexual assaults that were perpetrated by the same alleged offender.

Recognition payment

51. It is necessary to determine the relevant category of recognition payment that the applicant is eligible to receive.

52. I note that the applicant’s solicitors argue that a Category B recognition payment should be approved in the amount of $10,000. The respondent has not addressed this issue.

53. Section 35 of the Act provides, relevantly:

(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—

…

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

54. I am satisfied that the evidence before me satisfies s 35(2)(b) of the Act and that the applicant is eligible for a Category B recognition payment in the sum of $10,000.00.

Section 44 factors

55. Section 44 of the Act provides, relevantly:

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, …

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

(e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or 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,

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

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

56. In relation to s 44(1)(a), I note that the terms “attitude” and “disposition” are not defined in the Act. Accordingly, I consider it appropriate to adopt their ordinary dictionary definition.

57. I note that the Macquarie Dictionary Online defines these terms, relevantly, as follows:

Attitude

1. position, disposition, or manner with regard to a person or thing: a menacing attitude…

Disposition

1. mental or moral constitution; turn of mind.

2. mental inclination; willingness.

3. physical inclination or tendency…

58. Based on the evidence before me, I am satisfied that as a result of her lengthy prior history of sexual abuse and domestic violence, which Ms Jauco described in her Certificate of Injury as “sexual assault and grooming”, the applicant engaged in actions that indirectly contributed to the acts of violence.

59. I am further satisfied the applicant’s attitude and/or disposition indirectly to her current psychological injury. In my view, the second act of violence is unlikely to have occurred if the applicant had not felt coerced by reason of her prior history of abuse to meet with the alleged offender in a remote location and to get into the back of his car, after which the second sexual assault occurred.

60. For these reasons, I am satisfied that s 44(1)(a) applies and that it is a valid reason for reducing the amount of victims support that is approved for the applicant.

61. As it is difficult to determine the extent to which the prior history etc. contributed to the act of violence with any great precision, and no method of calculating a reduction is provided in the Act, I have decided to adopt an analogous approach that applies to the NSW statutory workers compensation scheme.

62. In this regard, s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIMA) provides:

If the extent of a deduction under this section (or a part of it) will be difficult or costly to determine (because, for example, of the absence of medical evidence), it is to be assumed (for the purpose of avoiding disputation) that the deduction (or the relevant part of it) is 10% of the impairment, unless this assumption is at odds with the available evidence.

63. While this is not a claim for statutory compensation, I consider it reasonable to apply the approach set out in s 323(2) of the WIMA in determining the reduction in victims support under s 44(1) of the Act.

64. I am therefore satisfied that it is appropriate to reduce the amount of victims support approved for the applicant by 1/10.

Orders

65. I make the following orders:

1. The decision under review is set aside and I make the following decision by way of substitution.

2. The applicant is a primary victim of an act of violence that comprises a series of related acts.

3. The applicant is eligible for a Category B recognition payment.

4. The amount of victims support approved for the applicant is reduced by 1/10 under s 44(1)(a) of the Act; and

5. Victims support is approved in the amount of $9,000.

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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: 30 July 2024