GKQ v Commissioner of Victims Rights

[2025] NSWCATAD 29

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GKQ v Commissioner of Victims Rights [2025] NSWCATAD 29

Hearing dates:

11 October 2024

Date of orders:

29 January 2025

Decision date:

29 January 2025

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 – recognition payment 

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Victims’ Rights and Support Act 2013 (NSW)

Cases Cited:

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Texts Cited:

None

Category:

Principal judgment

Parties:

GKQ (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Applicant (Self-represented)
Victims Services (Respondent)

File Number(s):

2024/00227918

Publication restriction:

Section 64 (1) (a) 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 a recognition payment lodged on 18 November 2022, by the applicant, who is known by the pseudonym GKQ, initially before the Commissioner for Victims’ Rights (the respondent).

2. GKQ alleged that he was the victim of a sexual assault in September 2014, while he was a mental health inpatient at St Vincent’s Hospital in Darlinghurst, in the State of New South Wales. The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act).

Decision at first instance

3. On 1 February 2023, an Assessor (Client Claims) found that an act of violence was not established on the balance of probabilities as required by s 19 of the Act. Accordingly, the application was dismissed.

4. I note that a copy of the decision was emailed to GKQ on 1 February 2023. I am therefore satisfied that the decision was served as required by the Act.

Application for internal review

5. On 8 March 2023, GKQ applied for an internal review of the decision on the basis that false allegations were made by NSW Police. He stated:

I am specifically disputing point 18 as I was sexually assaulted by nurse (name provided) on 13/10/2014, and hence I did not ‘fabricate the story”. I disagree with the Police report that I “fabricated the story” in order to facilitate an earlier discharge from Caritas.

6. GKQ attached a report from Dr J Lightburn, Consultant Psychiatrist, dated 23 March 2023, as follows:

I am writing to you at the request of (GKQ) in regards to his appeal of the decision to dismiss his application for victims support that was lodged on 18/11/2022. I am (his) current treating psychiatrist at Concord Centre for Mental Health (CCMH) where he has been an inpatient since 09/11/2021. The alleged incident occurred in September 2014 and I was not involved in (his) care at that time. As such I am not able to comment on his mental state at the time of the incident however I have reviewed some of the documentation relating to the incident and the admission during which the alleged incident occurred.

I note that (GKQ) reported the incident to his treating psychiatrist only a few days after it reportedly occurred. He then reported to again to the Nurse Unit Manager a few weeks later. After this, the police were contacted and (GKQ) was interviewed. The police have stated that (he) admitted to fabricating the sexual assault in the hopes of an earlier discharge from his hospital admission. (GKQ) strongly denies this claim. He reports that he felt the police did not take his report seriously due to his criminal history.

The treating team managing (GKQ)’s care at the time documented in his discharge summary that the report of the sexual assault was delusional in nature however have not elaborated as to their reasoning behind this.

I note (GKQ) has disclosed his detailed recollection of the alleged event on multiple occasions to multiple clinicians over the years and his report has remained consistent throughout. He reports feeling highly traumatised by the assault and certainly has been consistently distressed by its recollection. (GKQ) reports fear and hypervigilance symptoms that he feels stem from the assault, that still affect him to this day…

7. On 27 April 2023, a Senior Assessor issued a Notice of Review Decision, which determined that there was insufficient evidence to establish on a balance of probabilities that GKQ was a primary victim of an act of violence. Therefore, the application was dismissed.

8. I note that a copy of that decision was emailed to GKQ on 27 April 2024. I am therefore satisfied that the decision was served as required by the Act.

Application for administrative review

9. 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.

10. On 20 June 2024, the Tribunal received the current application for administrative review, which sought a review of the decision dated 27 April 2024, on the basis that GKQ disagreed with the outcome.

11. The application was lodged out of time, but GKQ stated that it was late because “I didn’t no where to get support from to go ahead with the matter…”

12. The matter came before me for directions on 19 July 2024, at which GKQ appeared in person 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 publication or broadcast of GKQ’s name. I ordered the respondent to file and serve a bundle of documents under s 58 of the ADRS Act by 26 July 2024 and I ordered GKQ to file and serve all evidence on which he relies by 2 August 2024. I ordered the respondent to file and serve a summary of legal arguments by 9 August 2024 and listed the matter for an in-person hearing on 16 August 2024.

13. However, on 16 August 2024, Senior Member McAteer conducted a further directions hearing. He granted the respondent leave to issue a summons to produce documents to St Vincent’s Hospital for GKQ’s medical records for the period from 1 January 2013 to 31 December 2014. He extended the time for filing and service of evidence and legal arguments and listed the matter for an in-person hearing on 11 October 2024.

The hearing

14. The matter came before me for hearing on 11 October 2024, when both GKQ and Ms Douch appeared in person.

15. When the matter commenced, the Tribunal asked GKQ if the only further evidence that he sought to rely upon were the medical records that were produced under the summons? He replied “Yeah, yeah”.

16. The Tribunal sought to clarify GKQ’s evidence, because he had not filed a statement of evidence, by referring to the records that were produced under summons.

17. GKQ proved to be an extremely poor historian and he expressed confusion as to when the alleged act of violence occurred, because he had been admitted to the Caritas Mental Health Unit on two occasions. The Tribunal noted that on 13 October 2014, he was admitted and that he was diagnosed with “Paranoid delusions”, but he stated that he had “never been delusional”.

18. The Tribunal also noted that on 26 October 2014, he was admitted to a mental health unit in Melbourne, with a history of “recurrent intravenous methamphetamine induced psychosis” and “likely schizophrenia”. GKQ said that he had been treated for issues “under the category of schizophrenia… When you're paranoid, someone's going to attack you, that's the only paranoia that I have.”

19. The Tribunal referred to the clinical notes dated 13 October 2014, being the date of the alleged sexual assault, which specifically recorded that when GKQ reported this incident, he appeared “downcast, giggling to himself and factitious, not making eye contact or coherent information that the Unit Manager will need. (GKQ) was encouraged to think about the allegations, was reassured and encouraged to speak to staff. (GKQ) denied anyone else having touched him in the Unit. Plan was to continue his care and to seek advice from After-hours Nurse Manager and the Nurse Unit Manager.” The Tribunal asked GKQ if this was an accurate description of his report of the alleged assault, and he replied, “But anyways, he never said sorry. He never talked to me about it. He never said one word after that happened and that's what proof, because he never said a word to me afterwards. None.”

20. The Tribunal noted that in the application for Victims Support, GKQ alleged that the act of violence occurred in September 2014, but the clinical notes were dated 14 October 2014. He replied to the effect that he “got confused with the first admission and thought it was the first admission, but it's a good chance it was the second one”.

21. The Tribunal noted that the clinical notes on 25 of September 2014, indicated that he was “happy to get the Police to come” to prove that “I'm not mentally ill”. The Tribunal noted that so far, GKQ has stated that the alleged sexual assault happened on 14 October 2014 and 25 September 2014, but that the clinical notes do not contain any information about what actually happened or where he had reported it. He replied, “I didn't report it” until possibly three or four admissions later. He then said, “If I had to call the police, it'll be directly to get out of hospital, not because of that guy, that nurse that sexually assaulted me. I just wanted to get out of hospital. It had nothing to do with that guy.”

22. GKQ then stated that he was asleep and that he woke up and felt someone touching his penis. However, the Tribunal noted that the Police report dated 16 October 2024 indicated that on 13 September 2014, he presented at the Emergency Department at St Vincent’s Hospital in a psychotic state. Initially, he was turned away, but he later returned in a more agitated state, claiming that he wanted someone to cut off his testicles with a blade. He was detained and used syringes were found in his pocket. He was sedated and was given two medications and was then transferred to the Caritas Unit in a wheelchair and in a semi-conscious state. Around 5:00 PM, in the Caritas Unit, Nurses took over his care and transferred him from the wheelchair to a bed. He was constantly checked and at one stage, a nurse entered the room to change him out of his soiled clothes and into some pyjamas and he used a washer to wipe his face, hands, feet and legs up to the knees. He removed the soiled clothes and replaced them with pyjamas. At 7:00 PM, he was given some more medication and the nurse finished his shift without issues. Since that shift, that nurse looked after him between four or five more times without any issues. However, on 25 September 2014, he disclosed the alleged sexual assault to his psychiatrist and said that while changing being changed into the pyjamas, the nurse put his hand on his penis and moved his hand up and down. The Registrar took notes of this meeting, during which and he had asked if he could “get out” early?

23. The Tribunal noted that the Police formed a view that the nurse did not commit the alleged sexual assault and that GKQ made these claims so that he could leave Caritas faster. He replied, “The Police lied”.

24. The Tribunal noted that there was little by way of actual evidence in support of the claim for victims support and that the information in the clinical notes does not support his allegation. GKQ replied, “I might have to write a new report because I didn't bring it with me…” I then determined that I was unable to obtain any further clarification or assistance from GKQ.

25. The respondent filed written submissions on 16 August 2024, which argued that the correct and preferable decision was to affirm the decision under review. The respondent relied upon the decision of the Court of Appeal in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (Nguyen), in which McDougall J, McColl & Bell JJA agreeing) held:

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.

26. The respondent noted that while GKQ did make disclosures relating to the alleged act of violence to treating medical professionals and NSW Police, there are significant inconsistencies between these disclosures.

Decision reserved

27. The Tribunal stated that it would reserve its decision, but GKQ then stated that he wanted “to call A Current Affair”, because, “No one is above the law. Got sexually assaulted by a bald head, with glasses on, no one is above the law. Essentially he assaulted me and you're rejecting that.”

28. The hearing concluded.

Consideration

29. 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.

30. “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.

31. 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…

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

33. I have considered the detailed medical records that are before me, as well as the information that was obtained from GKQ during the hearing.

34. Contrary to GKQ’s assertion that he has never suffered from a delusional disorder, the hospital clinical records clearly indicate that this was his primary diagnosis at the time of his first admission to the Caritas Unit) and that this was related to the use of ice.

35. The clinical records also clearly indicate that at the time that the alleged sexual assault occurred, GKQ had been admitted to the Emergency Department (suffering from consequences arising from the use of ice) and that that he was sedated and medicated and was then transferred to the Caritas Unit in a wheelchair. He subsequently awoke in a bed in the Caritas unit, where he had been changed out of his soled street clothes and dressed in hospital pyjamas) and a male nurse was apparently administering a sponge bath.

36. GKQ denies that this is what occurred, although he did concede that he could not recall of the nurse was speaking to him at the time because he was asleep. While I have no doubt at all that GKQ believes that he was sexually assaulted by a male nurse, there is no evidence before me that provides a safe climate for a finding that the nurse acted towards GKQ with any form of criminal intent – let alone an intent to sexually assault him.

37. For these reasons, I am not satisfied that an act of violence in the nature of a sexual assault has been established on the balance of probabilities.

38. Accordingly, the correct and preferable decision is to affirm the decision under review.

Order

39. The decision under review is affirmed.

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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: 29 January 2025