Praljak v Scheme Manager, Victim Assist Queensland, Department of Youth Justice and Victim Support
[2025] QCAT 300
•4 August 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Praljak v Scheme Manager, Victim Assist Queensland, Department of Youth Justice and Victim Support [2025] QCAT 300
PARTIES:
ADRIAN PRALJAK
(applicant)v
SCHEME MANAGER VICTIM ASSIST QUEENSLAND DEPARTMENT OF YOUTH JUSTICE AND VICTIM SUPPORT
(respondent)
APPLICATION NO/S:
GAR720-23
MATTER TYPE:
General administrative review matters
HEARING DATE:
23 July 2025
DELIVERED ON:
4 August 2025
DECISION OF:
Member Roney KC
ORDERS:
1. The Application for review of a decision is allowed.
2. I set aside the decision under review.
3. I find that there was an act of violence and the Applicant was injured as a direct result of witnessing the act of violence.
4. I find that the Applicant was a witness to the incident and a witness secondary (less serious act of violence) victim who sustained the injuries referred to in the medical certificate dated 23 March 2021 completed by Dr Adrian Ashton.
5. I refer the matter back to the respondent for a determination to be made as to what financial assistance is appropriate on the basis that the Applicant is a witness secondary (less serious act of violence) victim.
CATCHWORDS:
GENERAL ADMINISTRATIVE REVIEW – VICTIMS ASSIST – where a claim has been made under the Victims of Crime Assistance Act 2009 (Qld) – whether the Applicant has established that an act of violence took place – whether the Applicant has established that he has suffered an injury
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 23, s 24, s 28(3)
Victims of Crime Assistance Act 2009 (Qld), s 21, s 25, s 27, s 54
Fane v Queensland Building and Construction Commission [2017] QCAT 59
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Spinosa v Scheme Manager, Victims Assist Queensland, Department of Justice and Attorney-General [2024] QCAT 349
Spinosa v Victims Assist Queensland [2016] QCAT 345
Spinosa v Victims Assist Queensland [2016] QCAT 173
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Mr H Chatburn Senior review officer with the respondent
REASONS FOR DECISION
VOCAA Financial Assistance Scheme
One of the purposes of the Victims of Crime Assistance Act 2009 (Qld) (‘VOCAA’) is to provide a scheme to give financial assistance to certain victims of acts of violence. In some cases, victims can include witnesses to acts of violence. This is such a case. The Explanatory notes to the Bill which became VOCAA at page 3 observe that apart from primary victims, secondary victims were a new category brought in and caught by the Bill. Witnesses to acts of violence are secondary victims and the entitlement to seek financial assistance by them varies depending on whether they are witnesses to violence against their child, or a witness to murder/manslaughter, or, as here, witnesses to other acts of violence.
The Explanatory notes to the Bill which became VOCAA at page 2 observe that:
The Bill achieves the objectives by repealing COVA [Criminal Offences Victims Act 1995] and Chapter 65A of the Criminal Code, as preserved by COVA, and providing for a new financial assistance scheme.
Under the new scheme, victims will no longer be required to apply for compensation through the court system. Instead they will apply for financial assistance to a new Victim Assistance Unit (VAU) within the Department of Justice and Attorney-General.
The new scheme will focus on victim recovery by paying for, or reimbursing the costs of, goods and services that the victim requires to help them recover from the physical and psychological effects of an act of violence. It aims to provide a tailored, needs-based response and allows for earlier intervention in the victim’s recovery rather than waiting for a conviction of the offender.
(emphasis added)
Later, the Explanatory notes referred to the fact that under the new scheme “it will be a more efficient use of government resources, and will be quicker and less legalistic than providing for Magistrates or a Tribunal to decide applications for assistance”.
Those matters should inform the way this legislation is to be construed.
The respondent is appointed as the “manager of victims assistance.” Pursuant to sections 5, 51, 52 and 54 of VOCAA, a victim of an act of violence may apply to the scheme manager for victim assistance, on the approved form, and within time limits.
The Applicant is a man in his 40s who holds a Bachelor of Laws, Graduate Certificate of Business Administration, Graduate Diploma in Legal Practice, and a Master of Applied Laws (In-House Practice). He was admitted to the legal profession as a lawyer in 2009.
The Applicant applied to the respondent for financial assistance under VOCAA in a form dated 23 March 2021 and which was received by the respondent on 9 April 2021. The application for financial assistance is based on an event that he said, and there is some independent Police Service evidence to support it, occurred on 30 December 2020. In the application for financial assistance at the point where the form asks “What happened”, the Applicant stated that on 30 December 2020 he was a witness to a group attack involving around 7 to 20 teenagers and men fighting with weapons, and that the applicant called 000 and police attended the scene. The Applicant stated that the act of violence occurred in Queensland at 7 Brown Street, Labrador on the Gold Coast. He explained during the hearing before me that this address held was a collection of residential units in a complex where he was then living. Many University students lived there as well. There were also some retail shops in the complex.
It is common ground that he was not personally subjected to any violence or injured by it. He alleges in this Tribunal that as well as teenagers and men fighting with weapons, they were damaging property with the weapons. He contends that he feared for his own safety and went to the aid of a woman who was either pregnant or had a small child and was caused psychological injury in consequence of the events in question.
Pursuant to sections 25, 25A and 27 of VOCAA, a government assessor is required to consider an application for assistance and any information or documents obtained and then decide to either grant or refuse the application. Financial assistance will generally be provided in circumstances where it is established, on the balance of probabilities, the applicant has suffered an injury as a direct result of an act of violence, that is a crime constituting a prescribed offence.
Under section 124 of VOCAA and Schedule 1 of VOCAA, an applicant who is aggrieved with an assessor’s decision about their application for assistance may apply to the respondent for an internal review. Refusing an application for assistance is a reviewable decision. He seeks a review of the respondent Commission’s decision made on 4 July 2023 and the Review decision, of 29 September 2023 affirming the original decision, to wholly decline the Applicant’s claim for victim assistance.
The material includes a medical report from Joanne Hutchinson, a Senior Psychologist which expresses the clinical opinion that the Applicant meets the criteria for, and is diagnosed with, attention-deficit/hyperactivity disorder combined, with the severity of the diagnosis described as moderate. He had considerable difficulty in maintaining focus on the issues that arose for determination of this review application and often showed distraction for the central issues that required focus.
The Tribunal’s powers and functions upon review
On review of the respondent’s decision, the Tribunal must hear and decide the matter by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that upon determining the correct and preferable decision, the Tribunal may:[2]
(a)confirm or amend the Decision; or
(b)set aside the Decision and substitute its own decision; or
(c)set aside the Decision and return the matter for reconsideration to the Commission, with the directions the Tribunal considers appropriate.
[2]Ibid s 24.
This means that the applicant need not prove any error by the respondent in its original decision – the original decision is not presumed correct.[3]
[3]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
In conducting the review, the Tribunal:[4]
(a)may inform itself in any way it considers appropriate, and must ensure as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts;
(b)is not bound by the rules of evidence, other than to extent the Tribunal adopts the rules, practices or procedures of a court of record; and
(c)must observe the rules of natural justice.
[4]QCAT Act s 28(3).
The legislative scheme
The relevant provisions of VOCAA are sections 21, 25 and 27 and provide as follows.
Section 21 provides:
21 Scheme for financial assistance
(1) This chapter establishes a scheme for the payment of financial assistance—
(a)to a victim of an act of violence; or
(b)to a person who incurs, or is reasonably likely to incur, funeral expenses for—
(a)a primary victim of an act of violence; or
(b)an unborn child of a primary victim of an act of violence.
(2) This chapter does not entitle anyone to the payment of financial assistance in relation to an act of violence if—
(a)the person committed or conspired to commit the act; or
(b)for a person claiming assistance as a primary victim of the act—the person’s involvement in a criminal activity is the only reason, or the main reason, the act was committed against the person; or
(c)for a person claiming assistance for the death of a primary victim of the act—the primary victim’s involvement in a criminal activity is the only reason, or the main reason, the act was committed against the primary victim, and the person was or should have been aware of the involvement.
(3) Also, this chapter does not entitle anyone to the payment of financial assistance in relation to an act of violence if, in the absence of a reasonable excuse—
(a)the act has not been reported to a person as mentioned in section 81(1)(a); or
(b)for an act that is a crime or a series of related crimes—the person has not given reasonable assistance in the arrest or prosecution of the person who allegedly committed the act.
(4) Further, this chapter does not entitle anyone to the payment of financial assistance in relation to an act of violence to the extent the person has received, or will receive, payment of an amount in relation to the act of violence from another source.
Section 25 provides:
25 Meaning of act of violence
(1) An act of violence is a crime or a series of related crimes, whether committed by 1 or more persons, that—
(a)are committed in Queensland; and
(b)directly result in the death of, or injury to, 1 or more persons, irrespective of where the death or injury happened.
Note—
In general terms, it is intended by this section that assistance may be granted to a person in relation to an act of violence even though the person who committed the act has not been, or can not be, found guilty of the relevant prescribed offence because of a justification, excuse or defence.
On the other hand, it is not intended by this section that assistance be payable for an act done or omission made by a person, for example, a police officer, if the act or omission is lawfully done or made in the course of the person performing duties under an Act.
See, however, sections 26(6), 50(2), 79 and 80.
(2) Also, an act of violence is domestic violence, or a series of related acts of domestic violence, that—
(a)is committed in Queensland; and
(b)directly results in the death of, or injury to, 1 or more persons, irrespective of where the death or injury happened; and
(c)is not an act of violence under subsection (1).
(3) In this chapter, a reference to an act of violence in relation to an application for assistance includes a reference to an alleged act of violence.
Section 27 provides:
27 Meaning of injury
(1) In this chapter, injury means—
(a)bodily injury; or
(b)mental illness or disorder; or
(c)intellectual impairment; or
(d)pregnancy; or
(e)disease; or
(f)for a sexual offence or domestic violence, the totality of the following adverse impacts of the sexual offence or domestic violence suffered by a person—
(i)sense of violation;
(ii)reduced self-worth or perception;
(iii)lost or reduced physical immunity;
(iv)lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;
(v)increased fear or increased feelings of insecurity;
(vi)adverse effect of others reacting adversely to the person;
(vii)adverse impact on lawful sexual relations;
(viii)adverse impact on feelings; or
(g) a combination of matters mentioned in paragraphs (a) to (f).
(2) For this chapter, injury also includes an aggravation of an injury mentioned in subsection (1)(a) to (g), if the aggravation arises as a direct result of an act of violence.
(3) To remove any doubt, it is declared that, for this chapter, an aggravation mentioned in subsection (2) is an injury only to the extent of the effects of the aggravation.
Hence to succeed in a claim for compensation pursuant to the provisions of the Act, an applicant must establish that:
(a)The applicant is a victim of an act of violence as defined in s 21 of VOCAA; and
(b)A crime or a series of related crimes were committed by one or more persons in Queensland as defined in section 25(1) of VOCAA; and
(c)The crime directly results in injury. See section 27(1)(b) of VOCAA.
Section 26(1) of VOCAA defines a primary victim as:
A primary victim, of an act of violence, is a person who dies or is injured as a direct result of the act being committed against the person.
In this case I find that the Applicant was not a primary victim because he was not injured as a direct result of the act of violence being committed against him. To the extent that the relevant injury falls within the definition of injury, it is caught by the expression “mental illness or disorder” in section 27.
In Spinosa v Scheme Manager, Victims Assist Queensland, Department of Justice and Attorney-General [2024] QCAT 349[5] at [10] (‘Spinosa 2024’) it was held that an applicant must, on the balance of probabilities, satisfy all of the above elements of the legislation to be successful in making a claim. No authority was cited for that proposition.
[5] See also Spinosa v Victims Assist Queensland [2016] QCAT 345; Spinosa v Victims Assist
Queensland [2016] QCAT 173.
It is true that section 78 of VOCAA says that an assessor may grant assistance only if the assessor is satisfied on the balance of probabilities that the person is eligible. On the hearing before me, and as the respondent conceded, on a review to this Tribunal, it is a merits review and the Tribunal’s powers were as set out above from the QCAT Act and the purpose of the review is to produce the correct and preferable decision. I received the oral testimony of the Applicant about what happened. It seems that no one from the police or the respondent got around to speaking to the Applicant to see what he had to say.
In the Spinosa 2024 decision the learned member held that the applicant had not provided sufficient independent medical evidence to support his claim that he suffered an injury or an aggravation of an old injury as a direct result of the alleged crime, and that he had not, on the balance of probabilities, proved that he has suffered an injury or the aggravation of an old injury as a direct result of the alleged crime. Therefore, he had not proved that an act of violence has occurred as required to satisfy section 25 of VOCAA.
The present case is not like that one because in this case there is clear independent medical evidence.
Witness secondary victims
Even though the Applicant claimed in his original application initially, and even later when he sought a review of the decision, to be a primary victim, the application for financial assistance was also assessed as a possible witness secondary (less serious act of violence) victim. This was in my view the correct approach of the respondent to take.
The respondent makes the submission that to be eligible as a witness secondary victim it must be established on the balance of probabilities that there was an act of violence and the Applicant was injured as a direct result of witnessing the act of violence.[6] The composition of financial assistance for witness secondary victims is outlined in Part 6, sections 43–46 of VOCAA.
[6] VOCAA sch 3, ss 25, 26(4), 28.
I was told that no decisions have been made by this Tribunal about witness secondary (less serious act of violence) victims. I was referred to no decisions about it. My own research did not disclose any decisions on the issue.
The decision to reject the application
The 13 March 2023 letter to the Applicant giving notice of a proposed refusal provided as reasons:
(The) Medical certificate dated 23 March 2021 completed by Adrian Ashton states that you have received injuries caused by "serious and violent group attack-witness".
A review of police information did not name you as a witness or primary victim to any relevant reports.
As an evidence based scheme, the legislation requires that I have sufficient information and evidence to support a decision on the balance on probabilities, that you witnessed an act of violence and suffered a physical or psychological injury as a direct result of witnessing an act of violence. Unfortunately, the information currently available to me is insufficient.
QPS were unable to identify any reports naming you as a witness to any relevant act of violence Accordingly, it is my assessment that, on the balance of probabilities you do not satisfy the definition of a primary victim under section 26(5) of the Act, therefore you would not be eligible to apply for financial assistance pursuant to section 78 of the Act. Furthermore, there is insufficient evidence that you satisfy the definition of a witness to an act of violence victim under section 26(4) of the Act. Accordingly, it is my proposed assessment that you are not eligible for financial assistance.
In my view, this misunderstands the evidence and places undue significant weight on what the police records do not record. It may or may not be correct that Queensland Police Service (‘QPS’) were unable to identify any reports naming him as a witness to any relevant act of violence, but it is also true that it did not say that it had no reports of the incident, or anything to suggest he was not there. That police information did not name him as a witness or primary victim is a neutral proposition, pointing to the absence of information given by the police not to the evidence which did exist about the incident.
The Applicant responded saying:
Upon a thorough review of your decision, I strongly believe that I meet the definition of a primary victim under section 26(1) of the Act.
I was present during a group attack and was physically injured as a direct result of the act being committed against me. The medical certificate dated 23 March 2021 completed by Adrian Ashton clearly states that I received injuries caused by a serious and violent group attack as a witness. Furthermore, I would like to draw your attention to the legal precedent set in the case of R v Kidman (1994) 34 NSWLR 143, where it was held that a witness who is injured as a result of seeing or hearing an act being committed is also considered a primary victim under the Act.
I am also surprised to learn that Queensland Police Service (QPS) information did not name me as a witness or primary victim to any relevant reports. As a matter of fact, I did report the incident to the police on the same day as I called 000 & that’s why the QPS attended the scene, and you can check 000 call logs.
In light of the above evidence and legal precedents, I request that you reconsider your decision and grant me financial assistance as a primary victim under section 78 of the Act. I look forward to hearing from you soon regarding my submission, and I thank you for your attention to this matter.
This response was a further statement by him as to what happened, and it was not inherently implausible. He clearly did not understand what a primary victim was under Queensland law though.
The refusal occurred on 4 July 2023 and provided:
As you know, the Act sets out the rules I must follow when considering applications for financial assistance. You have mentioned you were present and physically injured during the group attack. If the evidence supported this, you would be eligible as a Primary victim under section 26 (1) of the Act. However, the medical certificate completed by your GP Adrian Ashton dated 23 March 2021 does not support this as it mentions you witnessed the attack. Ordinarily we would refer to QPS information, however after many searches of the QPS system, I cannot locate a relevant report made by you, or any report that lists you as being present which you described occurred on 30 December 2020.
This leads me to the next issue that the violence you experienced has not been reported. By not reporting the incident adequately, i.e. more than the 000 call, I am unable to find you eligible as either as a Primary victim or a Witness secondary victim. Therefore, as you do not meet the definition of a primary victim and there is insufficient information to establish you eligible as a witness secondary victim, I formally refuse your application.
Instead of focussing on the evidence that did exist, including his own statements and that of his treating psychologist, it focussed on the absence of corroborative evidence for that evidence from the police records. But the police records did record that the violent event was reported by more than just his 000 call (albeit by others) and did occur when and where he said and what it involved, just not that he was a witness to it. In that regard, I briefly mention a letter dated 7 November 2023, a few months after his application was rejected, addressed to the Queensland Civil and Administrative Tribunal (‘QCAT’) and Victim Assist Queensland (‘VAQ’) from the Queensland Police Service’s Ethical Standards Command showing some things it did know about the incident. I will deal with that letter shortly.
He asked for an internal review the next day stating:
I respectfully request an immediate "Internal Review" at Victim Assist Queensland. If Yes, you Lodge my new Internal Review please E-mail us an Acknowledgement receipt E-mail with any new case numbers for the new Internal Review.
I, Mr. Adrian Praljak rely On the Grounds of…but not limited to;
I am allowed under; Australian State/Commonwealth Law to have an immediate sound "Internal Review" at Victim Assist Queensland. I am a direct Victim as I am the one who called 000. Under Australian Law 000 all phone calls would be recorded - QPS can retrieve these calls. That QPS may be seriously, Unlawfully Obstructing Justice, Causing Miscarriages of Justice, Engaging in Indictable crimes themselves against Me Mr. Adrian Praljak. QPS cannot act Unlawfully, so Jessica H - Senior Assessor - Victim Assist Queensland please retrieve the evidence from 000 and if Lawfully required. ASAP hold QPS Accountable under the Law for any crimes. QPS are breaching their Duty of Care. Negligent Other Crimes, Offences; I believe as why am I not a victim? I am a Direct Victim who called 000 for help? - Jessica H - Senior Assessor - Victim Assist Queensland Your response sounds unfair, harsh, covering up the Truth.
Please apply the Laws of Equity. QPS have a history of Corruption, acting Negligently, breaching their duty of care, not taking reports of victims. This is not my responsibility or fault.
This is documented recently in the Queensland lndependent Commission of Inquiry into both QPS and The Queensland CCC. - On the balance of Evidence and Probabilities, I respectfully submit, Dr. Adrian Ashton Medical reports is strong Evidence of me reporting the Incident, Crimes at the time. (typographical errors omitted)
Here now he referred for the first time to the failure of the police to take a report from him.
The review decision said:
In my review of your application, I relied upon the following pieces of evidence: 1. A medical certificate from Adrian Ashton at CBT Professionals that stated you had symptoms of PTSD including 'hypervigilance, anxiety, on-edge, fear, avoidance, flashbacks' from witnessing a 'serious and violent group attack'. I was unable to find any supporting evidence in my search of the Queensland Police Service (QPS) database. You provided Victim Assist Queensland (VAQ) with a substantial amount of documentation, however as VAQ assessors do not have investigative powers, I cannot use this evidence to draw my own conclusions. I must rely on evidence provided by professionals and paraprofessionals, such as psychologists and other healthcare practitioners, and QPS.
Whilst I appreciate that you provided a medical certificate from your psychologist, section 81 of the Act generally requires that an applicant reports the act of violence to QPS. As there is no evidence of a report being made to QPS, I am unable to establish that an act of violence occurred as defined by section 25 of the Act, or that it was reported as required by section 81 of the Act.
I acknowledge that you said you made a 000-phone call, however that does not satisfy the requirement for reporting. Reporting to QPS would generally require you to provide them with your details and an account of what happened, as well as assisting in the investigation as requested. summary as detailed above, I have considered the information provided with your application. It was limited to one medical certificate. Due to the fact that there is no report of you being a victim of or witnessing an act of violence, I was unable to be satisfied, on the balance of probabilities that you were the victim of an act of violence as defined by section 25 of the Act, or that you witnessed an act of violence as defined by section 25 of the Act. As the incident was not reported and you do not have a reasonable excuse, even if an act of violence could be established under section 25, you would not be eligible under section 81 of the Act.
The notion that reporting to QPS “would generally require (one) to provide them with your details and an account of what happened, as well as assisting in the investigation as requested” seems to be to have no legal or commonsense foundation, because witnesses to violent crime calling an emergency number are calling because it is an emergency. Since there was in this decision an acknowledgement that that he made a 000-phone call, it was open for an inference to be drawn that whoever answered that call asked who he was, and what he was reporting. It defies commonsense to suggest that they would not do so.
The evidence available before the decision makers and this Tribunal
I have recited already what the Applicant says happened to him.
In the Applicant’s Application, the Applicant states he witnessed a “group attack around 7-20 teenagers and men fighting with weapons, hammer, screw drivers ....”. The respondent submits that this does not identify an act of violence within the meaning of VOCAA that he saw. It clearly does. The respondent concedes in its written submission that several people were injured in the incident.
In the respondent’s submission, the QPS letter notes that whilst the Applicant did report a disturbance, “it does not specify what act of violence the applicant witnessed. A disturbance is not an act of violence within the meaning of VOCAA.”
Under section 25 there must be a crime or a series of related crimes, whether committed by one or more persons, that are committed in Queensland and directly result in the death of, or injury to one or more persons. The possible injury caused include mental illness or disorder, per section 27. This was not a disturbance like an argument in the street but a violent and frightening criminal act that caused the Applicant to suffer a disorder.
I suggested to the representative for the respondent during argument that the crimes possibly involved include common assault, or threatened serious assault, actual assault with intent, wilful destruction of property, going armed in public, and possibly others including conspiracy to commit violent offences. There was no submission to the contrary.
The pre-printed form to apply for assistance contemplates there being attached to it a medical certificate which is also a form which has been pre-printed. It was filled-out in the handwriting of Mr Ashton, the Applicant’s clinical psychologist. It included his contact details including telephone number and email address and indicated the times when he would be available to be contacted.
The details stated that the Applicant had been seen at the practice for this injury, referring to the details set out in the previous 6-page document form 1, with the heading to that part stating “2 Injury details relevant to the act(s) of violence…”. So, it was clearly referable to the detailed description of what happened as set out earlier in these reasons as had been inserted by the Applicant in the earlier part of the form. In the place in the medical certificate to insert when the patient was first seen, the psychologist has left it blank. So, we do not know what the doctor would say when he first saw the Applicant about the incident. He says though that there were injuries or adverse impacts from it, which he noted was hypervigilance, anxiety, fear, being on edge, and avoidance. It records that the Applicant stated the cause of the injury was a “serious and violent group attack on witness”. It set out the diagnostic plan as psychological intervention and assessment and post-traumatic stress symptoms, and the management plan was trauma focused CBT for four to six sessions, but he had been given no treatment to date. In my view, the certificate sets out in a plausible and not inherently unlikely way, what happened insofar as it concerned his clinical psychologist. It was evidence capable of acceptance and establishing what had occurred on the balance of probabilities. The respondent did not treat it in this way.
In addition to this evidence, the Applicant disclosed a letter dated 7 November 2023, a few months after his application was rejected, addressed to QCAT and VAQ from the Queensland Police Service’s Ethical Standards Command (‘7 November 2023 QPS letter’) which was a response to a complaint the Applicant made to the Crime and Corruption Commission (‘CCC’) about the conduct of the police in their dealings with him in failing to take his report and name him as a victim of the occurrence.
The 7 November 2023 QPS letter set out what he claimed had happened to him, with several persons receiving injuries and he contacted police to respond.
The 7 November 2023 QPS letter said in part as follows:
I refer to your complaint to the Crime and Corruption Commission, where it is alleged police failed to take your report and name you as a victim in an occurrence on 30 December 2020. This complaint was referred to the Queensland Police Service to deal with.
Essentially, you report being a witness to a disturbance whilst staying at the Metro Central in Labrador. The disturbance involved several persons who received injuries, and you contacted triple zero for police to respond. As a result of witnessing this event you have made a claim to Victims Assist Old citing yourself as the primary victim. Further to this, you advise this application was refused indicating that you have been listed as a witness and not a primary victim. It is alleged police have failed to take your report and to list you as a victim in this report.
The Ethical Standards Command Complaint Assessment Committee considered the circumstances surrounding your complaint which included an examination of police system records. The records identify you were one of several people to contact triple zero to report the disturbance.
These records also indicate that you left the complex and there is no evidence to suggest you are the victim subject to this disturbance. The Committee were satisfied there was no evidence of any misconduct or disciplinable conduct on the part of any police officer.
(emphasis added)
The Applicant disputes the assertion that he left the premises. I accept that evidence. Even were it true that he did so, it would not affect the outcome.
The 7 November 2023 QPS letter clearly recognises that there are police records and that they show the Applicant: “....[was] one of several people who contacted triple zero to report the disturbance.” This information was not given to the respondent when they enquired of the QPS as part of the decision-making process.
Since he made a triple zero phone call to report it, it was an obvious inference to be drawn that whoever answered that call asked who he was, and what he was reporting. It defies commonsense to suggest that they would not do so.
I also accept his evidence that he sought to give a statement to the police but they never arranged with him to take one, and never did take one. Eyewitnesses to violent crime do not cease to be so because they do not tell the police that they were, nor because they tell the police that they were but they are never interviewed so they can tell their story. Moreover, it would not take a great deal of experience in criminal law and the laws around personal injury claims by witnesses to traumatic events that suffer nervous shock to understand that they may not immediately, or for some time, appreciate the emotional and other consequences of that exposure, and not report their involvement contemporaneously with the event. In this case, the Applicant did report it. No-one recorded it.
The legislature cannot have intended that a scheme to give financial assistance to certain victims of acts of violence including witnesses to acts of violence, would fail to do so because witnesses who report their role are not followed up by investigating police particularly where, as here, clearly others reported the incident to police in a way consistently with what the Applicant said happened. There is no suggestion that he invented his presence there. He must have been there, and I find that he was and was a witness to it and a secondary victim.
The original decision and the review decision rejecting his application both turned mainly if not entirely on the lack of corroborative evidence from the QPS, and the failure by him to report it “except by making a 000 call”. It does not refer to his attempts to give the police a statement, and it seems that he had not by then told the respondent that this had occurred, as I say for the first time when he asked for a review of the decision, and only then in ambiguous language.
The respondent can request certain information from the police commissioner to assist in conducting its assessment.[7] It did so here in a pre-printed form not in any way raising direct or specific questions about the incident or providing information about what the Applicant had said. The response from the QPS was not to say there was no relevant information, but to leave all the questions asked unanswered. That did not provide a response to a request for information about the incident, but just indicated, so I was told, whether the QPS had a record involving the Applicant in the incident. The respondent also can request certain information about the circumstances of the act of violence. As to what specific act of violence the Applicant witnessed, the respondent submits that there is “limited information because the applicant left the complex and did not provide an account to police.”
[7] Ibid s 65.
The respondent is also able to request certain information about the progress of investigations, the details of any charge laid and court proceedings, the reasons for not laying a charge or the discontinuation of a charge and the outcome of a court process. In this case, VAQ’s police information request was not able to find a result because there was no act of violence in the police database linked to the Applicant—not that there was no data about the incident, but rather no data that identifies the Applicant as a victim.
The Explanatory notes to the Bill which became VOCAA observe on pages 7 and 8 that:
Clause 65 enables the government assessor to request certain information from the police commissioner about an act of violence for the purpose of deciding an application for assistance. It also enables the government assessor to ask about: the progress of any investigations being conducted in relation to the act of violence; the charges (if any) laid for the act of violence; the reason charges are not laid or continued with; details of the place and date of hearing of the proceeding for the charge; the outcome of any proceeding for the act of violence; and a copy of any statement made by the primary victim.
In addition, clause 66 enables the government assessor to request from the investigating police officer or the police commissioner (the relevant police official) witness statements and other information the relevant police official reasonably considers may be relevant to deciding the application.
The information under both these clauses is necessary to decide the application because it will help verify or otherwise the victim’s account of events.
The material obtained from the QPS by the respondent was almost, if not completely devoid of information about the circumstances of the incident. This is because it was requested in a form that asked printed queries that were not tailored to the particular circumstances, nor did it ask what information the QPS had at all on the incident. Rather, the request inquired in very oblique terms about what it had about the named Applicant’s role in the incident, as recorded anywhere. But we can clearly see that QPS had reported to it, investigated it and in some material respects, corroborated what the Applicant said happened without mentioning him. It did not obtain other information the QPS had that may have been relevant to deciding the application. The 7 November 2023 QPS letter clearly recognises that there are police records and that they show the Applicant: “....[was] one of several people who contacted triple zero to report the disturbance.” This was not told to the respondent by QPS when it requested under section 65 of VOCAA certain information from the police commissioner to assist in conducting its assessment and did so in a pre-printed form.
In written submissions for the respondent, it was said that a government assessor cannot grant assistance if the act of violence has not been reported to a police officer and when the assessor is reasonably satisfied there is no reasonable excuse for the report not being made. The respondent submits the Applicant has not reported the act of violence to a police officer as required[8] and has no reasonable excuse for not doing so. It submits that the Applicant relies upon the 000 call as a report to a police officer, and the phrase “report to a police officer in VOCAA”:
Must be given a particular interpretation that would require the applicant to provide a sufficient enough report to the QPS to enable the QPS to generate a QP report, a QI report or other document that link an act of violence to the applicant.
This may include the provision of a signed police statement or a signed notebook account that could be relied upon as an account of what the applicant saw.
[8] Ibid s 81.
I do not agree with that proposition and no authority has been cited to support it. The act of violence i.e., the consequences it had on him, may not have been reported to a police officer but an act of violence was reported both by him and others.
In written submissions for the respondent, it was said that a report to 000 is not sufficient to amount to a report to a police officer as it is a call for assistance not a report to a police officer. I do not agree, the method of reporting is not limited by anything in VOCAA.
In written submissions for the respondent, it was said that:
since VAQ cannot gain access to 000 recordings, as it is not information contemplated by section 65 VOCAA, even on a broad and beneficial interpretation of VAQ’s information request powers.
Pursuant to section 65(5) VOCAA, the police commissioner may give information requested by VAQ by allowing access to an electronic database and in other ways provide information. In some cases, the police commissioner must provide. I do not accept that VAQ is “not legally able to gain access” to 000 recordings, since the power in section 65 VOCAA is very broad having regard to the language of the section, but even if that were the case, a report by calling triple zero is a report nonetheless.
In written submissions for the respondent, it was said that under section 82 of VOCAA an assessor cannot give a grant of assistance to a person if satisfied on the balance of probabilities the person has not given reasonable assistance in the police investigation of the act of violence in relation to which financial assistance is sought. It was said that the Applicant relies upon the information contained in the QPS letter where the QPS note that whilst the Applicant did contact 000, the Applicant left the complex where he was staying without providing an account beyond what may have been contained in the 000 call.
In the respondent’s submission, a “mere 000 call” is not reasonable assistance in the circumstances where it was open to the Applicant to attend a police station to seek to give an account of what he saw. In the respondent’s submission, in considering whether the Applicant has a reasonable excuse for not providing reasonable assistance, none of the matters listed in section 82(3) VOCAA would result in a decision that the Applicant has a reasonable excuse.
In my view, the evidence establishes that he did much more than make a triple zero call, and in any event, the police did not follow up on his request to provide a statement. He did not refuse to assist police. He took all sorts of action, including complaints to the CCC, the QPC, the Ombudsman and others about the lack of police engagement with him. The police had, seemingly on the evidence, an abundance of evidence about the incident, just not from him.
In my view, it is therefore appropriate to order that the Application for review of a decision be allowed. I set aside the decision under review. I find that there was an act of violence and the Applicant was injured as a direct result of witnessing the act of violence. He was a witness to the incident and a witness secondary (less serious act of violence) victim who sustained the injuries referred to in the medical certificate dated 23 March 2021 completed by Dr Adrian Ashton.
I refer the matter back to the respondent for a determination to be made as to what financial assistance is appropriate on the basis that the Applicant is a witness secondary (less serious act of violence) victim.
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