Spinosa v Scheme Manager, Victim Assist Queensland

[2025] QCAT 271

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spinosa v Scheme Manager, Victim Assist Queensland [2025] QCAT 271

PARTIES:

DONATO SPINOSA
(applicant)

v

SCHEME MANAGER, VICTIM ASSIST QUEENSLAND

(respondent)

APPLICATION NO/S:

GAR005-20

MATTER TYPE:

General Administrative Review

DELIVERED ON:

8 July 2025

HEARING DATE:

14 April 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

ORDERS:

1.   The internal review decision made on 26 November 2019 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – VICTIM ASSISTANCE – EXTERNAL REVIEW OF DECISION – where claim made under Victims of Crime Assistance Act 2009 (Qld) – where allegation of commission of assault – whether the applicant has established that an act of violence took place

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 19, s 20, s 24
Victims of Crime Assistance Act 2009 (Qld), s 5, s 21, s 25, s 65, s 78, s 124

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

L Holmes, Victim Assist Queensland

REASONS FOR DECISION

1. This is a review of an internal review decision of the respondent made on 26 November 2019 that the applicant is not eligible for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (‘the Act’). The Act establishes a scheme for the payment of financial assistance to specified persons, including, relevant to the present matter, to ‘a victim of an act of violence’.[1]

   [1]Victims of Crime Assistance Act 2009 (Qld), s 21(1)(a) (‘The Act’).

2. Section 78 of the Act provides:

   The government assessor may grant assistance to a person only if the government assessor is satisfied, on the balance of probabilities, the person is eligible for the assistance under this chapter.

3. Eligibility arises in the present matter only if there is the requisite satisfaction that the applicant was a victim[2] of an act of violence. The respondent was not so satisfied.

   [2]By s 5(1)(a) of the Act, a ‘victim’ is a person ‘who has suffered harm … because a crime is committed against the person’.

4. The term ‘act of violence’ is defined at s 25 of the Act. The applicant states that he was assaulted by being punched in the lower back by an unidentified assailant while on the footpath of a suburban road on 13 December 2017. It is not in dispute that such an act could constitute an ‘act of violence’. However, as noted, the finding of the respondent was that it was not satisfied that that there was sufficient evidence to establish that the alleged assault had in fact occurred. As the respondent was not satisfied as to that threshold requirement, no finding was made as to whether the applicant suffered an injury within the meaning of the Act.

5. By s 124(7)(a) of the Act, in conducting the internal review the respondent has the same powers as the original decision-maker. Further, in conducting the external review pursuant to s 125 of the Act, the Tribunal must decide the review in accordance with the enabling Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and has all the functions of the decision-maker for the decision being reviewed.[3]

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19 (‘the QCAT Act’).

6. The Tribunal must hear and decide a review by way of a fresh hearing on the merits.[4] In effect, the Tribunal stands in the shoes of the earlier decision-maker and makes its own decision based on the material and evidence before the Tribunal. Accordingly, the Tribunal also may not grant assistance unless it is satisfied on the balance of probabilities that the applicant is eligible, in that he was a victim of an act of violence.

   [4]Ibid s 20(2).

7. On review, the Tribunal may confirm or amend the decision under review; set aside the decision and substitute its own decision; or set aside the decision and return the matter to the decision maker.[5]

   [5]Ibid s 24.

   Evidence and submissions

8. At the Tribunal Hearing on 14 April 2025 neither party opted to call oral evidence. Accordingly, reliance is placed on the written material before the Tribunal and the submissions of the parties. At the conclusion of the Tribunal Hearing, leave was given to the parties to file further written submissions in relation to the effect of s 78 and related sections of the Act. Given that the applicant indicated that he had other pressing commitments, he was allowed six weeks to file his submissions.[6] The respondent was allowed two weeks to respond and the applicant a further week to reply. Those submissions have been filed and have been taken into account.

   [6]An application for an extension of time to file those submissions was refused. In any event, it is noted that the applicant filed written submissions on 26 May 2025 constituting 10 pages and, on 16 June 2025, a further 25 pages in reply.

9. The applicant’s statements and submissions are numerous and lengthy and are replete with abusive and offensive comments about diverse individuals, including officers of Victims Assist and police officers involved with investigating his allegations. The written submissions filed by the applicant after the Tribunal Hearing are in the same vein, with a heavy focus on what are said to the failings of the various persons involved in the matter.[7]

   [7]Applicant’s submissions of 26 May 2025 and 20 June 2025.

10. In the submissions filed by the applicant after the Tribunal Hearing, there is also reference to what is said to have been an error on the part of the Tribunal and the respondent at the Tribunal Hearing. In the context of the view expressed by the police, as shown in the material filed, that there was insufficient evidence to proceed to prosecution, the applicant states that the Tribunal and respondent expressed the view that there could not be eligibility for financial assistance unless the allegations led to a criminal conviction and/or unless the criminal standard of proof was met. However, that does not accord with what appears from the Transcript of the proceedings. The distinction between the criminal standard of proof and the civil standard, as reflected in s 78 of the Act, was stressed at the Tribunal Hearing.[8] That section requires satisfaction on the balance of probabilities that, relevant to the present case, an assault had in fact occurred. However, given that it was evident that there was some uncertainty in relation to this issue on the part of the applicant, the parties were given the opportunity to file further written submissions in relation to the effect of s 78 of the Act.[9]   

    [8]See, in particular, Transcript 1-52 to 1-53. There was also discussion as to how the sufficiency of evidence is to be established, including in the context of the submission of the respondent (Transcript 1-26) that the view of the police as to the sufficiency of evidence could be taken into account by the Tribunal. In relation to that submission, see [29], below.

    [9]Ibid, 1-54 to 1-57. Towards the end of the Tribunal Hearing the applicant made reference to the standard of balance of probabilities and, in that context, there was some discussion as to what evidence might be taken into account.

11. In relation to a statement said to have been provided by the café employee to the police, the applicant submits that this is legally irrelevant, as it was not made under oath and was not subject to cross-examination. Leaving to one side that the Tribunal is not bound by the rules of evidence, given that no statement or evidence was provided to the Tribunal by the café employee, the Tribunal was not in a position to directly take into account anything she might have said.  It is also noted that many of the applicant’s statements were not in the form of affidavits. Further, he declined the opportunity to call evidence at the Tribunal Hearing and was not himself subjected to cross-examination.

12. In any event, as outlined below, what is telling in the present case is not what has been said by the police or others, but rather what has been said by the applicant in his various statements and submissions, including those made in response to what was allegedly said by others.

13. In the context of extensive references to what are said to be shortcomings in relation to the conduct of the respondent and the police in investigating his complaint, the applicant further complains that, at the Tribunal Hearing on 14 April 2025, the Tribunal failed to acknowledge ‘critical submissions that directly challenge the procedural legitimacy of Victims Assist’s conduct’.[10] However, any shortcomings in the processes of the respondent are not to the point. As noted above, the present proceeding involves a merits review, whereby the Tribunal stands in the shoes of the original decision maker and makes a fresh decision on the material and evidence before the Tribunal.[11] It is not judicial review, such that the question is one of whether there has been error on the part of the original decision maker. Also, as is noted below, no direct reliance is placed on any views expressed by the police in the course of their investigations.

    [10]Applicant’s submissions of 25 May 2025, p 10.

    [11]See discussion in relation to this issue at the Tribunal Hearing: Transcript 1-1; 1-5.

14. In his submissions filed after the Tribunal Hearing, the applicant also ‘demands’ that the matter be listed for an oral hearing rather than proceed as a decision on the papers, ‘on the basis that the complexity of the issues and the nature of the factual disputes warrant direct engagement and procedural fairness’.[12] In fact an oral hearing was held on 14 April 2025.[13] At the commencement of the hearing, when the applicant stated that he was not available to attend because of academic obligations, he was given the option of proceeding with the oral hearing, or, given that it was acknowledged that all material had been filed, to have the matter proceed to a decision on the papers.[14] The applicant stated that he wished the matter to proceed by way of an oral hearing.[15]

    [12]Ibid, p 1; applicant’s submissions filed 16 June 2025, p 1.

    [13]The Tribunal Hearing was listed for 14 and 15 April 2025. However, no witnesses were called and oral submissions were made on 14 April 2025. On that basis, the further hearing date of 15 April 2025 was vacated.

    [14]See Transcript, 1-2 to 1-4.

    [15]Ibid, 1-4.

15. Accordingly, the matter proceeded as an oral hearing and was not at any time listed for a ‘decision on the papers’. Rather, the parties were afforded the opportunity to provide written submissions following the oral hearing, in order to address a question raised as to the effect of s 78 and related sections of the Act. At the hearing, no witnesses were called and while the applicant gave an overview of what is said to have occurred on the day in question, the respondent elected not to cross-examine him.[16]

    [16]Ibid, 1-23 to 1.24. See also 1-32 L 21.

    Discussion

16. In relation to the substantive allegations underlying the claim for financial assistance, the applicant says that the assault occurred after he visited a café in suburban Brisbane, situated on the corner of Birdwood Road and Logan Road. He states that after the assault he crossed Logan Road, called the police and waited for them there.

17. The applicant’s account of what happened has varied in detail over time, including as to where the assault occurred. A police activity log entry at the time of the alleged incident states that as the applicant was leaving the café a male approached him from behind and punched him in the lower back.[17] Police entries subsequently made were to the same effect. In a statement to police made on 8 February 2018, the applicant states that when he left the café and was outside on Birdwood Road a man from the café ran after him and punched him in the lower back. In a further statement made to police on 9 January 2019 at [7], the applicant stated that, the ‘assault occurred right outside nearby the café, on the footpath near the road’.

    [17]By s 65(1)(a) and (b) of the Act, the government assessor may seek information from the police commissioner, including in relation to the circumstances of the act of violence or any investigation of charges laid, as well as a copy of any statement made by the victim. Subject to the listed qualifications, the police commissioner must comply with any request made: s 65(2) of the Act.

18. In a letter of 2 August 2019, the respondent gave the applicant a notice of proposed refusal of his application, inviting him to make any submissions in relation to the matter. That letter makes reference to a statement made by an employee of the café and to CCTV evidence,[18] which is said to indicate that the applicant tripped as he left the café and dropped his phone onto the footpath, that a person got up from a table in the café and asked the applicant if he was okay, without touching him, and that the applicant then picked up his phone and walked across the road.

    [18]It is evident that the police were told of the content of the CCTV footage by the occupier of the premises on the other side of Logan Road where the footage was taken, and were also told that the footage is no longer in existence.

19. Following that, in an email of 10 September 2019 to the respondent, the applicant refers to the CCTV footage and the account given by the employee and states that the assault occurred ‘near the road from a considerable distance from the café and not anywhere near it’, while in an email of 15 October 2019 he states that the police may have ‘initially misunderstood’ how and where the assault took place, adding that it occurred across the road from the café.

20. In a further statement made by the applicant on 20 December 2019 he states that the assault occurred on the opposite side of Birdwood Road and not anywhere near the café. Further, with reference to the CCTV footage said to show him slip on a doormat as he exited the café, he states that he was ‘in  a state of shock, shaken, terrified and deeply traumatized by the incident’’ and when speaking to the police of the incident might not have well explained where the assault occurred.[19]  Also, in his submission to the respondent of 6 September 2019, at p 1, the applicant states that in making the application he didn’t clearly explain where the assault happened as he was ‘rushing through writing it and made some errors’, while at p 3 of his statement of 20 December 2019, referred to above, he states that the rush was due to his study commitments. He also states that the suggested ‘different versions’ as to where the assault occurred are ‘all closely related in a similar context’.[20]

    [19]Applicant’s statement of 20 December 2019, p 1.

    [20]Ibid, p 3.

21. There are difficulties with the later version as to where the alleged assault occurred; that is, across the road and ‘not anywhere near’ the café (see [19], above). The earlier version of the assault occurring ‘right outside nearby the café’ (see [17], above) ties in with what was said about the actions of the assailant after the alleged assault. In the application to the respondent for financial assistance made on 2 January 2018 the applicant states, at p 1:

    When I left the coffee shop, a man from the Café suddenly came after me and punched me very hard in my lower back and I fell over because of the force of the hit. I turned around and saw the man inside the coffee shop staring at me in a threatening way like he wants to bash me.

22. Similarly, in his statement of 8 February 2018, at [27], the applicant states that when he was punched he almost fell to the ground and that he ‘turned around and saw (his assailant) at the café, he was standing there giving me a threatening look like he wanted to bash me’. However, if the assault occurred across the road and not anywhere near the café, it begs the question of how, in the time it took for the applicant to turn around after the assault, the assailant could have recrossed the road and adopted a position ‘inside’ or ‘at’ the café of staring at the applicant. Yet, in both the earlier and later statements (that is, statements made prior to and after the respondent notified the applicant on 2 August 2019 of the CCTV material and the statement of the café employee), the applicant refers in the same terms to the actions of the alleged assailant.

23. In his statutory declaration of 4 September 2019, at [7], after stating that the punch made him lose his footing, the applicant adds: ‘I regained by [sic] footing turned around and saw a male standing inside the café near the entrance staring at me’. Again, in a submission to the respondent of 6 September 2019, at p 4, the applicant states: ‘When I turned around after I was assaulted this man was standing inside the café near the entrance and he was snarling at me like a dog’. That is repeated in emails of 15 October 2019 and 30 October 2019.

24. There are other issues, including the manner and consequences of the alleged attack. In the applicant’s statement to police of 8 February 2018, at [27], the applicant states that the punch to his lower back ‘caused me a lot of pain’. The same is said in a statement to police on 9 January 2019, at [7]. In a statutory declaration of 4 September 2019, at [6], he states that he was punched ‘very hard’ in the lower back and adds that ‘the momentum of walking forward, along with the force of the punch made me lose my footing’.

25. However, in the submission to Victim Assist of 6 September 2019, at p 2, and in response to the proposition that following a request by police to show his injury the police observed that there was no redness, swelling or any mark to indicate any foreign force, the applicant stated: ‘the pain was more discomfort rather than a pain you would feel if I was punched on a bony part of the body’. That is repeated in his email of 30 October 2019, where it is also stated that the assailant punched him ‘using the softer side part of his fist’ and on the fleshy part of the applicant’s lower back. On the other hand, in the police activity log entry of 13 December 2017, made on the day of the alleged assault, it is noted, at p 4, that the assailant struck the applicant ‘with the back of his fist’. The applicant says that this is not what he told the police at the time of the incident.

26. There is a further discrepancy in relation to the applicant’s response to what is said to have been told to police by a café employee (referred to by the applicant as the ‘manager’); that is, that the applicant tripped as he left the café and that his only interaction was with a person who asked whether he was okay (see [18], above). In his submission of 31 July 2020 filed in the Tribunal, the applicant states that the assault occurred on the other side of the road and, at p 9, that the manager’s sight ‘would have been blocked by the right-side wall as she was behind the counter or she could have gone to the toilet’. However, in a statement dated 29 July 2020, headed ‘Judicial Review’, it seems that the counter was visible from where the assault occurred. He there states, at p 6, that after he was assaulted ‘the offender ran back into the café and he was standing near the entrance inside the café, directly in front of the counter where the manager was serving’.

27. There is also some discrepancy as to whether the applicant saw the assailant before he left the café. In his statement to police of 8 February 2018 he says that he didn’t recall seeing the man who assaulted him in the café. On the other hand, in the police activity log entry of 13 December 2017 he is recorded as stating that the assailant was standing behind him in the café waiting to be served, while in his submission to Victim Assist of 6 September 2019 he states that when he was in the café the man was sitting at a table behind him, before adding, at p 4: ‘If he was a customer, he would be waiting, standing in a que and not sitting, its rather odd for a customer to sit while waiting to be served’. The reference to the assailant sitting behind him in the café is also made in the applicant’s submissions filed on 29 July 2020 and in his emails of 30 October 2019 and 28 November 2019.

1. While, given the passage of time, it is understandable that there might be some inconsistency in the accounts given of the events by the applicant, there are stark differences as to where the attack is said to have occurred and also, to some extent, as to the impact of the attack. There is also the issue that the later account as to where the attack is said to have taken place emerged after notification to the applicant of CCTV footage covering the area outside the café and of a statement made by a café employee. In turn, in the context of the later account as to where the incident occurred, there is also the question of how the assailant was able to return so quickly to the café, in the time it took the applicant to turn around after the alleged assault. Also, the applicant’s explanation that his various references were to timing rather than to the precise location of the alleged assault, does not sit well with earlier words used, such as ‘right outside nearby the café’: see [17], above.

2. While, following investigation, the police concluded that there was insufficient evidence to proceed to prosecution,[21] it is noted that a different standard of proof applies to criminal prosecutions and that conclusion cannot be taken into account in these proceedings.

   [21]In one of the police reports, a view is also expressed that there ‘is sufficient evidence to indicate that the offence did not occur’: see QPS SUPP 1 AV14305, received by Victims Assist 24 July 2019. However, in these proceedings there was no opportunity to test that view and its underlying rationale and it has not been taken into account.

3. However, given the uncertainties and the questions hanging over the applicant’s accounts of the alleged assault and surrounding circumstances, as outlined above, and the lack of any corroboration of his account of what took place, I am not satisfied on the balance of probabilities that an assault occurred as alleged. Accordingly, I am not satisfied that the applicant is entitled to assistance under the Act. On that basis, in terms of s 24 of the QCAT Act, the internal review decision of the respondent is confirmed.