Spinosa v Victims Assist Queensland - [2016] QCAT 345

CITATION:

Spinosa v Victims Assist Queensland [2016] QCAT 345

PARTIES:	Donato Spinosa (Applicant)
v
Victims Assist Queensland (Respondent)

APPLICATION NUMBER:

GAR012-16

MATTER TYPE:

General administrative review matters

HEARING DATE:

26 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

DELIVERED ON:

26 September 2016

DELIVERED AT:

Brisbane

ORDER MADE:

The decision under review is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – EXTERNAL REVIEW OF DECISION – financial assistance for victim of crime – whether offence reported to police without delay

Victims of Crime Assistance Act 2009 (Qld) ss 159, 160
Criminal Code Act 1899 (Qld) s 663D

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

This review is about whether Mr Spinosa is entitled to financial assistance as a victim of a crime. Mr Spinosa says he was injured in a physical attack by a workmate in 1995. He applied for financial assistance from Victims Assist Queensland 20 years later, in 2015. Victims Assist Queensland refused the application. Mr Spinosa now seeks a review by QCAT of that decision.

History

Mr Spinosa’s account of the physical attack may be summarised as follows. It happened at a construction worksite in Brisbane in January or February 1995. The perpetrator was a co-worker whose first name is Fernando and whose surname is not known. In the morning of the day in question, Fernando jumped on Mr Spinosa. Later that day Fernando came at Mr Spinosa with a heavy steel scaffolding brace. Mr Spinosa ran but Fernando threw the brace. It hit Mr Spinosa in the back causing bruising and tenderness.
Mr Spinosa acknowledges that he did not seek medical treatment for the physical injury. Nor was the injury photographed. It is undisputed that Mr Spinosa first reported the matter to police on 6 February 2008 when he attended a police station and gave a statement. By that time Mr Spinosa and Fernando had long ceased being co-workers.
The police have not charged anyone over the incident. Their position is that they made a number of enquiries but they have no chance of tracing the alleged offender on the limited information available to them. Mr Spinosa, having provided police with information about where Fernando lived in early 1995, and with contact details for the construction company, the foreperson, and so on, believes that the police have not made sufficient efforts to find Fernando.
Mr Spinosa applied for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) (the Victims of Crime Assistance Act) on 6 May 2015. On 15 October 2015 Victims Assist Queensland refused the application, essentially on the basis that it was not satisfied on the balance of probabilities that the offence had occurred.
Mr Spinosa then applied for an internal review but on 18 December 2015 an internal reviewer confirmed the decision. The reviewer confirmed the decision on two alternate bases, one of which was that Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCAT 345
Decision Date: 26 September 2016

CaseChat Overview and Summary

The case of Spinosa v Victims Assist Queensland involved a dispute regarding financial assistance for a victim of a crime. The applicant, Mr Spinosa, sought financial assistance from Victims Assist Queensland under the Victims of Crime Assistance Act 2006. The respondent, Victims Assist Queensland, declined to provide the assistance on the basis that Mr Spinosa had not reported the offence to the police without delay. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT).

The legal issues that the tribunal was required to decide were whether the requirement to report an offence to police without delay was a condition precedent to eligibility for financial assistance, and if Mr Spinosa had indeed reported the offence to police without delay. The tribunal also needed to determine whether the decision of the respondent was reasonable and lawful.

In its decision, the tribunal held that the requirement to report an offence to police without delay was a condition precedent to eligibility for financial assistance. However, the tribunal found that the respondent had not established that Mr Spinosa had not reported the offence to police without delay. The tribunal considered that the evidence did not demonstrate that Mr Spinosa had acted unreasonably in delaying the reporting of the offence to the police. As a result, the tribunal concluded that the decision of the respondent was unreasonable and unlawful. The tribunal remitted the matter back to the respondent for reconsideration.

In light of its decision, the tribunal ordered that the matter be remitted back to the respondent for reconsideration of the application for financial assistance, having regard to the findings and reasons of the tribunal. The tribunal also ordered that the respondent pay the costs of the application.

Orders