TXBZ and Repatriation Commission
[2014] AATA 19
[2014] AATA 19
Division VETERANS' APPEALS DIVISION File Number(s)
2012/2537
Re
TXBZ
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr S Penglis, Senior Member
Date 16 January 2014 Place Perth Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision dated 19 April 2012 is affirmed.
..(Sgd) S Penglis.....................
Mr S Penglis, Senior Member
Catchwords
VETERANS’ AFFAIRS – veteran claims to suffer from post-traumatic stress disorder as a result of repeated sexual assaults during the course of the Applicant’s operational service – evidence does not establish that the Applicant suffers from post-traumatic stress disorder – Tribunal is satisfied beyond reasonable doubt that, on the evidence, the alleged assaults did not occur – reviewable decision affirmed – turns on its own facts
Legislation
Veterans’ Entitlements Act 1986 (Cth), ss 120, 120A(3) and 196B(2) and (14)
Cases
Repatriation Commission v Bowden [2012] FCAFC 176
Secondary Materials
Statement of Principle No. 6 of 2008 – Posttraumatic Stress Disorder
REASONS FOR DECISION
Mr S Penglis, Senior Member
16 January 2014
This matter relates to the Applicant’s claim that he suffers from post-traumatic stress disorder (PTSD) and that it was related to the Applicant’s service in the Navy.
Both the Respondent and subsequently the Veterans’ Review Board refused the Applicant’s claim.
For the reasons set out herein, the Tribunal also refuses the Applicant’s claim.
Background
The background facts were not in dispute.
The Applicant was born on 16 July 1949.
He served in the Royal Australian Navy from 5 January 1966 to 25 January 1971 and was discharged in the rank of Able Seaman Weapons Mechanic.
The Applicant’s eligible war service (which is also operational service) was as follows:
· Vietnam – HMAS Sydney: 8 April 1967 to 22 April 1967, 28 April 1967 to 12 May 1967 and 19 May 1967 to 14 June 1967;
· Vietnam – HMAS Duchess: 18 November 1968 to 25 November 1968 and 16 November 1969 to 29 November 1969.
The Applicant absented himself from the Navy without leave from on or about 25 January 1971.
In 2010, the Applicant commenced treatment with Dr Megan Gilbert, Consultant Psychiatrist, and on 30 August 2010, Dr Gilbert diagnosed the Applicant as suffering from “significant PTSD as a direct consequence of experiences that he suffered whilst in the Navy”.
The “experiences that he suffered whilst in the Navy” is a reference to the Applicant’s contention that, whilst in the Navy, “he was sexually abused as a seventeen-year old sailor by a senior non-commissioned officer, a regimental sergeant major of the Australian Army” and that instances of abuse occurred during the period of the Applicant’s eligible service under the Veterans’ Entitlement Act 1986 (Cth) (Act).
The decisions made by the Respondent and the Veterans’ Review Board
The Applicant lodged a claim with the Respondent on 29 June 2010.
On 1 December 2010, a delegate of the Respondent rejected the claim on the basis that the claimed condition was not related to the Applicant’s service.
The Applicant applied to the Veterans’ Review Board to review the decision of the Respondent.
On 19 April 2012, the Board affirmed the Respondent’s decision on the basis that, whilst accepting Dr Gilbert’s diagnosis of PTSD, the Board “cannot be reasonably satisfied that the events happened as described by the veteran and his response was of the requisite degree to sustain the diagnosis … consequently, for the reasons given above, the Board is reasonably satisfied that the material before it does not raise a connection between the veteran’s diagnosed post-traumatic stress disorder and the relevant services required by the Act”.
That is the reviewable decision the subject of this Application.
The relevant principles
The law in this area is well settled and was not in dispute before the Tribunal.
Section 120 of the Act relevantly applies as follows:
“(1) Where a claim … for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease … as the case may be, unless it is satisfied beyond reasonable doubt, that there is no sufficient ground for making that determination.
(2)…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.”
Section 120A(3) of the Act relevantly applies as follows:
“For the purpose of s120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)a determination of the Commission under subsection 180A(2):
that upholds the hypothesis.”
Section 196B(2) of the Act relevantly applies as follows:
“If the [Repatriation Medical] Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans;
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
…(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person,
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”
Section 196B(14) of the Act relevantly applies as follows:
“A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service;
(e)…
(f)…
(g)…”
Paragraphs 25-30 of the Respondent’s Statement of Facts Issues and Contentions dated 19 June 2012 accurately summarised the relevant legal principles as follows:
“25. The method by which these provisions are to be applied was explained by the Full Court in Repatriation Commission v Deledio at 97-98. A four stage process is involved:
‘1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
4. The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.’
26. The Full Court further held that, where a SoP applies, it prescribes the essential content of a reasonable hypothesis pursuant to s120(3), and , in order to satisfy ss120(3) and 120A(3) of the Act, the hypothesis must incorporate each element that the SoP prescribed in order to make the hypothesis reasonable.
27. All features of a disease as relevantly defined in the applicable SoP must be present in order to connect that disease with a person’s service: Repatriation Commission v Gosewinckel [1999] FCA 273; (1999) 59 ALD 690 at [55]; Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331 at [16]; Repatriation Commission v Codd [2005] FCA 888 at [37]; Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511 at [25].
28. An hypothesis connecting a condition defined in the relevant SoP and the eligible service is to comprise a number of factors each of which is consistent with one or more SoPs: Repatriation Commission v McKenna (1998) 52 ALD 72 at 80; approved by the Full Court in McKenna v Repatriation Commission; [1999] FCA 323; (1999) 86 FCR 144 at [20]. The factors which must be present to connect a condition to service are those set out in the relevant SoPs. The factors must be related to the service in one or more of the ways listed in s196B(14) of the Act: Repatriation Commission v Money [2009] FCAFC 11; (2009) 173 FCR 410 at [5].
29. SoPs are made, amended and revoked from time to time. A decision maker who is called upon, in the course of a review of a decision of the Commission, to apply provisions of an SoP, is required, first, to have regard to the SoP in force at the time at which the review decision is made. If that SoP does not uphold the connecting hypothesis, the decision maker is required to consider and apply the SoP which was in force at the time of the Commission’s decision: see Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 at [44], [64]-[65].
30. The relevant SoP applicable to this application is: No. 6 of 2008 – Posttraumatic Stress Disorder.”
Issues for determination
The 2 main issues in this matter are as follows:
(c)does the Applicant suffer from PTSD? If so,
(d)whether the evidence raises a reasonable hypothesis that the Applicant’s PTSD:
(i)arose out of or is attributable to; or
(ii)was contributed to in a material degree or aggravated by,
the Applicant’s operational service.
The medical evidence
Dr Gilbert gave evidence before the Tribunal on behalf of the Applicant. Based on what she was told by the Applicant, Dr Gilbert is firmly of the opinion that the Applicant suffers from PTSD.
The Respondent called Dr Mander to give evidence on its behalf. Dr Mander was firmly of the opinion that the Applicant did not suffer from PTSD and that “all of the symptoms he describes can be accounted for” by the fact that the Applicant is “alcohol dependent”.
In her written report dated 30 August 2010, Dr Gilbert recorded the “history of presenting complaint” as follows:
“(The Applicant) says that he has had problems since he left the navy. He said he originally joined up when he was fifteen and a half and after doing a year of training at Leeuwin before he was posted on the HMAS Sydney as an ordinary seaman. Whilst on the Sydney he did about five trips up to Vietnam as this boat was known as “the Vung Tau ferry”. (The Applicant) stated that soon after he joined the ship he was molested by an army RSM who was the army personnel on the boat. He said that this happened regularly and that he was too frightened to tell anyone as he felt he would be blamed. (The Applicant) remained on the Sydney for about six to eight months and then was sent to Cerberus and then to Rushcutter’s Bay where he wanted to become a clearance diver. Unfortunately he couldn’t clear his ears in a decompression chamber so this failed and he ultimately became a weapons mechanic. (The Applicant) was then posted on the HMAS Duchess to be a weapons mechanic where he stayed for the next two years and did multiple trips up to Vietnam.
Each time he would return the were based in Sydney and they would have their breaks at a local hotel where once again he was molested by the same army RSM who also drank at this hotel.
After (the Applicant) left the Duchess he was by this stage an able seaman and he ended up at HMAS Kuttabul. He remained there for about five years but the molestation started again and reached such a level that after one particularly bad episode he decided he couldn’t take it any more. At this point he ran to New Zealand telling no-one including his parents where he had gone and remained there for the next ten years believing that after ten years he would be pronounced dead and no-one would come looking for him. After ten years he returned to Australia.
Since his time in the navy (the Applicant) states that he has had flashbacks and nightmares concerning this situation of being molested. He says he is preoccupied with thoughts of it, feels guilty and bad and has been frightened to talk about it. He avoids situations that would bring it up including when he marches on Anzac Day. Specifically he marches with the army rather than the navy for fear of it coming out. The Applicant says he has poor concentration and is easily upset and angered. He has withdrawn into himself and says that his whole lifestyle is solitary. He has therefore a very small social life and no leisure pastimes. The Applicant suffers from poor sleep with middle and terminal insomnia.”
In his written report dated 28 November 2012, Dr Mander wrote, amongst other things, that the comments of the Veterans’ Review Board Decision and Reasons of 19 April 2012 “stress (the Applicant’s) treating psychiatrist’s diagnosis of post-traumatic stress disorder (PTSD) raises issues that must be considered by the legal process. In particular, they found there was no objective support for the Claimant’s allegations and disallowed his claim. Although it is not the Review Board’s remit to change a diagnosis it logically follows that if the event did not happen, and another event of similar magnitude cannot be identified, then the diagnosis of PTSD cannot stand”.
I explained this to (the Applicant). He is adamant that the events as he described them to the Review Board did occur and that this is the basis of his ongoing claim.
I also explained to (the Applicant) that there was no value in me reiterating that claim and that instead I would review his psychiatric presentation to see if any other diagnosis was reasonable (given that he identified no alternative events that could have led to a diagnosis of PTSD).
Hence, I have not revisited the allegations the Applicant makes about the RSM and have concentrated on the rest of his history and the development of his psychiatric problems”.
In that context, under the heading “Past History”, Dr Mander recorded the following:
“As you know he enlisted in the Royal Australian Navy in January 1966 and went Absent Without Leave (AWOL) in 1971. He described his service at HMAS Kuttabul, HMAS Sydney, HMAS Duchess, HMAS Cerberus and HMAS Rushcutter following his initial training at HMAS Leeuwin.
He remembers being admitted to hospital in Singapore for treatment of anal warts. By this time he had a well developed alcohol problem and described how he got into fights. There is an entry in his medical record on 9 December 1968 that he had passed out whilst intoxicated.
He told me that he failed in his aim to be a Clearance Diver because he could not clear his ears in the decompression chamber. Although he wanted to be a cook he was trained as a Weapons Mechanic and spent two years on HMAS Duchess in “B” Turret and was later Quartermaster at HMAS Kuttabul.
He believes his career prospects were damaged due to being sexually abused and also allowing himself to be extensively tattooed. His heavy drinking continued.
When AWOL he went to Auckland where he stayed for the next ten years. There are many aspects of his history that Dr Gilbert has omitted from her report. He continued to drink heavily sufficient to land in jail on two occasions and losing his licence for seven years. This was significant given he had become a professional driver. His sentence was reduced and he was out of prison in about seven months on a technicality to do with the way his breath-test was carried out. Although he described himself as a “loner” he had a de facto wife who was of Maori origin. He had two children with her and she had a further child from another relationship.
Just as he had impulsively left for New Zealand, he impulsively came back. It was only after I queried him about leaving his family behind and returning to Australia that he admitted that he had legal problems. He stayed briefly with his mother “for a couple of days”, then borrowed money from his family. He has always been “the black sheep of the family” and his life contrasts with that of his mother who is teetotal and committed to the church. He worked in a lead smelter in Mt Isa for two years before moving to Western Australia. He has subsequently had regular contact with his parents. He would stop over whenever he was driving the East/West route and he was a long haul driver for many decades.
He has had a long term girlfriend over the last ten years and showed me pictures of her. Approximately ten years ago, while living with a friend and his girlfriend, they suggested he get his medals which set him on a journey of discovering his past records and ultimately lodging the current claim. He was surprised to find that his paperwork said that he had a routine discharge and that he had been awarded a couple of medals even after he had gone AWOL “that’s when it all started”.
He says that over the years he would get into fights at the local RSL when the mainly ex-Army patrons would “take the Mickey” out of him for having been in the Navy and inferred that this meant he must be homosexual.
His father died in 2004 and at some point subsequent to that he finally told his mother and sisters what he had been subjected to whilst in the Navy.
He ceased driving in 2010 because of difficulties with his knees. I have noted the comment in the report by Dr Pisano that his knee problems are due to wear and tear either as a result of his job as a gunner or subsequently as a truck driver. He says that he is still fit for short haul work and his employers want him back but he is focused on dealing with his DVA claim.”
It is clear from their respective reports and subsequent evidence that the very different opinions of Dr Gilbert and Dr Mander are as a result of them proceeding upon very different facts. This was not a case of 2 experts reviewing the same facts and forming different conclusions. Rather, it is a case of 2 experts forming different conclusions because they proceeded upon very different facts.
This was made clear during the course of Dr Mander’s evidence when he said “I don’t agree with (Dr Gilbert’s) report: the history she obtained is really quite different from the history I obtained”: T84.
When asked “Had the history that seems to be reflected in the report you just read been accounted to you, would you have come to a different conclusion”, the doctor said “PTSD would certainly have been in my differential diagnosis, yes”: T84.
Accordingly, in the end, both of the issues which I have identified above turn on what findings are to be made on the evidence in regard to the Applicant’s claims of sexual abuse.
The Applicant’s evidence
The Applicant’s evidence in chief was by way of his affirmation of a written statement which was (relevantly) in the following terms:
“…
I base my claim for posttraumatic stress disorder on factor 6.(a) of the Statement of Principles concerning Posttraumatic Stress Disorder, No. 5 of 2008, experiencing a category 1A stressor, namely sexual molestation, before the clinical onset of posttraumatic stress disorder.
As outlined in the report by Dr Megan Gilbert, Consultant Psychiatrist, of 30 August 2010, I was molested by a Regimental Sergeant-Major of the Australian Army for a period of nearly four years. I was only seventeen years old at the time the abuse began, a Junior Recruit in the Navy. As well as being far more senior in rank, the RSM was a mature man in his mid-thirties. I only knew him as ‘….’ At that time but I believe that he was the RSM of ‘……’
I first met the RSM in the bottom bar of the Rex Hotel in Sydney in early 1967. I did not know it at the time but the bottom bar was what we would now call a ‘gay’ bar. I had never had any homosexual experiences before this time. The RSM invited me to his hotel room and forced me into a sexual relationship with him. I knew that it was wrong but I felt I had no say in the matter. He kept saying that he would “take care” of me aboard HMAS Sydney which was transporting 7RAR to Vietnam, and on which we were to sail together.
Alcohol played a big part in my initial involvement with the RSM. I was underage at the time and only served alcohol at the bar because I was in uniform. I was not used to drinking and the RSM took advantage of my inexperience. I subsequently took to bouts of heavy drinking in order to cope with the ongoing molestation.
The abusive relationship continued on HMAS Sydney and whenever we returned to Australia. On board the Sydney, I was posted to the Master of Arms’ Office opposite the RSM’s quarters. I assumed that he had used his influence to arrange this accommodation. He always said that he was “looking after” me, and I was made to feel that, rightly or wrongly, whatever advantages I had during my Navy service were as a result of his efforts on my behalf.
I never felt comfortable with the relationship and would never had entered into it of my own free will. I just didn’t know how to stand up to his advances and I was fearful of making an enemy out of him; he had that much authority and power that he could just as easily make life very difficult for me.
I didn’t feel that there was anyone I could turn to in this situation because it was out of the question to make allegations about such a senior officer, and these sorts of things weren’t talked about in those days. I just know that I became more frustrated and desperate over time because I could see no way out.
My medical records show that, about a year after the sexual abuse started, I reported to the Medical Officer on several occasions with profuse anal warts that were extremely painful and needed to be surgically removed while I was in Singapore. I only saw these medical documents for the first time when they were sent to me by the Veterans’ Review Board together with other papers before the Repatriation Commission in making its primary decision. I had always thought that I suffered from piles at the time and in fact had no prior knowledge of anal warts; I have only recently discovered that these are contracted by venereal means. This was never explained to me during my Navy service and no attempt was made to counsel me or make other enquiries regarding how the condition was contracted.
I believe that my medical records also reflect the private turmoil that I was going through at that time as there are references to having a drinking problem, being very agitated while intoxicated, and saying that I wanted to get out of the Navy. This is evidence of how emotionally conflicted I was.
In the end I could no longer put up with the shame of my situation and in 1971 I went absent without leave and moved to New Zealand to start a new life. In 1980 I returned to Sydney from New Zealand by which time I thought the Navy would no longer be pursuing me. I could not tell my parents the real reason for leaving the Navy and it is only in the past few years that I have been able to discuss it with my mother. It is only in the last decade that I’ve been able to open up to people generally.
I otherwise enjoyed life in the Navy and I had been doing well, completing my courses and moving up the ranks. I enjoyed being in command, I felt I could control a group of men, and I would have stayed on and made a career with Navy had it not been because of this relationship with the RSM. Instead, I needed to get as far away as possible and I ended up as a loner, driving trucks all over New Zealand and Australia. Because of this lifestyle always on the road, I formed few lasting relationships and acquired few possessions. A few years ago I approached the Chaplain at HMAS Stirling, ….., and he counselled me after I had confided in him, thereby starting me on the process of coming to terms with this traumatic time of my life.”
The Applicant gave the further evidence in chief as follows:
(e)he was a virgin when he joined the Navy;
(f)he first started going to the bar at the Rex Hotel when on leave, after his 12 months as a junior recruit at Leeuwin when he “ventured into Kings Cross, ended up the Rex Hotel, bottom bar”;
(g)when he attended the bar he would sometimes be in uniform and sometimes not;
(h)although under age at the time, he was still able to purchase and drink alcohol at the bar;
(i)he was not aware at the time of the reputation of the “bottom bar” of the Rex Hotel being a “gay bar”;
(j)he first met the RSM who he claims sexually assaulted him, (RSM standing for Regimental Sergeant Major), one afternoon whilst having “a few drinks” with “everybody, just general conversation”;
(k)the RSM would have been “well into his 30s”;
(l)during their conversation, it turned out that they were both to be on board the same ship travelling to Vietnam “and if we could just keep in touch, in contact, he may be able to help me with aspects through my career”;
(m)the Applicant had not before had an officer or a non-commissioned officer or person of authority speak to him in that sort of way;
(n)“after quite a few drinks”, the RSM “asked if we would like to go up to his room, indulge in a bit of food and what-not”;
(o)the Applicant went to the room in the Rex Hotel in which the RSM was billeted and after “a few drinks, talks”, the RSM “then proceeded to molest, cuddle, feel around”. The Applicant said “I was sort of wanting to know myself what was sort of happening here, and he was quietly explaining it that everything would be all right, just relax and take things easy”.
(p)before embarking on the trip to Vietnam, the Applicant met the RSM again at the Rex Hotel. He said “The second time was similar to the first, just molestation, playing around, feeling”. He said it was “probably over a week, a week and a half” after the first meeting with the RSM;
(q)the third occasion when the Applicant met up with the RSM was “a couple of days out of Sydney” when he “was approached either in the hangar or the flight deck … (and) invited to his cabin”. The RSM asked the Applicant whether he would like to have a few drinks in his cabin that evening;
(r)the Applicant then gave the following evidence with respect to what happened on that occasion and one other occasion on the trip to Vietnam:
“MR ENDREY: And could you tell us what happened then in the cabin?---Well, we had had quite a few drinks, or I had had quite a few drinks. Molestation started happening, playing and other things that I hope – I don’t know how to say it. Eventually it came to penetration.
So – sorry, go ahead?---Well, sort of cuddling and sucking and all this. Yeah, it came to a penetration and that, yes, shocked me. I was not even ever dreaming of something like that ever happening.
So is that what distinguished the encounter on the Sydney to the two previous occasions?---Well, it was - - -
That there was penetration?---To me it was like a build-up of trust. Yes, a build-up of trust. Power.
And was there a further occasion on the Sydney that you had this sort of encounter - - -?---After leaving Manus Island, yes, another night before we actually anchored in Vung Tau Harbour.
So that was while you were at sea?---Yes, sir.
And was it a similar sequence of events?---It was.”
(s)the Applicant then gave the following evidence of 2 further incidents that allegedly occurred “on the return voyage”:
“Then you have said … that your recollection is that you were also subsequently abused by the RSM on the return voyage; is that correct?---Yes, sir.
And can you recall how many occasions?---Twice again on the way back.
Then after you had returned to Australia, did you meet with the RSM subsequently?---No, sir.
At any time?---No, sir.
So when was the last occasion that you saw the RSM?---Approximately August, probably August 1970.
And where was that?---I was a quarter-master at HMAS Kuttabul.
All right. So in fact you did see the RSM again after you returned to Australia; is that correct?---Yes, sir.
And on how many occasions did you see him after returning?---Twice.
And what happened on those occasions?---Light discussions, drinks and how I was getting on in the last couple of years because, as you probably all can see, I was on the Duchess, which replaced the Voyager. And I was on an escort ship for the HMAS Sydney to Vietnam.
So are you able to say approximately how man - - -
SENIOR MEMBER: Sorry, did anything happen on those occasions?---No, sir.
All right.
MR ENDREY: So on how many occasions would you say that something did happen, that there was this molestation or sexual abuse?---Real abuse, four times on HMAS Sydney; and twice at the then Rex Hotel in Kings Cross.
So approximately half-a-dozen times?---Yes, sir.
(t)the Applicant never considered reporting these matters to his superiors “for fear of being exposed as … so-called homosexual or fear of even being expelled from the Navy. It was just something that he had over me at such a young age. I was naïve, I must admit.”
(u)when asked to describe his reactions he had to the alleged abuse, the Applicant said he “was very embarrassed. No way was I going to expose myself to tell anybody of what actions had been taken against me. I wasn’t going to like, to tell my parents or ask anybody for advice. I was just so ashamed. So I kept it to myself”;
(v)when asked why he deserted the Navy in 1971, the Applicant said that whilst a quarter-master at HMAS Kuttabul, he “would get phone calls from the army officer wanting to see things or meet. It was just starting to really upset me again. You know, I was having – I was only 2 subjects away from becoming a leading hand. I had been in the Navy nearly 5 years. I could see myself becoming in control of men which I thought I could handle, but I just couldn’t handle the phone calls any more. And I thought this is going to lead to more embarrassment for myself because at the same stage I didn’t want anybody to know about my past history of abuse, let alone my mum and dad. And so I took the easy way and just left and gave myself a couple of weeks’ advance on getting away”;
(w)when asked why he has sought to pursue the matter “now after some 40 years”, the Applicant gave the following evidence;
“98, ’99, I was sharing a house with my mate and his wife, they all knew I had been to Vietnam. And at that time I recollect that navy personnel were starting to receive medals for their support in Vietnam. And I was advised to write and ask am I entitled. Little did anybody know the way I left the navy. I was a little bit – well, I didn’t really want to do it, but a letter was sent, and probably a month or so later I received all medical certificates, everything I had done whilst I was in the navy. And at the bottom it said just a normal discharge, which I found, you know, very unusual, knowing the way that I did. And I received two medals. And I thought – that is when I started to query things, the way I was discharged for a start, and to receive medals. And I knew damned well I just got up and left, deserted. That is what I couldn’t work out.
And had you discussed these encounters, the abuse, at any time with any other person? Never.
So when did you first raise it with someone? I went down and saw a chaplain down at Garden Island, HMAS Sterling.
Was that a navy chaplain? A navy chaplain, yes.
And what did you say to the chaplain? Everything that is written down as my statement, that you people can see in front of you.
When was that approximately? Approximately 2001.
Did the chaplain give you any advice? After having long talks with him, he presented me with names and numbers of people at ANZAC House.”
(x)the Applicant also gave evidence as to the effects the alleged abuse had on him. In this regard, the Applicant gave the following evidence:
“On and off over the years – I was in New Zealand for 10 years, living in a small town, joined an RSL, knew I was in the navy, Vietnam, again not knowing how I left. I would occasionally get the odd remark, sailors take it up the whatever, always in the barrel, ra-ra-ra. It used to upset me but I didn’t let it get to me too much. I was a truck driver, a bit of a loner there. But coming back, after receiving medals and the way I was discharged – I joined the RSL in Armidale, probably 2000, 2011, from memory, and I was proud, again no one knowing how I left the navy. I acquired quite a lot of friends, navy personnel, army, air force. Our president was an air force personnel. But occasionally they would always come up and rubbish navy personnel, and always I was in the firing line, always in the barrel. Well, my nickname was truckie, and I just copped abuse relating to homosexuality on board ships, base, whatever. And it was getting to me. I would probably have a few extra beers than normal to try and either forget about it or occasionally I would probably take the wrong action and abuse and - - -”
(y)in answer to questions put by the Tribunal, the Applicant gave the following evidence:
“SENIOR MEMBER: … in addition to drinking what, if any other, symptoms do you want to tell me about in regard to your claim for post-traumatic stress disorder?---Just it’s a memory I will never forget.
How does it affect you, is what I’m asking?---I’m still ashamed to this day, and there’s only a few people who know about it. I still don’t – I’m not really happy here, especially with a couple of ladies present. You know, I mean, I don’t want them to know that I’ve had things shoved up me.
But in addition to alcohol that you’ve given evidence about, is there any other symptom, condition, or anything you want to tell us about that you say you’re suffering from as a consequence of it?---Well, the only thing I suffer from is people abusing me for something they don’t know nothing about.
All right. And how does that affect you?---Not very good because people that talk to me and raise the issue about how naval personnel reacted and carried on in the navy on ships, are army personnel talking to me. And I often thought, well, it must have happened there too but I just kept it all inside me. And it has been inside me up until the last few years, where I have been able now to tell my mother.
And has it had an effect on your physically?---In a sense, yes.
In what sense?---Well, I’ve only had a couple of relationships my whole life.
Right. Well, that’s more emotional. I was going to come to that. But any physical manifestations?---Only that I’ve been split in half.
What do you mean by that?---Well, I have been abused.
Yes. All right. I understand that?---I mean, my first trip to Singapore I was in hospital for a couple of weeks getting what I thought was piles, but in effect it was anal warts, and they were huge. I mean, I didn’t know what they were and I was never, ever told until I got all my report back from Canberra in early 2000, and I started reading different things about what happened to me in the navy.
And emotionally how has it affected you?---It has affected me a lot, especially - - -
But how? I know you say a lot but you need to be more specific?---Well, to tell my mother for a start, my sisters. They never see me for 10 years. Why did I go? Why did I do this? I had no explanation. I was not going to tell my father. He was an ex-army. And eventually I just, I had to tell somebody. And, well, I did, I told the chaplain because, well, chaplains are chaplains, you know, they – and having a church upbringing, that’s who I went to see.”
In cross-examination by Mr Wallace, Counsel for the Respondent, the Applicant gave the following evidence:
(a)when it was put to the Applicant that the RSM did not return from Vietnam on the same ship as the Applicant, but rather stayed in Vietnam, the Applicant said “I have seen that in the reports, sir, and I know for a fact that I was sexually assaulted on the way back from Vietnam”.
When it was put to the Applicant that “it couldn’t have been from (the same RSM)”, the Applicant said “Maybe I’ve made an error in judgement”.
When asked whether what he meant by that answer was “that there may have been another RSM on the ship on the way back that you had sexual relationships with”, the Applicant said “Yes, sir”.
(b)when asked to explain why the Applicant gave evidence before the Veterans’ Review Board that did not identify the fact that the RSM on the return voyage was not the same RSM on the forward voyage, the Applicant said “because at the time I just thought it was the same RSM”.
When asked how he could make such a mistake, the Applicant answered “well, apart from being forty-odd years ago, and as young as I was and naïve, that is what I believe and I know what happened to me”;
(c)in answer to questions put by the Tribunal, the Applicant stated that it was still his recollection that there was only 1 RSM involved;
(d)it was put to the Applicant that, in effect, if there had been any sexual activity between the Applicant and the RSM, it was consensual. The Applicant’s evidence in this regard is as follows:
“Can I suggest to you the first occasion that you went to the RSM’s room at the Rex, you were willing to go there with him? He invited you and you agreed?---Yes, yes.
And you used the expression molested, and after that the word fondled. Can I suggest to you that you well understood when you were going up to his room that there would be some prospect of there being a sexual encounter between you and him?---No, sir.
And that whatever physical contact took place between you and this RSM on that first occasion was voluntary on your part; is that correct?
SENIOR MEMBER: Don’t answer the question. What does voluntary mean?
MR WALLACE: Well, any advances that this RSM made to you, (the Applicant), you didn’t object to, did you?---Well, apart from being under the influence, no.
No. And on that first occasion there wasn’t any anal intercourse, was there?---No, sir.
No. And then on the second occasion you again met the RSM at the Rex and he invited you again back to his room; is that correct?---That’s correct.
I would like to suggest to you that at that point in time there couldn’t have been any doubt whatsoever in your mind that having had that invitation and accepted it, that this RSM was indicating to you that he wanted to come back and have sex with you in his bedroom?---Well, I didn’t think on those lines, being what age I was and naïve, but things he would say indicated he would be able to help in my development in the service.
Well, doesn’t it suggest that you were quite happy to go back to his bedroom because he was going to help you. And on that second occasion you already had had a sexual experience with him, and that was going to happen again. Wasn’t that the circumstances on the second occasion?---Well, yes, sir, in the end, yes. But I – jeez, I was so young that I mean – it was a power thing. I mean, I was over – not – all overpowered, yes.
He didn’t use any physical force towards you to get you to go to his room, did he? He didn’t grab you and take you to his room?---No, no, well, it all just happened in the lounge room anyway. Just sitting there drinking and then fondling and molesting there and then.
Well, it wasn’t any molestation, I’m suggesting to you, because you were a willing participant in the sexual contact that was taking place?---Well, I wasn’t in the position to actually violate him or anything, and I just was under – like an order.
But he didn’t order you to his room, did he?---No, sir, he didn’t.
Do you think now all these forty years later really what is happening here is you have just been thinking back on this, and this is the – what you now believe to have been the situation, but it wasn’t the situation at the time?---After these forty years, and then the last 10 after explaining to my parents, or my mother actually because my father passed away, and explaining to my family the reasons I disappeared for 10 years is why I have come to it now. Just to clear the air with close people of what had actually happened to me in the navy. And my father would be disgusted if I had have told him, and he would have – I didn’t know whether he would have disowned me at the time or not. I was just too scared to tell anybody.
Now, you’re talking there about the first two occasions as well as the subsequent occasions that your father would, to use your expression, disown you?---I didn’t – well, after telling my mother she would have said we would have understood at the time. But then back then I didn’t think anybody – because it was never heard of much at all back then in the sixties, that sort of behaviour.
What sort of behaviour are you talking about?---Well, what happened to me.
What, that a young man has a sexual relationship with an older man is never heard of; is that what you’re saying?---Well, I never heard of it.
Certainly by the second occasion you had heard of it because you voluntarily went back to his room and engaged in sexual activities with him, at least fondling. And I think I understand you use the word sucking and the like, so there was, in a sense, mutuality here between you and him; isn’t that correct?---Him towards me.
But you weren’t objecting, were you?---I didn’t have much say in the matter. Again, I was under the influence of alcohol.
Well, so you say you were - - -?---I’m not using that as an excuse but it relaxes all components of your body. I was in another state, I suppose. I don’t know how to express it.
Well, it’s forty years ago, you could hardly remember, could you?---That’s dead right, I can’t remember last week.
Yes. Now, on the ship, on this occasion, you say that anal sex took place; is that correct?---That’s correct.
And that was on or near Manus Island; is that so?---Probably maybe the night out prior to anchoring there for the few hours.
And you say you had been drinking; is that correct?---Yes, sir.
Had you been drinking before you went to the cabin with this RSM?---No.
So it was only drinking in the cabin; is that correct?---That’s correct.
And how long do you recall, if you do, when you were in the cabin with him, drinking for before there was any sexual advances made by him to you?---Probably a couple of hours.
Two hours?---Two hours, yes.
So because as I understand it you were quite a - - -?---Well, I - - -
Just let me finish. You were quite a junior naval rating at the time - - -?---Yes.
- - on HMAS Sydney, on operational service, and you were able to leave the area where you’re stowed on the ship and go to the quarters of an army RSM for a couple of hours just on his invitation, without you telling anyone else; is that correct?---This happened at night. My job on HMAS Sydney was a flight deck attendance, also working in the hangar, making sure all army gear was secure, general maintenance duties on the flight deck, painting, chipping rust, whatever. At night this would occur.
Well, nonetheless, you have to at the very least said to your leading hand or your petty officer, “I’m not going to be around. I’m going off to see RSM” – whoever he was – “I’m going to his cabin”?---No, sir.
Why wouldn’t you?---Because I - - -
You were one of the most junior ratings on the ship. Why wouldn’t you go and get permission to leave your area of work, your area of habitation on the ship and go to an army RSM’s room and be there for a couple of hours drinking?---Well, that’s how it happened, sir. And it was at night. We were allowed – some nights they would have movies and everything, I would just go – well, I went to his room, his cabin.
You could have said no, couldn’t you, even if he had made an invitation as you say him did?---I probably could have, sir, but under the circumstances which were happening I accepted.
SENIOR MEMBER: Did you feel it was open to you – I mean, obviously everyone can say no. Did it occur to you as to be a real option to you to say no?---I would love to have said no.
No, please listen to my question?---I’m sorry.
Did it occur to you – did you feel that you had a real choice in the matter?---Well, no, sir.
Why not?---Because not long after having worked on the flight deck and the hangar my job had changed to becoming a gopher for the master-at-arms office, which was adjacent to his cabin. And I thought, well, he’s – presumably I thought that he had made these changes for me, so I was not working on the upper deck, I was literally being a gopher for the master-at-arms.
…
Would you agree that you could be mistaken about the fact that some forty years later that you hadn’t agreed to have sexual intercourse with this RSM?---I hadn’t.
Yes. That’s a double negative; I will put it another way. Do you think you might be mistaken now that you actually had agreed rather than not agreed - - -?---No, sir.
- - - to having sex with this RSM?---Not at all.
No. Do you think as a young man at about 16 or 17 you may have been perhaps unsure of your own sexual orientation?---No, sir.
No. But it would seem you hadn’t had sex with a woman or a young woman prior to meeting this RSM; is that correct?---That is correct.
Might it have been, I’m suggesting to you, that in fact you may have felt that you had feelings towards this RSM and wanted to have sex with him?---No, not at all.
Was it the case that you agreed to have sex with him, I’m suggesting to you, because you thought he could look after you and advance your career, and you were willing to participate?---I was not willing to participate at all with any sexual encounters. The reason being is the power and authority that he had over me, and that he said he would be able to assist me in a naval – well, not a naval career but after being changed from the flight deck to the master-at-arms office, I thought, well, he has done this. But not knowing to me – anybody could have done it, I mean”.
(e)when asked why he did not approach the Master-at-Arms on the HMAS Sydney (being the most senior non-commissioned officer on the ship and with whom the Applicant was working directly) to get involved in the RSM’s invitations to the Applicant, the Applicant said “because I didn’t … because I was too ashamed. I didn’t want anyone to know what was happening to me”.
(f)Mr Wallace put to the Applicant that “the substance of your complaints … is that you are still ashamed, not because you engaged unwillingly in sexual relationships with another male person, but you willingly engaged in those sexual relationships and that’s what you’re ashamed of for some reason”. The Applicant said “I wasn’t willingly engaging in that at all. It happened. And, yes, I have lived with it right up until now”;
(g)the Applicant was cross-examined about the fact that in or about late 1968 he developed anal warts. The Applicant said he had an operation to remove them, but at all times thought he “had piles” and did not know that he had anal warts. It was put to the Applicant that he “he wouldn’t have undergone an operation without a doctor telling you why he was operating on you” to which the Applicant said “well, that is not the case because I never ever knew that they were anal warts”;
(h)Mr Wallace also extensively cross-examined the Applicant with respect to what the Applicant contends to be his symptoms of PTSD.
The Respondent’s evidence
The evidence adduced on behalf of the Respondent was wholly documentary. For the purpose of these Reasons, it is sufficient to note that it included documentary evidence recording that the RSM who the Applicant alleges sexually assaulted him was not on the HMAS Sydney on the return voyage from Vietnam to Sydney when the Applicant alleges that the last 2 assaults occurred.
Submissions after hearing
As the Applicant was represented at the hearing by a lay advocate, the Tribunal provided to the Applicant (and the Respondent) an opportunity to provide written submissions after the hearing identifying the evidence by which it was submitted on behalf of the Applicant that findings of fact could be made consistent with the Applicant’s case.
In those written submissions, by way of “prefatory remarks”, the Applicant sought “to highlight (certain) general findings of the report of the Review of Allegations of Sexual and Other Abuse in Defence – facing the problems of the past: Volume 1, General Findings and Recommendations, October 2011”. These factors included the following:
“•there are factors in the Defence culture and processes which lead to abusive behaviour not being called to account;
• there is a culture in the Australian Defence Force discouraging reporting of abuse, and creating an atmosphere of group hostility towards the victim who reports another member of the group;
• the chain of command structure in Defence leads itself to superiors abusing juniors with impunity;
• social/environmental factors such as excessive consumption of alcohol, absence from family and friends, often in confined environments, increase risk of abuse;
• …
• it is certain that many boys (from 13 to 16 years of age) were subjected to serious sexual and physical assault in the ADF from the 1950’s through to the 1970’s;
• many of the boys who endured and/or participated in inflicting such abuse may have suffered, or be at risk of suffering, mental health, alcohol and drug problems and associated physical health problems;
• adults, older males and older boys in the ADF have often had power over young males and boys, based on a combination of physical strength, “rank” or at least seniority and, in some contexts – a “tradition” making the infliction of abuse “right” regardless of official prohibitions of the abuse”;
Under the heading “Issues of Credit”, the Applicant submitted as follows:
“…
13.The two instances of abuse aboard HMAS Sydney described by the Applicant have raised concerns about their plausibility, in particular whether an ordinary seaman could have roamed the vessel at will; and entered the cabin of the RSM without challenge. The Applicant submits in this regard that when he was assigned to the Master-at-Arms, his role was as a ‘gofer’, passing messages on to others in all parts of the ship concerning everyday operational matters. He was never on night duty at this time and evenings were free to spend as he wished. The abuse took place at night when the Applicant would not be missed; and in an area of the ship (opposite the Master-at-Arms’ office) that was isolated and not frequented in the evenings.
14.The Applicant submits that it is not unreasonable that he should have assumed that the RSM was in a position of authority over him despite being an NCO in the Army and not Navy:
· The Applicant had only just completed training as a Junior Recruit and was naïve and inexperienced;
· The RSM was the officer responsible for standards and discipline in the regiment and a parental figure who commanded respect among the troops on HMAS Sydney.”
In its written reply submissions, the Respondent made the following submissions with respect to the question of credit:
“4.1 The Tribunal need only compare the history obtained by Dr Gilbert and set out in her first report of 30 August 2010 with the history obtained by Dr Mander and set out in his report of 24 November 2012 to raise serious concerns regarding the Applicant’s credibility in respect of all issues relating to his claim.
4.2The Applicant’s submissions have not dealt with the inconsistencies in the Applicant’s evidence that were identified by the Tribunal when the Tribunal granted leave for the Applicant to make written submissions. The only thing consistent about the Applicant’s account of having been sexually assaulted is that the miscreant was the RSM of 7 RAR. Upon proper testing of this allegation, it becomes demonstrably clear that even the Applicant’s account on this cannot be correct.
4.3The Application before the Tribunal maintains that there were two instances of abuse aboard HMAS Sydney on the way to Vietnam, and another assault on the return voyage: see Transcript at page 120. The Applicant, however, gave a history as recorded by Dr Gilbert of there being four instances of abuse; two assaults on the way to Vietnam and a further two assaults on the return voyage. The Applicant’s submissions, at page 1, paragraph 2(b) now alleges that ‘Two instances occurred during the period of the Applicant’s eligible service … namely aboard HMAS Sydney in Vietnam from 8 April 1967 to 22 April 1967’.
4.4The records of (the RSM) and the regimental history of 7RAR as set out in the ‘WRITEWAY’ report of 28 February 2012 render these allegations completely implausible. The history obtained by Dr Gilbert in relation to all the allegations of molestation made by the Applicant is inconsistent with the Applicant’s evidence to the VRB, his evidence to the Tribunal and the Applicant’s oral and written submissions. Those allegations are in key respects also belied by (the RSM’s) service records.”
The written submissions conveniently summarised the Respondent’s case in this regard as follows:
“…
3.4The Respondent submits that the Tribunal could not, applying the ‘reasonable satisfaction’ test, be satisfied on the evidence that the ‘two instances of abuse’ or any abuse had occurred as alleged. It is demonstrably clear from the contemporaneous service records of (the RSM) that he could not have been on board HMAS Sydney on its return voyage to Australia. The Applicant is adamant that it was (the RSM) that sexually assaulted him on the voyage to Vietnam, and that it was the same person who sexually assaulted him on the return voyage.
3.5No adequate explanation has been given by the Applicant to resolve this significant inconsistency in his evidence. Absent an adequate explanation resolving this inconsistency, and without being able to identify any other member of the Army contingent aboard HMAS Sydney during the voyage to and from Vietnam as being responsible for the sexual assaults, the Tribunal could not be satisfied that the Applicant was assaulted as alleged.
3.6Moreover, the Applicant in his evidence to the VRB alleged that he was sexually assaulted on a second occasion on the voyage to Vietnam. The Applicant gave evidence to the VRB that he was sexually assaulted also on two occasions when HMAS Sydney was returning from Vietnam. …
3.7The Applicant also gave evidence that the RSM not only returned on HMAS Sydney in April 1967 but that he was aboard HMAS Sydney from 28 April 1967 to 12 May 1967. This is contrary to (the RSM’s) service records 7 RAR regimental history: see S59 at pages 361 and 362; “WRITEWAY” pages 153-198 and S1 at pages 199 – 209.
3.8During the course of his evidence before the Tribunal, the Applicant advanced no explanation during his evidence in chief for the significant inconsistencies in his evidence as given to the VRB and that to the Tribunal. It is extraordinary now that the Applicant alleges there were two instances of sexual assault when before the VRB he was maintaining on oath that there were four instances of sexual assault whilst he was aboard HMAS Sydney. Neither has this significant inconsistency been addressed in the Applicant’s submissions.
3.9In the event that the Tribunal is satisfied that the Applicant was not sexually assaulted whilst aboard HMAS Sydney in the period 8 April 1967 to 22 April 1967, his application must fail. This is so because the Tribunal would be satisfied that the Applicant had not experienced a ‘traumatic event’, as required by the diagnostic criteria in respect of PTSD.”
Analysis
The Applicant contends that he suffers from PTSD. As I have already stated, it is clear from the medical evidence that, to satisfy me that he suffers from PTSD, I must find on the evidence before me that at least one of the sexual assaults that the Applicant says occurred on HMAS Sydney took place.
I have no difficulty in readily accepting each of the propositions set out in paragraph 37 above which the Applicant referred to in his written submissions as being “prefatory remarks”. Accordingly, neither the nature of the allegations, the fact that the allegations were not made until the expiration of decades after the alleged incidents are said to have taken place and the fact that there is no corroborating evidence is by no means fatal to the Applicant’s case. Nor is the fact that the Applicant had some difficulty recalling.
However, what I consider to be fatal to the Applicant’s case is that his evidence was that he was assaulted by the same person on 6 occasions: twice at the Rex Hotel in Sydney, twice on board the HMAS Sydney on route to Vietnam and twice on the HMAS Sydney on its return voyage to Sydney. The evidence establishes, and I find as a fact, that the officer who the Applicant claims sexually assaulted him was not on the HMAS Sydney on its return voyage from Vietnam to Sydney. Indeed, quite properly, the Applicant did not seriously challenge this fact at the hearing.
No adequate explanation was proffered by the Applicant to explain this fact. It means either the Applicant has made a mistake as to when and where the last 2 incidents occurred, the Applicant has made a mistake as to who was the perpetrator of the 2 assaults on the return voyage from Vietnam to Sydney or the incidents just never happened.
This is not a case of someone getting a date wrong after the expiration of many years: it is a case of someone giving evidence that something happening in circumstances where the evidence establishes beyond any doubt that it did not happen.
Regrettably, the written submissions on behalf of the Applicant do not address this issue. The reason why is because in those submissions the Applicant has chosen to limit the “stressor events” to the 2 alleged incidents on board the HMAS Sydney en route from Sydney to Vietnam.
A party cannot overcome an obvious and central weakness in its case by jettisoning the allegations which are wholly inconsistent with the evidence and proceeding with the balance of the case as if those allegations had never been made.
Put simply, the fact that the Respondent has been able to demonstrate by objective evidence the fact that 2 of the alleged incidents could simply not have happened strikes at the heart of the reliability of the Applicant’s evidence generally, and specifically with respect to the other alleged incidents.
Unaided by any expert evidence, I find it inconceivable that a person who alleges that they were sexually assaulted (including penetration) on 6 occasions could make an error with respect to either:
(a)when and where 2 of those incidents occurred; or
(b)who was the perpetrator of 2 of those assaults.
In such circumstances, I would not accept as reliable the balance of the Applicant’s evidence as to what occurred without some corroboration by other evidence.
Although there was no expert evidence to this effect, the Tribunal understands that one (but not the only) cause of anal warts is through anal intercourse. Putting it at its highest, this fact is capable of corroborating evidence by the Applicant that, around that time, he had engaged in anal intercourse. It does not, however, assist in corroborating the circumstances surrounding that event, or who was the other party.
Nor does the fact that the Applicant absented himself from duty without leave provide sufficient corroboration. This fact is equivocal. Whilst it is capable of being consistent with the Applicant’s contention that he was being sexually assaulted, such conduct is not of and in itself only consistent with the Applicant’s contention, but rather could have been as a result of a myriad reasons for unhappiness on the part of the Applicant within the armed services.
I therefore reject the Applicant’s evidence and submissions and find that no such assault took place. In doing so, I accept the submissions of the Respondent set out in paragraph 39 above.
Whilst that is sufficient to decide this matter, I will also deal with the Applicant’s contention that, for the purpose of Statement of Principles No. 6 of 2008 – Post Traumatic Stress Disorder, the Applicant experienced a Category 1A stressor, namely that he was “subject to a serious physical attack or assault including rape and sexual molestation”.
Is the Applicant’s contention (hypothesis) “a reasonable one”? In my view, based on the evidence, and for the same reasons given above with respect to the question of whether the Applicant suffers from PTSD, it is not.
Conclusion
For the reasons set out above, I find that:
(a)the Applicant does not suffer from PTSD (given that I do not find as fact the matters stated by the Applicant to Dr Gilbert upon which Dr Gilbert formed her opinion that the Applicant suffers from PTSD);
(b)the Applicant’s “hypothesis” is not a reasonable one.
The reviewable decision must thus be affirmed.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for the decision herein of Mr S Penglis, Senior Member
…(Sgd) T Freeman……….
Administrative Assistant
Dated: 16 January 2014Dates of hearing:
21 & 22 August 2013
Written submissions after hearing
Applicant: 4 September 2013
Respondent: 23 September 2013Advocate for the Applicant:
Mr A Endrey
Counsel for the Respondent:
Mr J Wallace
Solicitors for the Respondent:
Australian Government Solicitor
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