DVS v Commissioner of Victims Rights [2019] NSWCATAD 169

DVS v Commissioner of Victims Rights [2019] NSWCATAD 169

The Tribunal affirmed the Senior Assessor's decision because DVS did not discharge the onus of proving on the balance of probabilities that DXH was the primary victim of an act of violence. The alleged forced viewing incidents were not reported to Police or another Government agency as required by s 39, and there was no medical or counselling report verifying injury directly resulting from those alleged incidents. The available evidence instead supported that DXH's mental health episode and hospitalisation followed television footage that reminded him of witnessing the aftermath of a suicide at Penrith Railway Station, which was not the act alleged in the application under review.

Jurisdiction
Australia
Judgment Date
20 August 2019
Procedural Posture
Application for Administrative Review / Review of Senior Assessor's Decision Dated 29 November 2018
Outcome
The decision of the Senior Assessor dated 29 November 2018 is affirmed.
Legal Topics
['administrative Review' 'primary Victim of an Act of Violence' 'burden of Proof' 'documentary Evidence for Victims Support']
['administrative Law' 'victims Rights and Support'] ['administrative Review' 'primary Victim of an Act of Violence' 'burden of Proof' 'documentary Evidence for Victims Support']

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Procedural Posture

Application for Administrative Review / Review of Senior Assessor's Decision Dated 29 November 2018

Legal Issues

  1. 1 ['Whether DXH was the primary victim of an act of violence within the meaning of the Victims Rights and Support Act 2013 (NSW).' 'Whether the evidence established on the balance of probabilities that DXH was forced to view a video of a dismembered body and was injured as a result.' 'Whether the application was supported by the documentary evidence required by s 39 of the Victims Rights and Support Act 2013 (NSW).']

Ratio Decidendi

The Tribunal affirmed the Senior Assessor's decision because DVS did not discharge the onus of proving on the balance of probabilities that DXH was the primary victim of an act of violence. The alleged forced viewing incidents were not reported to Police or another Government agency as required by s 39, and there was no medical or counselling report verifying injury directly resulting from those alleged incidents. The available evidence instead supported that DXH's mental health episode and hospitalisation followed television footage that reminded him of witnessing the aftermath of a suicide at Penrith Railway Station, which was not the act alleged in the application under review.

Court Disposition

The decision of the Senior Assessor dated 29 November 2018 is affirmed.

Orders

  • ['The decision of the Senior Assessor dated 29 November 2018 is affirmed.']