GNG V Commissioner of Victims Rights [2024] NSWCATAD 321

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: GNG V Commissioner of Victims Rights [2024] NSWCATAD 321 Hearing dates: 11 October 2024 Date of orders: 11 October 2024 Decision date: 30 October 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. The decision under review is set aside and I make the following decision by way of substitution. 2. The applicant is a primary victim of an act of violence on the balance of probabilities. 3. I approve a category C recognition payment in the sum of $5,000. Catchwords: ADMINISTRATIVE LAW – administrative review – Victims rights and support – whether an act of violence is established on the balance of probabilities – recognition payment – grievous bodily harm Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Victims Rights and Support Act 2013 (NSW) Cases Cited: AM v R (2012) 225 A Crim R 481 AMP General Insurance Ltd v Kull (2005) 44 MVR 339 Briginshaw v Briginshaw (1938) 60 CLR 336 Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 Haoui v R (2008) 188 A Crim R 331 Helton v Allen (1940) 63 CLR 691 Jones v Dunkel (1959) 101 CLR 298 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 R v Overall (1993) 71 A Crim R 170 West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66 Texts Cited: None Category: Principal judgment Parties: GNG (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: GNG (Self represented) K Douch, Victims Services (Respondent) File Number(s): 2024/00273112 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 (NSW) – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons

REASONS FOR DECISION

Background 1. In this matter, GNG (the applicant) applied for an administrative review of a decision made by the Commissioner of Victims Rights (the respondent) on 26 June 2024, which dismissed his application for victims support under the Victims Rights and Support Act 2013 (NSW) (the Act) on the basis that the Assessor was not satisfied that the applicant was a primary victim of an act of violence on the balance of probabilities. 2. The applicant applied for an internal review of that decision and lodged a Police COPS Event report in support of it, but the applicant maintained the decision at first instance. 3. The applicant then applied to this Tribunal for administrative review of the respondent's decision.

The hearing 1. I conducted a hearing of the matter on 11 October 2024, at which GNG appeared by way of AVL and Ms K Douch, Victims Services, appeared for the respondent. 2. At the completion of the hearing, I made an ex-tempore decision and stated that the Tribunal would publish written reasons in due course. These are those written reasons.

Applicant's further evidence 1. During the hearing, the applicant gave oral evidence that he was pushed from behind, fell onto his knee and was injured, while he was walking on the jetty at Coffs Harbour, in New South Wales, on 6 April 2024. He said that he was unable to go to Coffs Harbour Hospital immediately as he had child care commitments at home, but he attended the hospital a few days later. When he arrived at the hospital, he had to wait "for hours" in the emergency department before he was attended to. He told the staff what had occurred and they arranged for his knee to be x-rayed and discharged him. The Hospital issued a Discharge Summary to give to his General Practitioner, but he did not read the Discharge Summary at the time. 2. He saw Dr Allan, his GP, on 24 April 2024 and told him what had occurred and when it occurred. The doctor issued a Certificate of Injury based on an MRI scan of the left knee, which indicated a grade 3 Anterior Cruciate Ligament injury. He referred the applicant to a specialist, but so far no surgery has been proposed and he has undergone physiotherapy for the injury. 3. The applicant submitted Dr Allan's Certificate of Injury to the respondent with his application for victims support. However, his application was dismissed on the basis that there was insufficient evidence to support a decision that he was the primary victim of an act of violence on the balance of probabilities. 4. When his application was rejected by the respondent, he went and spoke to NSW Police and told them "the entire scenario". He then requested an internal review by the respondent, but the respondent maintained the decision to dismiss his application. 5. The applicant stated that he continues to have physiotherapy for his injury and that this is currently on a fortnightly basis. The physiotherapy is aimed at stabilising the knee so that surgical reconstruction can be avoided. 6. Ms Douch referred the applicant to the Police COPS Event Report, which indicated that he was "sketchy" on details and was focussed on his application for victims support. The applicant said that he was not aware that he needed to report the matter to the Police before he lodged his application for victims support. 7. The Tribunal noted that the conclusions made by the Police do not bind it in determining the current application. 8. The applicant stated that the act of violence "massively impacted me". He stated that he is "usually a pretty fit and active person and this has made it very difficult for me to do his fitness as well as his work". He said that he works in the area of Mental Health and Disability and he is a Support Worker. It has also affected his own mental health and well-being and has adversely impacted upon the time that he is able to spend with his children as he has not been able to do a lot of the activities that he would normally do with them. This has made him feel upset and depressed.

Consideration

Relevant legislation 1. Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. 1. Section 20(1) of the Act defines "primary victim" as follows: A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act… 1. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) relevantly provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Consideration 1. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 the Court of Appeal (McDougall J, Bell & McColl JJA agreeing) stated, relevantly: Discharge of the burden of proof: the relevant principles 44 A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336. His Honour's statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen (1940) 63 CLR 691 at 712. 45 Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel (1959) 101 CLR 298 at 305 where his Honour said that "[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied". Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell (1982) 149 CLR 155 at 161 – 162, and Mason J (with whom Brennan J agreed) in the same case at 168. 46 It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness. 47 In Malec v JC Hutton Pty Limited (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643: A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred. 48 On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours' approach, what is required is a determination of the respective probabilities of the event's having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion… 1. I am bound by the Court of Appeal's decision in Nguyen and for the applicant to succeed in his application for administrative review, I must consider the relevant probabilities of the alleged event having occurred or not occurred and I must feel a sense of actual persuasion that it occurred in the manner alleged. 2. After hearing and considering the applicant's further evidence, I am satisfied that the applicant was the primary victim of an act of violence in the nature of an assault which occurred on 6 April 2024 and that he suffered injury as a direct result of that Act. 3. Accordingly, the decision under review is set aside and it is necessary to consider the approval of victims support for the applicant in the form of a recognition payment. 4. The available medical evidence indicates that the applicant suffered a grade 3 injury to his Anterior Cruciate Ligament as a result of the act of violence. In addition, an MRI scan dated 24 April 2024 indicated pathology affecting the medial meniscus and an impact fracture of the medial tibial plateau. 5. The applicant has received treatment from his General Practitioner, a medical specialist and a physiotherapist and the latter treatment is continuing. To date he has been able to avoid the need for a total reconstruction of his left knee by actively pursuing physiotherapy treatment, but there is a possibility that surgery may be required in the future if the conservative treatment does not sufficiently stabilise the knee. 6. It is necessary to consider whether the applicant suffered actual bodily harm or grievous bodily harm as a result of the act of violence. 7. In Haoui v Regina [2008] NSWCCA 209 (Haoui) Beazley JA (as her Honour then was) stated: 137. The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one." 1. I note that the decision in Haoui was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated, relevantly: 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209… 1. Further, a finding of grievous bodily harm involves a higher threshold than actual bodily harm. In relation to a psychological injury, the threshold for actual bodily harm was considered in Shu Qiang Li v R [2005] NSWCA 442: 45. A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (see R v Lardner, unreported, NSWCCA, 10 September 1998). Actual bodily harm to the victim was, of course, not an element of the offence for which the sentencing judge was sentencing the applicant. Based on this evidence, I am satisfied that the injury suffered by the applicant was not 1. I have applied these principles to the evidence before me and I am satisfied that the applicant suffered grievous bodily harm as a result of the act of violence on 6 April 2024. 2. It follows that the applicant is eligible for a Category C recognition payment pursuant to s 35(3)(c) of the Act.

Orders 1. I make the following orders: 1. The decision under review is set aside and I make the following decision by way of substitution. 2. The applicant is a primary victim of an act of violence on the balance of probabilities. 3. I approve a category C recognition payment in the sum of $5,000.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2024