Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FJE v Commissioner of Victims Rights [2022] NSWCATAD 323 Hearing dates: 29 July 2022 Date of orders: 4 October 2022 Decision date: 04 October 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: 1. The respondent's decision dated 25 January 2022 is set aside and I make the following decision by way of substitution. 2. FJE is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Victims Rights and Support Act 2013 (NSW). 3. FJE was the victim of domestic violence resulting in grievous bodily harm and is eligible for a Category C recognition payment under s 35(3)(c) of the Victims Rights and Support Act 2013 and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW). Catchwords: ADMINISTRATIVE LAW – Victims rights and support – Recognition – Grievous bodily harm Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Victims Rights and Support Act 2013 (NSW) Victims Rights and Support Regulation 2019 (NSW) Cases Cited: AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203 BXB v Commissioner for Victims Rights [2015] NSWCATAD 173 CZU v Commissioner of Victims Rights [2017] NSWCATAD 240 EMT v Commissioner of Victims Rights [2021] NSWCATAD 39 Haoui v R (2008) 188 A Crim R 331; [2008] NSWCCA 209 R v Overall (1993) 71 A Crim R 170 Shu Qiang Li v The Queen [2005] NSWCCA 442 Category: Principal judgment Parties: FJE (Applicant) Commissioner of Victims Rights (Respondent) Representation: Applicant (self-represented K Douch, Victims Services (Respondent) File Number(s): 2022/00091337 Publication restriction: Section 64(1) Civil and Administrative Tribunal Act 2013 – 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. These proceedings relate to a claim for victims support and a recognition payment lodged by the applicant known by the pseudonym FJE initially before the Commissioner of Victims Rights ("the respondent"). 2. The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 23 May 2017, and alleged that she was the victim of an act of domestic violence that was committed by ex-partner (name provided) over a period of time from 1 January 1999 to 31 December 2016 at Wagga Wagga, in New South Wales. She alleged that domestic violence was perpetrated by her ex-partner and that she was threatened with a weapon and that the matter was reported to Police. However, she did not indicate what injuries she suffered as a result. Decision at first instance 1. On 20 April 2018, an Assessor (Client Claims) issued a Deferral of Decision, which determined that the application required further information before it could be determined whether FJE was eligible for victims support. The Assessor noted that NSW Police Event reports indicate a number of domestic violence incidents between FJE and the offender and indicate that FJE was assaulted on 19 June 1999, 29 February 2000, 6 September 2002, 18 October 2002 and 18 May 2003. The latter two assaults occurred in breach of an Apprehended Domestic Violence Order (ADVO). Further, the records of Wagga Wagga Local Court indicate that the offender was charged and convicted of offences including assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear of physical/mental harm and was directed to enter into a 2 year good behaviour bond. A further ADVO was issued at Wagga Wagga Local Court on 10 July 2006. 2. The Assessor noted that a counselling report from Ms V Sestic, psychologist, dated 19 December 2017 recorded a history of domestic violence by the offender over a period of time from 1997 to 2003. Ms Sestic diagnosed depression, anxiety and stress as a result of the act of violence and other contributing factors. 3. However, the Assessor noted that while the application alleged that the period of the act of violence was from 1 January 1999 to 31 December 2016, the police reports indicate domestic violence incidents until 2003 and that a further ADVO was issued in July 2006. This indicated that the act of violence period was from 1 January 1999 to 10 July 2006, and if this was the case then the application was lodged outside the timeframes set by s 40 of the Act. The Assessor requested the applicant to provide any further information including police records and disclosures to any medical practitioners regarding the period of the act of violence. 4. On 17 September 2021, an Assessor (Client Claims) issued a Notice of Decision, which determined that an act of violence was established on the balance of probabilities and that the applicant was eligible for a category D recognition payment in the sum of $1,500 and financial assistance for immediate needs in the sum of $994.25. The Assessor stated, relevantly: 9. I have also considered the submissions provided by the applicant. She provided details of the ongoing and persistent violence perpetrated by the offender between 2003 and 2018. His actions were cruel and callous, and included multiple instances of physical, emotional, verbal and mental abuse. 10. The documentary evidence is sufficient to find that it is more probable than not that (FJE) was the victim of domestic violence at Wagga Wagga, New South Wales. 11. I have considered a counselling report dated 19 December 2017 from Veronica Sestic that establishes that (FJE) was injured as a direct result of that act. The applicant presented with symptoms of depression, anxiety and stress. 12. Having regard to the documentary evidence, I find on the balance of probabilities, that (FJE) is the primary victim of an act of violence, that occurred between 1 January 1999 and 31 December 2018. I also find that the act of violence is considered a series of related acts, as two or more acts were committed against the victim by the same offender over a period of time… 1. I note that the Assessor did not provide any specific reasons for her decision to approve a category D recognition payment. 2. I note that a copy of the Notice of Decision was sent to the applicant by email under cover of a letter from the respondent dated 17 September 2021. However, the date on which the email was actually sent is not indicated in the documents before me. Internal review 1. On 14 December 2021, FJE applied for an internal review of the Assessor's decision on the following grounds: …As I am appreciative and very grateful to see that you acknowledged my application by awarding me $1500.00 (Category D) I do feel that this amount of money pales to the many years of physical, mental and verbal abuse that I have suffered. The numerous things that my ex-partner (name provided) did to me have had a serious impact on my life and as a consequence I have been unable to live a normal life in grave fear of him finding me and carrying out his threats of killing me. I have been unable to live anywhere for too long and have had to move constantly as he was eventually found out where I was living and threatened our lives. He also threatened to kill my family members and friends. I haven't worked since I had my daughter (name given) in 1999 as I was a single mother and I could not do the physical work that I used to do (nursing and nursery work) as my injuries have left me incapable of being able to carry out my normal duties. The loss of income has made my life very difficult to the point where myself and my daughter became homeless for 3 years. I have been diagnosed with post-traumatic stress disorder (PTSD) and severe anxiety which has also had a huge negative impact on my life. I have lost all of my teeth as a result of him hitting me very forcibly in the mouth many times which loosened my teeth. He hit me in the nose which resulted in breaking it on one occasion, other times I would have nose bleeds. He shattered all the bones in my eye socket after punching me very hard in the eye He has punched me numerous times in my head over the years resulting in ongoing chiropractic therapy. He put a knife to my neck several times and threatened to slit my throat. He held a gun to my head and at me many times and said he had no hesitation in shooting me. He pulled my head from one side to the other very violently which has caused ongoing neck and upper back problems. Also the many hits to my head have caused me to have more severe headaches especially when I wear my glasses I get this excruciating pain behind my ears it's unbearable. He has also strangled me numerous times to the point where I was seeing stars. I remember on a few occasions I lost consciousness. He has dragged me around the house by my hair, and told me to sit in the corner of the room and told me not to move a muscle. If I moved even slightly he would jump up and attack me hitting me all over my body (bruised badly over my body). That happened all night long at least 5 times over our relationship. Other times he would just chase me into a room and start hitting me. I tried to run but he cornered me most times. He would violently hit me in the head in front of our daughter. She would be crying and pleading with him to stop hitting mummy. But that never worked he just got more angry and shout at her as well. He put a knife to my daughter's neck when I was ringing the police to get him out of our house. (I was across the road) trying to get help and got him out of our house and away from (my daughter). He terrified her for hours that night. She was 9 years old at the time. He was on an AVO at the time for a siege that happened to which when he was wanted by police for breaching the AVO. He was held up in my house, the police closed my street down and eventually got him out of my house, he wasn't allowed back in Wagga and had to go to court. He chose to go on the run for nearly a year until he handed himself into police. He got sentenced to Silverwater jail but that wasn't for very long. The rest I would have covered in my first application. Just another time when he got out he would ring and start abusing me. He has punched me in my left and right eye one time when I had 4 stitches the other time he wouldn't take me to the hospital to get stitches, I've had my eyes blacked out also many times. I've had to drink through a straw as the pain from being hit to the head was excruciating. He controlled me to the point where he held me captive in a caravan and wouldn't let me go the toilet unless he walked with me to the amenities and if I needed to wee he told me to pee in a bucket in the van. He thrived on humiliating and abusing me trying to make me believe I was worthless, As much as I tried to keep a positive attitude by telling myself that I wasn't anything he caked me i.e. slut, braindead c**t, skull f..k) over time it has a very damaging affect causing anxiety, depression, PTSD, low self-esteem. When I had 4 stitches (when he punched me in the eye the room looked like a crime scene there was blood on the walls, the bed cover was saturated with blood. It's hard to get that picture out of my head. I'd never seen that much blood before. The main reason I am appealing the decision is that I believe the ongoing physical, emotional and mental abuse (verbal) could be classified as grievous bodily harm i.e. bashing me in the head, strangling me, punching me in the eye causing me to have 4 stitches. Shattering my eye socket bones another time. Loose teeth (from being hit in the mouth often) and leaving me with some permanent injuries. Ongoing counselling, chiropractor, physiotherapy. When I was living with (the offender) in (location) we were very isolated there. He chased me down the stairs I was 3 months pregnant, I ran in the yard to get away from him but he caught me and I fell to the ground then and he started kicking into me he was trying to kick me in my stomach. So rolled over where he proceeded to kick me in the back. There is so much more to account but I'd run out of paper and ink. My daughter and I still live in fear of him finding us again once I get the cameras installed that will give us a little more peace of mind I hope. It has been difficult for me to recount these events I feel myself reliving those times in my head bewildered and sad that he could have treated me this way and not to mention how he treated his precious daughter… 1. On 25 January 2022, a Senior Assessor issued a Notice of Review Decision, which determined that FJE was the primary victim of an act of violence and approved a Category D recognition payment in the sum of $1,500. The Senior Assessor stated, relevantly: 5. …(FJE) states that she believes that the impact of the violence on her physically and psychologically means the recognition payment should be classified as equating to grievous bodily harm. She documents in the handwritten attachments to her internal review request form that she suffers from PTSD, anxiety and depression and the violence she has suffered resulted in her having sutures, shattered bones in her eye socket, loose teeth and has necessitated ongoing medical and psychological treatment. 6. (FJE) has provided, in action to her internal review request (and attached handwritten documentation) a letter from her chiropractor (name provided) dated 7 December 2021 and a brief letter of support from her GP (name provided) dated 10 November 2021. … 20. I have read firstly the counselling treatment report of Veronica Sestic, psychologist and approved counsellor, dated 19 December 2017. That report details violence that (FJE) experienced in an earlier relationship with (name provided) and its impact on her. It also documents the violence she experienced in her relationship with (the offender) and violence she experienced from another male who moved in with her and (the offender) at one stage. The report indicates that (the offender) became abusive towards her after the violence that took place from (the other male), and she relocated to assist her sick father, with (the offender) following her. (FJE) states that (the offender) became physically violent whilst she was pregnant and in spite of again leaving him, she reconciled with him and his abusive behaviours continued. 21. Ms Sestic states that as a consequence of the violence by (the offender) and the other abuses she has experienced in her life, she has suffered symptoms of depression, anxiety and stress. Further ongoing counselling was recommended for (FJE) to participate in with Ms Sestic. 22. I have read the report of (name provided), chiropractor at (name of clinic stated) dated 7 December 2021. The report indicates that (FJE) presented to the clinic on 1 November 2021 with an insidious and recent exacerbation of an ongoing upper back and neck complaint. (He) states (FJE) stated she had been the victim of domestic violence between the ages of 30 – 40 years and during this time multiple counts of trauma to the head and neck are recorded with one account of strangulation that led to loss of consciousness. (He) opines it is likely the accumulative nature of these traumas has contributed to her present condition both physically and mentally and management is multidisciplinary. Prognosis is favourable. 23. I have also read a letter of support dated 10 November 2021 by Dr (name provided). The letter indicates that (FJE) attended the practice today and stated that she was in an abusive relationship with her ex-partner which ended in 2108 and she was physically and verbally abused/hit on the head/body on multiple times. She advised even though an AVO was in place at the time he continued to abuse her. 24. I have also read the three page handwritten advice (FJE) provides documenting the violence she experienced. 25. I note in carefully reading through the documentation (FJE) has provided, there are no contemporaneous medical reports she has provided that support the numerous and extensive physical injuries she states she has suffered at the hands of her former partner over the years. (FJE) documents in her various correspondence to Victims Services that she has endured serious physical injuries at the hands of (the offender). To date, no evidence from medical practitioners that treated her at the time of these incidents occurring, not hospital she may have sought treatment from, have been provided which causally connect the nature and extent of these injuries with the violence she experienced from (the offender). 26. The counselling report of Ms Sestic establishes that (FJE) suffered psychologically as a consequence of the violence she endured from (the offender). The chiropractor report of Dr (name provided) does not in my view, sufficiently link (FJE's) presentation for chiropractic treatment in 2021 with violence that ended (at least physically) many years ago, particularly without some more recent evidence (recent to when the physical injuries occurred) that links the ongoing chiropractic issues with physical injuries sustained some years earlier. 27. It is a similar situation with the GP's supporting letter. That letter unfortunately does not take the matter further – it simply states (FJE) presented and advised the doctor of what she had experienced in her life in the past. The doctor does not examine (FJE) nor does he refer to prior consultations, notes, hospital reports, referral documentation etc. to link what (FJE) informs him, with a comprehensive medical opinion and diagnosis of any injuries she may have sustained some years ago. 28. (FJE) seeks essentially me to find on review, an 'elevation' of the category of recognition payment Assessor A. To found established in the earlier decision from a Category D to a Category C. she asserts the violence she endured should equate to a finding that it is an assault that resulted in grievous bodily harm to her. 29. In my view, 'grievous bodily harm' connotes really serious harm, such as causing a permanent disability to a victim, that renders them seriously debilitated for a lengthy period of time or disfigures them. This can be established by reference to the nature of charges pursued against an offender and/or through lodgement of comprehensive medical evidence. Where grievous bodily harm is not established, an adult primary victim of assault or ongoing domestic violence is eligible for a category D recognition payment. 30. The available evidence reflects that Police charged (the offender) with offences including contravening an apprehended domestic violence order, intimidating (FJE) and committing assaults on her (assault occasioning actual bodily harm and common assault). There is no evidence before me that "higher" personal violence/assault charges were preferred against (the offender), such as reckless wounding, assault occasioning grievous bodily harm or similar. 31. Further, (FJE) has not submitted medical/counselling evidence contemporaneous to when incidents of violence took place that document her suffering physical injuries that might amount to being grievous in nature, and which were apparently caused at the hands of (the offender). At best, I only have before me the counselling report already detailed, and recent reports of (FJE)'s chiropractor and GP, where she has advised them of her past experience of domestic violence, but which does not indicate they treated her for any injuries she suffered around the time the injuries are said to have occurred. In other words, reports some years after the violence ended unfortunately cannot support or causally connect serious injury with the violence that took place many years earlier, in the absence of other evidence that establishes those injuries around the time that they are said to have occurred. 32. While I have carefully considered the reasons that (FJE) has sought an internal review on, and I have carefully read what she has documented in writing as to the nature of the abuse she endured, what it consisted of and the injuries she apparently sustained, the available evidence does not reflect that the extent of injuries, physical and/or psychological, amount to a finding that the violence perpetrated on/against (FJE) can be categorised as amounting to an assault resulting in 'grievous bodily harm' to her. I do not consider the injuries that are established by the evidence presently on file nor the disclosed violence that is evident from the available Police reports and court documentation amounts to a grievous or serious level of harm perpetrated on/against (FJE) on the evidence before me. 33. This means that after considering all of the evidence before me, I find that (FJE) is eligible for a Category D recognition payment, which is given in respect of an act of violence involving an assault (not resulting in grievous bodily harm)… 1. I note that a copy of the Notice of Review decision was emailed to FJE under cover of a letter from the respondent dated 25 January 2022. However, the date that the email was actually sent is not indicated in the documents before me. Application for Administrative Review 1. This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which 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. 1. On 30 March 2022, the Tribunal received the administrative review application, which sought a review of the respondent's decision dated 27 January 2022 on the following grounds: As the reviewer stated that I didn't have medical evidence on some of the occasions back then. In my defence of that statement I had absolutely no chance of seeing a doctor or going to a hospital as the accused (name provided) wouldn't let me go anywhere. He would make me put a towel on the injury he inflicted and I'd bleed out till morning when it finally coagulated. I needed stitches on many occasions but couldn't because of his abuse and threats. 1. FJE also stated that the application was lodged out of time because she "only found out last week that I could go to NCAT for another review. Could you please accept my late application on those grounds." Directions hearings 1. The matter came before Senior Member McAteer for directions on 29 April 2022. FJE was self-represented and Ms K Douch, Victims Services, appeared for the respondent. He ordered FJE to file and serve any updated medical report / material she was able to obtain by 24 June 2022 and ordered the respondent to file and serve the s 58 bundle by 27 May 2022. He listed the matter for further directions on 1 July 2022 and noted that the respondent would consider their position in respect of the question of the application being filed late and advise of their position on the next occasion. 2. The matter came before me for directions on 1 July 2022. FJE again appeared in person and Ms K Douch again appeared for the respondent. I ordered FJE to file and serve any updated medical evidence by 15 July 2022 and listed the matter for hearing on 29 July 2022. Further evidence 1. On 11 July 2022, FJE lodged a Certificate of Injury, which was completed by her GP on 7 July 2022. This stated that the doctor first saw FJE on 10 November 2021 and that he recorded a history of injury over a period of time from 1998 to 2011 as a result of an abusive relationship with an ex-partner. FJE described that she suffered physical & verbal abuse, that she was hit on the head multiple times, that she was hit in multiple body parts, suffered loose teeth and was "strangulated trials many times". The doctor stated that FJE was still suffering from pain in her head due to past trauma and post-traumatic stress disorder (PTSD) and he diagnosed PTSD, which was consistent with clinical findings and the incident as described. The doctor stated that further appointments would be made "when required" including consultations with the Victims Services psychologist – Ms Sestic. Hearing 1. At the hearing on 29 July 2022, FJE appeared in person and Ms Douch again appeared for the respondent. 2. FJE relied upon the Certificate of Injury dated 7 July 2022. She stated that she last consulted with Ms Sestic by telephone as recently as three months ago and that counselling was conducted by telephone due to COVID-19. She said that she consulted a psychologist frequently for the first couple of years after the act of violence occurred and that she then consulted Ms H Clifton, psychologist, between 2011 and 2015. In 2017, she obtained a further counselling approval from Victims Services and she was also prescribed anti-depressant medication. She said that she has chiropractic treatment for her head, neck and back symptoms on a monthly basis and that she also had all of her upper teeth removed and she uses a full plate. She has 4 remaining teeth in her lower jaw and these will need to be removed. She also said that she suffers pain in her head – at the back of her head – when she wears her glasses and that her eyesight was damaged when she suffered damage to her eye socket. These injuries and ongoing symptoms resulted from the act of violence. 3. After hearing from FJE, the Tribunal asked Ms Douch whether the respondent would concede that the injuries resulting from the act of violence constituted grievous bodily harm. However, Ms Douch stated that she was unable to obtain instructions "right now". 4. The Tribunal gave the respondent leave to approach the Registry within 7 days to advise whether or not the dispute was resolved. If so, the Tribunal would enter consent orders. If not, the respondent was ordered to file and serve written submissions by 5 August 2022 and the dispute would be determined "on the papers" without a further hearing. The matter would then be reserved from 5 August 2022. 5. I note that the matter failed to resolve and that on 5 August 2022, the Tribunal received written submissions from the respondent. 6. The respondent argued that FJE had not suffered grievous bodily harm as a result of the act of violence. After discussing the relevant case law including Haoui v Regina [2008] NSWCCA 209 and Shu Qiang Li v R [2005] NSWCCA 442 at [45], and citing the Tribunal's decisions about whether a psychological injury constitutes grievous bodily harm (CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, BXB v Commissioner of Victims Rights [2015] NSWCATAD 173 and EMT v Commissioner of Victims Rights [2021] NSWCATAD 39), the respondent stated, relevantly: … 19. In respect of the chiropractor report, further to the comments of the senior assessor at [26] of the decision, the respondent notes that the injury reported would not give rise to a finding of grievous bodily harm. 20. In addition to the above, in the application/submissions the applicant has described sustaining serious injuries as a direct consequence of the act of violence, including stitches and the shattering of bones in her eye socket. However, these injuries and their severity are unable to be verified in the absence of medical evidence. 21. At the hearing, the applicant also made oral submissions that she attended an appointment with a psychiatrist named Judy and is currently prescribed anti-depressant medication but could not recall the name of that medication. In relation to treatment by a psychiatrist, the applicant has not provided any medical evidence from a psychiatrist and the medical records produced by her doctor and psychologists do not reference, or refer the applicant for treatment by a psychiatrist for the injuries suffered as a direct consequence of the act of violence. In respect of medication, we note that evidence from the applicant's doctor does not confirm or detail any prescription medication. 22. While the evidence produced by the applicant verifies that the applicant suffered injury as a direct consequence of the act of violence, in consideration of the above, the respondent submits that the available evidence does not support a finding that the applicant suffered an injury amounting to grievous bodily harm. In this regard it is relevant to note that: (a) the applicant has not formally been diagnosed with PTSD (noting that Dr Ibrahim provided evidence of a provisional diagnosis); (b) no medical evidence from a psychiatrist has been filed and the medical evidence before the tribunal does not reference treatment by or referral to a psychiatrist; and (c) the medical evidence from Dr (name provided) does not confirm or detail any prescribed medications. 22. Accordingly, the respondent submits that the applicant should be approved a Category D recognition payment and the decision affirmed. Consideration Act of violence 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. 2. "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. … (3) For the purposes of this section, violent conduct extends to sexual assault and domestic violence. (4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because— (a) they were committed against the same person, and (b) in the opinion of the Tribunal or the Commissioner— (i) they were committed at approximately the same time, or (ii) they were committed over a period of time by the same person or group of persons, or (iii) they were, for any other reason, related to each other… 1. Section 20 of the Act defines "primary victim" as follows: (1) 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. The onus is on FJE to prove the allegation that she was the primary victim of an act of violence in the nature of an assault perpetrated by the alleged offender on the balance of probabilities. 2. As required by ss 19(1), 19(3) and 19(4) of the Act, I am satisfied on the balance of probabilities that FJE was the primary victim of domestic violence and assault, which was perpetrated by the alleged offender over an extended period of time from 1 January 1999 to 31 December 2018, and that she suffered physical and psychological injuries as a result. 3. I am also satisfied that the act of violence is a series of related acts as defined by s 19(4) of the Act. Recognition payment 1. It is necessary to determine the relevant category of recognition payment that FJE is eligible to receive as a result of her injuries. 2. The respondent approved a category D recognition payment in the sum of $1,500, essentially on the basis that FJE was the victim of an assault not resulting in grievous bodily harm. 3. I note that at first instance, the Assessor effectively determined that category D was appropriate because FJE's evidence and medical evidence was considered inadequate and because police did not charge the offender with any "higher" personal violence/assault charges such as reckless wounding, assault occasioning grievous bodily harm or similar. 4. In my view, the descriptors of the charges that police laid against the offender under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) are not relevant to the determination of whether the victim suffered actual bodily harm or grievous bodily harm as a result of the act of violence. 5. In effect, s 35(3)(c) of the Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. However, "grievous bodily harm" is not defined in the Act. 6. I have considered all of the evidence lodged with the Tribunal, including FJE's extensive evidence regarding the act of violence, the injuries that she suffered as a result, and the ongoing symptoms that she suffers as a result of it. 7. The respondent is correct in deciding that there is little, if any, contemporaneous medical evidence to corroborate FJE's evidence regarding the injuries that she suffered. However, FJE states that she had little, if any, opportunity to obtain treatment due to the offender's controlling behaviour. She stated that he refused to take her to the hospital for treatment and expected her to hold a towel to lacerations (which he had caused as a result of striking her in the head/face) until the bleeding stopped. She stated that she lived in fear of the offender and that she and her daughter have frequently moved and continue to live in fear that the offender will find them and that the domestic violence will resume. 8. I found FJE's evidence compelling and I am satisfied that this explains the absence of contemporaneous evidence. I note that once she felt it safe to do so, she sought treatment from a GP and a chiropractor and that she has had counselling from a Victims Services approved counsellor. 9. FJE states that she has been prescribed medication for her psychological injury and that she has been treated by a psychologist and psychiatrist. 10. The Victims Services Certificate of Injury dated 7 July 2022, which was completed by FJE's GP, indicates that she continues to suffer pain in her head due to past trauma (which was described in some detail) and PTSD, which he considered to be both consistent with his clinical findings and the incident that FJE described. He stated that FJE requires ongoing counselling. 11. While I note that the respondent submits that the certificate does not indicate either referral to a psychiatrist or that any anti-depressant medication has been prescribed, I note that the Pro-forma Certificate does not seek information regarding prescribed medication. 12. The Certificate of Injury was not before the respondent when the review decision was made and the Senior Assessor did not have the benefit of hearing from FJE directly. In any event, I note that FJE continues to suffer psychological symptoms, which require ongoing treatment, approximately 3.75 years after the act of violence. 13. The respondent has quite properly cited the decision in Haoui regarding the meaning of "grievous bodily harm". That decision 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. However, based upon the evidence that is before me, including FJE's evidence regarding the nature of her psychological symptoms, their duration and the need for ongoing treatment, I am satisfied that the act of violence resulted in "really serious injury" of a psychological nature and that it therefore resulted in grievous bodily harm. 2. It follows that I am satisfied that FJE is eligible for a category C recognition payment in the sum of $5,000 pursuant s 35(3)(c) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW) (the Regulation). Section 44 considerations 1. Section 44(1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to the following matters: a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, … (d) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed, (e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed, (f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed, (g) such other matters as the Commissioner considers relevant. 1. I am satisfied that there are no factors in this matter either support a decision to not approve the giving of victims support or to reduce the amount of victims support that should be given. Order 1. I make the following orders: 1. The respondent's decision dated 25 January 2022 is set aside and I make the following decision by way of substitution. 2. FJE is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Victims Rights and Support Act 2013 (NSW). 3. FJE was the victim of domestic violence resulting in grievous bodily harm and is eligible for a Category C recognition payment under s 35(3)(c) of the Victims Rights and Support Act 2013 and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW). ********** 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: 04 October 2022