Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BFV v Commissioner of Victims Rights [2014] NSWCATAD 170 Hearing dates: 9 May 2014 Decision date: 10 October 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: J McAteer, Senior Member Decision: 1. The decision made by the Senior Assessor upon internal review on 19 February 2014 is affirmed. 2. The Application is dismissed. Catchwords: Victims Rights and Support - administrative review - act of violence - civil standard - balance of probabilities - victim or perpetrator of assault. Legislation Cited: Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 Administrative Decisions Review Act 1997 Civil and Administrative Act 2013 Mental Health (Forensic Provisions) Act 1990 Law Enforcement (Powers and Responsibilities) Act 2002 Cases Cited: Reifek v McElroy (1965) 112 CLR 517 at 521-522 Category: Principal judgment Parties: BFV (Applicant ) Commissioner for Victims Rights (Respondent) Representation: BFV (Applicant in person) S Matulewicz, Commissioner of Victim Services (Respondent) File Number(s): 1410130 Publication restriction: Section 64 (1) (a) of the Civil and Administrative Tribunal Act: An order prohibiting or restricting the disclosure of the name of any person (whether or not a witness summoned by, or appearing before, the Tribunal. reasons for decision 1BFV has applied for administrative review of a Review Decision order made by the Senior Assessor as the Delegate of the Commissioner of Victims Rights ('the Commissioner") on 19 February 2014 pursuant to section 51 of the Victims Rights and Support Act 2013 ("VRSA"). That decision affirmed the decision of the Assessor (Client Claims) dated 10 December 2013 to dismiss the Application for Statutory Compensation pursuant to section 25 (3) of the VRSA. The Review Decision was made pursuant to section 49 of the VRSA. Background 2BFV's application is based upon matters application concerning an alleged assault which occurred at his dwelling in Seven Hills in Sydney on 28 April 2012 whereby police officers allegedly assaulted BFV whilst attempting to arrest one of his tenants. 3In respect of the allegation outlined at paragraph 2 (above), BFV lodged an application for victims compensation under the Victims Support and Rehabilitation Act 1996 (the old Act) on 10 January 2013. That application sought statutory compensation for the compensable injury of a Chronic Psychological Disorder that is disabling. 4BFV was not represented in his claim initially before the Assessor, or on Internal Review and is not represented in respect of these proceedings before the Tribunal. 5The application was to be determined in accordance with the provisions of Parts 1 and 2 of the Victims Support and Rehabilitation Act 1996, with an award to be determined on the available evidence establishing that on the balance of probabilities BFV was the victim of an act of violence being - violent conduct against the person apparently in the course of the commission of a criminal offence resulting in injury to the applicant. 6On 7/05/2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. The Victims Support and Rehabilitation Act 1996 ("the old Act") was repealed and replaced by the Victims Rights and Support Act 2013 (VRSA "the new Act"). The legislation came into force on 4 June 2013 and the Tribunal was then abolished and, by operation of Clause 14 of Schedule 2 of the new Act, appeals to it were taken to have been commenced before the Administrative Decisions Tribunal ("ADT"). 7The victims compensation scheme was therefore changed by the Parliament in June 2013. As a result the matter was now to be determined under the provisions of the VRSA. Rather than claiming the compensable injury of Chronic Psychological Disorder, BFV could now apply for a Category 3 or Category 4 recognition payment under Division 5 of the VRSA and Victims Support under Division 6 of the VRSA. 8As BFV's application had not been determined prior to 4 June 2013, contrary to the mattes outlined in paragraph 3 (above), BYZ's application was now dealt with under the new provisions of the VRSA. 9On 10 December 2013 the Assessor (Client Claims) issued a Notice of Decision pursuant to section 43 of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms: In Part 3 of the application, the applicant submitted: 'The applicant became involved in an altercation between two of his neighbours. The Police were involved an he was assaulted by Police'. [sic] The applicant alleges the Police were the perpetrators of violence towards him. ... The applicant first pushed the police officer that was attempting to execute an arrest on the co-accused. He also wrestled and kicked police. At all times he was trying to resist. The shocking truth of this incident is that the applicant was not involved in the initial incident that leads to the co-accused arrest. Rather, he decided that he would prevent Police officers from performing their duties and to inflict harm on them. At one stage, it took a number of police officers to restrain the applicant. The co-accused also hit an officer over the head with a phone. .... I am satisfied the applicant was an aggressor in this incident. The applicant lodged numerous police complaints regarding police conduct after the incident, but was unsubstantiated and went no further. ........ The use of force by police officers in the incident was lawful and therefore, it cannot be submitted the actions by the police acted outside of 'reasonable force'. I am satisfied the applicant was the perpetrator of the violent conduct against the Police. Based on the evidence, the applicant cannot meet the test that he is a primary victim of an act of violence pursuant to section 19 and 20 of the Act. ..... As I have not found an act of violence established, the claim is dismissed. 10On 6 January 2014 BFV wrote to the Commissioner for Victims Rights requesting an Internal Review in accordance with section 49 of the VRSA. 11On 19 February 2014 the Senior Assessor issued a Notice of Decision pursuant to section 49 (5) (b) of the VRSA under the delegated Authority of the Commissioner, in (inter alia) the following terms: ..... I note the original decision found that an act of violence was not established. .... Essentially the review principally concerns whether an act of violence is established. ... I note extensive submissions the applicant has made concerning the events that transpired on the day in question and in particular the lengthy history of tenancy disputes he has encountered. I note that there has been an ongoing dispute between the applicant and his neighbour that has resulted in many applications before the Consumer, Trader and Tenancy Tribunal. .... The applicant details that he became involved in an altercation between two of his neighbours. Police were involved and the applicant was assaulted by police. .... Police attempted to arrest the co offender but were stopped by the applicant. Police detail that the applicant pushed police and wrestled and kicked police in an attempt to stop police from arresting the offender. Police detail that the applicant acted extremely violently towards them. Police needed to call for backup. The applicant and the co-accused were eventually subdued. I note that the applicant was charged with assault officer in the execution of duty, resist officer in the execution of duty and wilfully obstruct officer in the execution of their duty. I note that the applicant was dealt with under the provisions of s32 (3) (a) of the Mental Health (Forensic Provisions) Act when matters were determined at Fairfield Local Court. ... I note that the applicant was charged with serious offences arising from events that took place on the 28th April 2012. I further note the different and higher standard of proof that applies in the criminal jurisdiction. Taking into account the version of the incident contained in the police report and charges brought against the applicant and the findings of the Fairfield Local Court I consider that the police version of events should be accepted. In the circumstances I cannot be satisfied on the balance of probabilities that the applicant has been the victim of an act of violence. As an act of violence is not established the application must be dismissed. 12On 19 March 2014 BFV appealed to the Tribunal under the provisions of section 51 of the VRSA. Having regard to service, and the provisions of the Administrative Decisions Review Act 1997 BFV's application was received within time. 13The ADT was abolished from the date of commencement of the Civil and Administrative Tribunal Act 2013 No 2 (on 1 January 2014) and Clause 7(1) of Schedule 1 Savings, transitional and other proceedings, provides: All unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. 14Further, Clause 7(3) provides: For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply. 15These matters modify aspects of the conduct of this appeal, especially in respect of some of the matters outlined at Paragraph 6 (above). Application for Administrative Review 16On 19 March 2014 BFV completed an Application for administrative review under the Administrative Decisions Review Act 1997 in accordance with section 51 (1) of the VRSA. The Application was lodged with the Tribunal on 19 March 2014. 17The application raises the following grounds: (1)There was an act of violence by the Police. (2)I was injured. 18The Tribunal's powers in relation to an application for administrative review are governed by section 63 of the Administrative Decisions Review Act 1997, which provides: 63 Determination of administrative review by Tribunal (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. 19BFV's matter was initially heard before Senior Member Molony on 9 May 2014. However after the initial hearing of the matter, the Member became unavailable. The President of NCAT determined to substitute the Senior Member for myself as permitted under section 52 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) and sought the parties' views in accordance with the provisions of section 52. 20Correspondence was sent by the Registrar of the Tribunal to the parties on 15 August 2014 in respect of the section 52 'substitution' issue. The Respondent replied by letter dated 27 August 2014 indicating that they had no submissions to make on the proposal. There was no substantive response from BFV other than acknowledgement of the correspondence. The acknowledgement consisted of BFV 'returning' the original correspondence to the Registry on 4 September 2014. Accompanying the correspondence was numerous attachments from BFV, none of which were relevant to the 15 August 2014 'substitution' letter. 21In the absence of any submission to the contrary, the provisions of section 52 (2) of the NCAT Act were satisfied and the Tribunal was reconstituted in accordance with section 52 (3) of that Act. 22For the record both parties attended the hearing and provided material. The Respondent filed its section 58 documents on 29 April 2014. BFV has filed material with the Tribunal on the following dates since lodging his application for review on 19 March 2014: 20 March 2014 (x 2), 21 March 2014, 25 March 2014 (x 3), 2 April 2014, 28 April 2014, 1 May 2014, 5 May 2014, 18 June 2014, 30 June 2014, 28 July 2014, 19 August 2014, 1 September 2014, 4 September 2014, 9 September 2014, 19 September 2014, 23 September 2014 and 29 September 2014. 23I have had the benefit of examining the full transcript of the hearing before Senior Member Molony on 9 May 2014. I have read that Transcript. I have also read all of the material provided by both BFV (as outlined at the paragraph above), and all of the material provided by the Commissioner under section 58 of the ADR Act. I have taken all of that evidence and material into account even though I may not specifically refer to all the evidence, material and submissions in these reasons. Hearing on 9 May 2014 24On 9 May 2014 the matter came before Senior Member Molony for hearing. BFV appeared in person and the Tribunal was assisted by an Interpreter in respect of BFV's role in the proceedings. Mr Matulewicz appeared on behalf of the Commissioner. 25The central issue before the Tribunal (and the earlier decision makers) was whether an act of violence (in accordance with the provisions of the VRSA) was made out on the available evidence to the requisite standard. 26The live issue canvassed at hearing appears to have examined the lawfulness of the police action in effecting an arrest on the 'offender' (who I will call Mrs 'X' and who was a Tennant of BFV). In the first instance the hearing examined whether the police were entitled to arrest Mrs 'X'. This issue was considered because BFV came to police attention whilst trying to intervene and physically prevent the police from arresting Mrs 'X'. 27Coupled with this issue was the fact that BFV was arrested and brought before a Court as an offender in respect of the following offences: * Wilfully obstruct officer in execution of duty * Resist Officer in execution of duty * Assault officer in execution of duty 28On this basis it would appear that a police officer formed the view that there was a prima facie case that BFV had committed a criminal offence, in that a properly instructed jury would be more likely than not to convict to the 'beyond reasonable doubt' standard on the currently available evidence at the time of the breach. The evidence 29BFV gave evidence that there were two tenants, Mrs X and Mr Y (Mr Y being the person that the police refer to as the victim). Mr Y had taken a lease of one of the units / flats at the front of BFV's property. Mrs X was a long- term tenant of the other front unit. BFV occupied a third residence at the back of the property. 30BFV told the Senior Member about aspects of the tenancy dispute between BFV and Mr Y. Mr Y went and made a statement to Blacktown Police, concerning an alleged injury arising from Mrs O throwing a stone at Mr Y. Mr Y went to police because Mrs X allegedly assaulted him, and police took a photo of the injury. 31In summary, BFV's further evidence was that at 9:00pm on the evening of 28 April 2012 the police came to the property and came in, and they held Mrs X on a chair in BFV's property under his wall mounted telephone. Mrs X was bleeding and BFV was standing in the blood. Then they (the Police) grabbed BFV and put him into his room and stood him on the floor and started kicking and bashing and hitting and punching, with seven, eight or nine ribs broken as a result. Police walked BFV down the stairs and threw his head into the wall which was fibro. BFV gave evidence that his head just missed the supporting beam (behind the fibro) thus preventing serious injury. 32BFV gave evidence at the hearing that when the police grabbed him he was in bed, and they brought him into the lounge room and that was when he saw Mrs X sitting on the chair under the telephone, injured and bleeding. BFV gave evidence that he told the police to get out of the dwelling because they were giving him trouble - with the tenants, giving him trouble, coming every day. The police were coming backwards and forwards all the time and because (in respect of Mr Y) there wasn't really an assault, he (Mr Y) couldn't get out of the gate and he went and did a statement with the police. 33BFV gave evidence that he was charged as a result of events that night. He didn't know what he was charged for. He went to Court in Fairfield and the Magistrate dismissed all of the charges. BFV's evidence was that the dismissal was unconditional, although this issue appears somewhat equivocal when the material submitted by the Respondent under section 58 is examined. The Senior Member questioned BFV on this aspect, but the issue remained unresolved. 34BFV was questioned during the hearing about his mental health. This appears to be due to the fact that the charges were dealt with under the provisions of the Mental Health (Forensic Provisions) Act 1990 (previously known as the Mental Health (Criminal Procedure) Act 1990) and the nature of his evidence. 35Under cross examination BFV provided evidence that the police were in uniform, and that he was taken to Blacktown Police Station not under arrest. BFV's evidence was that he was then transferred to Westmead Hospital in respect of broken ribs. 36When police entered the house someone switched the lights on. Later BFV's evidence altered slightly to state that the lights were on when he came out to the lounge (lounge room). 37The Commissioner submitted that the decision of the Assessor and Senior Assessor were correct, because the injuries sustained by the applicant were not sustained in the course of the commission of an offence. 38The Commissioner set out by way of submission the various applicable provisions in force to sanction and manage the invoking and use of police powers in this instance. The Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) provides amongst other things provisions relating to powers of arrest, use of force, providing of particulars to and by police amongst other matters. Prior to the provisions of LEPRA, police powers arose in the common law, and under various acts. E.g.: the forming of 'reasonable suspicion' and power to search or detain a suspect in respect of traffic, drug and general criminal matters etc. 39The medical evidence shows an acute fracture of the 9th right rib with no other significant abnormality detected. No fracture to left or right wrist. Some soft tissue swelling, multiple laceration injuries to scalp, face, wrist and knees. Tenderness to spine chest and abdomen. The records of 9:30am on 29 April 2012 describe the facial injuries as 'superficial'. 40The medical evidence appears consistent with the injuries that would have been sustained by a person of BFV's age and size, when he was involved in an aggressive altercation with Police Officers. 41The police statements (which were part of the criminal brief of evidence), indicate the following: * Police attended in order to arrest Mrs X. * There was a side light on. When police approached the front door the light was turned off. Police knocked a number of times. * Mrs X opened the curtains and police shone their torch on their name badge and asked her to open the door. * As Mrs X would not open the door advice was sought by telephone from the shift supervisor. * On instructions from the supervisor, police kicked the door in and proceeded towards the bedroom where Mrs X had been seen. Mrs X was no longer in the bedroom and the back door (leading to BFV's residence) was open. Police entered that door and could hear Mrs X's voice up the small flight of stairs. * Police verbally advised Mrs X that she was under arrest for an assault on Mr Y and asked her to come down. Mrs X refused to come down the stairs. Police advised that they were coming up. * Police then heard BFV's voice and he told them to leave his premises and that they could not touch Mrs X. * An officer went half way up the stairs and took hold of Mrs X. An altercation took place between the officer and BFV. Eventually Mrs X also took part. Two police came to assist. All parties ended up on the ground. Mrs X was restrained by police and three police restrained BFV. Force was also used in bringing BFV under control. Consideration 42The issue concerning the resolution of the criminal proceedings against BFV is of some relevance to this matter and BFV's evidence at hearing. BFV's criminal charges were dealt with by the Local Court on the ninth occasion. All three charges were ultimately dealt with under the provisions of section 33 (3) (a) of the Mental Health (Forensic Provisions) Act 1990. This was on the basis of an application by BFV (and Mrs X's) legal representative. The Solicitor had either received instructions or formed the view that on the basis of the available material it was necessary to seek that order. 43The relevant provisions provide as follows: Mental Health (Forensic Provisions) Act 1990 No 10 32 Persons suffering from mental illness or condition (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment or both, or (c) unconditionally. (Emphasis added) 44An order made under these provisions is neither a conviction nor an acquittal of the criminal charge. Whilst it is unclear as to whether the charges were dealt with conditionally or unconditionally (under section 32 (3) (a) ), it is fair to say that the Magistrate formed the view (on application) that BFV was suffering a mental illness at the time of the incident, but was not a mentally ill person. And having regard to the provisions provided by the legislature, and having regard to the available material in respect of the charges, decided to proceed under that provision. 45When one has regard to the police evidence, BFV's own evidence, and the medical evidence, the injuries appear consistent with the behaviour described by police and to some extent BFV. Due to the behaviour of BFV on 28 April 2012, and the behaviour of Mrs X at that time, it appears on my assessment of all of the available evidence that police were acting within their powers and lawful authority. The Respondent took the Tribunal to various pieces of relevant case law on the issue of police powers, arrest, reasonable force, reasonable suspicion and other matters relating to whether their primary purpose and subsequent purposes in their dealings with Mrs X and BFV were lawful. Those cases obviously assist the Respondent's position, albeit in slightly different facts (as will usually be the case). Having considered those matters in conjunction with my understanding of police powers indicates that police acted within their authority, both in arresting Mrs X, and in restraining and ultimately arresting BFV while he was deemed to be hindering police. 46BFV provided a large volume of material to the Tribunal and the Commissioner in first instance. In respect of the material provided to the Tribunal, the instances of lodgement are outlined above at paragraph 22. Most of this material is irrelevant to BFV's victims compensation claim. The material includes multiple copies of Residential Tenancy matters relating to orders of the Tribunal concerning back rent, a daily habitation fee, Garnishee Orders and other matters relating to the civil dispute between Mr Y (as tenant) and BFV (as landlord). On my assessment it is of no probative or evidentiary value in respect of BFV's claim before this Tribunal. 47Additionally, of no relevance is the material provided by BFV and Mrs X concerning the background and circumstances to the alleged assault by Mrs X on Mr Y. That matter is only relevant in establishing the lawfulness (or otherwise) of the police attendance to arrest Mrs O on the evening of 28 April 2012. 48The onus is on BFV to prove the allegations of act of violence on the balance of probabilities. While the onus on the appellant is the civil standard of the balance of probabilities the following statements of the High Court in Reifek v McElroy (1965) 112CLR 517 at 521-522 apply: The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to support a conviction upon a criminal charge. I note that the above test was formulated in adversarial proceedings, unlike applications and appeals for awards of statutory compensation. 49The term 'act of violence' is outlined at section 19 of the VRSA. Victims Rights and Support Act 2013 No 37 19 Meaning of "act of violence" (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. 50I note that the term 'offence' as it appears in section 19 (1) (a) of the VRSA, is no longer defined under that Act, unlike the equivalent provision of the former Victims Support and Rehabilitation Act 1996. In that Act, the term 'offence' was defined by the Dictionary to the Act as meaning 'criminal offence'. 51I note that BFV was charged with a number of criminal offences. However no proceedings arose or were otherwise commenced against police officers. I also note that various complaints have been made to the relevant bodies tasked with dealing with complaints concerning Police including the NSW Ombudsman's Office and the Police Integrity Commission. Those bodies have the power to assess various allegations of misconduct and criminality concerning New South Wales Police Officers and where they deem it in the public interest, commence an investigation of the allegations. In some instances investigations lead to sustained findings and referral of matters to the Director of Public Prosecutions for the consideration of the preferring of appropriate charges. 52Whilst I am not suggesting that BFV (or the ordinary member of the public) would have been in a position to ensure that police officers could have been brought before a court on a criminal charge, what I am establishing is that the utility of those matters appears to have been considered by the relevant authorities, mainly due to BFV's bringing these matters to their attention. Clearly the ability of BFV to mount such a claim, or have others consider such a situation concerning police would have been complicated by the fact that police immediately brought a number of charges, (including serious charges), against BFV. 53I have considered all of the material that BFV has given in evidence, and his written notations (where relevant to the alleged assault on him), and have paid particular attention to the medical evidence, which might assist in in some way on the issue of whether the force was commensurate, or reasonable and necessary in the circumstances. 54I have considered these injuries in the context of the matters in the police evidence, and bearing in mind the level of force being used by BFV, the circumstances that the force was used, and the number of officers who necessarily became involved, I am satisfied that the injuries (severe as they seem in part especially having regard to the age of BFV at the time), are consistent with what may have transpired in accordance with the police evidence. 55The rib injuries are of concern, especially in the context of the age of BFV when considered purely in a medical context as a patient. However when the evidence is considered in its totality, the cause and context of those injuries are unremarkable. Alarming as they may seem in the first instance, on my assessment those injuries are consistent with the matters outlined in the police statements concerning the incident. 56Having considered all of the evidence and material in this matter, I am not satisfied on the balance of probabilities that BFV was the victim of an act of violence in accordance with section 19 (1) of the VRSA. 57As a result the application for review must be dismissed. Conclusion 58I make the following orders: (1)The decision made by the Senior Assessor upon Internal Review on 19 February 2014 is affirmed; (2)The Application is dismissed; (3)No order as to costs. ********** 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: 10 October 2014