Agent's handshake found not to be a crime
Reasons for decision
The applicant asserts that she is a victim of violent crime and has suffered injury as a result. The victims of crime scheme provides that eligible victims may be eligible for financial grants and access services under the Victims Rights and Support Act 2013 (the Act).
In order to be eligible to recover under the scheme, a victim must either be a primary victim (the victim of an assault), or a secondary victim or family victim. As will be explained in these reasons, victims of crime must meet various statutory tests to receive benefits under the scheme. In the current matter, the applicant has failed to establish that she was a victim of a violent crime (the statutory term being ‘act of violence’) in accordance with the Act, and as a result her application for review will be dismissed and the decision of the respondent will be affirmed.
On 7 February 2018 the applicant filed an application for administrative review with the Tribunal. That application concerned how the respondent had dealt with her initial application and internal review for Victims Support.
The application for review set out the following grounds:
I disagree with the decision by Victims Services as:
1. It was primarily based on the police report E64919537 (which was inaccurate and contained numerous factual errors).
2. It should have been based primarily on medical reports from my treating health professionals, myself and my son (a witness of the action).
On 3 June 2013 the Victims Rights and Support Act 2013 replaced the former Act – the Victims Support and Rehabilitation Act 1996. (the 1996 Act). Both schemes provided for similar eligibility criteria, with the main difference being the manner in which they provided support and assistance. The current Act replicated the 1996 Act central provisions as to an eligible victim of crime. The relevant current provisions are set out in the following sections of the Act:
5 Meaning of “victim of crime”
(1) For the purposes of this Part, a victim of crime is a person who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence.
(2) A person suffers harm if, as a result of such an act:
(a) the person suffers actual physical bodily harm or psychological or psychiatric harm, or
(b) the person’s property is deliberately taken, destroyed or damaged.
(3) If the person dies as a result of the act concerned, a member of the person’s immediate family is also a victim of crime for the purposes of this Part.
(4) If a person dies as a result of the act concerned and there is more than one member of the person’s immediate family, members of the immediate family may nominate a representative for the purposes of the Charter of Victims Rights.
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.
(s-19 has seven further subsections that are not relevant to this determination)_
20 Meaning of “primary victim”
(1) A primary victim of an act of violence is a person who is injured, or dies, as a direct result of that act.
(2) A primary victim of an act of violence extends to a person who is injured, or dies, as a direct result of:
(a) trying to prevent another person from committing that act, or
(b) trying to help or rescue another person against whom that act is being committed or has just been committed, or
(c) trying to arrest another person who is committing, or who has just committed, that act.
There are various statutory tests which need to be met before a person can receive benefits under the Act. The administrator (the Commissioner of Victims Rights) understandably focussed on these threshold issues in both the initial decision and the Internal Review decision. It is therefore necessary to examine these threshold tests. The first is whether the applicant is the victim of an act of violence.
There is no dispute that the Tribunal has jurisdiction to hear the matter. Section 51 of the Act provides for administrative review by the Tribunal.
51 Application to Tribunal for administrative review of decision concerning recognition payment
(1) An applicant for a recognition payment who is aggrieved by the decision of a decision maker in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner following an internal review under section 49 of the decision maker’s decision with respect to the recognition payment.
(2) An applicant for a recognition payment who is aggrieved by the decision of the Commissioner in respect of the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision made by the Commissioner.
Nor was there any dispute that the application had been lodged within the 28 day period provided for by the operation of the s 55 of the Administrative Decisions Review Act 1997, (the ADR Act) and cl 23 and 24 of the Civil and Administrative Tribunal Rules 2014.
The application under s 51 of the Act followed an internal review under s 49 of the Act. That review on 10 January 2018 reached the same decision as the original decision maker had on 6 October 2017. The Assessor had dismissed the application as the applicant had not established that she was the victim of an act of violence as defined in the Act. The application to the Tribunal was subsequently lodged on 7 February 2018.
The Tribunal’s powers in relation to an application for administrative review are governed by s 63 of 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.
At the hearing the applicant appeared in person and the respondent was represented by an employee Solicitor. The applicant was assisted by her adult son who whilst having some involvement in witnessing the incident or part of the series of events in question, was not required to give evidence for either party. Only the applicant gave evidence in the hearing.
The following material was filed by the parties in support of the respective positions:
Applicant’s written evidence
The applicant filed written material in support of her application.
Application for Administrative Review dated 4 February 2018 including grounds - Exhibit ‘A-1’.
Statutory Declaration of applicant 27 March 2018 – Exhibit ‘A-2’.
Respondent’s written evidence
Documents filed under s 58 of the ADR Act dated 1 March 2018 (51 Pages) – Exhibit ‘R-1’.
The respondent also filed and served written submissions dated 23 April 2018.
The administrator’s decisions
The application to the Commissioner of Victims Rights concerned matters alleged to have occurred on 27 May 2017. When asked to briefly describe what happened, the applicant stated:
Part 3 : Briefly Describe what happened:
‘I attended the auction of the property (detailed above and in the enclosed brochure). The real estate agent for the unit -‘X.X’ – put out his right hand and took my left hand in his. He squeezed my left hand very hard and left my hand swollen and in pain. I reported the assault to my doctor (see report by Dr ‘R’) and to the police, however the offender denies causing me the pain and suffering.’
The initial assessment of the claim occurred on 6 October 2017. The decision maker recorded the following:
2. the applicant seeks approved counselling services with respect to that act of violence under section 26 (1) (a) of the Act.
Reasons for Dismissal
4. the application form states the applicant attended an auction and the real estate agent for the property put out his right hand, took the applicant’s left hand and squeezed it hard causing pain and swelling.
5. As stated above, an act of violence is an act that has apparently occurred during the course of the commission of an offence and involves violent conduct.
6. based on the information before me, I am not satisfied an act of violence has occurred in accordance with section 19 of the Act.
The decision maker went on to dismiss the application. In applying for an internal review the applicant provided medical material concerning treatment receipts for physiotherapy and a medical certificate from her G.P. Dr ‘R’ stating that she was the victim of a physical assault. On 10 January 2018 on review the Senior Assessor reviewed the available evidence in some detail. The police actions and records were set out showing the inquiries made and the evidence obtained by police from the alleged perpetrator.
Near the end of the decision the following is recorded:
21. I accept on a balance of probabilities that there was a handshake between (DJD) and the real estate agent; however this was in the context of saying ‘goodbye’. I do not accept on a balance of probabilities that the real estate agent assaulted her. There were no witnesses to the incident other than her son who was in the room next to her. He disputes that (DJD) screamed after the handshake and said an ambulance was not called to the location. This was at odds with (DJD)’s explanation to police. There was a lengthy delay of 3 months prior to (DJD) deciding to report the incident. Her version of events changed in the course of speaking with police. I accept the real estate agent’s explanation that he was saying ‘goodbye’ to (DJD).
22. The submissions by (DJD) suggest that a handshake could amount to an assault because she was injured. In my view, the conduct of shaking (DJD)’s hand was not reckless or violent. …
The Senior Assessor concluded that the applicant had not provided sufficient evidence to establish that she was the victim of any act of violence. The application for review was dismissed.
At the hearing the applicant made several statements from the bar table. I determined that much of what the applicant was asserting was more in the nature of evidence than submissions and as a result she was required to be sworn and to give evidence. I explained the procedure of the hearing and the difference between evidence and submissions to the applicant who was not legally represented.
Applicant’s evidence and submission
In the applicant’s Statutory Declaration dated 27 March 2018 the following information relevant to the matter is submitted.
On Saturday 27 March 2017 the applicant attended the auction of a strata property in a Sydney suburb. At the end of the auction the real estate agent gestured to the applicant (a handshake invitation) and took her left hand in his right hand and squeezed it very hard.
The applicant told her son about the matter immediately (her son having been a couple of meters away along the hallway of the home unit).
The applicant’s left hand became swollen and she was in severe pain for several months.
The applicant reported the matter to her doctor and attended several physiotherapy treatments and continued to find using her left hand very difficult over the ensuing months.
On 29 August 2017 the applicant reported the matter to NSW Police. The police attended the applicant’s home that evening in respect of the reporting for about 20 minutes. Event Number E64919537 was created as a result.
On 29 September 2017 an application for Victims support was made.
The applicant attests that the police report E64919537 is grossly inaccurate. Specifically the applicant denies telling police that :
She screamed or shouted as loud as she could (when the handshake occurred)
She told police that she fainted at the scene and an ambulance was called.
Her son suggested that the Real Estate Agent’s request for charity donations may have been misunderstood by the applicant as sexual advances.
She continually contacted the Real Estate Agent via text messages asking him ‘what are you doing’.
Or any evidence that she changed her story with police .
The police had no basis to make comments concerning the applicant’s possible or likely mental health issues.
At the hearing the Tribunal utilised the provisions of s-38 (2) of the Civil and Administrative Tribunal Act 2013 to examine the applicant in the absence of any representation or cross-examination. The section provides:
38 Procedure of Tribunal generally
(1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision.
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
The applicant gave evidence that she had met the agent at an open house viewing of the property on 13 May 2017 some weeks prior to the auction date. The applicant contracted influenza sometime after the open house date and was still suffering from the flu on the day of the auction.
The auction concluded. The applicant said to her son:
‘I want to say goodbye to ‘V’ (the agent).
The agent put out his hand gesturing, and squeezed it tighter and tighter. The applicant stated that she was pleading in her heart for him to stop. Her hand was throbbing. The applicant dropped her phone.
The applicant bandaged her (injured) hand herself. (A photo of the bandaged hand is in the s 58 documents). The applicant did not obtain medical treatment at the time.
In written submissions the respondent stated that the applicant has not established that she is a primary victim of an act of violence and is not eligible for a recognition payment.
The respondent submitted that whilst the applicant had provided medical evidence concerning an apparent injury or problem with her hand, that evidence is dated some four and five months after the date of the claimed incident.
The respondent also highlighted the discrepancy in the applicant’s earlier evidence as set out in the police report. In addition the agent denies any assault and the applicant’s son who was nearby said he did not witness the incident.
The son’s statement on page 34 of the s 58 bundle states:
‘(DJD)’ waited for (the Agent) at the entrance of the kitchen. (The Agent) said to ‘(DJD)’ “I’ll call you next week,” then put out his right hand and took ‘(DJD)’s left hand in his and pressed it.
I infer that the information in  is what the witness observed. The statement goes on to record what (DJD) said and did following the incident. I note that none of these matters immediately following the handshake were in contest. The matters in the police report however (concerning screaming and calling an ambulance) were in contest. However these matters do not specifically concern the alleged act of violence but may be relevant in determining the credibility of witnesses.
I note in particular that the applicant did not wish her son to give any evidence at the hearing and only sought to rely on his statement. In addition I note that when police eventually obtained a version of events from the son, that version is broadly consistent with his statement. The discrepancies appear to relate to what the applicant has stated at various times. It appears that the discrepancies surrounding the incident relate only to the applicant’s evidence. The central incident is clearly disputed between the applicant and the real estate agent.
I also note that the applicant did not seek to call the reporting police officers to clarify these discrepancies. I also note that when the police questioned the son the record shows that he provided a possible explanation as to some misunderstanding between the applicant and the agent. Again I observe that in the absence of further evidence either from the police or the son, this issue cannot be resolved. However the applicant tendered her son’s statement.
In addition when the applicant complained to the agent’s employer the evidence indicated that she did not adequately supply the particulars of the incident. The delay in medical treatment has not been explained by the applicant.
There appear to be two statutory impediments to the applicant’s claim succeeding. The clearest impediment is the apparent failure to meet the requirements of s 39 of the Act. Section 39 provides as follows:
39 Documentary evidence
(1) An application for victims support is to be accompanied by such documentary evidence as may be required by the approved form.
(2) Without limiting subsection (1), the documentary evidence to be required:
(a) for an application for financial assistance for immediate needs under section 26—is documentary evidence (such as a medical or police report) sufficient to support, on the balance of probability, the applicant’s claim to be a victim of an act of violence, and
(b) for an application for financial assistance for economic loss under section 26 or 27 or for a recognition payment—is a police report or report of a Government agency and a medical, dental or counselling report verifying that the applicant or child who is the primary victim concerned has actually been injured as a result of an act of violence.
This mandatory requirement was introduced into the Victims of Crime scheme with the 2013 amendments to the scheme that resulted in the current 2013 Act. The Victims Support and Rehabilitation Act 1996 (the old Act) contained no such mandatory requirement even though the statutory phrase and meaning of ‘act of violence’ was expressed in identical terms to the current Act. The police report does not in my view support any act of violence in the nature of a deliberate or reckless act that could be classified as an assault.
The medical evidence does not specifically identify the cause of any medical issue. Whilst some of the reports recite the origins of the injury they do no more than provide what would appear to be a history given by the applicant. I also note that they were provided between four and five months after the incident. The G.P. report of 22 September 2017 curiously states that:
This is to confirm that Mrs (DJD) was the victim of an alleged physical assault on 27/5/17.
I also note that the medical reports do not arise in the circumstances required by s 39, in that they are not a report from a Government agency.
The other issue relates to the requirement for the matter to have ‘apparently occurred in the course of the commission of an offence’, as set out in s 19 (1) (a) of the Act. The legal concepts of mens rea and actus rea are relevant in all acts of violence under the Act notwithstanding the use of the term ‘apparently’ in the section.
At law Mens Rea is generally meant to be the state of mind which is required to commit any kind of crime including property crime and crimes against the person or other types of crime. On the other hand, Actus Reus means the physical acts of the accused person which are required to be shown at trial to establish that an offence has been committed.
Both Mens Rea and Actus Reus must exist simultaneously. On the evidence and material before me the actions of the alleged perpetrator do not meet the criteria of Actus Rea. The evidence in the son’s statement, namely that he observed the agent ‘put out his right hand and took (DJD’s) left hand in his and pressed it’ does not establish to the requisite standard physical acts to establish that an offence (of violence) has been committed. The agent denies any assault.
There is no evidence to establish that the agent intended to assault the applicant. I make this observation based on all of the evidence including the totality of the applicant’s own evidence. The un-particularised issue concerning charity donations does not in my view (even on the applicant’s own version) indicate such a motivation or intention concerning the agent.
In respect of the element of Mens Rea, I note that it is possible that the agent may have intended to harm the applicant. In addition his state of mind on the available evidence was such that the element could be technically met. However, on the evidence before me his actions appear neither intentional or reckless. The police spoke to the agent, his employer sought details of the complaint from the applicant (to no avail), and the applicant’s son made a statement as a witness. All of this material did not advance that applicant’s argument that the agent assaulted her.
The medical evidence does not particularly assist. The G.P.’s report is many months after the incident. The photo shows a dressing that the applicant applied herself. There was no professional medical treatment at the time of the incident or shortly afterwards.
The Tribunal must be satisfied on the balance of probabilities that the agent intended to harm the applicant, in that it must be more likely than not on the available evidence that this was the case. In my view the evidence does not establish that it was more likely than not that the agent intended to harm the applicant.
I do not find that the agent had the intention to commit a crime while he was shaking the applicant’s hand.
Further I do not find that the agent committed a crime by shaking the applicant’s hand firmly or in some other physically hard or aggressive manner.
I find that the applicant has not established that she was the victim of an act of violence.
I also find that the applicant has not discharged her onus under s 39 of the Act.
The applicant has understandably focused her application before the Tribunal on overcoming the issues identified by the earlier decision makers. Whilst s 39 of the Act was not specifically referred to in those decisions it was referred to in the respondent’s written submissions filed and served 27 April 2018.
I note that the issues concerning whether an act of violence occurred were always central to the application.
For the reasons outlined above, as the applicant has failed to establish that she was the victim of an act of violence, and has not satisfied the provisions of s 39 of the Act, the application must be dismissed and the decision of the respondent affirmed.
The decision of the respondent dated 10 January 2018 is affirmed.
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
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Decision last updated: 17 July 2018
Sourced from www.caselaw.nsw.gov.au 18 July 2018