Victims of Crime Assistance Tribunal

Relevant Review Cases

This section contains a selection of relevant review cases from Austlii's website, arranged according to the following topics:

 

Definitions

Interpretation

Eligibility for financial assistance

Limits on financial assistance

Procedures and powers of VOCAT

Considerations relevant to awards of financial assistance

Review, variation and refunds

Transitional provisions

 

Definitions

Act of violence: Section 3(1)

Wilkins v Victims of Crime Assistance Tribunal [2009] VCAT 1554

Summary: Mildura 2004- applicant arrested and allegedly sustained an injury to his spleen while in police custody.

AVA and GAR v Victims of Crime Assistance Tribunal [2010] VCAT 2078

Summary: Latrobe Valley 2008- child applicant has explicit photos of her taken of her by her mother’s partner. Child primary victim and mother secondary victim.

Injury: Section 3(1)

RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225

Summary: Ballarat 2005- applicant’s husband manipulates her into performing unwanted sexual activity by making it appear that their family is under surveillance.

AVA and GAR v Victims of Crime Assistance Tribunal [2010] VCAT 2078

Summary: Latrobe Valley 2008- child applicant has explicit photos of her taken of her by her mother’s partner. Child primary victim and mother secondary victim.

Relevant offence: Suicide

Dennison v Victims of Crime Assistance Tribunal [2003] VCAT 1249

Summary: A train driver inadvertently strikes and kills a person laying across the tracks to commit suicide.

Relevant offence: Administer drugs

Irvine v Victims of Crime Assistance Tribunal [2002] VCAT 1025

Summary: Merebin 2000- a male dies as a result of ingesting alcohol and non-prescribed methadone supplied to him by a friend.

Fitzgerald v Victims of Crime Assistance Tribunal [2001] VCAT 1257

Summary: Croydon 1996- a female dies from a heroin overdose. There is insufficient evidence to determine whether a third party’s actions contributed to her death.

Medical Expense

Ractliffe v Victims of Crime Assistance Tribunal [2015] VCAT 205

Summary: In 2012 the applicant sustains brain injuries from an assault and is awarded assistance through VOCAT.  He sought to claim $405 as a variation for an occupational therapy assessment which VOCAT refused to award.

 

Interpretation

Criminal act: Criminal intent

BB v Victims of Crime Assistance Tribunal [2010] VCAT 1314

Summary: A primary school student applies in relation to assaults and threats to kill by other students in 2003-2006.

BVB v Victims of Crime Assistance Tribunal [2010] VSC 57

Summary: A primary school student applies in relation to assaults and threats to kill by other students in 2003-2006.

Criminal act: Must be offence against the person

Lowe v Victims of Crime Assistance Tribunal [2004] VCAT 1092

Summary: Frankston 2002- the applicant’s house was damaged as a result of arson. The applicant was not present on the property at the time.

Mathews v Victims of Crime Assistance Tribunal [2012] VCAT 1099

Summary: Mount Clear 2009- the applicant’s caravan, partially constructed house and shed were damaged and two dogs perished as a result of arson. The applicant was not present on the property at the time.

Criminal act: Involuntary conduct

Gulcan v Victims of Crime Assistance Tribunal [2007] VCAT 642

Summary: Footscray 2000- a vehicle collided with pedestrians, one of whom was fatally injured, after the driver suffered a fit.

Jafaro v Victims of Crime Assistance Tribunal [2009] VCAT 2372

Summary: Footscray 2000- a vehicle collided with pedestrians, one of whom was fatally injured, after the driver suffered a fit.

Criminal act: Consent

RBA v Victims of Crime Assistance Tribunal [2009] VCAT 2225

Summary: Ballarat 2005- the applicant’s husband manipulates her into performing unwanted sexual activity by making it appear that their family is under surveillance.

BR v Victims of Crime Assistance Tribunal [2009] VSC 152

Summary: Ballarat 2005- the applicant’s husband manipulates her into performing unwanted sexual activity by making it appear that their family is under surveillance.

Criminal act: Negligently causing serious injury

Grant and Grant v Victims of Crime Assistance Tribunal [2010] VCAT 2022

Summary: Portsea 2004- a male drowns after going on a scuba diving expedition provided by a diving company.

Criminal act: Self Defence

Attard & Naboulsi v Victims of Crime Assistance Tribunal [2011]

Summary: The deceased Naboulsi attended the home of an acquaintance, Mamaj, highly agitated and intoxicated, armed with a knife and stabbing at the fly wire security door. Mamaj reached around the door and stabbed Naboulsi, who later died from this injury. Family members applied to VOCAT as related victims.

 

Eligibility for Financial Assistance

Definition of primary victim: Unborn child

McKenna v Victims of Crime Assistance Tribunal [2003] VCAT 1488

Summary: In 2002 the applicant sustained injuries in a car accident while pregnant which resulted in the stillbirth of her baby. She applied to VOCAT as a related victim.

Definition of primary victim: Section 7(2)(c)

Will v Victims of Crime Assistance Tribunal [2011] VCAT 1739 

Summary: The applicant applied as both a primary and secondary victim in relation to the assault of her injured adult son. She was not present at the assault.

Hall v Victims of Crime Assistance Tribunal [2004] VCAT 1359

Summary: The applicant applied as a primary victim after seeing a neighbour assaulted by multiple people in the street, and was awarded counselling and loss of earnings, however was found to be a secondary victim and was not awarded Special Financial Assistance.

Smith v Victims of Crime Assistance Tribunal [2003] VCAT 1489

Summary: : The applicant applied as a primary victim after seeing her father assault her mother, however was found to be a secondary victim and was not awarded Special Financial Assistance.

Definition of secondary victim

Will v Victims of Crime Assistance Tribunal [2011] VCAT 1739

Summary: The applicant applied as both a primary and secondary victim in relation to the assault of her injured adult son. She was not present at the assault.

Expenses incurred: Whether direct result of act of violence

WQS v Victims of Crime Assistance Tribunal [2014] VCAT 81

Summary: The grandmother of the applicant applied for the award to be varied to cover tutoring expenses.

JM v Victims of Crime Assistance Tribunal [2002] VCAT 496

Summary: The applicant suffered sexual abuse as a child and sought to submit that as a result he became addicted to heroin and contracted Hepatitis C. Costs for treatment were sought.

Awards of financial assistance: Reasonableness of expense claimed

CS v Victims of Crime Assistance Tribunal [2006] VCAT 1061

Summary: The applicant suffered sexual abuse as a child in the 1930s and sought in excess of 100 counselling sessions.

Lukeis v Victims of Crime Assistance Tribunal [2006] VCAT 2473

Summary: The applicant was assaulted in a road rage incident and was awarded SFA and various expenses. A variation was sought for osteopathic & homeopathic treatment and eye vitamins.

Waters v Victims of Crime Assistance Tribunal [2006] VCAT 2361

Summary: The applicant was assaulted in a road rage incident and was awarded various expenses. A variation was sought for a gym membership.

Awards of financial assistance: Exceptional circumstances to assist recovery

Gatto v Victims of Crime Assistance Tribunal [2010] VCAT 966

Summary: The applicant was working as a security guard in St Kilda in 2006 when he was assaulted, and sought payment of a Taekwondo membership.

RN v Victims of Crime Assistance Tribunal [2005] VCAT 2651

Summary: The applicant was sexually assaulted in 2003 and sought payment for a 10 day holiday in Adelaide and a stereo.

ML v Victims of Crime Assistance Tribunal [2006] VCAT 292

Summary: The applicant sought a variation for a laptop, software, training, driving lessons, gym membership, martial arts, Chinese massage and dance lessons. 

Special financial assistance: Evidence of injury and uplift provisions

J v Victims of Crime Assistance Tribunal [2002] VCAT 532 

Summary: The applicant was sexually abused by her brother-in-law in the 1960s and VOCAT refused her application for extension of time.

Loncar v Victims of Crime Assistance Tribunal [2002] VCAT 1342

Summary: The applicant was indecently assaulted in the 1970s and was awarded special financial assistance by VOCAT. He sought an uplift on the amount of special financial assistance awarded.

Rattray v Victims of Crime Assistance Tribunal [2012] VCAT

Summary: The applicant is a police officer who was assaulted whilst on duty and received $500 special financial assistance. He sought an increase in the quantum of special financial assistance.

Pham v Victims of Crime Assistance Tribunal [2016] VCAT 298

Summary: The applicant suffered an injury as a result of a head-on collision caused by a driver driving on the wrong side of the road. He sought an uplift from category C to category A in relation to special financial assistance on the basis that he suffered a loss of bodily function.

Definition of related victim: Intimate personal relationship

Reid v Victims of Crime Assistance Tribunal [2002] VCAT 373

Summary: The applicant is the aunt of the deceased and applied as a related victim on the basis that she and the deceased had an intimate personal relationship.

Assistance to related victims: Concept of distress

Vita v Victims of Crime Assistance Tribunal [2000] VCAT 2317

Summary: Two related victims, whose daughter died as a result of culpable driving, were awarded $18,000 distress each. Upon review, the amount was increased to the maximum of $50,000 each.

Krasauskas v Victims of Crime Assistance Tribunal (No.2) [2008] VCAT 1284

Summary: Three related victims, whose partner/father died as a result of a car crash, were awarded $15,000 each. Upon review, the awards of two of the applicants were increased to $30,000 and $24,000 respectively.

 

Limits on Financial Assistance

Other entitlements to be taken into account: Section 16

Tanner & Ors v Smart [2010] VSC 463

Summary: Supreme Court Compensation matter which subtracted the amount the Tribunal paid to the applicants from the amounts ultimately awarded.

Jafaro v Victims of Crime Assistance Tribunal [2009] VCAT 2372

Summary: Footscray 2000- a vehicle collided with pedestrians, one of whom was fatally injured, after the driver suffered a fit. VCAT took into account the amount awarded by the TAC to the applicant.

Krasauskas v Victims of Crime Assistance Tribunal [2007] VCAT 1407

Summary: Three related victims, whose partner/father died as a result of a car crash, were awarded $15,000 each. Upon review, the awards of two of the applicants were increased to $30,000 and $24,000 respectively. TAC entitlements were taken into account.

Eades v Victims of Crime Assistance Tribunal [2008] VCAT 448

Summary: In 2004, Robert Eades was killed while driving to work and the offender was charged with culpable driving causing death. Accident Compensation Act 1985 entitlements were taken into account.

Pham v Victims of Crime Assistance Tribunal and Anor [2016] VSCA 102

Summary: The applicant suffered an injury as a result of a head-on collision caused by a driver driving on the wrong side of the road. He sought an uplift from category C to category A in relation to special financial assistance on the basis that he suffered a loss of bodily function. TAC entitlements were taken into account.

Loss of earnings: Section 17

Safrin v Victims of Crime Assistance Tribunal [2011] VCAT 2214

Summary: VOCAT rejected the applicant’s claim for loss of earnings as it was vague, unsupported by submissions and did not comply with Practice Direction 5/2008. 

 

Procedure and Powers of VOCAT

Procedural Fairness: Division 3

AB v Victims of Crime Assistance Tribunal and Ors [2015] VSC 245

Summary: AD made an application to the Tribunal in relation to sexual assault perpetrated by her father AB. VOCAT notified AB of AD’s application. AB sought to call AD’s mother, AC, to give corroborating evidence denying the allegations. AC submitted that if she were required to give evidence that AD would be likely to self-harm or commit suicide. VOCAT excused AC from giving evidence on that basis. AB initiated proceedings in the Supreme Court seeking a declaration that he is entitled to call AC to give evidence on the basis that the Tribunal had no power to excuse AC from giving evidence, that the Tribunal breached its obligation to allow him to call evidence, and that it took into account irrelevant considerations.

Time for making application: Section 29

J v Victims of Crime Assistance Tribunal [2002] VCAT 532 

Summary: The applicant was sexually abused by her brother-in-law in the 1960s and VOCAT refused her application for extension of time.

S v Victims of Crime Assistance Tribunal [2002] VCAT 1257

Summary: The applicant made two separate applications, one for threats to kill and the other for rape, with both applications refused under Section 29.

Clement v Victims of Crime Assistance Tribunal [2002] VCAT 495

Summary: The applicant was assaulted in 1997 and suffered ongoing dental issues. The application to VOCAT was not lodged until 4.5 years after the assault and a satisfactory reason for the delay was not provided.

Purcell v Victims of Crime Assistance Tribunal [2011] VCAT 1463

Summary: The applicant alleged assault by her former partner. The application was lodged outside of time and the extension of time application was refused. 

Standard of proof: Section 31

J v Victims of Crime Assistance Tribunal [2002] VCAT 532 

Summary: The applicant was sexually abused by her brother-in-law in the 1960s and the Tribunal refused her application for extension of time.

Notification of Alleged Offender: Section 34

P v Crimes Compensation Tribunal [1997] 2 VR 63 - Currently only available in hard copy

Summary: P applied to the Crimes Compensation Tribunal in relation to threats to kill, assaults and rapes by her former husband. CCT advised P that they intended to notify the alleged offender of the application. P sought to make submissions on this point and CCT refused to receive P’s submissions.

Access to documents: Section 42A

Kay v AG (Vic) (No.2) [2010] VSCA 27

Summary: A vexatious litigant sought leave to lodge an application for review with VCAT in respect of VOCAT’s decision not to allow him access to documentation on a Tribunal file.

 

Considerations Relevant to Awards of Financial Assistance

Fail to provide assistance to investigation: Section 52 (special circumstances)

Nichol v Victims of Crime Assistance Tribunal [2000] VCAT 840

Summary: The applicant made a statement to police and an alleged offender was charged. The day before the court hearing was scheduled the applicant elected not to proceed and the charges were withdrawn. The applicant then lodged an application with VOCAT which was refused under section 52. 

Reasonable time for reporting act of violence: Section 53

TUN v Victims of Crime Assistance Tribunal [2009] VCAT 1599

Summary: The applicant made an application in respect of alleged assaults by her former partner which were not reported to police. The Tribunal refused the application under section 52.

Haddara v Victims of Crime Assistance Tribunal [2010] VCAT 1133

Summary: The applicant was assaulted and conveyed to hospital. He alleges his older brother went to a police station to make a report of the assault hours after the assault, and the next week, but there was no follow up from police. The applicant himself went to a police station to make a report three weeks later.

CS v Victims of Crime Assistance Tribunal [2006] VCAT 1061

Summary: The applicant suffered sexual abuse as a child in the 1930s. She lodged an application in 2001 and sought in excess of 100 counselling sessions.

Sanders v Victims of Crime Assistance Tribunal [2003] VCAT 396

Summary: The applicant was pushed off a pier. The Tribunal refused an application on the grounds that on the balance of probabilities there was no criminal act, the matter was not reported to police within reasonable time and the applicant had a prior offence for recklessly cause injury. VCAT set aside this decision and remitted the matter to VOCAT for consideration.

Frost v Victims of Crime Assistance Tribunal [2002] VCAT 1390

Summary: An application was refused under section 29, 52 and 53.

Hay v Victims of Crime Assistance Tribunal [2002] VCAT 45

Summary: The applicant alleged he was sexually assaulted between the ages of 12 and 14 and made a statement to police in 2000, and an application to VOCAT in 2001. The Tribunal refused his application for extension of time on the grounds that the applicant failed to provide an explanation for the delay.

Past criminal activity: Section 54

White v Victims of Crime Assistance Tribunal [2010] VCAT 455

Summary: The applicant applied in relation to an assault. The Tribunal refused his application for medical expenses and special financial assistance on the basis of his long criminal history, which included imprisonment. VCAT set aside this decision and awarded medical expenses only.

Mitchell v Victims of Crime Assistance Tribunal [2003] VCAT 1731

Summary: The Tribunal found that the applicant was a primary victim of an act of violence and had sustained an injury, and was therefore eligible for special financial assistance. However the amount of special financial assistance was reduced to nil due to his criminal record. VCAT set aside this decision and awarded him $7500 of special financial assistance.

Nguyen v Victims of Crime Assistance Tribunal [2001] VCAT 2028

Summary: The applicant and alleged offender were criminal associates involved in drug dealing. The applicant gave information to police and the alleged offender shot him in retribution. VOCAT refused his award on the grounds of his criminal record. VCAT set aside this decision and awarded him medical expenses and clothing expenses.

Provocation: Section 54

Fallon v Victims of Crime Assistance Tribunal [2009] VCAT 414

Summary: The applicant verbally abused the alleged offender, followed her, then shoved her into a corner and yelled in her face. The alleged offender then assaulted the applicant. VCAT upheld VOCAT’s decision to refuse the application.

Heron v Victims of Crime Assistance Tribunal [2005] VCAT 961

Summary: VOCAT refused to award assistance as it could not conclude who threw the first punch in the fight that ensued between the applicant and alleged offender and stated that provocation was a factor. VCAT upheld this decision.

Larson v Victims of Crime Assistance Tribunal [2012] VCAT 1162

Summary: VOCAT found that the applicant was a primary victim but refused to award assistance due to the applicant’s extensive criminal history including a murder conviction. VCAT upheld this decision.

 

Review, Variations and Refunds

Review of VOCAT decisions: Section 59 (powers of VCAT on review)

Wilkins v Victims of Crime Assistance Tribunal [2009] VCAT 1554

Summary: Mildura 2004- applicant arrested and allegedly sustained an injury to his spleen while in police custody.

PT v Victims of Crime Assistance Tribunal [2008] VCAT 84

The applicant was a victim of repeated rape, false imprisonment and threat with a firearm. She was awarded assistance and applied for a variation for further counselling and a holiday. 10 sessions of counselling were awarded and the holiday was not. VCAT affirmed the decision in relation to the holiday and awarded 20 counselling sessions.

Review of VOCAT decisions: Section 59 (enlargement of time limit for lodging review)

Goggin v Victims of Crime Assistance Tribunal [2010] VCAT 1131

Summary: An open Coroner’s finding was made in relation to the death of the applicant’s brother and the Tribunal refused the application as it could not be satisfied that an act of violence had taken place.

Mare v Victims of Crime Assistance Tribunal [2010] VCAT 414

Summary: The applicant was born in 1977 and her father killed her mother when she was 8. She was made a ward of the State and an application was made to the Crimes Compensation Tribunal on her behalf. She was awarded $4500. Her brother and sister made application much later to VOCAT and were awarded upwards of $35,000.

Mare v Victims of Crime Assistance Tribunal (No.2) [2010] VCAT 2079

Summary: The applicant was born in 1977 and her father killed her mother when she was 8. She was made a ward of the State and an application was made to the Crimes Compensation Tribunal on her behalf. She was awarded $4500. Her brother and sister made application much later to VOCAT and were awarded upwards of $35,000.

Review of VOCAT decisions: Payment of costs

TUN v Victims of Crime Assistance Tribunal [2009] VCAT 1599

Summary: The applicant made an application to VOCAT in respect of alleged assaults by her former partner which were not reported to police. The Tribunal refused the application under section 52.

Variation of award: Section 60 (fresh evidence and causal link)

GDE v Victims of Crime Assistance Tribunal [2009] VCAT 914

Summary: The applicant applied to VOCAT for special financial assistance, counselling, medical expenses and ‘other’. When the statement of claim was filed, only the claim for medical expenses was pursued and the application was finalised. The applicant then applied for a variation for special financial assistance and counselling. VOCAT advised it had no jurisdiction to make the variation.

Davis v Victims of Crime Assistance Tribunal [2008] VCAT 2535

Summary: The applicant made an application to vary the award to attend a heavy vehicle driving course. The application was refused. VCAT upheld the Tribunal’s decision.

Gandy v Victims of Crime Assistance Tribunal [2007] VCAT 338

Summary: The applicant’s original application to VOCAT was refused. Upon review, an award was made for counselling and medical expenses. The applicant then sought a variation for numerous items including loss of earnings, self-defence classes, holiday, tutoring for her son and reimbursement for safety-related expenses.

Reservation of future expenses: Issue of whether six year time limit stands

Mewett v Victims of Crime Assistance Tribunal [2006] VCAT 1298

Summary: The Crimes Compensation Tribunal made an award to the applicant in 1995 and the application to VCAT relates to whether this was an interim award or final award.

Mihan v Victims of Crime Assistance Tribunal [2004] VCAT 538

Summary: VCAT sought to determine firstly whether the applicant should be permitted to bring his application out of time pursuant to section 59, and secondly whether the applicant can bring his application more than six years after the act of violence.

 

Transitional provisions

Transitional provisions: Entitlement to assistance

J v Victims of Crime Assistance Tribunal [2002] VCAT 532

Summary: The applicant was sexually abused by her brother-in-law in the 1960s and VOCAT refused her application for extension of time.

Transitional Provisions: Availability of special financial assistance

DJP v Victims of Crime Assistance Tribunal [2010] VCAT 281

Summary: The applicant applied in relation to sexual assaults which occurred before 1 July 1997. VOCAT made an award for counselling but not for special financial assistance due to the Tribunal’s view of the operation of transitional provisions.

 

 


© Victims of Crime Assistance Tribunal, State Government of Victoria

Source URL: https://vocat.vic.gov.au/resources/relevant-review-cases
Last Reviewed 12 Oct 2016