Victim Assist Time Limits

(2) The scheme manager may, on application by a person, extend the time for the person making an application for victim assistance if the scheme manager considers it would be appropriate and desirable to do so, having regard to the following—

(a) the person’s age when the act of violence was committed;

(b) whether the person has an impaired capacity;

(c) whether the person who allegedly committed the act of violence was in a position of power, influence or trust in relation to the person;

Examples of persons who may be in a position of power, influence or trust in relation to a person— a person’s parent, spouse or carer.

(d) the physical or psychological effect of the act of violence on the person;

(e) whether the delay in making the application undermines the possibility of a fair decision;

(f) any other matter the scheme manager considers relevant.

(3) The scheme manager must give a person who applies for an extension of time under subsection (2) notice of the scheme manager’s decision on the application.

(4)If the scheme manager decides not to extend the time for making an application for victim assistance, the notice must state the following—

(a)the decision;

(b)the reasons for the decision (see the Acts Interpretation Act 1954, section 27B);

(c)the internal review details for the decision.

The victim-survivor experienced sexual violence in 1987 and 1988. She applied for assistance under the Victorian Victims of Crime Assistance Act (1996) in late 2008.

In determining her application, the Victorian Civil and Administrative Tribunal was required to determine whether the application, although not brought within 2 years of the act of violence, as required by s 29 VOCA Act (1996), ought not be struck out.

Section 29 of VOCA Act (1996) is similar to s 54 of VOCA Act (2009). In finding that the application ought not be struct out, Vice President Judge Hampel took into account:

• the age of the victim-survivor at the time of the act of violence
• that the perpetrator of violence was in a position of trust and power
• the psychological effect of the violence, including the impact the effect of the abuse had in delaying the victim survivor’s application
• when the injury (PTSD) first manifested and when it was first identified by the victim-survivor
• whether the delay threaten the Tribunal’s capacity to make a fair decision

The decision also discusses the standard of evidence that should be applied when considering whether or not the victim-survivor has established that an act of violence has occurred.

The victim-survivor applied for assistance in 2001 following an experience of sexual violence that occurred between the ages of 13 and 18. The acts of violence occurred over a period of years concluding in 1966.

In determining her application, the Victorian Civil and Administrative Tribunal was required to determine whether the application, although not brought within 2 years of the act of violence, as required by s 29 VOCA Act (1996), ought not be struck out.

In finding that the application ought not be struct out, Michael Levine, Deputy President had regard to the Applicant’s:

• family constellation and upbringing
• inability to have open expression of feelings and any discussion of a sexual nature within the family
• early isolation from her siblings
• excessive respect and regard for adults and teachers that was a part of her upbringing
• suffering of unlawful and indecent assaults upon her by her brother in law from age 13 and rape at age 18
• sister’s reaction when finding her after the rape
• expectation that her account of the rape would not be believed
• failure to accept that she had been raped but realising that she was no longer a virgin and her brother in law was the cause
• misunderstanding of what constituted rape
• inability to express to her future husband that the events that had taken place the day before they met constituted rape
• marriage to escape her family and failure of that marriage
• desire to keep her family relationships
• desire not to make her sister a second victim or destroy her sister’s marriage or affect the children of the marriage
• oral and written psychiatric and psychological evidence provided on her behalf to the Tribunal [paragraph 59]

Deputy President Levine found that ‘she could not have been expected to lodge any application under any of the compensation Acts until she actually realised that she was unable to preserve any family relationship and that the events of 35 years past had caused far reaching effects upon her mental health’.

Deputy President Levine also found that the perpetrator of violence, the victim-survivor’s brother in law, held a position of power and trust and that the delay did not threaten the ability of the Tribunal to make a fair decision

The victim-survivor made an application for assistance in September 2001 following an act of violence that occurred in March 1997.

In determining her application, the Victorian Civil and Administrative Tribunal was required to determine whether the application, although not brought within 2 years of the act of violence, as required by s 29 VOCA Act (1996), ought not be struck out.

Most of the evidence before the Tribunal was directed at the other circumstances the Tribunal may consider relevant. Ms Clements was not a child at the time of the assault, the perpetrator was not in a position of power or trust, the delay did not threaten the Tribunal’s capacity to make a decision, and the physical or psychological effect of the act of violence on Ms Clements was not pertinent.

In finding that the application ought not be struct out, Judge Michael Strong, Vice President, had regard to the fact Ms Clement:

• lost her partner sometime between 1997 and 2000
• had an ongoing battle with the father of her children in relation to custody
• contended with her alcoholism
• experienced anxiety and depression
• was a person living in troubled circumstances who would find it difficult to attend to her personal affairs in the way a person without such problems might be expected to do.

Judge Strong made the following comments about the operation of s 29 VOCA Act (1996):

• [10] It’s a curious section because although it sets out the matters to be considered, it doesn’t provide any yardstick by which these things are to be measured.  For example, it doesn’t say that an application for extension is to be allowed only in exceptional circumstances, or anything of that kind. [11] The result is that the Tribunal has a very broad discretion.
• [18] At the end of the day the question is whether having heard all that I have heard this morning I am of the view that the justice of the case, both to Ms Clement and to the community, would be better served if this application was allowed or refused.
• [18] I am also mindful that this is beneficial legislation, the object of which is to assist victims of violent crimes – as she plainly is. One should err on the side of granting these applications, not refusing them.

Although Judge Strong acknowledged there was a ‘somewhat inadequate explanation’ for some of the delay, he ultimately ordered the decision by VOCAT striking out Ms Clement’s application be set aside.

The victim-survivor and the alleged offender are serving sworn members of Victoria Police. The victim-survivor applied for assistance for an alleged sexual assault approximately 29 years after the act of violence.

Despite ultimately dismissing the application, Magistrate Burns had previously considered the matters set out in s 29 VOCA Act (1996) and allowed the claim to proceed out of time.

In 2011, the applicant applied for assistance on the ground that in 1978 two “radical feminists” injected him with heroin knowingly infecting him with an infectious disease.

In agreeing with VOCAT’s decision to refuse BT’s application, Senior Member Proctor considered the factors that VCAT must have regard to under s 29 (3).

Senior Member Proctor also considered the factors for extensions of time as discussed in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 3 FCR 344, specifically:

• whether BT can show an acceptable explanation for the delay
• whether it is fair and equitable in the circumstances to extend time
• whether VOCAT will be prejudiced by the delay
• the merits of the substantial application

The victim-survivor appealed a VCAT decision that confirmed VOCAT’s decision not to allow an application that was bought following a delay of over 23 years.

In dismissing the appeal, Justice Macaulay (at [23]) confirmed that the Victims of Crime Assistance Act is remedial and beneficial legislation and should generally be interpreted liberally in favour of victims. However, a beneficial interpretation cannot override the actual words chosen by Parliament.

The case also provides a useful discussion on how a delay can impact a decision makers ability to make a fair decision.

In 2001, the applicant was assaulted by two unknow persons. In 2011, the applicant applied to the Victims of Crime Assistance Tribunal.

The applicant provided some reasons for her delay. In affirming VOCAT’s decision to strike out the application as being out of time, Senior Member Ian Proctor provides a useful discussion of what other circumstances VCAT ought to consider s 29 (3)(g) VOCA Act (1996).

The victim-survivor made an out of time application in 2008 for compensation based on an offence that took place in 1991. As the victim-survivor was under 18 at the time of the offence, he had until 1997 to apply.

The victim-survivor sought an extension of time on the basis that:

• at no stage during the court process was he told he could apply for criminal injuries compensation.
• he did not like talking about the offence as he had disclosed it before and had not been believed.

It was confirmed that, ‘bearing in mind the applicant’s age at the time he was offended against it is entirely understandable, particularly if he was not believed…that he would not take steps to ascertain his position’ and ‘he sought to bring the application when he realised what his rights were…’ An extension was granted.

The victim-survivor made an out of time application in 2006 for compensation based on an offence that took place in 1999. As the victim-survivor was under 18 at the time of the offence, she had until 2004 to apply.

The victim-survivor sought an extension of time on the basis that she was not aware she had suffered PTSD as a result of the offence.

It was confirmed at [5] that, ‘the applicant has the onus of satisfying me that a material fact of decisive nature was not within her knowledge after the commencement of the period of 12 months prior to [filing her application]‘ and at [16] that ‘the applicant was aware of a lot of distressing psychological effects as a result of the [abuse]‘.

Due to this an extension was not granted because it was obvious she had significant problems as a consequence of the offending and if she had obtained legal advice she would have been advised to pursue a cause of action.

The victim-survivor made an out of time application 8 months out of time.

The victim-survivor sought an extension on the basis that she was unaware she had suffered nervous shock as a result of the offences until after she received a diagnosis.

The court considered whether without the diagnosis a reasonable person would have
appreciated that they had a worthwhile action to pursue and should have pursued it.

It was confirmed at [8]-[9] that because the victim-survivor had suffered headaches, shame, guilt and ongoing fear since the offence her symptoms indicate she was already aware she was suffering an injury before her diagnosis. An extension was not granted and it was stated at [10] that, ‘the fact the applicant may have been legally ignorant that the symptoms she suffered gave her a cause of action…does not constitute a material fact of a decisive character.