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Key Aspects of Statutory Interpretation DRN v Commissioner of Victims’ Rights [2019] NSWCATAD, 195.

1. Relevant legal issues

From August 2014 to November 2014, Yazidi women in Syria claimed that they were harassed by an Australian citizen. They filed a case against him and demanded victim support. The facts are as follows: Comment by Michael Evans: You are loose with your language here – also be more careful with your formatting.

a. The applicants were not from New South Wales.

b. The person who had committed violence against them, Khaled Sharrouf, was an Australian citizen[footnoteRef:1]. Comment by Michael Evans: You could have a pin point here. It’s also a good idea to come up with a short name, such “DRN” for a source you know you will be referring to again. [1: DRN v Commissioner of Victims Rights [2019] 195 NSWCATAD 195.]

c. In 2014, the victims were threatened by ISIS and were kept in the house of Khaled Sharrouf. He subjected them to violence; physical and emotional. They had faced sexual assault, abduction, trafficking, rape attempts, threats of being killed, and were even beaten by him with cable. Comment by Michael Evans: Reference?

d. The applicants demanded victim support under the Victims Rights and Support Act 2013 (NSW)[footnoteRef:2]. [2: The Victims Rights And Support 2013.]

e. The violence carried out by Khaled was a breach of international as well as domestic law. It was also a crime against humanity.

f. Their application was rejected by the commissioner of Victim Right’s delegate twice after which the case was presented before by the applicants before the Tribunal for final review[footnoteRef:3]. Comment by Michael Evans: Your reference here should be to the part of the judgment you are relying on to assert this fact. [3: Ibid 46.]

g. Khaled held a criminal record as he was found involved in terrorist activities in Australia for which he was arrested. In December 2013, Khaled Departed Australia with the help of a fake Australian passport. Comment by Michael Evans: Reference?

2. Interpretive Criteria used by Deputy President Cole

The following interpretive criterion was used in the current case:

1. The interpretation act: this act is used to interpret the provisions of the Victims Rights and Support Act. According to s 5(1) and (2) and s 12 (1) (b) of the Interpretation Act, an act of violence must occur within New South Wales or somewhere that is related to the New South Wales. This means to claim support or compensation for an act of violence it is necessary for the act to take place within the vicinity of New South Wales[footnoteRef:4]. This is an important limitation to the rule that cannot be ignored. In the current case, the application was rejected because the act of violence did not fall within this limit. In other words, the territorial limit was not satisfied. Hence, the applicants were not qualified for compensation or another sort of support. Comment by Michael Evans: Refer to the act properly, then footnote your reference. Comment by Michael Evans: This is an over simplification which is not strictly accurate. Comment by Michael Evans: Needs a pin point. [4: The Victims Rights And Support 2013.]

2. Section 38 (1) (a) of the victim's right and support act is also used by the deputy commissioner to identify the status of the applicants according to these criteria the application for victim support may be filed by victims of violence. In case the where primary victim is a child then his or her guardian or parent may also file an application for victim support. It further says that any person who has a genuine interest or who is concerned with pure intentions about the welfare of the primary victim can file an application for victim support. Finally, this criterion also clarifies that an application for victim support must be made directly to the commissioner. In the current case, these criteria are fully satisfied. The applicants are the primary victims of violence. In Syria and northern Iraq, they have faced violence; they have been tortured by Khaled who used a cable to beat them[footnoteRef:5]. He also is accused of threatening the applicants of killing and rapping. This means the victims who faced violence in one form, or another directly applied for victim support. Their applications were also made to the commissioner. These points are enough to claim that the eligibility for support as specified in section 23 (1) is fulfilled by the applicants. Comment by Michael Evans: I don’t think this is relevant to the question you have been asked. Comment by Michael Evans: Proof read. [5: DRN v Commissioner of Victims Rights [2019] 195 NSWCATAD 195.]

3. The definitions that are necessary for analyzing this case are provided in subsection 18 and 19 of the victim’s right and support act. For example, the act of violence is defined in subsection 19 according to which violence refers to a single act or a series of actions that lead to injury or death to the victim. The act of violence can be made against a single person or more[footnoteRef:6]. It also extends the act of violence to domestic violence and sexual assault. Sexual assault means sexual intercourse without the victim's consent. On the other hand, sexual intercourse in which the consent of the victim is obtained through violent means such as by beating or threatening him or her would also mean sexual assault. In the current case, the applicants have also accused Khaled of sexual assault. Comment by Michael Evans: Again, I’m not quite sure how this is relevant to answering the question. [6: Ibid 38.]

4. Section 26 of the Victim's Rights and Support Act talks about the composition of support to the primary victims. This support may involve approved counseling services that are provided according to the act of violence and the injury being done to the victim. It may also involve financial assistance that is provided for the treatment of injury whether physical or emotional, caused directly by the act of violence. Financial assistance is something that is needed by the victims on an immediate basis to secure their health, safety, and wellbeing. However, the amount of financial assistance is not specified in the Act. Rather this matter is left to be identified on the basis of economic loss being done to the victim. Now the problem here is that it is not necessary that an act of violence would cause economic loss. In other words, sometimes the emotional pain supersedes that of economic loss in which case it is not enough to base or decide financial assistance on the basis of economic loss[footnoteRef:7]. In the current case, the applicants have not mentioned economic loss because of which their financial assistance as part of the victim support cannot be identified. However, it is clear that they did suffer from the act of violence because of which they considered themselves eligible for victim support Comment by Michael Evans: Relevance? [7: DRN v Commissioner of Victims Rights [2019] 195 NSWCATAD 195.]

5. Section 12 (1) (b) of the interpretation act is very important while analyzing the present case. According to this section, the expression “in and of New South Wales" cannot be divided or explained separately. This phrase means any act that is identified within New South Wales; whether it takes place in New South Wales or in a place that is closely identified with New South Wales. Comment by Michael Evans: I’m not sure that this is accurate.

The above points make it clear that the act of violence makes victims eligible for victim support. However, in the current case, the violence was not identified" in and of the New South Wales". Khaled had committed a crime against humanity, but the applicants could not claim victim support because this crime did not take place in New South Wales. Hence the application was rejected, and the applicants were not given victim support. It was an act of violence that was committed overseas for the reason of which it could not be declared a crime has taken place in and of New South Wales. There can be no enough degree of connection found in the act of violence and New South Wales. On the other hand, the applicants attempted to create a connection by noting in their application that the perpetrator of violence, Khaled was an Australian citizen and was a resident of New South Wales. They also maintained that the violence they had to face caused by Khaled was an offense as per the domestic law of New South Wales. However, in my point of view and in the light of the above criteria this connection is not legitimate. Comment by Michael Evans: Although this accurate to some degree, this assignment is about statutory interpretation, and your focus should be on the judgment arrived at this point.

3. Conclusion of the tribunal

First of all, it must be noted that as per the law of New South Wales if a person is subjected to physical, emotional, or sexual violence or threat of such violence, he or she is entitled to victim support. The victim support can be in the form of counselling and financial compensation depending upon the loss faced directly due to an act of violence. Secondly, it is important to note that the act of violence must be committed “in and of the New South Wales". But in the current case, there is no evidence to prove that Khaled committed violence against the applicants in New South Wales. In the current circumstances, they are not eligible for victim support. The Victims’ Rights and Support Act cannot be applied to these applicants solely on the basis of Khaled's Australian nationality or his residence in New South Wales. Comment by Michael Evans: I don’t think this must be noted in answering the question you have been posed. Comment by Michael Evans: This is important, and correct, but you should be explaining why this is the case – ie because the Interpretation Act was used to important those words in the VRSA.

4. Critical commentary

In my opinion, the decision of this case would have been different if the act of violence had taken place in New South Wales. In my opinion, the whole difference is made by the place of violence. If the applicants were tortured or harmed within New South Wales or somewhere that is closely identified with New South Wales, then the victims would have been eligible for victim support. According to section 5 (1) and (2) and section 12 (1), (b) of the interpretation act the victims can qualify for victim support against such violence that is conducted within New South Wales[footnoteRef:8]. This criterion is very critical because the rest of the case is in accordance with the Victims Rights and Support Act. If the offense had not taken place in the Middle East, then the decision of the tribunal would have been different. It would have been in the favor of applicants as per the Victim's Right and Support Act and the interpretation act the victims would be eligible for accessing counselling and getting financial assistance or any sort of compensation. [8: The Victims Rights And Support 2013.]

BIBLIYOGRAPHY

DRN v Commissioner of Victims Rights [2019] 195 NSWCATAD 195

The Victims Rights And Support 2013

35/100

Dear Utsav,

Unfortunately your memo doesn’t focus on answering the question posed. This means that you have a lot generalized content which doesn’t focus on answering the question, or indeed on statutory interpretation in general.

You also need to pay much greater attention to proofreading your work. Irregular capitalisation, spelling mistakes, missing or wrong references and poor wording can be found throughout the memo.

Taking more time with your work, directing it back to answering the question, and proof-reading will yield you better marks in the future.

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