Chrisis v Commissioner of Police, NSW Police Force (GD)

[2013] NSWADTAP 52

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Chrisis v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 52
Hearing dates:	9 October 2013
Decision date:	22 November 2013
Before:	Judge K P O'Connor, President P Molony, Judicial Member M Bolt, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	FIREARMS LICENSING - Revocation - Public Interest - Affirmed by Tribunal - Appeal - Whether revocation invalid due to estoppel - rejected - no other question of law - application for leave to extend to merits - refused - observations favourable to the appellant made for administrator to take into account if further application
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Firearms Regulation 2006
Cases Cited:	Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 Attorney General (NSW) v Quin (1990) 170 CLR 1 Chrisis v Commissioner of Police [2013] NSWADT 142 New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288
Category:	Principal judgment
Parties:	Konstantinos Chrisis (Appellant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	In person (Appellant) Mr C Zoppo, Sparke Helmore Lawyers (Respondent)
File Number(s):	139025
Decision under appeal	Citation: Chrisis v Commissioner of Police [2013] NSWADT 142 Date of Decision: 2013-06-18 00:00:00 Before: General Division File Number(s): 123353

reasons for decision

1. The Commissioner, as administrator of the Firearms Act 1996 (Firearms Act), issued a category ABH firearms licence to Konstantinos Chrisis on 23 February 2012 for five years for the genuine reasons of target shooting (category ABH) and recreational hunting/vermin control (category AB). Mr Chrisis had previously held a firearms licence between 31 March 2000 and 10 December 2010 (initially category AB, and from 17 May 2002, category ABH). On 8 September 2012 the Commissioner revoked the licence relying on the power of the Commissioner to revoke a licence if the Commissioner was satisfied that it was 'not in the public interest for the licensee to continue to hold the licence': Firearms Regulation 2006, cl 19.

1. Mr Chrisis applied for review of the decision to the Tribunal. His application was unsuccessful. The Tribunal affirmed the decision: Chrisis v Commissioner of Police [2013] NSWADT 142 (18 June 2013). He now appeals. (We will refer to Mr Chrisis subsequently as the appellant in these reasons.)

1. The appellant had failed to renew his licence before it expired on 10 December 2011. The Firearms Registry had sent him the usual notice and the renewal application form. It is unlawful to possess firearms or ammunition without a relevant licence or permit. On 24 January 2011, his licence having expired, police attended his home with instructions to seize any firearms or ammunition in his possession. They discovered in his storage not only firearms and ammunition of a kind authorised by his expired licence but also firearms and ammunition not covered by the licence. He was formally interviewed, and charged with a number of offences. On 27 January 2011 he attended the police station and handed in further ammunition in his possession. He submitted an application for renewal of his licence, received 31 January 2011.

1. The Burwood Local Court dealt with the charges on 13 February 2012. He was found guilty of possessing ammunition without holding a licence/permit/authority, and of not surrendering firearms to police when his licence was not in force. The court exercised its discretion not to enter a conviction. Five other charges relating to unauthorised possession of a pistol and four firearms were withdrawn. The appellant has no other offence history. The appellant received his new licence 12 days later, and understandably thought that he would now be free to resume using weapons in the ways that he enjoyed, in particular target shooting in a club environment.

1. In his reasons for revoking the licence, the Commissioner's delegate relied on intelligence material indicating associations in the past between Mr Chrisis and members of an outlawed motorcycle gang, the inadequacy of his explanation for not observing his obligation to ensure that he held a current licence when in possession of firearms and ammunition, the holding of ammunition that could be used in high calibre pistols which were not covered by his licence, and his lack of insight into the seriousness of his omissions.

1. At its review hearing, the Tribunal examined the material on which the Commissioner's delegate had relied, heard oral evidence from Mr Chrisis, and considered material he put forward in his support. Constable Baxter of State Crime Command, Strike Force Raptor (the informant in the prosecution that gave rise to the findings of guilt at Burwood Court) gave detailed evidence to the Tribunal. The evidence traversed the concerns held in relation to his association with outlawed motorcycle gang members and the risks to public safety arising from unlawful possession of ammunition, and replied specifically to opinions Mr Chrisis had expressed over the acceptability of using the high calibre ammunition he was found to possess in the kind of pistol for which he was licensed.

1. The Tribunal dealt comprehensively with both the appellant's case and that of the Commissioner. It referred in detail to the scheme of the Firearms Act. It referred to the inherent breadth of the concept of the public interest. It approached the question of what matters might reasonably be regarded as relevant to the public interest having regard to the legislative scheme and the important public safety and community protection goals of the firearms laws.

1. The Tribunal agreed with the Commissioner in relation to the implausibility of the appellant's explanation at the police interview for why he was in possession of the high calibre pistol ammunition. The Tribunal also accepted that he showed little insight into the seriousness of his conduct in that regard, nor the seriousness of his failure to return the firearms and any ammunition when his licence expired. The Tribunal accepted the Commissioner's case that he failed to display contrition and remorse for his actions.

1. An appeal may be made on a question of law, and, with the leave of the Appeal Panel extended to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), s 113. The two points in the notice of appeal that may be seen as questions of law appear at item (m) under the section headed question of law and item 2 of the reasons given in support of an extension of the appeal to the merits.

1. At item (m), the appellant submits that the Commissioner 'having accepted my application for a licence deferred issuing the licence until after the hearing and then issued it, was estopped from suspending or revoking that licence and the Tribunal should have reinstated the licence.' At item 2, as part of his application for extension of the appeal to the merits, the appellant submits that there is 'no' or 'insufficient' evidence to conclude that the revocation was in the public interest. The appellant did not file any submissions developing either point.

1. In reply the Commissioner submitted that Australian law did not recognise any principle of estoppel in public law, citing New South Wales Trotting Club Ltd v Glebe Municipal Council (1937) 37 SR (NSW) 288 at 307 and 313, and Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth [1977] HCA 71; (1977) 139 CLR 54 at 74.

1. The appellant appeared in person at the appeal hearing (as he had before the Tribunal below). He pressed again the case he had put to the Tribunal. In particular he referred to his unblemished history in the period 2000-2010 when he had held a licence. He referred to the enjoyment that he gets from being able to use firearms for hunting and recreational purposes. He noted that when his storage was inspected by police in 2004 and 2009 he was found to be compliant. He referred to his long and good work history with the one employer. He drew attention to the positive testimonials that he had placed before the Tribunal, including from the Club Captain of the Kemps Creek Pistol Club. He noted that the Tribunal had not regarded the association he had once had with members of outlawed motorcycle gangs as having any continuing significance. He referred to the specific findings made in that regard by the Tribunal at paras [60] and [61] of his reasons.

1. It is a well-established principle that statutory bodies can not take action incompatible with the due exercise of their powers or the discharge of their duties. Accordingly, an administrator is not precluded by the mere fact of granting a licence from revisiting that decision. A licensee always runs the risk that an administrator may reappraise information that was known or available at the time of the issuance of the licence, and move to exercise any negative powers that are permitted to be used during the currency of the licence. This case has no special feature, such as evidence of an undertaking in relation to restoration of the licence (say given as part of any deal that may have led to the dropping of charges at the Burwood Court) which might give some strength to an administrative estoppel case. In any case Australian law has been firmly resistant to the recognition of estoppel in public law. See further, Attorney General (NSW) v Quin (1990) 170 CLR 1; Aronson, Dyer, Groves, Judicial Review of Administrative Action (4th ed, 2009), [6.300] ff.

1. Further, there is no substance to the appellant's submission that the Tribunal acted on no, or no sufficient, evidence. The Tribunal had a wide range of relevant material before it, and heard evidence directly from Constable Baker and the appellant.

1. This is a case where the appellant is, in essence, seeking to reopen the merits of the decision.

1. The Appeal Panel is an oversight body. The ADT Act does not give the appellant an unconstrained right of appeal, inviting the possibility of a full retrial. The leave discretion must be exercised with caution. We decline to grant leave in this case.

1. However, we do think that the appellant has a greater insight into his situation than was the case when he appeared before the Tribunal. In our view there has been a tangible positive change. In its decision the Tribunal did make some points favourable to the appellant. The Tribunal said at [77] of its reasons:

The tribunal does note however that involvement in recreational shooting is a significant activity for the applicant. The tribunal notes there is no evidence that the applicant used and stored firearms unsafely. It is open to the applicant to reapply at a future date for a licence, and the respondent could consider any such application on the evidence available at such a future time. It might be useful, if any further application was made at a future date, for the applicant to be able to demonstrate knowledge of the regulatory scheme and commitment to complying with same, perhaps through attending training on the legal obligations of a firearms licence holder.

1. At the appeal hearing (held 9 October 2013) the appellant acknowledged in what we consider to have been a genuine way, the gravity of his conduct, the risk his conduct posed to the community and was now contrite. He referred to his personal circumstances (which we will not retail at length here) in particular the support he gives to his aged parents.

1. He has, we consider, now reflected on the reasons given by the Tribunal for its decision, and begun to absorb them. He told us that he had sought advice from a doctor, and accepted that he was wrong in what he said about there being a person 'Joe', in his explanation given to the police in the record of interview, one of the negative considerations that influenced the Tribunal to its decision. He referred to his attempts to join civic organisations such as the SES, and the difficulty he had encountered because of the criminal record he had now acquired.

1. As he had before the Tribunal, he spoke of his enjoyment of the sporting activities of shooters' clubs and the associations they provide. He referred to his success in competitions, and his ambition to reach a high level in sports shooting. He said he was willing to have his weapons held in safe storage at, for example, club premises.

1. He also informed us that, in light of the comments of the Tribunal at para [77] he had made a fresh application for a licence on 1 July 2013, he had sat the required test, and wanted to do the required training, but his application was rejected on 15 July 2013. (He lodged this appeal three days later.)

1. We recommend to the Commissioner that if and when the appellant makes further application for a firearms licence, the change to which we have referred be given favourable consideration.

1. Further we note that this case has been approached throughout as one where he should not be permitted any weapons. The appellant had until 10 December 2011 an unblemished history of use of both category AB weapons (such as non-self-loading shotguns, and non-self-loading centre-fire rifles) and category H weapons (pistols). While any possession of weapons carries with it a risk to public safety, pistols represent a more serious threat. We note that at hearing he said that restoration of a long arm licence would enable him to pursue his interest in hunting.

1. It may be that some graduated reinstatement of categories could be considered, for example, the category AB (recreational hunting/vermin control) licence. The 'public interest', as the Tribunal has noted in the past, is an inherently broad concept, and it may vary in the way it is applied across the various categories of weapons.

Order

Appeal dismissed.

Decision last updated: 22 November 2013