Commissioner of Police, New South Wales Police Service v Yaghi (GD)

[2001] NSWADTAP 35

Appeal Panel

CITATION:	Commissioner of Police, New South Wales Police Service -v- Yaghi (GD) [2001] NSWADTAP 35
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police Service RESPONDENT Khaled Yaghi
FILE NUMBER:	019031
HEARING DATES:	17/09/2001
SUBMISSIONS CLOSED:	09/17/2001
DATE OF DECISION:	09/25/2001
DECISION UNDER APPEAL:	Yaghi -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 91
BEFORE:	O'Connor K - DCJ (President); Goode P - Judicial Member; Mapperson K - Member
CATCHWORDS:	opportunity to be heard - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003219
DATE OF DECISION UNDER APPEAL:	06/04/2001
LEGISLATION CITED:	Firearms (General) Regulation 1997 Firearms Act 1966 Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 Commissioner v Valkai [2001] NSWADTAP 34 Botros v Commissioner of Police [2000] NSWADT 6 Z v Director General, Department of Transport [2001] NSWADTAP 18
REPRESENTATION:	APPELLANT C Capper, advocate RESPONDENT J Conomos, barrister
ORDERS:	Decision under appeal affirmed.

1 This is an appeal by the Commissioner of Police against a decision of the General Division of the Tribunal setting aside a decision under the Firearms Act 1996 (the Act) to revoke the firearms licence (category A and B, recreational hunting) of the review applicant, Mr Khaled Yaghi, who is the respondent to the appeal; Yaghi v Commissioner of Police, New South Wales Police Service [2001] NSWADT 91 (4 June 2001). There is a right of appeal to the Appeal Panel on a question of law: s 113(2)(a), Administrative Decisions Tribunal Act 1998 (the Tribunal Act)).

2 The notice of appeal filed 22 June 2001 raised two questions of law, one of statutory construction, the other procedural fairness.

3 The Commissioner revoked the licence pursuant to the power conferred by s 24(2)(b)(a) of the Act, which provides:

‘(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind.’
4 Section 11 of the Act directs the Commissioner to refuse to issue a licence in various circumstances. The ground for refusal of a licence which the Commissioner relied upon in this case was that contained in s 11(5)(b), which provides:
‘(5) A licence must not be issued to a person who:
(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales.’
5 One of the offences prescribed by cl 5 of the Firearms (General) Regulation 1997 is ‘an offence in relation to the possession or use of a firearm, or any other weapon.’ On 14 October 1998 Mr Yaghi’s licence had been issued. On 1 November 1999 Mr Yaghi pleaded guilty to two offences of ‘not keeping firearms safely’, was convicted and fined $500 (a District Court appeal on 19 January 2000 as to penalty was unsuccessful). Following his original convictions, his licence had been suspended and was subsequently revoked.

6 This appeal raises the same issues of law considered in the Appeal Panel’s decision in Commissioner v Valkai [2001] NSWADTAP 34. That case involved provisions in the Security Industry Act 1997 that are identical in all material respects. The Appeal Panel held that the Tribunal had erred in construing the Commissioner’s power of revocation as only able to be exercised where the conviction, giving rise to revocation, had been imposed prior to the licensee’s last application. The Appeal Panel held, not accepting the interpretation of the Tribunal, that the words ‘within the period of 10 years before the application for the licence was made’ did not condition the exercise of the power of revocation. Those words simply provided a direction to the Commissioner as to the time bar that was to apply to relevant old convictions for the purpose of effecting a mandatory refusal. We will not repeat our reasoning here.

7 This appeal was heard prior to reasons being delivered Valkai. Accordingly, we should note that Mr Conomos, counsel for the respondent to this appeal, Mr Yaghi, from the outset of his submissions conceded that there was an error of construction.

8 This second ground of appeal was that the Tribunal had erred in law in failing to accord procedural fairness to the Commissioner in adopting an interpretation that departed from an interpretation previously adopted both by the Commissioner and the Tribunal (differently constituted). Those decisions had mainly related to the Security Industry Act, commencing with Botros v Commissioner of Police [2000] NSWADT 6.

9 Mr Conomos opposed the submissions of the Commissioner in this respect. He pointed in particular to a passage in the reasons for decision where the Judicial Member had referred to the submissions of Mr Tunks in relation to the interaction between s 24(2)(a), s 11(5) and cl 5 (see Transcript of the original hearing (Ts), 8 November 2000, 13).

10 Mr Yaghi was represented at the original proceedings by Mr Woods, solicitor. Mr Woods’ submissions concentrated on whether the Commissioner had exercised his discretion appropriately in the circumstances. He referred to Botros, but sought to distinguish it by reference to differences between its circumstances and those here, in particular that there had been a plea of guilty here and a low fine (Ts 18-20). There was no submission to the effect that the Commissioner was without any power to revoke in respect of the convictions in issue. There was no indication from the Judicial Member that a view may be adopted that the Commissioner was without power to exercise the discretion conferred by para (a).

11 For the reasons given in Valkai, our view is that there was a denial of procedural fairness to the Commissioner. But that error has now been overcome by the appeal. The Commissioner has now been able to put submissions, submissions that have been successful.

12 In the original notice of appeal there was an application for the Appeal Panel to give leave for the appeal to be extended to the merits (as permitted by s 113(2)(b) of the Tribunal Act). The notice sought ‘review of the following findings of fact’, i.e. ‘(i) That the firearms offences committed by the applicant were not ‘accessible to the public’ (at [45]) and ‘(ii) That the relevant breaches of the Firearms Act 1996 by the applicant ‘could not be described as so fundamental that they in fact compromised the safety of the public’ (at [48]).

13 At hearing Mr Capper for the Commissioner shifted position and challenged these elements of the reasoning as errors of law. As we indicated in the course of argument, we are satisfied that both passages were no more than part of an evaluation of the seriousness of the offences as revealed by the police and court records relating to the convictions. It is clear from a scrutiny of the reasons that the Tribunal was referring in the passages criticised by Mr Capper to the degree to which the wider public, as distinct from Mr Yaghi’s immediate family, had been exposed to risk by the conduct giving rise to the convictions.

14 As in Valkai, the question now arises as to what course should be adopted by the Appeal Panel.

15 As noted, the Commissioner did apply for leave to be given by the Appeal Panel to enable reconsideration of the case on the merits but confined the application to two alleged errors in the findings of fact. Mr Conomos opposed this course.

16 The Appeal Panel is of the view that, despite the error of statutory construction identified, the decision should be left stand.

17 In revoking the licence the Commissioner relied on the same factual considerations in support of three separate grounds for revocation. The three grounds were (1) the one under scrutiny in this appeal - the ‘any reason for refusal’ ground (ground (a)), (2) the ‘no longer a fit and proper person’ ground (ground (c) of s 24(2)) and (3) a prescribed ground (ground(d)), in this instance the ‘public interest’ as prescribed in cl 17 of the Firearms (General Regulation) 1997. The appeal was confined to the way in which the Tribunal dealt with ground (a). The reasoning in respect of grounds (c) and (d) was not put in issue.

18 As we noted at hearing, we have difficulty in identifying in this case any real distinction between the considerations that were relied on in support of the public interest ground (and reviewed by the Tribunal); and those relied on as the basis for ground (a). (and not reviewed by the Tribunal). It is not apparent to us that the Tribunal would have reached a different conclusion had it proceeded to review the decision by reference to ground (a).

19 An Appeal Panel should, we consider, be cautious in granting leave to extend to the merits; in particular where that may involve the Appeal Panel becoming a fresh trier of fact or substituting its discretion for that of the Tribunal that had the benefit of hearing directly from both parties, in particular from the review applicant. For those reasons the ordinary course should be remittal to the same or a differently constituted Tribunal in line with the considerations discussed in Z v Director General, Department of Transport [2001] NSWADTAP 18.

20 In this instance we are not satisfied that remittal would be likely to affect the ultimate decision, and agree with the submissions of Mr Conomos in that regard.

21 The fact of the convictions is the basis for reliance on ground (a). There is no other material upon which the Commissioner could rely in relation to that ground. In the circumstances of this case the ground (d) case that was considered was essentially the same case - it focused on the conviction and its circumstances. In our view, the Tribunal below had it gone on to consider the ground (a) case would have reached the same conclusions as it did in relation to the ground (d) case for the same reasons. In looking at ground (d) it considered a range of circumstances connected with the offence - see para [44] of the decision. Two other factors that it did not list which would also have supported its conclusion are that Mr Yaghi pleaded guilty; and that the discovery of the offences did not arise from any complaint to the police but occurred incidentally to police attendance at Mr Yaghi’s home for other reasons.

Order

22 Decision under appeal affirmed.