Commissioner of Police v Davies
[2000] NSWSC 107
•3 March 2000
NEW SOUTH WALES SUPREME COURT
CITATION: Commissioner of Police v Davies & 1 or. [2000] NSWSC 107
CURRENT JURISDICTION: Common Law Division
FILE NUMBER(S): 11602/99
HEARING DATE{S): 21 February 2000
25 February 2000
JUDGMENT DATE: 03/03/2000
PARTIES:
Commissioner of Police
Richard James Davies
Robert Scott Rabbidge
JUDGMENT OF: Sully J
LOWER COURT JURISDICTION: Local Court
LOWER COURT FILE NUMBER(S): Cooma
LOWER COURT JUDICIAL OFFICER: R. S. Rabbidge
COUNSEL:
P. F. Singleton - Plaintiff
D. Fitzgibbon - Defendant
SOLICITORS:
I. V. Knight - Plaintiff
Woodgate Morgan - Defendant
CATCHWORDS:
ACTS CITED:
Firearms Act 1996
Tasmanian Criminal Code
War Crimes Act 1945 (C'th)
War Crimes Amendment Act 1988 (C'th)
Commonwealth Constitution
International Covenant on Civil and Political Rights
United States Constitution
New South Wales Constitution
DECISION:
Declaration made in terms of paragraph 1 of Amended Summons filed 7/10/99
Order in terms of paragraph 2 of Amended Summons
Order that the first defendant pay the plaintiff's costs of hearing in this Court
JUDGMENT:
SUPREME COURT OF
NEW SOUTH WALES
CRIMINAL DIVISIONSULLY J
3 March 2000
11602/99 - Commissioner of Police v Richard James Davies & 1 or
JUDGMENT
HIS HONOUR: By an amended summons filed on 7 October 1999 the Commissioner of Police as plaintiff claims against two named defendants the following relief:
“1. A declaration that the Second Defendant’s determination made on 3 February 1999 at Cooma allowing an appeal by the First Defendant against the refusal by the Plaintiff to issue a Category A and B Firearms Licence under the Firearms Act 1996 was null, void, of no effect and beyond the power of the Second Defendant.
2. An order that the Second Defendant’s determination mentioned at 1 above be removed into this Court and quashed.
3. Costs.
4. Such further or other order as the Court may deem fit.
GROUNDS:
1. The Second Defendant erred in law in allowing an appeal by the First Defendant against the refusal by the Plaintiff to issue a Category A and B Firearms Licence pursuant to s.11 of the Firearms Act 1996.”
The first of the two defendants is Mr. Richard James Davies. The second defendant is Mr. R. S. Rabbidge LCM. Mr. Rabbidge filed a submitting appearance, save as to costs. He took no part in the argument of the plaintiff’s summons; and nothing more need be said about him as a defendant in the proceedings.
The relevant factual background can be stated shortly and as follows.
The entitlement to own and to make use of certain categories of firearms is a right strictly controlled by a statute of New South Wales, the Firearms Act 1996.
Put simply, and sufficient for present purposes, it is necessary for a person who wishes to own, and to have the use of, such a prescribed firearm, to obtain a licence in the approved form. Initially, such an application will be made to the Commissioner of Police. If the Commissioner refuses the application, there is a certain right of appeal granted by the Act to a Local Court Magistrate.
The relevant provisions of the Firearms Act respecting such an appeal provide that the appeal is to be dealt with by the Local Court by way of a new hearing, so that evidence and information additional to the evidence and information before the Commissioner may be given before the Magistrate on the hearing of the appeal.
The Local Court, in determining any such appeal, is required to have regard to the Act itself; to such regulations as have been made relevantly under the Act; to what are described as “the circumstances of the case”; and to what is described as “the public interest”.
The Local Court’s adjudicative powers are defined as being powers to dismiss any such appeal brought to it; or to direct the Commissioner to take such action under the Act or the regulations as the Local Court might think to be appropriate action in order to dispose of the appeal.
Particularly in point for present purposes is one of the provisions of the Act respecting restrictions on the issue of licences. S 11 of the Act sets out comprehensively a scheme of such general restrictions. Several in particular of those restrictions are to be found in s 11(5) of the Act. That subsection provides that a licence “must not be issued” to a person who comes within any or all of five nominated categories.
One of those categories, and the only one immediately in point, is the category established by s 11(5)(b). That paragraph proscribes the issue of a licence to a person who, within the period of 10 years before the application for the particular licence was first made, has been convicted in this State or elsewhere of an offence prescribed by the regulations, and whether or not the prescribed offence is an offence under New South Wales law.
In the present particular case, the Commissioner refused the application of Mr. Davies, the first defendant, for a licence under the Act. The basis of the refusal, so far as is at present relevant, was that Mr. Davies was disqualified by reason of the operation in his particular case of the provisions of s 11(5)(b).
Mr. Davies appealed to a Local Court Magistrate. The Magistrate heard the appeal and, effectively, allowed it.
It is in the wake of that decision of the Magistrate that the Commissioner has brought the present proceedings.
When Mr. Davies’ appeal first came before the learned Magistrate in the Local Court, there was a preliminary point taken as to the jurisdiction of the learned Magistrate to deal with the appeal. That matter was argued principally by reference to a decision of Allen J of this Court: Commissioner of Police v Bertram John Wilson & anor., unreported, 26 November 1993. The learned Magistrate held, basing his decision upon the judgment of Allen J, that he had not only jurisdiction to entertain Mr. Davies’ appeal, but also power to overturn the Commissioner’s decision to refuse a licence, notwithstanding that so to overturn the Commissioner involved the granting of a licence in the face of a clear proscription deriving from s.11(5)(b) of the Act. The attention of the learned Magistrate appears not to have been drawn to the fact that in July 1994 the Court of Appeal over-ruled the decision of Allen J: Commissioner of Police v Bertram John Wilson (Magistrate) & anor: unreported, 29 July 1994. It is the present contention of the plaintiff that the decision of the Court of Appeal, applied correctly to the given facts of the present particular case, entails necessarily that the learned Magistrate was wrong in his understanding of the nature and extent of his relevant powers on appeal. In my opinion, this contention of the plaintiff is clearly correct.
The decision of the Court of Appeal dealt, it is true, with provisions of the Firearms Act 1989, the statutory predecessor of the 1996 Act with which the present particular proceedings are concerned. It is, therefore, appropriate to compare properly the relevant provisions of the 1989 Act and the corresponding provisions of the 1996 Act. To that end I have set out hereunder ss 25 and 42 of the 1989 Act and ss 11 and 76 of the 1996 Act.
The relevant provisions of the 1989 Act are as follows:
“25.(1) A licence must not be issued to a person -
(a)who is not a natural person; or
(b)who has at any time or, if the regulations so provide, within a specified period before the application for the licence was made, been convicted in New South Wales or elsewhere of a prescribed offence, whether the offence was committed before or after the commencement of this section and whether or not the offence is an offence under New South Wales law; or
(c) who is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace; or
(d)who is subject to a firearms prohibition order.
(2)A licence must not be issued unless -
(a)the Commissioner of Police is satisfied that the applicant is of good character and repute and can be trusted to have possession of firearms without danger to the public safety or to the peace; and
(b)if required by the regulations, the applicant has completed, to the satisfaction of the Commissioner of Police, training and testing in accordance with the regulations.
(3) Without limiting the generality of subsection (2), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of -
(a)the applicant’s way of living or domestic circumstances; or
(b)any previous attempt by the applicant to commit suicide or cause a self-inflicted injury; or
(c)the applicant’s intemperate habits or being of unsound mind.
(4) The Commissioner of Police must not issue a licence that authorises possession and use of a pistol unless the Commissioner is satisfied that the applicant for the licence has good reason for possessing and using the pistol.
(5) A licence must not be issued for the purpose of authorising the possession or use of a prohibited weapon within the meaning of the Prohibited Weapons Act 1989.
(6) The Commissioner of Police may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
(7)The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”
“42 (1)An appeal shall be dealt with by the Local Court by way of a new hearing and new evidence or new information may be given on the appeal.
(2)A Local Court hearing an appeal is not bound by the rules of or practice as to evidence and may be informed of any matter in such manner as the Local Court thinks fit.
(3)Except as provided by this section, the procedure for an appeal is to be decided on by the Local Court hearing it.
(4)A Local Court, in determining an appeal, must have regard to this Act, the regulations, the circumstances of the case and the public interest.
(5)A Local Court may determine an appeal -
(a)by dismissing it; or
(b)by directing the Commissioner of Police to take such action under this Act or the regulations as the Local Court thinks appropriate to dispose of the appeal.”
The corresponding provisions of the 1996 Act are as follows:
“11 (1)The Commissioner may issue a licence in respect of an application, or refuse any such application.
(2)A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.
(3)A licence must not be issued unless:
(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and
(b) in the case of a person who is applying for a licence for the first time, the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
(d) the Commissioner is satisfied that the person to whom the licence is to be issued is a resident of this State or is about to become a resident of this State.
(4)Without limiting the generality of subsection (3)(a), a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of:
(a) the applicant’s way of living or domestic circumstances, or
(b) any previous attempt by the applicant to commit suicide or cause a self-inflicted injury, or
(c) the applicant’s intemperate habits or being of unsound mind.
(5)A licence must not be issued to a person who:
(a) is under the age of 18, or
(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 law, or
(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or
(d) is subject to a recognisance, granted in New South Wales or elsewhere, to keep the peace, or
(e) is subject to a firearms prohibition order.
(6)Except in the case of a firearms dealers licence, a licence must not be issued to a person who is not a natural person.
(7)The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.
(8)The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.”
“76 (1)An appeal is to be dealt with by the Local Court by way of a new hearing and new evidence or new information may be given on the appeal.
(2)A Local Court hearing an appeal is not bound by the rules of or practice as to evidence and may be informed of any matter in such manner as the Local Court thinks fit.
(3)Except as provided by this section, the procedure for an appeal is to be decided on by the Local Court hearing it.
(4)A Local Court, in determining an appeal, must have regard to this Act, the regulations, the circumstances of the case and the public interest.
(5)A Local Court may determine an appeal:
(a) by dismissing it, or
(b) by directing the Commissioner to take such action under this Act or the regulations, as the Local Court thinks appropriate to dispose of the appeal.”
The respective provisions of the two statutes are, plainly, not identical in every respect. Such differences as exist are, however, in my opinion of no significance for present purposes. There is in my opinion no relevant difference of substance between the statutory provisions which were construed by the Court of Appeal in Wilson, and the statutory provisions which I have now to construe.
The foregoing would be sufficient to dispose of the present proceedings. It is, however, the case that learned counsel for Mr. Davies put in some carefully drawn written submissions; and it is appropriate to take note of them.
The first of those submissions invites this Court to follow the reasoning of Allen J in Wilson. I do not see how I can properly accept that submission. As it happens, I am myself in respectful agreement with the reasoning of the Court of Appeal; but, even were I of the contrary opinion, it seems to me that I would be bound, the ratio decidendi of the decision in Wilson being now directly in point, to accept, and to give proper effect to, the decision of the Court of Appeal.
The second submission is that s 11 of the Firearms Act 1996 breaches fundamental common law rights of Mr. Davies. I must confess that I do not really understand this submission. The Firearms Act 1996 does not discriminate in any way against Mr. Davies individually. The Act makes provision for the protection of the public of this State in the matter of the possession by individual citizens of potentially lethal firearms. The legislation gives effect to that public policy in a number of different ways. One of those ways is the clear and positive proscription of the holding of a firearm licence by a person who has an antecedent criminal record of the kind described in s 11 (5)(b) of the 1996 Act. If it be the case that Mr. Davies, were there no firearms legislation of the kind now in place, would have some general common law right to have a firearm in his possession, (a question as to which it is not now necessary to come to any conclusion), it would not at all follow that the Legislature of New South Wales could not lawfully legislate so as to restrict, or even to abrogate, such a common law right.
The argument to the contrary is not supported by any authority, either as to the existence of the suggested common law right, or as to the basis (or bases) of the suggested incapacity of the New South Wales Parliament to legislate so as to restrict, or even to abrogate, any such common law right.
It is next submitted for Mr. Davies that s 11 of the 1996 Act has a retrospective function which is beyond the legislative capacity of the Parliament of New South Wales. Reference is made to decisions of the High Court of Australia: Rodway v The Queen (1990) 169 CLR 515; and Polyukohovich v The Commonwealth of Australia (1991), 172 CLR 501.
The decision in Rodway concerns certain amendments to the trial procedures established by the Tasmanian Criminal Code. A person had been charged prior to the coming into effect of certain of those amendments, but was tried after the amendments had come into effect. The essential question for the High Court was whether the amendments were properly to be characterised as substantive or merely procedural. The point of that distinction had to do with a rule which was stated as follows by the Court in its judgment:
“The rule at common law is that a statute ought not to be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure.” [169 CLR, 518]
It seems to me that s 11(5)(b) of the 1996 Act does not have any retrospective operation in the sense there discussed. The section has a future operation. The criterion for that operation is a prescribed fact occurring in the past. That is, however, not at all the same thing as saying that the operative provision of the 1996 Act is itself given a retrospective operation.
The decision in Polyukohovich had to do with the operation of a certain provision of the War Crimes Act 1945 (C’th) as amended by the War Crimes Amendment Act 1988 (C’th). The question for the High Court was whether there was constitutional power in the Commonwealth Parliament to enact such legislation. The legislation in question purported to operate retrospectively so as to entail that certain defined categories of crime committed between dates in 1939 and 1945 amounted to an indictable offence against the particular legislation. The decision turned upon two essential questions. The first was whether there was constitutional power, pursuant to the external affairs power, to enact such legislation. The second question was whether legislation of the kind in point usurped the judicial power of the Commonwealth as established by Chapter III of the Constitution.
It is, in my opinion, unnecessary to do more than state in that way the questions raised for the decision of the High Court in Polyukohovich, for it to be plain that Polyukohovich was dealing with large questions of constitutional construction that simply do not arise in the present context.
The next submission put by learned counsel for Mr. Davies sought to invoke Chapter III of the Commonwealth Constitution. It was submitted that Chapter III prevented the Parliament of New South Wales from enacting legislation such as s 11(5)(b), in that Chapter III prevents “…………… laws being enacted which purport to enforce the proposition that past conduct upon which the courts have pronounced final judgment shall at a later time constitute a further criminal offence or give rise to further civil or criminal penalties or sanctions”.
The short answer, in my opinion, is that s 11(5)(b) does not do what the submission suggests. It has never been suggested that s 11(5)(b) renders Mr. Davies liable to a discrete criminal prosecution in respect of the facts that gave rise to his earlier relevant conviction. Nor does s 11(5)(b) purport to punish Mr. Davies a second time for his having done the things that led to his earlier relevant conviction. S 11(5)(b) does no more than establish the proposition that a person who has such an antecedent conviction will be regarded as being, on that account, unfit to be licensed under the 1996 Act.
It is next submitted for Mr. Davies that s 11(5)(b) is in breach of the International Covenant on Civil and Political Rights. Reference is made in particular to the following provision of the Covenant:
“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
A cognate submission is put to the effect that s 11(5)(b) imposes double jeopardy and is therefore in direct conflict with a provision of the United States Constitution.
I fail to see that the United States Constitution, either in what it says about double jeopardy or in what it says otherwise, can possibly be relevant to the questions that this Court has now to decide.
As to the Covenant, what I have earlier said about the Chapter III argument applies mutatis mutandis.
The final submission put for Mr. Davies is that s 11(5)(b) “………..infringes the rights of the citizens of New South Wales as to those pre-Constitutional freedoms that were part of the received law and such other Acts that were in force in New South Wales on 25th July 1828 (including entrenched provisions of the same) …….”.
There is then set out an itemised list of thirteen Constitutional enactments of one kind and another; and certain early decisions dating variously between 1833 and 1861.
There is, in my opinion, some ambiguity in the reference to “pre-Constitutional freedoms” in that submission. It seems to me that the only way in which such a description could be now relevant is by reading it as referring to freedoms alleged to pre-date the New South Wales Constitution.
The Parliament of New South Wales has constitutional standing to legislate for the peace, order and good government of the State. I do not understand how legislation such as the Firearms Act 1996 could be characterised as being other than legislation enacted in aid of precisely that peace, order and good government. It was not submitted that there is some particular provision of the New South Wales Constitution that forbids the enactment of legislation such as the Firearms Act 1996. If, then, the Firearms Act 1996 is within the constitutional power of the Parliament of New South Wales, as in my opinion it clearly is, then the various references now given by learned counsel for Mr. Davies to statutes and curial decisions are irrelevant for present purposes.
For the whole of the foregoing reasons, I have come to the conclusion that the plaintiff is entitled to the relief that he seeks.
I, therefore:
1.make a declaration in the terms of paragraph 1 of the Amended Summons filed on 7 October 1999;
2. make an order in the terms of paragraph 2 of that Amended Summons;
3.order that the first defendant pay the plaintiff’s costs of the hearing in this Court.
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LAST UPDATED: 17/03/2000
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