Constantin v Commissioner of Police, New South Wales Police Force

[2013] NSWADTAP 16

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16

Hearing dates:

20 March 2013

Decision date:

18 April 2013

Before:

Judge K P O'Connor, President
S Montgomery, Judicial Member
Z Antonios, Non-judicial Member

Decision:

1. Leave to appeal refused.

2. Appeal dismissed.

Catchwords:

FIREARMS LICENSING - Probationary licence holder refused a full licence authorising use of a pistol for sport/target shooting (Category H) - Tribunal affirmed administrator's decision - Appeal - No question of law raised - Leave sought for extension to merits - Reliance on ground of unfitness queried by Appeal Panel - Reliance on public interest ground not queried - Leave refused - Appeal dismissed. Firearms Act 1996, s 11(3)(a) and s 11(5A)

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Firearms Act 1996

Cases Cited:

Commissioner of Police v Toleafoa [1999] NSWADTAP 9
House v R [1936] HCA 40; (1936) 55 CLR 499

Category:

Principal judgment

Parties:

Nicholas Constantin (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

A Brownlee (agent for Appellant)
C Zoppo, Sparke Helmore (Respondent)

File Number(s):

129029

 Decision under appeal 

Jurisdiction:

9108

Citation:

Constantin v Commissioner of Police, NSW Police Force [2012] NSWADT 172

Date of Decision:

2012-08-23 00:00:00

Before:

General Division

File Number(s):

123077

reasons for decision

1. This is an appeal against a decision of the General Division of the Tribunal that affirmed a decision of the Commissioner of Police, made under the Firearms Act 1996, refusing the appellant's application for a pistol licence for use for the purpose of target shooting.

Background

1. On 12 August 2010, the Commissioner, as administrator of the Firearms Act, granted Mr Constantin (the appellant) a probationary firearms licence authorising possession and use of a pistol in connection with sport/target shooting (see s 16A) - usually known as a Category H licence. He was a member of the Hartley Crescent Pistol Club, Condell Park. The club held an approval to shoot in the Category H discipline. He had undertaken the required theory and practical training. The licence had an expiry date of 7 October 2011.

1. On 24 March 2011 the administrator imposed a special condition on the licence - requiring that any firearms in his possession be safely stored at the Hartley Crescent Pistol Club.

1. In the letter of notification, the Firearms Registry officer referred to the power of the Commissioner to impose such conditions as the Commissioner thinks fit (see s 19(1)), and to the fact that the appellant had been convicted in February 1996 of two counts of armed robbery. The letter referred to the issue of public safety.

1. The application for a probationary licence that he had completed only enquired into criminal conviction history for the ten years prior to the application. The appellant answered the question as framed correctly when he replied 'no'.

1. On 21 July 2011 he applied for a full licence to be issued under s 16. Full licences have a usual term of five years (s 21).

1. Having been granted the probationary licence and having not committed any breach of its terms, the appellant might reasonably have assumed that he would be granted a full licence.

1. His application was refused.

1. The Commissioner's delegate's original reasons of 29 November 2011 acknowledge this point, and state that the probationary licence had been issued because of an 'administrative error'. It would seem that no criminal history check independent of the information provided in the form (which as noted was correct) was undertaken.

1. The reasons given in support of the refusal (29 November 2011) referred to two matters: his (pre-2000) criminal history; and information relating to an application made on 25 May 2011 for security guard and firearms licences in Queensland.

1. In the period 1990-1991 he committed the following offences: armed robbery (6 April 1990); armed robbery (12 November 1990); assault and maliciously inflict grievous bodily harm and assault (23 April 1991). These offences resulted in convictions in 1996 for the following sentences: two counts of armed robbery - minimum term of 1 year 5 months from 4 July 1998, following on from the sentences in relation to the assault and malicious harm offences, for which the combined sentences were for a period of 3 years and 9 months from 5 October 1994.

1. There can be no doubt that the criminal history is a serious one, but equally it was accepted in the Commissioner's reasons and by the Tribunal that he had not re-offended in any relevant way since.

1. The Commissioner's fresh concerns related to the way he had answered questions that formed part of the standard Queensland forms. They were expressed in a broader way than the equivalent questions in the New South Wales form noted above. The Queensland form asked whether the applicant had 'any' prior criminal convictions or convictions for offences of violence. He answered 'no' to that question. Further, in the section requiring the applicant's current residential address, he gave a Queensland address. In the Commissioner's opinion this was a token address.

1. The Commissioner's reasons asserted that he had given deliberately misleading answers. He said in reply that he considered that he was entitled to answer 'no' to the convictions questions on the basis that the convictions were spent. In relation to the giving of a Queensland address, his answer was that he filled out the form the way he had been advised by the training instructor. He said that the company for which he worked as a security guard in Sydney was interested in acquiring Queensland work, and he had been seeking to obtain Queensland qualifications for that purpose. The Commissioner rejected these explanations.

1. The Commissioner found that the appellant was not a fit and proper person to be granted such a licence. The licence was refused on that ground (see s 11(3)(a)). In addition or alternatively, the Commissioner found that it was not in the public interest for him to be granted such a licence, and relied on that ground (see s 11(5A)).

1. The appellant applied to the Tribunal for review of the decision.

Tribunal Decision

1. At hearing, further matters were raised against the appellant's application - his traffic record, and criminal intelligence reports from the Kings Cross area where he works as a security guard referring to associations he had with people of concern to the police. The Tribunal did not give any significant weight to the traffic record, and this aspect was not raised again at the appeal hearing. The associations' evidence was inexact, and needed to be balanced against some positive material as to interaction and assistance with the licensing police. Moreover, the present application related to use of a weapon in a sporting club context rather than a work context. The Tribunal did not give the associations' evidence great weight. The Tribunal's decision mainly focussed on the issues relating to the filling out of the Queensland form and the criminal history.

1. The Tribunal heard evidence from the instructor in relation to Queensland requirements as to the advice he had given NSW course participants on completion of the Queensland application form. (We understand from the material that the training course was itself conducted in NSW.) While the evidence was consistent with the appellant's account, it did not, in the Tribunal's view, relieve the appellant of his personal responsibility to give accurate information. Similarly, the Tribunal did not accept that he had any reasonable basis for concluding that his old offences were protected from disclosure by Queensland spent convictions law.

1. The Tribunal was satisfied that he had intentionally misled the Queensland authorities. The Tribunal concluded at [50]:

50 The Tribunal is satisfied, on the evidence in this matter, that the Applicant knowingly and/or recklessly provided incorrect or false answers on the application form.

1. It agreed with the administrator that he was not a fit and proper person to hold a pistol licence.

1. It concluded that it was also not in the public interest for him to be granted a licence. The Tribunal emphasised that it did not regard the criminal history as relevant to the character question (it accepted that he had not re-offended in a way that might bear on fitness), but it did regard the history as having continuing relevance to the public interest judgment.

The Appeal

1. A party is entitled to appeal to the Appeal Panel in relation to a question of law. The party may appeal in addition, or in the alternative, in relation to the merits of the decision, but such an appeal is subject to the grant of leave by the Appeal Panel: Administrative Decisions Tribunal Act 1997, s 113(2).

1. This appeal raised no question of law and is, in essence, a challenge to the merits of the Tribunal's decision. It is seeking leave to have the decision reopened and reconsidered. In that regard, the appellant attached to his submissions a barrister's opinion in which the barrister stated he did not consider that any questions of law arose in relation to the way the Tribunal dealt with the matter. The opinion accepted that the Tribunal had applied the relevant law, and dealt with the various matters raised against the appellant.

1. The author of that opinion did not appear at the hearing. Mr Constantin had with him a non-lawyer, Mr Anthony Brownlee. The Appeal Panel granted him leave to appear as agent on Mr Constantin's behalf. Mr Brownlee said that he had qualifications in law. He also conceded that no question of law was raised in relation to the Tribunal's decision.

1. The respondent, the Commissioner, submitted that in circumstances where no error of law was raised and demonstrated, it would be unusual to reopen the merits of a first instance decision, especially where the Tribunal had conducted a full hearing that had included oral evidence from the review applicant and other witnesses called to support his case.

1. As noted, the Tribunal's fitness finding rested solely on the deception involved in the filling out of the Queensland application form. We have some concern over a finding as to lack of fitness that is so narrowly based. While the appellant's account was self-serving and his understanding of his personal responsibilities for ensuring the accuracy and truth of an application misguided, minds might differ on whether a single event of this kind should lead to the very serious finding that a person is unfit to be granted a licence.

1. In making its 'public interest' calculus the Tribunal, in contrast to its approach on the fitness question, did take the criminal history into account. It weighed in the balance both the nature of the criminal history and the appellant's omissions in his Queensland licence application.

1. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at 25 the 'public interest' is:

. . . an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.

1. The making of a discretionary judgement on a matter of this kind can only be upset on error of law grounds if the judgement is so unreasonable or ill-founded that it infringes the well known principles of House v R [1936] HCA 40; (1936) 55 CLR 499 at 504-505. As noted earlier, no submission of this kind has been pressed by the appellant; and we do not consider that the reasons in this case breached those principles.

1. As previously indicated, on the material before the Tribunal, this was not a strong case of lack of fitness with its implicit conclusion as to the general character of the appellant. At the time of the pistol licence refusal, Mr Constantin had had a relatively long career as a licensed person in the industry. While the Commissioner put in evidence COPS system records of observations of his conduct and associations in the Kings Cross area, there was positive material about his co-operation with the licensing squad in Kings Cross which was not challenged.

1. The public interest case was a stronger one. It is a grave decision to arm any person with a pistol - even if its use is limited to sports shooting, and made subject to special conditions such as storage in club safes.

1. If a person has in the past committed serious acts of violence, that can not be wholly ignored. A judgement as to fitness focuses on character as now revealed. It may be that a conclusion could be reached that a person has rehabilitated himself, and should not be seen as unfit to be granted a pistol licence in the sense of lacking today a good character. The Tribunal would, it appears, have reached that view had it not been for the new information about the misrepresentations he had made in answering the Queensland application form in 2011.

1. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.

1. We agree with the Commissioner's submission that Appeal Panels should not lightly interfere with Tribunal decisions made after full consideration of all the evidence, especially where broad discretions are being exercised. This is a case where minds might differ as to the strength of the adverse finding going to his character. The criminal offences occurred 20 years ago. Nonetheless, we consider that, because of their features, they have continuing relevance, so far as the public interest is concerned, to the administration of firearms licensing, in particular, grant of pistol licence. As our reasons suggest, we doubt the strength of the conclusion as it relates to fitness, and we might have been inclined to affirm the Commissioner's decision only on the public interest ground.

Orders

1. Leave to appeal refused.

2. Appeal dismissed.

Decision last updated: 19 April 2013