Hardy v Commissioner of Police, New South Wales Police Force

[2006] NSWADT 167

CITATION:	Hardy v Commissioner of Police, NSW Police [2006] NSWADT 167
DIVISION:	General Division
PARTIES:	APPLICANT Shane Victor Hardy RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	043383
HEARING DATES:	15/12/2005
SUBMISSIONS CLOSED:	12/15/2005
DATE OF DECISION:	06/06/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Firearms Act - firearms licence - revocation of licence or permit - Firearms licence - revocation of licence or permit
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 Firearms Act 1996 Freedom of Information Act 1989 Migration Act 1958 (Cth)
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 360 Hart v Commissioner of Police, New South Wales Police Service [2003] NSWADT 114 McDonald v Director General of Social Security (1984) 1 FCR 354 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; 1 All ER 81 The King v The War Pensions Entitlement Appeal Tribunal and Anor: Ex Parte Bott (1993) 50 CLR 228 and Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139
REPRESENTATION:	APPLICANT M Rush, barrister RESPONDENT W Pisani, agent
ORDERS:	1. The applicant’s objection to material tendered by the Commissioner is over ruled; 2. The application is set down for further directions at 9.30 am on 14 June 2006

1 This is an application by Shane Victor Hardy (“the applicant”) seeking review of a decision of a delegate of the Commissioner of Police (“the Commissioner”) to revoke his category AB firearms licence. The grounds on which the Commissioner revoked that licence was as follows:

(a) the Commissioner considered that it was not in the public interest for the applicant to continue to hold his licence: see ss.24(2)(a) of the Firearms Act 1996 (“the Firearms Act”) and clause 17 of the Firearms (General) Regulation 1997 (“the Firearms Regulation”); and

(b) the Commissioner was not satisfied that the applicant had a genuine reason for possessing or using the firearm: see ss.24(2)(a) of the Firearms Act and s.69 of the Firearms Act.

2 The matter was listed for hearing on 15 December 2005 and at the commencement of that hearing counsel for the applicant objected to the material filed and served by the Commissioner in respect to this application. The parties had agreed that the Tribunal should determine, as a preliminary point, the applicant’s objections to the admissibility of the material in question as it would determine how the applicant would proceed with his application. If the Tribunal did not uphold the applicant’s objection and accepted the Commissioner’s material as evidence, the applicant proposed to call numerous witnesses that reside in northern New South Wales to give evidence about the incidents that were alleged in the material. That the matter should proceed on this basis was agreed to by the Tribunal, differently constituted, at a directions hearing on 6 December 2005.

3 The material objected to were certain documents that the Commissioner had before him when he made his decision to revoke the applicant’s firearms licence. These documents were copies of 10 COPS event reports recording incidents that had come to the attention of police during the period 20 May 2000 to 29 July 2005 and which involved the applicant. Included in these reports were allegations of assault by and of the applicant and various apprehended violence orders (“AVO”) made against and on behalf the applicant. The other document that was objected to was the applicant’s criminal history, which included a conviction for an offence of stealing in 1971, a conviction for an offence of behaving in an offensive manner (street fighting) in 1974, a conviction for a PCA offence in 1974, a charge for an offence of common assault on 21 May 2000 and a charge of an offence of assault occasioning bodily harm on 5 January 2004. In respect to the charges, the first charge was recorded as having been dismissed and the second charge was recorded as having been withdrawn and dismissed.

4 There was no suggestion that the COPS event reports had come into existence other than in the ordinary or usual course of policing where all incidents reported to or actioned by police are routinely entered into the police computer data base, known as COPS. Nor was there a suggestion the applicant’s criminal history incorrectly recorded what the applicant had been charged with over the years and how those charges were dealt with.

5 There were also two emails, which were objected to by the applicant. These emails were relevant to the second ground on which the Commissioner revoked the applicant’s firearms licence: i.e. no genuine reason. The Tribunal made rulings in respect to these at the hearing on 15 December 2005 and they have not been considered further in these reasons for decision.

Applicant’s contention

6 The applicant submitted that on the principles set out by Evett J in The King v The War Pensions Entitlement Appeal Tribunal and Anor: Ex Parte Bott (1993) 50 CLR 228 and Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 that the Tribunal would err if it accepted this material as evidence. The basis on which that submission was made was that the allegations as contained in that material was hearsay that could not be tested through cross-examination as the Commissioner was not proposing to call those who had made the allegations. That is, the applicant contended that the material was of no rational probative force and to allow the material into evidence would amount to denying the applicant procedural fairness, which was a denial of natural justice.

7 The applicant also contended that where the Commissioner was asserting a particular fact that he had an evidential onus to establish that fact and it was not for the applicant to disprove that which had been asserted.

Respondent’s contention

8 On the basis that the Tribunal was not bound by the rules of evidence, the Commissioner submitted that the material was relevant and therefore there was no basis to reject it. The Commissioner went on to say that even though the material was relevant it remained a matter for the Tribunal to determine what weight was to be given to the contents of the material, having regard to all the material before it. The Commissioner also pointed to s.11(5A) of the Firearms Act in which Parliament has expressly provided for the Commissioner to have regard to “any criminal intelligence report or other criminal information” for the purpose of determining whether a person is a risk to the public safety or whether the issuing of a licence would be contrary to the public interest. This provision the Commissioner pointed out equally applied to the revocation of a licence: see s.24(2)(a) and 24(2)(d) of the Firearms Act and cl.17 of the Firearms Regulation.

Consideration

9 For the reasons set out below, in my opinion, the applicant’s objection is misconceived and should be rejected and the matter should be set down for further directions so that the hearing of the application can proceed in the usual way.

10 There are two aspects to the applicant’s argument. The first relates to the nature of these proceedings and whether there is an onus of proof, be it evidential or legal. The second relates to the rules of natural justice.

Nature of proceedings

11 As stated in the introductory paragraph, the applicant’s application is an application for a review of an administrative decision pursuant to 55 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”). That is, it is a review of the merits of the administrator’s decision, where the Tribunal sits in the shoes of the administrator and determines whether the administrator’s (in this case the Commissioner’s) decision is the correct and preferred decision by having regard to the material before it, including “any relevant factual material” and any applicable law: see s.63 of the ADT Act. In making its determination, s.73 of the ADT Act provides that the Tribunal is not bound by the rules of evidence and “may enquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: see s.73(2).

12 It is well established that proceedings such as these are non adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings: see McDonald v Director General of Social Security (1984) 1 FCR 354. In McDonald at page 356 Woodward J said the following:

“The first point to be made is that the onus (or burden) of proof is a common law concept, developed with some difficulty over many years, to provide answers to certain practical problems of litigation between parties in a court of law. One of the chief difficulties of the concept has been the necessity to distinguish between its so-called ‘legal’ and ‘evidential’ aspects. The concept is concerned with matters such as the order of presentation of evidence and the decision a court should give when it is left in a state of uncertainty by the evidence on a particular issue.

The use outside courts of the legal rules governing this part of the law of evidence should be approached with great caution. This is particularly true of an administrative Tribunal which, by its statute ‘is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’ (AAT Act s.33(1)(iii)).

Such a Tribunal will still have to determine practical problems such as the sequence of receiving evidence and what to do if it is unable to reach a clear conclusion on an issue, but it is more likely to find the answer to such questions in the statutes under which it is operating, or in consideration of natural justice or commonsense, than in the technical rules relating to onus of proof developed by the courts. However these may be of assistance in some cases where the legislation is silent.

Whether the principles adopted by such a Tribunal, arising from these various considerations, are appropriately dealt with under the heading ‘Onus of proof’, becomes a matter of choosing labels. It would probably be more convenient to avoid using that expression in cases such as the present.

…

It is possible to imagine a case where the act which the administrator is applying places requirement or onus on one or other of the parties to an issue to establish a particular state of facts on which the administrator’s decision would be based. …”

13 In the same decision at page 366 Northrop J said the following:

“… the Tribunal is not bound by the rules of evidence. It has before it all material that was before the person who made the decision under the Act and which is the subject of the review before the AAT. Additional material may be placed before the AAT. As a matter of convenience, the Director normally appears to assist the Tribunal, but the Director is not to be treated in the same way as a party to proceedings before a Court. …

It is equally important that in reviews by the AAT of decisions by administrative bodies such as the Director General, or his delegate, in which there were no adversary parties, the AAT received the assistance of persons acting on behalf of the administrative body. …”

14 And at page 368-369 Jenkins J said the following:

“… a court waits upon the parties to litigation to tender their proof. When the parties differ as to which shall go first into evidence, the difference is resolved by determining upon which lies the burden of proof. (Citations omitted). But the administrative decision maker will commonly inform himself of the fact by his own enquiries, as well as receiving such proofs as the individual citizen and those who may be authorised to oppose the citizen’s interest choose to place before him. And he will not ordinarily be free, as a court is ordinarily free, to determine a matter against the party on who lies the onus of proof, and who fails to offer any proof in discharge of the onus, without further enquiry. When the party to litigation on whom the onus of proof of an issue lies has concluded his evidence, the court may be called upon by the other party to determine the question of law whether that evidence can support a verdict or finding for him on whom the onus lies. Except by special legislative direction no administrative decision maker could be so constrained. In many cases subject to administrative decision there is in any event no other party in controversy with him on whom the onus may be said to lie.

There is, however in my opinion a dilemma in which either a court or an administrative authority determining rights or liabilities may find itself, for the resolution of which the same principles are applicable by each Tribunal. Either Tribunal may find itself unpersuaded either that the circumstances exist or that it does not exist. (The same may be said of a past or a future circumstance.) The court or the administrative authority will determine, by reference to the substantive law, whether it is the existence or non existence of the circumstances which is determinative of the question for decision. …”

15 Accordingly, subject to a contrary statutory provision, in making his application for review of the Commissioner’s decision (“the reviewable decision”) the applicant does not take responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case: see Hart v Commissioner of Police, New South Wales Police Service [2003] NSWADT 114 at [53]. As there is no contrary statutory provision the abovementioned principles set out in McDonald apply (c.f. s. 61 of the Freedom of Information Act 1989 (NSW)).

16 In my opinion the abovementioned principles equally apply to the concept of a legal onus and an evidential onus. That is, subject to an express statutory provision to the contrary, in a merits review proceeding, there is no evidential onus, as this concept is understood in the adversarial context, on either party to the proceedings. If the applicant’s contention were accepted this would mean that the Commissioner would first and foremost be required to produce evidence, other than hearsay evidence, that establishes the allegations contained in the COPS event reports and if he fails to do so the applicant appears to contend he need do nothing and must succeed in his application. To my mind this is no different to contending that the Commissioner bears an onus of proof, which he clearly does not.

17 Even though the Tribunal is not bound by the rules of evidence it is well established that it must act judicially in accordance with the rules of procedural fairness/natural justice. It is also well established that in making findings of fact the Tribunal must do so to the civil standard of proof, on the balance of probabilities and it must do so by applying the principles set out by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 360 at 361-362.

Rules of Natural Justice

18 Although the rules of evidence do not apply to these proceedings, the Tribunal is required to act judicially and in accordance with the rules of natural justice. These rules as pointed out by Lord Diplock LJ in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456; 1 All ER 81 at 487 can conveniently be reduced to two rules. One rule is that the Tribunal must base its decision on evidence and the second rule is that it must fairly listen to the contentions of all parties who are entitled to be represented at the hearing. He then went on to say the following about the first rule:

In the context of the first rule, ‘evidence’ is not restricted to evidence which would be admissible in a court of law. For historical reasons, based on the fear that juries might be illiterate would be incapable of differentiating between the probative values of different methods of proof, the practice of the common law courts has been to admit only what the judges regarded as the best evidence of any disputed fact, and thereby to exclude much material which, as a matter of common sense, would assist a fact finding Tribunal to reach a correct conclusion: cf Myers v Director of Public Prosecutions ([1964] 3 WLR 145).

These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material, which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.

19 In Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 159 Deane J (with whom Evatt J agreed) said that he agreed with the conclusion of Diplock LJ “that it is an ordinary requirement of natural justice that a person bound to act judicially “base his decision” upon material which tends logically to show the existence or non existence of facts relevant to the issue to be determined” and not “on mere suspicion or speculation”. However, he went on to say that the requirements of natural justice may vary according to the nature of the inquiry. In this regard he had previously said at 157 the following:

There is no universally applicable definition of the requirements of the rules of natural justice which must, in the absence of legislative provision to the contrary, be observed by a statutory empowered to make or to review decisions affecting the rights, property or legitimate expectations of a person. … “The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject matter that is being dealt with, and so forth (citation omitted)”. …

20 The decision the subject of review in Pochi was a decision made under s.12 of the Migration Act 1958 (Cth) to deport Pochi, who had resided in Australia for 20 years with his family. In 1977 Pochi had been convicted of an offence of supplying Indian Hemp and this gave rise to the decision to deport him. On review of that decision before the AAT, the Tribunal heard evidence from the Minister in the absence of Pochi. That evidence was to the effect that Pochi and others, who were immigrants from the same area of Italy, were suspected as being involved in large scale growing of marihuana. The AAT in setting the Minister’s decision aside held that the conduct relied on in making the deportation order had to be proved and not merely suspected.

21 Although the decision of Ex parte Bott also involved a question of procedural fairness it centred around the Tribunal in question prohibiting the appellant/applicant from questioning a medical expert that had been called to give evidence.

22 The application that is before this Tribunal is very different to that which was before the AAT in Pochi and Bott. First, the material that has been put before the Tribunal by the Commissioner are documents that have come into existence in the ordinary course of policing. Second, the assertions contained therein, although hearsay, are relevant to the application. Third, the documents have been made available to the applicant, who will be given every opportunity to respond to those matters asserted in these documents. And finally, the legislative provisions in the Firearms Act differ significantly to those contained in the Migration Act 1958 (Cth). For current purposes it is only necessary to refer to the principles and objects of the Firearms Act which are contained in s. 3 and which expressly provide that “firearm possession and use” is a “privilege that is conditional on the overriding need to ensure public safety.” That is, public safety is paramount.

23 In my opinion, the applicant’s contentions based on the principles in Pochi and Bott are premature. Neither decision related to the question of excluding or rejecting material that was before the Tribunal in question. What was in issue was whether the Tribunal erred in the findings it had made on the hearsay or untested evidence. This application has not progressed that far. However, it should be progressed and it should do so in the usual way.

Conclusions

24 For the reasons set out above, the Tribunal orders:

1. The applicant’s objection to material tendered by the Commissioner is over ruled.

2. The application is set down for further directions at 9.30 am on 14 June 2006.