Kocic v Commissioner of Police, NSW Police Force

[2013] NSWADT 146

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Kocic v Commissioner of Police, NSW Police Force [2013] NSWADT 146
Hearing dates:	On the papers
Decision date:	25 June 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial Member
Decision:	Under s.11(7) of the Firearms Act, the Respondent is able to tender, and the Tribunal can have regard to, the spent convictions and the conduct underlying those convictions, notwithstanding the provisions of the Criminal Records Act 1991.
Catchwords:	Firearms licence - fit and proper person - public interest - consideration of spent convictions
Legislation Cited:	Firearms Act 1996 Administrative Decision Tribunal Act 1997 Crimes (Sentencing and Procedure) Act 1999 Criminal Records Act 1991 Security Industry Act 1997
Cases Cited:	Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99 Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 Oliver v Commissioner of Police, New South Wales Police [2007] NSWADT 153 DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Category:	Interlocutory applications
Parties:	Nedzad Kocic (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel D Accoto (Applicant) Rothmores Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	123327

reasons for decision

Background

1. The Applicant, Nedzad Kocic, applied to the respondent for a firearms licence but his application was refused on the basis that he was not a fit and proper person and that the issue of a licence would be contrary to the public interest: s.11(3)(a) and s.11(7) of the Firearms Act 1996, respectively.

1. The Respondent, in reaching its decision, had taken into account the following:

• a conviction on 6 October 1988 for driving in a dangerous manner;
• a conviction on 8 December 1992 for goods in custody;
• a charge for stating a false name or address to police in respect of which the Applicant was, on 13 December 2000, found guilty but the court in its discretion ordered the charge be dismissed; and
• a charge for driving a vehicle when not licensed in respect of which the Applicant was, on 27 August 2008, found guilty but the court in its discretion ordered the charge be dismissed.

1. The Applicant has applied for review of the Respondent's decision. It was submitted that the Respondent's decision incorrectly relied upon material that was otherwise 'inadmissible' in respect of spent convictions: s.12(c)(ii) of the Criminal Records Act 1991 ('CR Act'). It was also submitted that the Applicant's criminal matters which had been dealt with pursuant s.10 of the Criminal (Sentencing Procedure) Act 1999, (or its predecessor s556A Crimes Act NSW) should also not be taken into account.

1. This decision relates to the preliminary issue of whether the spent convictions and the s.10 matters are properly to be taken into account in reaching a decision about whether the Applicant is a fit and proper person or whether the issue of the licence would be contrary to the public interest: s.11(3)(a) and s.11(7) of the Act, respectively.

RELEVANT LEGISLATION

Firearms Act 1996

1. Section 11 of the Act, in setting out restrictions on the issue of licences, provides, relevantly:

...

(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,

...

(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.

...

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

...

Criminal Records Act 1991

1. The objects of the CR Act are set out in s.3:

(1) The primary object of this Act is to implement a scheme to limit the effect of a person's conviction for a relatively minor offence if the person completes a period of crime-free behaviour. On completion of the period, the conviction is to be regarded as spent and, subject to some exceptions, is not to form part of the person's criminal history.

(2) The Act also provides for the effect of the quashing of a conviction and the pardoning of an offence.

1. Section 7 of the CR Act provides that all convictions of an individual person are capable of being spent unless otherwise prescribed. None of the offences alleged to have been committed by the Applicant are prescribed. Offences under the Firearms Act are capable of being spent.

1. Section 8 of CR Act deals with spent convictions:

(1) A conviction is spent on completion of the relevant crime-free period, except as provided by this section.

(2) A finding that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction is spent immediately after the finding is made.

...

(4) A finding that an offence has been proved, or that a person is guilty of an offence, and:

(a) the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond for a specified period, on participating in an intervention program or on other conditions determined by the court, or

(b) the releasing of the offender on probation on such conditions as the court may determine, for such period of time as it thinks fit,

is spent on satisfactory completion of the period or satisfactory compliance with the program (including any intervention plan arising out of the program) or conditions, as the case may require.

1. Section 12 of the CR Act provides:

If a conviction of a person is spent:

(a)the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and

(b)a question concerning the person's criminal history is taken to refer only to any convictions of the person which are not spent, and

(c)in the application to the person of a provision of an Act or statutory instrument:

(i) ...

(ii) a reference in the provision to the person's character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.

1. Section 16 of the CR Act provides:

(1) Section 12 does not apply to proceedings before a court (including the giving of evidence) or the making of a decision by a court (including a decision concerning sentencing).

...

1. "Court" includes a tribunal: s.4(1)

CONSIDERATION

1. The Respondent provided a bundle of documents under s. 58 of the ADT Act. Included in those documents was a copy of the Applicant's criminal and traffic history, including those matters referred to above. The Respondent accepted that those matters are "spent convictions" as defined in s.8(2) and s.8(4) of the CR Act but rejected any suggestion that under the Firearms Act those spent convictions or the conduct underlying those convictions cannot be taken into account.

1. The Respondent submitted that to do otherwise is inconsistent with the proper interpretation of the CR Act; has little or no regard for the Firearms Act; gives rise to an anomaly clearly not intended by Parliament when enacting the later legislation of the Firearms Act; and ignores the function of the Tribunal to make the correct and preferable decision having regard to the material before the decision-maker and any further material tendered in the proceedings.

1. The Applicant conceded that s.12 of the CR Act does not apply to proceedings before a court: s.16 CR Act. Under s.4 of the CR Act a court includes a "tribunal." The Applicant contended though that s.16 would only have effect in respect of a court sitting in first instance, and not on review as is presently the case; the Tribunal on review stands in the shoes of the original decision-maker and accordingly has the same restrictions placed on the decision-maker, and is required to make the correct and preferable decision based on the material before it, in accordance with the law: s.63 Administrative Decisions Tribunal Act 1997.

1. In Pearce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 99 the Tribunal held that for the purposes of the Security Industry Act 1997 convictions which had been spent could nonetheless be taken into account.

1. By contrast, in Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221 ('Stranges') the Tribunal found that not only could a spent conviction not be taken into account but the underlying conduct could also not be considered for the purpose of assessing if a person was of fit and proper character for the purpose of the licensing provisions of the Security Industry Act. In rejecting the approach in Pearce, Hennessey DP specifically found there to be no conflict between the Security Industry Act and the CR Act.

1. In Mahabir v Commissioner of Police, NSW Police [2006] NSWADT 358 ('Mahabir') the President considered the operation of the CR Act insofar as it affected 'convictions' for the purposes of s.13(1) of the Commercial Agents and Private Inquiry Agents Act 2004 ('Inquiry Agents Act'). In that case the President, preferred the approach in Stranges and found where a conviction or finding of guilt is spent pursuant to s.12 of the CR Act, the fact of that conviction or finding of guilt could no longer be relied on as disqualifying the person for the purposes of the Inquiry Agents Act.

1. In Oliver v Commissioner of Police, New South Wales Police [2007] NSWADT 153 ('Oliver'), a matter concerning the Firearms Act, Higgins JM (as she then was) stated at [24]:

In my opinion the reasoning in Mahabir and Stranges is correct and it is equally applicable to s.11(5)(b) of the Firearms Act, which provides for the mandatory refusal of a firearms licence where the Applicant has been convicted of an offence prescribed under that Act within 10 years of the application for the licence having been made. Again, where this section applies the respondent has no discretion and he must refuse the application for a licence on being satisfied of the fact of conviction and that the date of conviction was within a 10 year period from the application having been made. However, where a conviction is spent, s.12 of the CR Act operates so as to exclude that conviction for consideration as it is no longer a part of the Applicant's criminal record.

1. In DP v Commissioner of Police, New South Wales Police [2007] NSWADT 277 ('DP') at [44] Molony JM considered that under s.12(c) of the CR Act, there could be no reliance on the Applicant's spent conviction as a ground for revoking his firearms licence under the Firearms Act on the basis that he was not a fit and proper person. Further, in agreeing with the approach of Higgins JM in Oliver, Molony JM also considered that the conduct giving rise to the charges which led to the conviction also could not be considered in deciding whether the Applicant is a fit and proper person to hold a firearms licence.

1. I agree with the approach of Higgins DP in Oliver and Molony JM in DP that the proper interpretation of s.12(c) of the CR Act is that neither the Applicant's spent convictions nor the conduct underlying the charges giving rise to those spent convictions is to be considered in applying the 'fit and proper person' test in the Firearms Act. This is also consistent with the approach of Hennessey DP in Stranges.

Public interest

1. Having found that that the Applicant's spent convictions and the underlying conduct cannot be taken into account for the purpose of the 'fit and proper person' test (s.11(3)), it remained to be considered if the spent convictions or the underlying conduct can be taken into account in considering the 'public interest test' in s.11(7) Firearms Act.

1. The Applicant invited my attention to the Second Reading Speech with respect to the CR Act as making clear that the Act's purpose was to avoid people having to disclose spent convictions to employers, insurers, licensing bodies, and the like. Punishment for minor offences should not be indefinite. A person who has been given the benefit of a spent conviction has, in effect, it was submitted, had the offence and conduct to which the spent conviction flowed, erased from their past. If that be the case, it was submitted, then it would be inappropriate for the Respondent, and in its shoes, the Tribunal, to rely on the information in considering the 'public interest'. If spent convictions are considered for the purpose of 'public interest', then the Applicant continues to be punished for the offences indefinitely. This restates the conundrum discussed by Higgins JM in Oliver and Molony JM in DP.

1. While the Tribunal was not required to fully resolve the matter in Oliver, Higgins JM at [30] - [32] said:

30. In this application the relevant provision in the Firearms Act is s.11(7), which does not refer to an Applicant's conviction or fitness and propriety. It relates to the public interest and as explained below is a broad concept. Furthermore it is a concept that is to be considered in the context of the objects of the Firearms Act, which is public safety.

31. While s.12(b) and (c) of the CR Act does not have any direct application to s. 11(7) of the Firearms Act, it is difficult to see why s. 12, including paragraph (a) should be read down to have no application, particularly when Parliament has expressly provided for a mechanism whereby particular provisions of other legislation can be excluded from the operation of provisions in the Criminal Records Act, including s. 12. That mechanism has been used to exclude the operation of s.12 in respect to Applicants for admission to legal practice under the Legal Profession Act 1987 (see cl. 11 of the Criminal Records Regulation 2004). However, no similar regulation has been enacted in respect to the Firearms Act. This may of course be a legislative oversight.

32. It is also noted that the construction of s.12, as contended by the Applicant, gives rise to an anomaly in that the tribunal could not have regard to the conduct of the Applicant the subject of the 'offer to sell' offence yet it could have regard to the conduct that was the subject of the remaining charges that were dismissed.

1. In Ward v Commissioner of Police, NSW Police Service [2000] NSWADT 28 ('Ward'), at [33], Hennessy DP considered the Appeal Panel's discussion of the public interest test in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 under the Security Industry Act to be equally applicable to the Firearms Act. There the Appeal Panel at [25] noted:

The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range 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. The appellant appears to have adopted a similar view in formulating its reasons. Its argument, in effect, is that if its objections fail on character grounds, the matters as to character combined with the nature of the activity proposed to be engaged in are, at least in the case of the Class 1C licence application, sufficient to justify refusal in the public interest.

1. Section 12 of the CR Act does not deal at all with public interest. Relevantly, it excludes consideration of spent convictions in the consideration of a person's character or fitness. However, 'public interest' is a broader consideration. As the Appeal Panel said recently in Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33]:

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....

1. In DP Molony JM said that s.12 of the CR Act, on its very terms, does not apply to s.11(7) of the Firearms Act. He said at [45]:

On a literal reading of section 12 of the CR Act it has no application to section 11(7) of the FA Act or clause 19 of the regulation. DP has not been required by the Administrator to disclose information or answer question relating to his spent conviction. Rather the Administrator, as public authority with access to the records relating to the spent conviction, has had regard to that information in the discharge of its statutory functions under the FA Act. The public interest discretions found in both section 11(7) and clause 19 of the Regulation make no direct reference to either "a conviction" or to a "persons character and fitness" as required by section 12(c) of the CR Act. In Oliver Higgins JM expressed the opinion that having regard to the objects and scheme of the CR Act it is difficult to see "why section 12, including paragraph (a) should be read down to have no application, particularly when Parliament has expressly provided for a mechanism whereby particular provisions of other legislation can be excluded from the operation of provisions in the Criminal Records Act, including section 12." The source of that conundrum are the decisions which make it clear that considerations of fitness and propriety (which the CR Act specifically deals with) plus other identified public interest considerations, can found the exercise of the public interest discretions. Importantly, that source is not found in a "reference" in the FA Act or Regulation as required by section 12(c) of the CR Act. While I share the concerns expressed by Higgins JM I do not think, in the light of the plain words of section 12(c), they justify an interpretation which would have the effect of excluding the consideration of a spent conviction, and the conduct giving rise to it, as founding part of the reasoning underlying a public interest revocation. As the Appeal Panel made clear in Toleafoa, however, there must be more that the failed character and conviction grounds to justify that public interest.

1. I consider the approach by the Tribunal in DP to be persuasive. As the legislation has specified how the use of spent convictions is to be limited I see no justification under established principles of statutory interpretation to read a further limitation into s.12 of the CR Act.

1. I do not agree with the Applicant's submission that Stranges and Mahabir support the application s.12 of the CR Act to restrict s.11(7) of the Firearms Act. Neither of those cases specifically dealt with the public interest test. In Oliver, upon which the Applicant also relied, Higgins JM, at [31] observed that s.12 of the CR Act did not have any direct application to s.11(7) of the Firearms Act.

1. I note that Higgins JM speculated that the omission of the public interest test may have been a legislative oversight. On the other hand, it may not, and I am not prepared to make the assumption that it was.

1. The Applicant noted that s.13 of the CR Act prohibits the disclosure of any information concerning a spent conviction without lawful authority. The Applicant contended that as the Tribunal is not a law enforcement agency, then it must be an offence to disclose information relating to spent convictions to the Tribunal. If the Tribunal were a body to which the Police could disclose spent conviction information, it was submitted, then the Tribunal ought to either be included in the definitions of Law Enforcement Agency found in the CR Act and CR Regulations. I reject the Applicant's submission; the disclosure of the spent convictions to the Tribunal is not without lawful authority, as these matters are properly to be taken into account in consideration of the public interest test.

DECISION

1. Under s.11(7) of the Firearms Act, the Respondent is able to tender, and the Tribunal can have regard to, the spent convictions and the conduct underlying those convictions, notwithstanding the provisions of the Criminal Records Act 1991.

ORDERS

1. The matter is listed for a planning meeting on 27 August 2013 at 10.30am with a view to the matter being listed for substantive hearing.

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Decision last updated: 25 June 2013