Kocic v Commissioner of Police, NSW Police Force

The case of *Kocic v Commissioner of Police, NSW Police Force* was heard in the Court of Appeal of New South Wales, with Basten and Leeming JJA and White J presiding. The dispute concerned the Commissioner of Police's refusal to issue a firearms licence to the applicant, Mr Kocic. The refusal was based, in part, on the applicant's criminal record, specifically a conviction that had become a "spent conviction" under the *Criminal Records Act 1991* (NSW). The applicant argued that the Commissioner was prohibited by the *Criminal Records Act* from considering this spent conviction when assessing his suitability for a firearms licence.

The central legal issues before the Court of Appeal were whether the *Criminal Records Act 1991* (NSW) precluded a decision-maker, such as the Commissioner of Police, from considering the underlying conduct of a "spent conviction" when determining if an applicant is a "fit and proper person" for a firearms licence under the *Firearms Act 1996* (NSW). Furthermore, the court had to consider whether spent convictions could be taken into account when assessing whether issuing a licence would be "contrary to the public interest" as contemplated by the *Firearms Act*. This involved an examination of potential inconsistencies between the two Acts and whether the *Criminal Records Act* impliedly repealed any provisions of the *Firearms Act*.

The Court of Appeal reasoned that the *Criminal Records Act* was primarily an interpretative provision, designed to prevent the disclosure and consideration of spent convictions in most circumstances. However, the *Firearms Act* contained substantive provisions that required the Commissioner to assess an applicant's fitness and the public interest. The court held that the provisions of the *Firearms Act* were not implicitly repealed by the *Criminal Records Act*. Instead, the court found that the *Criminal Records Act* did not prevent the Commissioner from considering the underlying conduct of a spent conviction for the purposes of determining whether an applicant was a fit and proper person or whether issuing a licence would be contrary to the public interest. The court concluded that the *Firearms Act* imposed a positive obligation on the Commissioner to consider these matters, and this obligation was not displaced by the *Criminal Records Act*.

The Court of Appeal granted leave to the applicant to appeal but ultimately dismissed the appeal. Leave was also granted to the respondent to cross-appeal, which was also dismissed. There were no orders as to the costs of the appeal and cross-appeal.