Stiller v Commissioner of Police, New South Wales Police Service (GD)

[2003] NSWADTAP 41

Appeal Panel - Internal

CITATION:	Stiller v Commissioner of Police, New South Wales Police Service (GD) [2003] NSWADTAP 41
PARTIES:	APPELLANT Michael Stiller RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	039008
HEARING DATES:	03/04/2003
SUBMISSIONS CLOSED:	07/12/2003
DATE OF DECISION:	09/18/2003
DECISION UNDER APPEAL:	Stiller v Commissioner of Police, New South Wales Police Service [2003] NSWADT 7
BEFORE:	O'Connor K - DCJ (President); Conley J - Judicial Member; Mapperson K - Member
CATCHWORDS:	leave to extend to the merits - no question of law identified
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023206
DATE OF DECISION UNDER APPEAL:	01/15/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes (Local Courts Appeal and Review) Act 2001 Firearms Act 1966 Justices Act 1902
CASES CITED:	Stiller v Commissioner of Police, New South Wales Police Service [2003] NSWADT 7
REPRESENTATION:	APPELLANT In Person RESPONDENT C Capper, solicitor
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 This appeal relates to the Tribunal’s decision in Stiller v Commissioner of Police, New South Wales Police Service [2003] NSWADT 7. There the Tribunal affirmed the Commissioner’s determination made under the Firearms Act 1996 (the Act) to revoke the appellant’s Class H firearms licence (pistol).

2 The Commissioner’s position is that the licence was issued in error, and that had his office known of a particular fact it would never have been issued. The particular fact was that at the time the licence was granted the applicant, Mr Stiller (the appellant in this appeal) was not entitled to a licence. This was because he had been the subject of an apprehended violence order (AVO). The Commissioner’s power to revoke a licence is discretionary, but the Commissioner’s view was that the revocation discretion could only be exercised in one way in a case where the licence was issued in error. This flowed from the fact that he was obliged to refuse to issue a licence if an AVO had been in force against a person during the last 10 years. The Commissioner also relied in his notice of revocation on the failure of the applicant to disclose a material fact. The Tribunal affirmed the Commissioner’s decision on the basis of the main ground given by the Commissioner. As to the non-disclosure on the original application for the licence, it held that it was inadvertent.

3 Pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) an appeal may raise a question of law, and, by leave of the Appeal Panel, may be extended to the merits.

4 The AVO was made against Mr Stiller (born 4 July 1978) on 4 April 1997 when he was 18 years old for a period of 2 years ‘not to engage in conduct which intimidates the protected person [the next-door neighbour, DSW] or any person with whom the protected person has a domestic relationship, and not to stalk the protected person’ followed by specific terms. One of the terms extended the order to DSW’s spouse and two children. He was one of the children in a family that lived next door to DSW’s family.

5 He obtained the firearms licence on 9 March 2001. It was revoked by the Commissioner when the AVO came to his attention. The revocation date is 24 March 2002. Section 24(2)(a) provides that:

‘(2) A licence may be revoked:

(a) for any reason for which the licensee would be required to be refused a licence of the same kind,’

6 Section 11(5)(c) provides:
‘ 11. General restrictions on issue of licences

(5) A licence must not be issued to a person who: …

(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)…’.

7 The hearing of the appeal took place on 3 April 2003. The Appeal Panel examined the reasons for decision, the contents of the notice of appeal and proceeded to hear submissions for the Commissioner from Mr Capper. The Registry was contacted by Mr Stiller later that morning. It would appear that there was some confusion about the start time.

8 Mr Stiller was informed that the Appeal Panel had adjourned part heard. The Appeal Panel had noted that the AVO was not in evidence and wished to satisfy itself as to the existence of this fundamental fact. The secondary material on which the Commissioner had relied was in evidence, but given the importance of the AVO to Mr Stiller’s case it was desirable that it be proved directly. The Appeal Panel had given the Commissioner seven days to produce direct evidence of the terms of the AVO. Mr Stiller sought the opportunity to make written submissions and that was granted. Those submissions were received on 6 July 2003.

Background
9 As noted above, the DSW family were next door neighbours of the Stiller (two surnames were in use in the family, Stiller and ‘Z’). The Tribunal found that Mr Stiller had no involvement whatsoever in the dispute that had arisen between other members of his family and the DSW family. The Tribunal gave the following account:
‘10 The circumstances of the AVO were that Mr Stiller's mother and 14 year old sister had ongoing unwelcome attention from a neighbour. Eventually, the police applied for an AVO on behalf of Mr Stiller's sister. Mr Stiller was never part of the ongoing dispute with the neighbour. However, after a request from the neighbour and eighteen months of legal proceedings, his sister's solicitor suggested that all parties, including Mr Stiller, sign consenting AVOs. Mr Stiller agreed to that course and was not advised either by the solicitor or the Magistrate that there would be any adverse consequences as a result of such an agreement.

11 When Mr Stiller applied for a Category H firearms licence on 10 January 2001, he did not disclose that he had been subject to an AVO. He says that he understood the question to apply only to current AVOs, and not to an AVO that had expired. In addition he said that because he had consented to the AVO he was not the subject of an AVO.’

10 Grounds of Appeal. There are three grounds of appeal put forward by Mr Stiller in his notice of appeal.

11 This first ground of appeal states that ‘the Commissioner of Police was fully aware of the Apprehended Violence Order on his Police Application on or around November 1999’. This is a reference to attempts made by Mr Stiller to enter the Police Service; his late father having been a police officer. The point was put essentially on the basis that the Tribunal failed to take into account a relevant consideration. Mr Stiller indicated that he felt it was not necessary to reveal the AVO, as his AVO had expired two years before he filled out the application form. He also indicated that it was not his intention to mislead in his answer to the Commissioner of Police. The question asked on the application form states:

‘Have you in New South Wales or else where, within the last 10 years, been the subject of a Family Law or Domestic Violence Order (other than an order which was revoked)?’
12 Whilst the Tribunal below did not expressly address the contents of the police entrance application, the Tribunal did accept that Mr Stiller inadvertently answered the question. The second ground of appeal is that ‘my solicitor or the court never explained my rights’. As recounted in the evidence by the Tribunal below, this factor was taken into account. Mr Stiller was 18 years old at the time the AVO was entered into and this was done on the advice of his solicitor. This factor was considered by the Tribunal: see para [10] of its reasons.

13 The third ground of appeal is one that essentially seeks to reagitate the facts of the case. Mr Stiller recounts the circumstances which led to the issuance of the AVO. He states that his sister was 14 years old at the time of the Court hearing in April 1997. The police took original action on behalf of his sister against the next door neighbour. Mr Stiller says that he signed the AVO in support of his family, and contends that he was never involved with the police action.

14 The evidence, accepted by the Tribunal below, was that Mr Stiller’s former next door neighbour had been charged with assault arising out of the events. The exchange of AVOs between the two families was seen as a means of defusing a tense situation. Mr Stiller’s complaint that he was remote from the events giving rise to the AVO is confirmed by a letter dated December 1999 from Mr Stiller’s solicitor, Mr Hutchinson. Mr Hutchinson rendered advice to the Commissioner at that time in support of the application to enter the police service that Mr Stiller was pursuing. Mr Hutchinson said that discussions with the solicitor for the DSW family, and to avoid the neighbours having to give evidence in Court that the parties had agreed to enter in mutual AVOs on a no admission basis.

15 To use a colloquialism, Mr Stiller basically ‘took the rap’ for his family and signed the AVO; but DSW then failed to fulfil his part of the bargain, and never signed an AVO.

16 In this regard, Mr Stiller gave the following additional information to the Appeal Panel. The AVO signed by Mr Stiller contains the annotation:

‘Court notes the undertaking of adult persons in need of protection [Mr and Mrs DSW] that they will restrain their children [R and M] from any conduct referred to in paragraph 1 directed towards any member of the Stiller & [Z] families.’
17 Mr Stiller also provided the Appeal Panel with the corresponding AVO to be given by DSW and his wife protecting his sister, BZ, which included restrictions on Mr and Mrs DSW. The AVO has not been signed by either of Mr and Mrs DSW. Mr Stiller, understandably, feels aggrieved that Mr DSW did not sign an AVO as was agreed to. This omission does not, as we see it, affect the validity of the AVO that bound Mr Stiller.

18 Mr Stiller feels an understandable sense of grievance. The AVO has had a profound impact on Mr Stiller’s desired career path. He has been unable to pursue a career in the Police Service. He also referred to the enjoyment he gets out of belonging to the rifle club. He is deprived of that, and he can not work in the security industry in which he is interested. As a consequence of the AVO he is effectively barred for 12 years from the making of the order. Mr Stiller noted that his sister is now working with him in Sydney and holds a security licence in addition to a firearms licence.

19 It might be thought that as the actual power exercised by the Commissioner is expressed to be discretionary, then this is the kind of case where the discretion should be exercised favourably. The difficulty is that the rule that governs the issuance of licences does not permit a discretion to be exercised. If a person has been subject to an AVO (within the relevant period), then no licence is to be issued. It would, we consider, be a perversion of the licensing system if a person could get a licence in error and then because of their good conduct and character while holding the licence be allowed to retain it. People who had admitted an AVO in their application or the AVO had been discovered prior to the Commissioner making a decision, and then were refused, would rightly complain that they were being discriminated against if the Commissioner did not revoke the other person’s licence. So while the Commissioner’s power is, on its face, discretionary it must, we consider, be exercised as though it were mandatory - reflecting the basic policy of the Act.

20 This appeal highlights the unreasonable and disproportionate way administrative powers can operate when, in effect, no discretion is given to allow for exceptional or special circumstances. In this instance a discretion to accept an application affected by a disqualifying factor could have resolved the problem that the case highlights.

21 Mr Stiller has not identified an error of law. As there is no error of law, it is not appropriate or proper for us to give leave to extend this appeal to the merits.

22 Other options: The only option that Mr Stiller may have is to seek to have the AVO reopened and nullified. The Appeal Panel sought advice from Mr Capper at the hearing whether there were any other possible means of redressing Mr Stiller’s situation. There was mention of s 100G of the Justices Act 1902, now repealed but in force at the time of the AVO, under which the Attorney General may refer matters to the Local Court for reconsideration. The Crimes (Local Courts Appeal and Review) Act 2001, which now governs Attorney General’s referrals contain a narrower right of review (convictions or sentences whereas the Justices Act 1902 also referred to orders). This is a matter on which Mr Stiller may wish to seek advice.

Orders

Appeal dismissed.