Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55

Appeal Panel - Internal

CITATION: Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55 APPELLANT PARTIES: Commissioner of Police, New South Wales Police RESPONDENT Adam Michael Mercer FILE NUMBER: 059010 HEARING DATES: 18/05/2005 SUBMISSIONS CLOSED: 05/18/2005 DATE OF DECISION: 11/04/2005

Mercer v Commissioner of Police, New South Wales Police (No 2) [2005] NSWADT 17 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Molony P - Judicial Member; Antonios Z - Non Judicial Member CATCHWORDS: procedureal fairness - premature decision MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 033337 DATE OF DECISION UNDER APPEAL: 04/04/2005 LEGISLATION CITED : Firearms Act 1996 CASES CITED: Mouwad v Commissioner of Police, New South Wales Police Service [2002] NSWADT 226 APPELLANT P McLaughlin, solicitor, NSW Police REPRESENTATION: RESPONDENT G Sundstrom of counsel instructedby T Morgan, Woodgate Morgan ORDERS: 1. Appeal allowed; 2. Decision under review set aside, except as to its determination of the preliminary point (estoppel); 3. Application remitted to the Tribunal, differently constituted, to be redetermined

REASONS FOR DECISION 1 This is an appeal by the Commissioner against a decision of the Tribunal in relation to an application for review of a decision made pursuant to the Firearms Act 1996 to revoke a firearms licence. The Tribunal set aside the Commissioner's decision revoking the applicant's category ABH licence. 2 The Commissioner objects to the substantive reasoning in the decision. He also objects on the basis, in essence, that the decision was premature and, as a consequence, he was denied procedural fairness. 3 It is clear in our view that the second ground of appeal is made out. We have reviewed the transcript, and the Tribunal clearly erred in going on to deal with the substantive basis of the application. The Tribunal stated at the end of its last day of hearing that it was going to reserve its decision on a preliminary matter (the 'estoppel' issue). It stated that it would give directions for the next stage of the matter if the preliminary matter was not resolved in favour of the applicant. In its decision it did deal with the preliminary matter. It resolved it against the applicant. At that point it should have reconvened its inquiry. Instead it went on to make a substantive decision. 4 In reaching this conclusion we have had regard in support of the Tribunal's decision, to the submissions of the respondent (the applicant before the Tribunal), filed 28 June 2005. (The applicant was given leave by the Appeal Panel to file written submissions after the hearing.) They are not, in our view, consistent with the transcript to which we refer below. (1) Premature Decision 5 The two days of hearing before the Tribunal were taken up with the question of whether the Commissioner was 'estopped' from revoking the licence because of an assurance to restore the licence said to have been given by the police prosecutor at the conclusion of local court proceedings at Penrith where two firearms charges brought against the applicant had been dismissed. This is the preliminary question that the Tribunal agreed to determine. It did not over those two days (27 May 2004 and 23 September 2004) complete its examination of the material upon which the Commissioner relied in making his decision to revoke the applicant's licence. 6 The licence had been suspended a few days after an incident at the applicant's home, attended by police, on 22 October 2002. Charges had been laid against the applicant relating to the use of firearms. Those charges were dismissed at Penrith Court on 3 September 2003. The evidence of Mr Morgan, the solicitor for the applicant, is that he received an assurance from the police prosecutor that as the charges had been dismissed the licence would be returned. Instead what next happened was that on 11 September 2003 the applicant received notice of revocation of the licence. The reasons referred to evidence that had formed part of the proceedings at Penrith. The decision was affirmed on internal review, with fuller reasons being issued which referred to evidence first collected in connection with the Penrith proceedings and additional matters. 7 The following exchange between the Tribunal and Mr McLaughlin, for the Commissioner, occurred after submissions as to whether one arm of a government agency (here the Firearms Registry) can be bound by a representation or promise made by another arm of a government agency (here a prosecutor belonging to the prosecutions section of the Police Service). Mr McLaughlin enquires as to whether this matter will be the subject of a decision handed down in writing. MCLAUGHLIN: That would be a decision that's given in writing, Sir. MEMBER: Yes. After much deliberation. MCLAUGHLIN: I think that might be the appropriate action then decide what flows out of that, where we go, and set it down for further directions or hearing. MEMBER: I don't want to incur any more costs than absolutely necessary, so what I'll do is do a decision and then try and get between you some agreement on directions that should be made or where we go from here or if the matter has ended or – MCLAUGHLIN: We can liaise amongst each other as to what the respective --- MEMBER: Yes, see rather than come back for a directions hearing, if we can do it on paper – then -- SUNDSTROM (counsel for applicant): We could probably do that between the phone and some fax materials. MCLAUGHLIN: Yes MEMBER: And if I find that there is estoppel by conduct then we don't need to come back at all, presumably. 8 There is then discussion of getting a transcript of the proceedings from the Penrith Local Court, involving Mr McLaughlin and the Member. 9 It is plain, we think, that this was not meant to be the conclusion of the matter. Clearly Mr McLaughlin was expecting the Tribunal to resume if it disposed of the estoppel issue adversely to the applicant. 10 There is nothing elsewhere in the transcript to suggest that the Tribunal had completed its inquiry into the application. Only a small amount of evidence had been received as to the events of 22 October 2002. Mr McLaughlin had pressed the view on a number of occasions that at least one of the charges at Penrith had been lost on a technicality. He was of the view that the statements made by the attending police retained probative value, and were relevant to these proceedings. The Commissioner should, clearly we think, have been given the opportunity to canvass that material before the Tribunal, produce the transcript and if desired produce the attending police themselves. 11 It is obvious that the Tribunal's decision must be set aside. (2) Other Matters 12 The Appeal Panel has examined the transcript, and notes with some concern the path these proceedings have taken to date. Two days of Tribunal time has been consumed with the question of whether the Commissioner is affected by an 'estoppel' because of the assurance it is said the police prosecutor gave at the Penrith Court after the charges were dismissed. As noted this was the preliminary question. The Tribunal dealt with this matter at paras [5], [7], [8] and [14], and concludes at [18]: '18 Mr Mercer largely relies on estoppel arguments to prevent the Commissioner taking action in relation to his licence. In my view this argument is misconceived. On the evidence before me I am not satisfied that the discussions between Mr Morgan and Sergeant Lind amounted to an undertaking that no future action would be taken in relation to Mr Mercer's firearms licence. In any event there are sound public policy reasons why such an undertaking should not be binding on the Commissioner. For reasons that will become apparent I need not consider this issue further.' 13 We endorse the Tribunal's view that there are sound public policy reasons standing in the way of giving effect to any such promise or assurance. This case has, in our view, nothing in common with the kind of cases involving the making of official representations or the giving of assurances, surveyed in Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed. 2004) at 423 ff. 14 In this instance, the statements made by attending police on the occasion of 22 October 2002 contained allegations against the applicant of great seriousness in terms of the public safety objectives of the Firearms Act. The allegations were that he had been affected by alcohol, had a firearm in the lounge room at the time, and that there was a 12 year old child in the vicinity. They also alleged that he had other firearms in the house which were unregistered and not properly stored. 15 We find it difficult to understand how the 'estoppel' issue could have consumed the time it did. We can not see how a prosecutor's promise (if proven, and it was not in this instance) could ever bind the Commissioner in respect of the discharge of his responsibilities under the Firearms Act. The important public safety objectives that the Firearms Act serves are well known. It could never be the case, we think, that the Commissioner could allow the public safety objectives of the Act to be frustrated by a promise made by one of his officers. 16 In the course of reviewing the (uncorrected) transcript we have noted the following statements made by the solicitor for the applicant: At page 10, 27 May 2004: (Mr Morgan is being questioned by Mr Sundstrom, counsel for the applicant, and is referring to a conversation he said that he had with Constable Martignago at the court house.) A. I do recollect saying to Constable Martignago – I can't remember exactly bit [but(?)] it was words to the effect that he was concerned about my client possessing a firearms licence and I recollect my reply to him was, and I think I called him Andrew, that it is not the licensed and registered firearm owners in society that should be of concern to members of the service but rather those individuals who have unlicensed possession of firearms. I think it was an attempt to reassure him concerning my client's virtue. Page 14, 27 May 2004 (Mr Morgan is being questioned by Mr Sundstrom.) A. As I indicated earlier, never prior had the Registry sought to suspend or revoke anybody's licence after a plea of not guilty had been successful or a prima facie case had not been reached … Page 15 Q. Obviously, it was an action open to them to not hand back his firearms licences, correct? A. My experience was, when a recommendation from the local officers was in the client's favour, the Registry had never failed. I relied on the officer's word, as I did at the time. Page 20 A. A prosecutor's word is his bond in my previous experience. 17 There are at pages 21-22 in the course of re-examination some unclear references to the making of recommendations by the Magistrate at the end of proceedings for firearms offences. There is a power in the court to order return of forfeited or confiscated firearms: s 80, Firearms Act. At this point, Mr Morgan appears to be referring to another practice which is the procurement from the Magistrate of a recommendation as to how any suspended licence should be dealt with. 18 He says at 22: A. … [W]here the Magistrate had made a recommendation, never previously had I had Registry oppose me any further where a Magistrate has made a recommendation for a return. 19 In our view these exchanges, and the invocation of the estoppel defence, point to some misunderstandings about the relationship between administrative decision-making and the prosecution of criminal charges, and as to what may be relevant matters to take into account. This is not the place for a long excursus on these matters. They do not form part of the specific issues raised by this appeal. 20 We make the following short observations. It is quite possible that material considered in a criminal proceeding will be relevant to the exercise of a licensing discretion even though the particular offences charged have not been proven. The Tribunal is entitled, and duty bound, to take into account any relevant material going to the question of what is the correct and preferable decision in connection with the particular administrative discretion. The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed. 21 Moreover, it seems in our view that, certainly so far as the Tribunal is concerned, it can not be bound by promises given by prosecutors after court proceedings or subject in any way to opinions expressed by Magistrates at the conclusion of those proceedings. They are not at that point engaged in any functions or responsibilities that in any way involve the exercise of the licensing discretions found in the Firearms Act. 22 We note, in passing, some reliance in argument was placed on the Tribunal's decision in Mouwad v Commissioner of Police, New South Wales Police Service [2002] NSWADT 226. That case dealt with estoppel within the Tribunal. The submission was that an earlier decision relating to whether an applicant was not a fit and proper person made in the context of a security industry licence estopped the Tribunal from considering the same question in the context of a firearms licence. The Commissioner as administrator of both schemes had revoked the applicant's licences. The Tribunal had set aside the Commissioner's decision in relation to the security industry licence. The applicant submitted that the Tribunal dealing with the firearms matter was bound by the Tribunal's decision in the other case. The Tribunal agreed, applying the test of 'substantial identity' of issues found in the case-law on this point. 23 While the Tribunal acknowledged that the question of whether a person is fit and proper is one that must be addressed having regard to the profession or occupation to which the requirement relates, it nevertheless found that it was bound by the previous decision. We doubt that it would ever be appropriate to treat the way the 'fit and proper person' question is dealt with in one licensing context as determinative of how it should be dealt with in another licensing context (even relatively closely related ones as firearms and security industry licensing, both administered by the Commissioner out of Registries under his direction). That is not to say when a second Tribunal is looking at the separate matter, it might not be able to utilise procedures such as having the evidence in the first matter stand as the evidence in the second matter. (3) Reserved Costs Application 24 We note also from our review of the transcript that on 23 September 2004 the Tribunal dealt with the Commissioner's objection to a summons issued by the applicant seeking the attendance at the hearing for cross-examination of the maker of the internal review decision (Mr Richmond of the Firearms Registry). The Tribunal issued a separate decision setting aside the summons. The Commissioner made an application for costs at the hearing on 23 September 2004. That does not appear to have been dealt with. Accordingly that application forms part of the remittal of these proceedings. 25 We also take this opportunity to note that it is difficult to see what possible justification there can be for summonsing an internal review decision-maker. The decision-maker's reasons are exposed. The Tribunal has them for information. The Tribunal's duty is to make a fresh decision. It should have no need to hear from the internal review decision-maker. (4) Remittal 26 We think as the Tribunal as it has been constituted had reached a final conclusion in relation to the material placed before it, it would be preferable if the matter was remitted to a differently constituted Tribunal. Order 1. Appeal allowed. 2. Decision under review set aside, except as to its determination of the preliminary point (estoppel). 3. Application remitted to the Tribunal, differently constituted, to be redetermined.