Appeal Panel CITATION: Carter -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 22 APPELLANT Louise Carter PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 009019 HEARING DATES: 09/11/2000 SUBMISSIONS CLOSED: 11/09/2000 DATE OF DECISION: 12/15/2000 Principal matter DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Davidson R - Judicial Member; Mapperson K - Member CATCHWORDS: admissibility of evidence - no evidence - relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993261 DATE OF DECISION UNDER APPEAL: 05/09/2000 LEGISLATION CITED : Firearms Act 1996 Soulemezis v Dudley (Holdings) Pty Ltd (1987) NSWLR 247 Mifsud v Campbell (1991) 21 NSWLR 725 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 Haines v Leves & Anor (1987) 8 NSWLR 442 Palmer v The Queen (1998) 193 CLR 1 APPELLANT REPRESENTATION: N Gilchrist, barrister RESPONDENT J Tunks, solicitor ORDERS: Appeal dismissed. Introduction 1 This is an appeal by Ms Carter to the Appeal Panel against a decision made by the Tribunal on 9 May 2000. That decision affirmed the decision of the Commissioner of Police to refuse Ms Carter's application for a firearms licence. Jurisdiction 2 The Appeal Panel has jurisdiction to hear this matter under s 113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Section 113(1) and (2) state that: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. Grounds of Appeal 3 In the Notice of Appeal filed on 13 June 2000, the following "errors of law" were identified: (1) The judicial member failed to give adequate weight to the evidence of the police officer from Barraba (2) The judicial member gave undue weight to evidence by Ms Hillier regarding the applicant's behaviour. (3) The judicial member failed to take into consideration evidence of the police officer regarding the character of the applicant. (4) The judicial member failed to take into account relevant considerations namely the character evidence given by the applicant. (5) There was no evidence before the judicial member from police at Barraba concerning the applicant's intemperate habits in the responsible use of a fire-arm on which to base this allegation. 4 The respondent's reply dated 30 October 2000 stated, in part, that: The respondent submits that the grounds relied upon in the Appellant's Notice of Appeal do not disclose an error of law. 5 Following oral submissions by each party at the hearing, the appellant's counsel was given the opportunity to amend the Notice of Appeal. She did so by adding the following further grounds of appeal, which I will number consecutively: (6) That the judicial member erred in law in that he based his conclusions on evidence that should not have been admitted in that it could not be tested and conclusions should not have been drawn from it. Particulars: Statement of Annabel Carter dated 27 June 1998 Statement of Saira Cartwright (7) That the judicial member erred in law in finding that the applicant could not explain why Ms Hillier would be fabricating her evidence against her. (8) That the judicial member did not take into account that a thorough investigation of the applicant being a fit and proper person or of intemperate habits failed to be carried out and that the evidence was based on 3 witnesses statements from which conclusions were drawn. 6 These grounds of appeal will be referred to as Grounds 1-8. The Tribunal's reasons 7 It is apparent from the reasons for decision (at paragraphs 17 and 18) that at least one basis for the decision was that, pursuant to s 11(7) of the Firearms Act 1996 (the Act), it was not in the public interest for the applicant to hold a firearms licence. The following passage from the Tribunal's decision is relevant: The decision under review was taken on the basis of the evidence presented about the behaviour of the applicant and the Commissioner and the officer conducting the internal review both formed the view that it was not in the public interest for the applicant to hold a licence for a firearm. The Tribunal has come to the same view. 8 Two other grounds for refusing the application were relied on by the Commissioner when the matter was first before the Tribunal. The first of these was that pursuant to s 11(3)(a) of the Act the applicant was not a fit and proper person to be issued a licence and cannot be trusted to have possession of firearms without danger to public safety or to the peace. The second ground was that pursuant to s 11(4)(c) 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 the applicant's intemperate habits or being of unsound mind. No explicit conclusions were reached in the decision on the questions of whether the applicant is a fit and proper person to hold a licence or whether the applicant has intemperate habits. Consequently we have proceeded on the basis that the Tribunal's conclusions were made because the member was satisfied that the Commissioner had made the correct and preferable decision in refusing the application on the basis that it was not in the public interest for the applicant to hold a firearms licence. Issue 9 The initial question to be determined is whether, as required by s 113(2) of the ADT Act, an appeal has been made "on any question of law." The appellant did not apply, pursuant to s 113(2)(b) of the ADT Act, for the appeal to be extended to a review of the merits of the decision. The respondent's submission was that the appellant has not identified a question of law in the Notice of Appeal or in any subsequent amendments to that Notice. We agree. After listening to the appellant's oral submissions and reading all the relevant materials, we are not satisfied that an appeal has been made on a question of law. Our reasoning is set out below. Questions of law and questions of fact 10 We acknowledge that the distinction between a question of law and a question of fact is difficult to articulate and somewhat artificial. However, there is a considerable body of case law at both the state and federal levels, which has addressed and attempted to clarify this issue. The cases decided by the Supreme Court of New South Wales and the Court of Appeal, address the issue from the point of view of appeals to those courts on a question of law, from decisions of state Tribunals such as the former Equal Opportunity Tribunal (now a division of the ADT) and the former Workers Compensation Commission. The principles articulated in these decisions are directly relevant to and binding on the deliberations of the Appeal Panel because appeals to this Panel are similarly restricted, at least initially, to "questions of law." 11 Counsel for the appellant did not submit that the Tribunal had erred by providing inadequate reasons. The principles in relation to that error of law are discussed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) NSWLR 247 and Mifsud v Campbell (1991) 21 NSWLR 725. 12 The classic statement of the law on the difference between questions of law and questions of fact was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. 13 In the course of his judgment in Azzopardi, Glass JA with whom Samuels JA agreed) said at 155-156 that: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654." 14 When referring to the above passage in the case of Haines v Leves & Anor (1987) 8 NSWLR 442 Kirby P, as he then was, said, at 470, that: The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law. In Azzopardi I suggested that perversity and illogical reasoning could attract the jurisdiction of the Court. But this was a minority view. The majority opinion is the binding rule. It must be observed in this case. It provides the basis for the consideration of the appeal by this Court. Weight of evidence 15 The first two grounds of appeal are as follows: (1) The judicial member failed to give adequate weight to the evidence of the police officer from Barraba. (2) The judicial member gave undue weight to evidence by Ms Hillier regarding the applicant's behaviour. 16 On the basis of the authorities referred to above, we have concluded that grounds 1 and 2 which relate to the weight of the evidence, are not questions of law but questions of fact. Relevant and irrelevant considerations 17 The third and fourth grounds of appeal are as follows: (3) The judicial member failed to take into consideration evidence of the police officer regarding the character of the applicant. (4) The judicial member failed to take into account relevant considerations namely the character evidence given by the applicant. 18 By using the word "consideration" in grounds 3 and 4 the appellant has sought to invoke a ground of judicial review which can constitute an error of law. This ground is that the decision maker, when exercising discretionary power, failed to take into account a relevant consideration, or took into account an irrelevant consideration. However, the appellant did not submit in grounds 3 and 4 that the Tribunal failed to take into account a relevant consideration, such as the character of the applicant. Rather, she submitted that the Tribunal failed to take sufficient account of certain evidence about the applicant's character. This is another way of saying that the evidence was not given sufficient, or any, weight and is an error of fact. No evidence 19 Ground 5 relied on by the appellant is that: There was no evidence before the judicial member from police at Barraba concerning applicant's intemperate habits in the responsible use of a fire-arm on which to base this allegation. 20 We assume that the substance of this ground is that there was no evidence on which the Tribunal could make a finding that the applicant had "intemperate habits". As noted by Kirby J in Haines v Leves (para 14 above) if there is no evidence to support a finding, the Tribunal may have erred in law. However, in this case, the Tribunal did not make a finding that the applicant had "intemperate habits". Rather, the Tribunal relied on public policy grounds in affirming the Commissioner's decision. Secondly, even if the Tribunal had accepted the Commissioner's reasoning that a licence should not be granted on the basis of the applicant's "intemperate habits" there was some evidence before the Tribunal relating to the consumption of alcohol. (See pages 19 of the transcript (evidence of Caroline Hillier) and statement of Saira Cartwright.) Admissibility of evidence 21 The sixth ground of appeal was: That the judicial member erred in law in that he based his conclusions on evidence that should not have been admitted in that it could not be tested and conclusions should not have been drawn from it. Particulars: Statement of Annabel Carter dated 27 June 1998 Statement of Saira Cartwright 22 It is apparent from the transcript that there was no objection to the admission of the statement of Saira Cartwright. The objection to the statement of Annabel Carter of 27 June 1998 was subsequently withdrawn. Consequently, it cannot now be argued that the Tribunal erred in law by admitting them. 23 The seventh ground of appeal was: That the judicial member erred in law in finding that the applicant could not explain why Ms Hillier would be fabricating her evidence against her. 24 Counsel for the appellant particularised this ground as referring to the applicant's evidence of ill feeling between herself and Caroline Hillier. The applicant gave evidence that she had reported to the police that Caroline Hillier had cashed forged cheques. She said that she had declined to proceed with that matter after discussing it with the police and the bank manager. (Transcript p 48.) 25 The appellant's ground of appeal was that Caroline Hillier did have a motive to fabricate her evidence, not that the applicant was not required to adduce evidence of a motive: eg Palmer v The Queen (1998) 193 CLR 1. The ground as particularised is a statement of fact. The Tribunal found that the applicant did not give an adequate explanation, not that she gave no explanation. The appellant conceded that there was some evidence of motive however the weight to be given to it is a factual matter to be determined in the light of the whole of the evidence. 26 The final ground of appeal was: That the judicial member did not take into account that a thorough investigation of the applicant being a fit and proper person or of intemperate habits failed to be carried out and that the evidence was based on 3 witnesses statements from which conclusions were drawn. 27 This ground appears to be submitting that there was insufficient evidence of whether the applicant was a fit and proper person or of intemperate habits for the Tribunal to make a finding on those issues. Firstly, questions relating to the weight or sufficiency of evidence are not questions of law. Secondly, the Tribunal did not appear to make findings on either of those issues but instead relied on the public interest as the ground for affirming the Commissioner's decision. Finally, it cannot be an error of law that the respondent did not carry out a sufficiently thorough investigation. If that is the case, then the only implication is that the Tribunal has less evidence on which to base its decision. As no appeal has been made on any question of law, the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.