Beaman v Commissioner of Police, NSW Police Force

NCAT Appeal Panel|2017-12-01

REASONS FOR DECISION

The principal issue raised by this appeal is whether the Tribunal accorded the appellant procedural fairness in the way it dealt with the appellant's application for review of an administrative decision.
We have decided that the Tribunal did accord procedural fairness, having regard to the entirety of the proceedings, even though there were shortcomings, in our opinion, in aspects of the Tribunal's case management prior to hearing of the appellant's review application and in the handling of an adjournment application made prior to hearing.

Background

On 7 March 2015, the Commissioner of Police in his capacity as administrator of the Firearms Act 1996 issued a two year Category ABH firearms licence to Benjamin David Beaman (the appellant), in the category 'recreational hunting/vermin control'. He resided in New South Wales at the time of issuance of the licence. By 2016 he had moved to Queensland to live and work.

The Appeal

The appellant now appeals against the decision as permitted by the Civil and Administrative Tribunal Act 2013, s 80(2)(b). He is entitled to appeal 'as of right, on any question of law'; and may, with the permission of the Appeal Panel, be heard 'on any other grounds' (in effect, questions that are not questions of law). The appellant wishes to have the review application re-decided either by the Appeal Panel or by the Tribunal at first instance.
His notice of appeal (part 5) has four numbered grounds of appeal and in the part dealing with grounds for permission to have other matters considered (part 6) refers to some matters of a similar kind to those canvassed in grounds 1 to 3.
With one exception (ground 4), all of the issues raised by the notice of appeal have as their common background the Commissioner's expansion of the case against the appellant as a result of the Commissioner's reliance on the new material of which he first received notice on 12 May 2017.
Grounds 1 and 2 refer to the refusal of the appellant's application for adjournment. Ground 1 challenges the refusal of his adjournment application on the basis of failure to accord procedural fairness. Ground 2 refers to the failure of the Commissioner to abide by the directions timetable which left him with a little over three weeks to respond to the Commissioner's material, also on the basis of failure to accord procedural fairness.
Ground 3 refers to the court proceedings then pending in relation to the charge of 'stalking (protracted)' arising out of the events of 17 and 18 January 2017. He considered that the Tribunal should not have taken into account, as it did, the Queensland Police brief relating to those charges, ahead of the Queensland magistrates court dealing with the criminal charges.
Ground 4 criticises the Tribunal's reasons for failing to address submissions he had made in which he claimed that the Commissioner's reasons for decision included reference to statements he regarded as false and misleading statements supplied by the Queensland Police.
If no errors of law are found, he sought leave to extend the appeal to other grounds. He gave as reasons in support of that application: (1) his belief that he would be able to rely on the outcome of the proceedings in relation to the stalking charges; (2) the fact that he only received for consideration four days before the hearing the full file relating to an emergency psychiatric examination that he was required to undergo. He had requested this material by way of a Freedom of Information application on 27 February 2017.

Grounds 1 and 2

We will deal with Grounds 1 and 2 together.
Lack of a Further Direction once Commissioner expanded case. It is not uncommon for administrators to widen their case when a matter comes before the Tribunal, by for example updating it to take account of new information seen as relevant to the decision under review, especially developments since the decision under review was made. As previously noted, the ADR Act, s 58, requires administrators to file all material relevant to the decision within 28 days of notice of the review application. This assists in ensuring that the Tribunal fulfils its statutory mandate (ADR Act, s 63(1)): to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law.
The Commissioner's filing of 9 May 2017 (received in hard copy form by the appellant on 12 May 2017, as previously explained) traversed the recent conduct of the appellant and the sensitive matter of the circumstances leading up to the Queensland Police decision to detain him and require him to undergo an emergency mental health examination).The delayed filing left the appellant with less than four weeks to respond prior to hearing.
At the directions hearing held 31 January 2017 and the further directions hearing held 28 March 2017, the Tribunal followed the usual template for directions in administrative review applications. They are designed on the assumption that the s 58 filing gives a complete account of the material upon which the Commissioner is likely to rely at the hearing of the application. The usual directions template then requires the review applicant to respond to that material with any further evidence or submissions, and then provides for the administrator to respond to the applicant's material. That closes the filings, and the matter then proceeds to hearing.
From the note that is included at the foot of its directions order, we understand that the Tribunal at its directions hearing on 28 March 2017 had been informed by Mr Zoppo that the Commissioner was waiting on additional information from the Queensland Police.
The filing of 9 May 2017 that resulted was tantamount to a fresh s 58 filing. Ideally and in fairness, a further direction should have issued allowing the appellant to respond, and setting a time, parallel to the kind of direction that is given in response to an original s 58 filing.
In our view, administrators who expand their case at a point where there is no express opportunity for the review applicant to reply should be obliged to inform the Tribunal of the new circumstance. The Tribunal should proceed to amend the timetable to give the review applicant an appropriate time. If a date has been fixed for hearing, that should be reviewed in light of the filing of additional material.
In this instance, the appellant did understand, as we read his communications with Registry and the terms of his adjournment application, that he could use the time remaining to respond to the new material. But, arguably, he now had only a relatively short time in which to reply given the gravity of the new material for his case (especially the Police referral to a mental health assessment).

The First Adjournment Application

On 31 May 2017 the appellant applied in writing (by email) for an adjournment. He said: I am still currently in QLD and would hope to appear in person. I am waiting on freedom of information which is important to this case. This request was received by the department involved on 27 February 2017 I wold expect to have this shortly. I believe certain evidence later issued is not valid to the case at hand. I have recently attended court in Atherton, QLD over an allegation stated in evidence which is false and misleading. This has now gone to a hearing. I would also hope to have submitted my response prior to mentioning this at hearing. I had emailed Carlo Zoppo [the Commissioner's legal representative] this afternoon regarding the request. He has emailed back stating there is no objection to vacating the current allocated date.
The appellant filed the email from Mr Zoppo, which stated: [T]he Commissioner does not object to the vacation of the hearing dates as long as the vacation takes place before the hearing date.
The way the Tribunal dealt with the appellant's application for adjournment on 1 June 2017 compounded the situation. The file record is silent as to whether it had any regard to the changed circumstance affecting this case as compared to the usual case (i.e. the Commissioner expanding his case against the appellant). The file record does not contain any reasons for refusal.
Absence of Oral Hearing. Moreover the Tribunal dealt with the matter on the papers. There appears to have been no consideration given to hearing the appellant orally (by telephone, as he lived in Queensland). He was unrepresented, and an oral hearing may have allowed him to put in context his written application.
He did not speak in his email in the language lawyers use when making adjournment applications, such as referring to expressly to the 'disadvantage' or 'prejudice' that he might suffer if the hearing proceeded immediately, and the reasons why.
As will be seen his email made its points in a summary way, and was written in a way that required the reader to have some knowledge of the decision under review, and the state of the filings. He may have assumed his application would be dealt with by someone with who had already been dealing with his case, such as the member who had managed the first two directions hearing.
In our view, an unrepresented person is likely to be disadvantaged by being left to rely solely on a paper communication as the basis for consideration of their case for an adjournment. It is apparent, when one looks at the submissions he made at the oral hearing, and again at our appeal hearing, that he would have amplified his application and most likely would have supplied the detail missing from his email.
Importantly, in terms of his possibility of success, he had at that point the benefit of the Commissioner's indication that the Commissioner was not opposed to an adjournment provided it was made a reasonable time before the hearing. That concession lapsed once the application was refused.
He has, we think, an understandable sense of grievance over the outcome of this application, and the absence of any explanation as to why it was not necessary or appropriate to give him the benefit of an amount of time not dissimilar to that which the Commissioner had had, especially when account is taken of the relative gravity of the new material.

The Second Adjournment Application

The appellant participated in the Tribunal's hearing on 6 June by telephone from Queensland. There is no transcript. The appellant produced to us a CD of the hearing. We have listened to the recording.
At the beginning of the hearing he renewed his application for an adjournment, now opposed by Mr Zoppo. The Tribunal heard his submissions, which were wider and fuller than those set out in his email of 31 May 2017.
He said that he was very concerned that he have the opportunity first to meet the pending charges of protracted stalking before the Magistrates Court. He had pleaded not guilty. He was confident of being acquitted.
He also expressed concern over the shortness of the time he felt he been left with to challenge the Police justification for requiring him to undergo a mental health examination order. He said that had now received the surrounding file (four days previously) as a result of the FOI application, and it included the psychiatrist's report. He submitted that he had not had a reasonable opportunity to examine it, and obtain further information.
Towards the end of the appellant's orals submissions, the member said that the matters he had raised were similar to those raised in the letter of 31 May 2017. She continued by saying that there was 'nothing new for me to justify setting aside the decision she has made'. In our view, the email was quite rudimentary in its nature, as compared to the detail the appellant gave orally at the hearing. We doubt whether it could be safely assumed, as the member at hearing in this case did, that the member who made the prior decision had an understanding of the history of the proceedings, and the context of that application. The member continued later: 'With this tribunal, the principle is that matters should proceed efficiently and not be subject to undue delay unless there's some severe injustice and I am not really convinced at this point that there is a severe injustice'. We think it undesirable to constrain the discretion to grant an adjournment as categorically as this statement might suggest.
In his submissions to us at the appeal hearing, the appellant contended that the member had used the adverse content of the Commissioner's late-filed material 'against him', in circumstances where he had little time to respond, and that had been unfair to him.
He also reiterated that the reduction in the time he expected to have to prepare his case in response to the additional material had been unduly diminished (from seven weeks to approximately three weeks) by the late filing by the Police.

Grounds 1 and 2: Assessment

We need to be satisfied that the way in which the adjournment applications and the Tribunal directions were handled by the Tribunal resulted in a 'practical injustice'. As Gleeson CJ observed in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, at [37]: Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice. See further, CSR Limited v Eddy [2008] NSWCA 83 (2 May 2008) at [39] per Basten JA.
There was, as we have explained, an inadequacy in the way the Tribunal case-managed this matter after the new material was filed. There should, we think, have been a further directions hearing held setting a time for reply by the review applicant to the additional material. There were inadequacies in the way it handled the first adjournment application, and to a lesser extent, in its handling of the second adjournment application made at the hearing (in that regard, we have in mind the weight given by the Tribunal to the decision made on the first adjournment application).
But we are not satisfied, having regard to the way the hearing was conducted, and in particular, the way in which the Tribunal dealt with material adverse to the appellant at that hearing, that any practical injustice occurred.
We will explain this view.
In its reasons for decision, the Tribunal focussed closely on the recent matters of concern to the Commissioner when the matter was before the Commissioner, first the incidents of 7 March 2016 and 16 May 2016.
Even though the charges arising from the incident of 16 May 2016 were subsequently withdrawn, that incident remained significant for the purpose of the licence decision, especially in light of the new incidents of 17 and 18 January 2017. As previously noted, they also concerned interactions between the appellant and a security guard.
All of the incidents had the common feature. The appellant was alleged to have behaved in an unlawful or improper way towards persons exercising law enforcement powers (police, in the case of the 7 March incident and security guards, in the case of the later incidents). These incidents are dealt with more fully in the Tribunal's reasons, and we will not reiterate the detail found there, or in the underlying material (the s 58 documents).
In relation to each of those matters the Tribunal made the following findings adverse to the appellant on the evidence before it. The Highway Event, 7 March 2016: 17. Based on the undisputed evidence, I find that the applicant was arrested on 7 March 2016 when he was driving between NSW and Queensland and that when his car was searched, a knife was found under the floor mat on the driver's side of the vehicle. He was convicted of obstructing police and possession of a knife without reasonable excuse. The applicant said it was a kitchen knife, part of the personal belongings he had in the car, and not a weapon. He was fined and released on a good behaviour bond. The Earlville Event, 16 May 2016: 20. ... There was no evidence from any witnesses tendered in these proceedings. In these circumstances the evidence does not, in my view, reach the required standard to establish that the applicant deliberately struck the security guard. However, I do find that the applicant felt frustration when he saw the security guards because he assumed they were part of a surveillance being carried out on him and that he made contact as he went past. The 17-18 January 2017 Events: 25. I find on the available evidence that there was an altercation between the applicant and the security guard on two occasions. Even on the applicant's own account, he used words towards the security guard which showed an antagonism towards him and the police.
The police case was that he had said to a male security guard who was trying to leave his vehicle after the appellant had blocked it in: 'You must be proud yourself doing the dirty deeds of the filthy dogs'. The Tribunal noted at [24] that the appellant denied using the word 'filthy' but conceded in evidence that he had said: 'You enjoy doing this work for the dirty police, don't you'.
The Tribunal closely considered the Queensland Police material connected with the decision to detain the appellant for a mental health examination. That material referred to various attendances by the appellant at police stations in North Queensland, in the period 17 October 2016 to 17 January 2017. They recorded him as complaining of surveillance by the police and emergency services, and by private security companies. He is recorded as suggesting that satellites were being used to monitor him. The records include author notes querying whether he may be suffering from a mental illness.
The Tribunal noted that the appellant had subsequently undergone an involuntary mental health examination by a psychiatrist. The Tribunal noted that neither party presented any medical evidence, or information regarding the outcome of the examination. The Tribunal referred in some detail to the appellant's evidence at its hearing, in particular numerous references to being the subject of unfair surveillance by various authorities. The Tribunal found at [31]: Based on the statements made I find that the applicant has a belief that police, ambulance and fire brigade officers are conducting surveillance of him and this belief has caused him to become frustrated and accost members of those services, as well as security guards, who he also believes are following him.
The Tribunal then proceeded to its reasons for its determination. It noted the wide scope of a statutory discretion that allows an administrator to take action in the public interest. It referred to the appellant's problematic history of offences, and most particularly to his recent history of suspicion and antagonism towards police, security guards and other people in authority. The Tribunal concluded: 36. ... It is a concern that there have been more frequent charges against him recently. 37. This, combined with his antagonism towards police and related services, means that I cannot be confident that his possession of a firearms licence presents no risk to public safety. 38. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said: "Where there has been, or is, a possibility of a threat to the public's safety, the public's right to safety must outweigh an individual's privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk." 39. I cannot be satisfied that there is virtually no risk in the circumstances. Therefore, I am satisfied that it is not in the public interest for the applicant to be issued with a firearms licence.
In our view, the way the Tribunal dealt with the case at hearing overcome the problems that the appellant anticipated when making his adjournment applications. He received a comprehensive hearing of his application. He was not, in our view, disadvantaged in the way he had apprehended when he made the adjournment applications.
The Tribunal was, we consider, very careful in its approach to its task, and confined its observations to the material placed before it and the appellant's presentation at hearing. It did not take into account any psychiatric report or call for that to be provided.
The pre-hearing procedures, as we have explained, had inadequacies that disadvantaged the appellant.
But at hearing, in our view the Tribunal was punctilious in the extent to which it made adverse observations and findings in relation to the appellant. Moreover, at our hearing he was unable to explain in any persuasive way what steps he might have taken had his adjournment applications been granted to enable him to better respond to the case against him.
We are not satisfied that he suffered any practical injustice as a result of the inadequacies to which we have referred.

Ground 3

Ground 3 of the appeal put in issue the Tribunal's consideration of the material relating to the events of 17-18 January 2017, on the basis that the Tribunal should have disregarded the material until the charges were heard by the Atherton Magistrates Court. The appellant expected to be acquitted at that hearing, and had hoped to rely on the acquittal in support of return of his licence.
It is permissible and not unusual for the Tribunal in dealing with an administrative review application to take into account relevant conduct which is the subject of pending criminal proceedings. There is no rule that it must delay its hand in dealing with a review application until the criminal court(s) dispose of the charges. If it does decide to wait, and there is an acquittal, it does not follow that it cannot have regard to the record of the criminal proceedings. It is open to the Tribunal to have regard to anything of relevance bearing on the review applicant's suitability to be granted or retain a licence. In this case, the Tribunal exercised care in the way in which it referred to the material in the police brief in connection with the stalking allegations, and confined itself in making findings negative to the appellant to the evidence that the appellant gave to the Tribunal, as the extracts we have set out above illustrate.
In any event, the force of this ground of appeal has been overtaken by events. At our hearing, held 1 December 2017, the appellant informed us that the charges had been dealt with by the Atherton Magistrates Court the previous day (30 November 2017). He said he had been found guilty, conviction entered, and fined $500. He was now considering appealing.
This ground is rejected.

Ground 4

We are not satisfied that the Tribunal's reasons were inadequate in failing to respond to the appellant's criticisms of some of the statements made about him found in the Commissioner's first decision and in the internal review decision (for example, his attitude to compliance with the law, his behaviour as alleged on 7 March 2016). The Tribunal chose to leave those criticisms unaddressed. This should not be read as some kind of implied endorsement of them.
In this instance, the case largely turned on the evidence as to the appellant's conduct in the 2016-2017 period. These matters were clearly relevant. The Tribunal did not simply adopt uncritically police versions of the appellant's conduct or opinions they might have expressed about him.
In our view, there was no error in the exercise of its discretion of a kind that might infringe the principles laid down in House v R [1936] HCA 40; 55 CLR 499 at 504-5. We adopt and adapt the paraphrase of these principles given by the plurality in Markarian v R [2005] HCA 25; (2006) 228 CLR 357 at [25]: Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust?
The Tribunal is not obliged to respond to all the submissions put to it by parties. It needs to be alert to the risk of being diverted into a collateral inquiry into the conduct of officials whose records have been relied upon by the ultimate decision-maker. This was a case where the appellant acknowledged in the proceedings the occurrence of the events that were itemised in the Commissioner's case. Some aspects of these matters were incontrovertible, and clearly relevant to the exercise of the administrative discretion to revoke the licence: for example, the convictions in relation to the March 2016 incident; and the pattern of behaviour seen in the incidents of May 2016 and January 2017; and the consistency of the Queensland Police notes of what he had said to them about his state of mind at various points of time between October 2016 and January 2017.
This ground is rejected.
As to the leave application, it mainly repeats the matters considered under Grounds 1 to 4. While we have acknowledged that there were shortcomings in the way the Tribunal handled the appellant's application at the pre-hearing stage, both in relation to the desirability of making further directions once the new material was filed, and in the way it went about handling the application for adjournment, we do not think those shortcomings gave rise, once the way the Tribunal dealt with the matter at hearing is taken into account, in disadvantage or prejudice to the appellant. In our view, viewed overall, the Tribunal did not fail to accord the appellant procedural fairness.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 08 January 2018

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