By Paul Gregoire and Ugur Nedim
In late 2018, Robert Wass pleaded guilty to common assault, contrary section 61 of the Crimes Act 1900 (NSW), in relation to his having punched his nephew in the face, after catching him hunting pigs on his property without permission. The young man punched his uncle back for good measure.
On his pleading guilty, Warren Local Court determined not to record a conviction against 60-year-old Wass, nor impose the penalties that apply to this offence, which carries up to 2 years in prison and/or a $5,500 fine. Instead, Wass was placed on a 12 month conditional release order (CRO).
But in accordance with the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the DPA), the uncle-nephew relationship led to the assault being classed as domestic violence and therefore, a serious offence, with an apprehended violence order (AVO) being imposed, as per section 39.
And under the provisions of section 29 of the Firearms Act 1996 (NSW), individuals who have been the subject of an AVO “at any time within 10 years before the application” for a firearms permit is made cannot be issued with one, unless the AVO is “an order that has been revoked”.
No breaches occurred over the AVO period. And in October 2020, about two years after the order expired, Wass applied to the Local Court to have it revoked, as he required a new firearm licence to control vermin on his farming property, which was why he’d held such a permit in the past.
The Local Court refused to revoke the order on 14 July 2021. The magistrate noted that a 2008 amendment that saw subsections 72(5) through to 72(8) inserted into the DPA, specifically provided that individuals, like Wass, could apply for an AVO to be revoked after the order had expired.
Yet, the Crimes (Domestic and Personal Violence) Amendment (Review) Bill 2016 went on to repeal those sections that permitted an individual to apply for an expired AVO to be revoked. And most of the other provisions covered in section 72 were then set out within sections 72A through to 73.
This change was in line with the report of the then NSW Justice Department’s 2016 statutory review of the DPA, with its 12th recommendation being that those subsections “should be repealed so that a person previously subject to an AVO cannot apply for the AVO to be revoked after it has expired”.
The report outlines that the measures had been introduced so that those who’d been the subject of an AVO and needed a firearm for employment could prevent the ban from applying. But the review found that laws allowing for the avoidance of the flow on effects of an order are “undesirable”.
Wass then appealed this decision to the NSW District Court on 21 March last year, arguing that post-2016 amended section 72A of the DPA provides that an application for “a variation or revocation” of an AVO can be made “at any time”.
The Crown put two points to NSW District Court Judge Nanette Williams to counter Wass’ position. The first was that using the word “revocation” applies to something in existence and the second being that “at any time” contained a “latent ambiguity” and it had to be read in context.
“I accept the Crown submission that there must be some reading down of those words “at any time” and I am of the view that that reading down should be that, to the effect of, at any time before the expiration of the AVO otherwise it simply does not make sense,” her Honour underscored.
In February, Wass lodged another appeal against the 2021 Local Court decision to deny him the ability to have the AVO revoked. And the Director of Public Prosecutions conceded that there had been a jurisdictional error in the NSW District Court finding, but further confirmed it was correct.
The error involved not being able to interpret “at any time” in the sole context of section 72A of the DPA, as that section only contains the word application, whereas the definition of application appears in section 72, where it applies to a “variation or revocation”.
Due to this error, it was determined that Wass’ new appeal would be heard in the NSW Court of Appeal (NSWCA) on 29 March this year, with the DPP being the chief respondent.
NSWCA Justice Mark Leeming pointed out that during the period between 2008 and 2016, when a number of provisions permitted that an AVO could be revoked after expiration, there were a number of stipulations that had to be met in order for the revocation to be made.
These included notifying the police commissioner, taking into account how revocation would affect the person the AVO sought to protect, and it allowed the courts to refuse further applications. His Honour noted that Wass’ reading inferred the changes served to liberalise revoking expired AVOs.
According to the NSWCA justice, the since-revoked subsections were a last-minute addition to the 2008 amendment bill sought by a member of the then Shooters Party. And these were then determined to be repealed on review in 2016, with a long list of stakeholders supporting this move.
Justice Leeming added that the 2016 amendments were made with the clear intention of preventing an individual in Wass’ position from being permitted an exemption from the stipulations involved in an AVO. And this was explained in the review report and by then attorney general Gabriel Upton.
The construction of the text
His Honour then turned to the legislative text and noted section 33 of the Interpretation Act 1987 (NSW) stipulates that the preferred interpretation of a provision of an Act or statutory rule, must be “a construction that would promote the purpose or object underlying” the legislation.
The justice outlined that the problem with simply finding that the law pertains to an AVO that’s “operational” is that, whilst the order expired after a year, in some sense it is still “operational”, as, in Wass’ case, the order is still in effect when it comes to attempting to obtain a firearm permit.
Justice Leeming then pointed to the way in which “revoke” is used in section 24(1) and section 32(1)(a) of the DPA in regard to interim AVOs and provisional AVOs respectively, and found that the way the legislation uses the word revoke applies to an AVO that must be in force at the time.
And this interpretation is consistent with section 73 of the DPA, which outlines how variations and revocations of AVOs can be applied, including in terms of “extending or reducing” timeframes, which again, would suggest that the legislation is referring to an AVO that is yet to have expired.
Further, the 2016 revoked subsections that had allowed for past AVOs to be revoked noted that they were specifically for past orders, as it stated that an “application for revocation of a final apprehended violence order may be made by the defendant even though the order has expired”.
His Honour added that in determining how revocations can be applied, section 73 also sets out measures for variations, which precludes expired AVOs. And the justice also pointed to the common legal use of the word revoke, as it usually applies to something in force, such as revoking bail.
Further amendments desired
Justice Leeming’s final point was that the reading of revoke in this manner “promotes the purpose of both the 2008 and, especially, the 2016 amendments”.
So, on 20 April, his Honour dismissed the appeal and added in closing that he “would respectfully suggest that the statute be clarified so that the thousands of people affected by this legislation need not read this judgment in order to understand the position”.
And NSW Chief Justice Andrew Bell and NSWCA Justice Jeremy Kirk agreed with their colleague’s findings.