Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71
Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 · Read the judgment on AustLII
Catchwords: ADVOs – revocation – expired orders
In this decision involving a plaintiff who wanted to regain his firearms licence, the Court of Appeal has held that it is not possible to apply to ‘revoke’ an expired Apprehended Domestic Violence Order (‘ADVO’).
The plaintiff (this is the kind of rare hybrid civil / criminal matter that only rarely graces the criminal law casenotes) pleaded guilty in the Local Court to a charge of common assault: he punched his nephew in the face, apparently because the nephew was hunting for pigs on the plaintiff’s land without permission. The plaintiff pleaded guilty and got a non-conviction penalty. More importantly for present purposes, his lawyer did not oppose the ADVO which automatically (though not inevitably) followed the finding of guilt for a ‘Domestic Violence’ offence. The ADVO was made for a period of 12 months, with only the minimum standard conditions. About two years later (that is, after the order had expired), he applied to revoke the order; the fact that he had had an unrevoked final ADVO against him in the last 10 years meant that he was not allowed a firearms licence. A Magistrate and subsequently a District Court judge each refused his applications to revoke the now-expired order.
Following some amendments in 2016, the Crimes (Domestic and Personal Violence) Act 2007 (‘the Act’) no longer explicitly provides a power to apply to revoke an expired order. However, the Act does provide, in s 72A (read with s 72) that an application for variation or revocation can be made ‘at any time’. The plaintiff seized upon that turn of phrase for the purposes of the application, notwithstanding that Parliament’s stated intention in 2016 was specifically to prevent the revocation of expired orders.
The Court of Appeal (Leeming JA, with whom Bell CJ and Kirk JA agreed) held that, the power to ‘vary or revoke’ an order is confined to unexpired orders. That accords with the natural meanings of ‘vary’ and ‘revoke’, and is consistent with the use of the word ‘revoked’ used in other sections of the legislation (at [59]). One speaks of revoking parole, or revoking bail, or revoking an offer at any time prior to its acceptance, in circumstances where the revocation will have immediate legal consequences for the right or entitlement enjoyed immediately beforehand. We do not speak of revoking bail or parole after the parole or bail has ceased to entitle the person to conditional liberty (at [56). It followed that the plaintiff’s application was refused, and he was therefore stuck with an unrevoked ADVO on his history, there being no other way to remove it.
This decision is important in at least two ways. First, it is a reminder to practitioners that simply acquiescing in an ADVO is not always a safe decision. As the Court here pointed out, s 39(2) of the Act does provide that although an ADVO automatically follows a conviction for a domestic violence offence, in an appropriate case the sentencing Court need not make an ADVO ‘if it is satisfied it is not required (for example because a final apprehended violence order has already been made against the person)’. Otherwise, if a person has been rendered subject to an order but will at some point need it revoked in order to ensure that they can, for example, regain their firearms licence or their security licence, or because of some other consequence, this decision is a bracing reminder that the application for revocation needs to be made before the end of the ADVO.
The other importance of the case is that both Leeming JA (at [62]) and the Chief Justice (at [1]) strongly endorse the desirability of clarifying the Act, which they point out is an important piece of legislation, under which many applications are made every day.