Anderson and Commissioner of Police
[2008] WASAT 75
•7 APRIL 2008
ANDERSON and COMMISSIONER OF POLICE [2008] WASAT 75
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 75 | |
| FIREARMS ACT 1973 (WA) | |||
| Case No: | CC:1528/2007 | 28 FEBRUARY 2008 | |
| Coram: | JUSTICE M L BARKER (PRESIDENT) MR T CAREY (MEMBER) MS V O'TOOLE (SESSIONAL MEMBER) | 7/04/08 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Application upheld Commissioner's revocation decision set aside Commissioner to reinstate licence with additional condition that the firearm be stored at Pyramid Station | ||
| B | |||
| PDF Version |
| Parties: | SANDRA MARTHA ANDERSON COMMISSIONER OF POLICE |
Catchwords: | Firearms licence Firearms Act 1973 (WA) Relationship with member of an "outlaw motorcycle gang" Criminal conviction Whether applicant a "fit and proper person" to hold a firearms licence Whether genuine reason for possessing firearm Whether grant of licence desirable in interests of public safety |
Legislation: | Crimes Act 1914 (Cth) Firearms Act 1973 (WA), s 11, s 11A, s 11B, s 11C, s 20(1)(a)(iii), s 20(1)(ab), s 22(2) Firearms Regulations 1974 (WA), Sch 4 Misuse of Drugs Act 1981 (WA), s 6(2) State Administrative Tribunal Act 2004 (WA), s 24 |
Case References: | Re Jones; Ex parte Commissioner of Police [1999] WASCA 246 Wignall and Commissioner of Police [2006] WASAT 206 |
Orders | 1. The review application of the applicant is upheld.,2. The decision of the Commissioner of Police revoking firearm licence no 4486421 to the applicant is set aside, on the condition that firearm licence no 4486421 is reinstated by the Commissioner of Police on the same terms and conditions upon which it was originally granted, and on the further condition that:,(i) the firearm the subject of the licence be stored at the homestead or other appropriate building on the Pyramid Station pastoral lease in the Pilbara. |
Summary | On 17 May 2007, the applicant, Sandra Martha Anderson, was issued with a firearm licence under the Firearms Act 1973 (WA) on behalf of the Commissioner of Police. Subsequently, in July 2007, the applicant was advised by the Police that her licence had been revoked.,The reasons given for revoking the firearm licence were twofold: first, [this segment of text is subject to a non-publication order] and secondly, her association with a member of an outlaw motorcycle gang known as God's Garbage. The applicant had been for some time in a relationship with a senior member of God's Garbage.,The applicant applied to the Tribunal for review of the revocation decision.,The Tribunal considered, first, the requirement under the Firearms Act 1973 (WA) of a genuine reason for possessing a firearm. On the basis of the applicant's evidence it found that the applicant had established such a genuine reason for its prospective use in hunting or shooting of a recreational nature on a pastoral station situated in the Pilbara, the owner of which had given permission for that use.,The Tribunal then considered the prohibition against the issuing of firearm licences where to do so is not desirable in the interests of public safety. Although it accepted, as it had found in an earlier decision, that members of "outlaw" motorcycle gangs have a propensity to use licensed and unlicensed firearms for unlawful purposes, the Tribunal found the applicant had little or nothing to do with any God's Garbage motorcycle gang members other than her partner. There was nothing in the evidence to suggest that her partner exercised any particular influence over her and any concern that the applicant would make the firearm available to gang members was speculative.,[This segment of text is subject to a non-publication order],The Tribunal set aside the revocation decision and ordered the reinstatement of the applicant's firearm licence on its original conditions and the additional condition that the firearm be stored in an appropriate building on the Pyramid Station pastoral lease in the Pilbara. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : ANDERSON and COMMISSIONER OF POLICE [2008] WASAT 75 MEMBER : JUSTICE M L BARKER (PRESIDENT)
- MR T CAREY (MEMBER)
MS V O'TOOLE (SESSIONAL MEMBER)
- Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearms licence Firearms Act 1973 (WA) Relationship with member of an "outlaw motorcycle gang" Criminal conviction Whether applicant a "fit and proper person" to hold a firearms licence Whether genuine reason for possessing firearm Whether grant of licence desirable in interests of public safety
Legislation:
Crimes Act 1914 (Cth)
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Firearms Act 1973 (WA), s 11, s 11A, s 11B, s 11C, s 20(1)(a)(iii), s 20(1)(ab), s 22(2)
Firearms Regulations 1974 (WA), Sch 4
Misuse of Drugs Act 1981 (WA), s 6(2)
State Administrative Tribunal Act 2004 (WA), s 24
Result:
Application upheld
Commissioner's revocation decision set aside
Commissioner to reinstate licence with additional condition that the firearm be stored at Pyramid Station
Category: B
Representation:
Counsel:
Applicant : Mr JA Kitto
Respondent : Mr BP King
Solicitors:
Applicant : Kitto & Kitto
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Re Jones; Ex parte Commissioner of Police [1999] WASCA 246
Wignall and Commissioner of Police [2006] WASAT 206
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Summary of Tribunal's decision
1 On 17 May 2007, the applicant, Sandra Martha Anderson, was issued with a firearm licence under the Firearms Act 1973 (WA) on behalf of the Commissioner of Police. Subsequently, in July 2007, the applicant was advised by the Police that her licence had been revoked.
2 The reasons given for revoking the firearm licence were twofold: first, [this segment of text is subject to a non-publication order] and secondly, her association with a member of an outlaw motorcycle gang known as God's Garbage. The applicant had been for some time in a relationship with a senior member of God's Garbage.
3 The applicant applied to the Tribunal for review of the revocation decision.
4 The Tribunal considered, first, the requirement under the Firearms Act 1973 (WA) of a genuine reason for possessing a firearm. On the basis of the applicant's evidence it found that the applicant had established such a genuine reason for its prospective use in hunting or shooting of a recreational nature on a pastoral station situated in the Pilbara, the owner of which had given permission for that use.
5 The Tribunal then considered the prohibition against the issuing of firearm licences where to do so is not desirable in the interests of public safety. Although it accepted, as it had found in an earlier decision, that members of "outlaw" motorcycle gangs have a propensity to use licensed and unlicensed firearms for unlawful purposes, the Tribunal found the applicant had little or nothing to do with any God's Garbage motorcycle gang members other than her partner. There was nothing in the evidence to suggest that her partner exercised any particular influence over her and any concern that the applicant would make the firearm available to gang members was speculative.
6 [This segment of text is subject to a non-publication order]
7 The Tribunal set aside the revocation decision and ordered the reinstatement of the applicant's firearm licence on its original conditions and the additional condition that the firearm be stored in an appropriate building on the Pyramid Station pastoral lease in the Pilbara.
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Issues
8 The primary issue in these proceedings is whether a decision made in July 2007, on behalf of the Commissioner of Police (Commissioner), to revoke firearm licence number 4486421 granted to the applicant to possess a Mossberg rifle bolt repeater, serial number BAO58081, calibre 0.243, should be set aside.
9 Three subsidiary issues arise, namely whether:
• the applicant has a genuine reason for acquiring or possessing a firearm;
• a grant of a firearm licence to the applicant is not desirable in the interests of public safety; and
• the applicant is a fit and proper person to hold a firearm licence.
Facts
10 On 20 July 2006, the applicant, who had not previously held a firearm licence, applied for a firearm licence under the Firearms Act 1973 (WA) (Firearms Act) through the South Hedland Police Station.
11 The applicant completed the Form 1 application for a firearm licence prescribed by the Firearms Act. In it, she indicated that she wished to be licensed in respect of a Mossberg rifle bolt action repeater serial number BAO58081, calibre 0.243.
12 In answer to the question "What are your reasons for wishing to possess the firearm?", she ticked the boxes "Recreation/Sport" and "Club purpose".
13 The applicant further disclosed, in a section which indicated that this information was optional but may assist in determining the application, that she resided with her "boyfriend", SL, and her father in South Hedland. She indicated that she was employed as an "admin officer" at a business.
14 In a further section, the applicant completed the application form by ticking a box that indicated the "genuine reason and genuine need for acquiring the firearm" as:
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- "It is used in hunting or shooting of a recreational nature on land the owner of which has given permission for that hunting or shooting."
15 She further completed that part of the form that indicated that, in the case of a high-powered firearm, an applicant needs to satisfy the genuine need test as well and therefore needs to describe the type and prevalence of vermin. In this regard, the applicant wrote "roo's, rabbits, pigs".
16 It appears that the applicant did not then lodge a written permission of owner, or "property letter", to shoot vermin on property, although she later did.
17 At the same time as the applicant completed the application form, she made a statutory declaration as to storage facilities in accordance with Form 17A under the Firearms Act and declared that the method of storage would be a cabinet or container meeting the specifications in Sch 4 of the Firearms Regulations 1974 (WA) (Regulations).
18 The Western Australia Police Department records disclose that the applicant first attempted the test that must be passed to obtain a firearm licence and failed it on 19 September 2006. However, on 21 September 2006, she did the test again and this time passed. She was then advised that the property letter was required.
19 On 20 October 2006, the applicant apparently telephoned the police station at South Hedland to advise that she was still waiting for the property letter.
20 The property letter was then provided to the police station at South Hedland. A storage facility inspection was also conducted by the police and it was found to comply with Sch 4 of the Regulations. The storage facility was at the address at which the applicant was then living with her father in South Hedland.
21 On 17 May 2007, firearm licence number 4486421 was issued. The date of expiry of the licence was stated on it as 16 May 2008.
22 Before licence 4486421 was issued on 17 May 2008, in the process of considering whether a licence should issue, a police officer at South Hedland Police Station prepared a memorandum for a superior officer recommending against the grant of a firearm licence to the applicant.
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23 It should be mentioned at this point, although the Tribunal did not sight a copy of the original application made by him, that SL, the boyfriend of the applicant, also applied for a firearm licence at or about the same time as the applicant applied in July 2006.
24 In the memorandum the police officer stated:
"Anderson has no outstanding records on NIS/IMS and completed all the initial requirements for the Original Firearms Application but there is an issue which is of particular concern namely:
Anderson is an associate (partner/girlfriend) of [SL], a known member of the God's Garbage OMCG, who has also applied for an Original Firearms Licence (Reference … - File currently at the Pilbara District Office pending further inquiries).
Because of the fact that Anderson is an associate of a known member of the God's Garbage OMCG, I believe that it would not be in the public's best interest to have Anderson's application for a Firearm's Licence approved."
26 By memo dated 7 November 2006, a police officer in the Pilbara District Office advised the District Superintendent of the Pilbara Police of these applications in the following terms:
"The attached application for a firearm licence has been forwarded from South Hedland. Constable … has put forward a recommendation that the application be refused on the basis that Anderson is a known associate of a member of a motorcycle gang member [SL].
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It is unfortunate perhaps but in this case I do not believe you have the power to deny her licence."
27 It seems this advice was accepted and on 17 May 2007 Licence 4486421 was granted to the applicant.
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28 It is not entirely clear to the Tribunal what happened to the concurrent application of the applicant's boyfriend SL. It seems, in any event, not to have been processed by the time the applicant received her firearm licence. SL then lodged a fresh application with the police station at South Hedland on 19 June 2007. In his (second) application, SL applied for a licence in respect of a Howa rifle bolt action repeater. He indicated he had a genuine reason and genuine need for acquiring the rifle, namely to use it for hunting or shooting donkeys, camels and pigs.
29 When the decision was made on behalf of the Commissioner to refuse the application of SL for a firearm licence, a review was then undertaken by the Firearms Inquiry Unit of the WA Police concerning the earlier issue of the firearm licence to the applicant. By memo dated 28 June 2007, the Firearms Inquiry Unit advised the officer in charge of the police station at South Hedland that it was deemed appropriate that action should be taken "to remedy the situation" by revoking the applicant's firearm licence.
30 A notice of revocation was then served on the applicant and her licensed firearm seized by police. By letter dated 3 July 2007, a Detective Inspector from the Organised Crime Division advised the applicant that her firearm licence was revoked. The Inspector advised that the revocation was made under s 20(1)(a)(iii) and s 20(1)(ab) of the Firearms Act, because the licence could not, because of s 11, be granted, and also because it had been issued incorrectly by reason of a "procedural error".
31 [This segment of text is subject to a non-publication order]
32 The Inspector concluded:
"Therefore I am of the view that as part of the procedural process there was insufficient consideration given to this fact and the likely effect on public safety when your application was approved … on 7 November 2006."
33 [This segment of text is subject to a non-publication order]
34 The letter from the Detective Inspector to the applicant further advised the applicant that she had the right to seek review of this decision in the Tribunal pursuant to s 22(2) of the Firearms Act. The applicant then took the opportunity to seek review by these proceedings.
(Page 8)
Further evidence adduced at the hearing
35 At the hearing of the review application the Tribunal received a bundle of documents held by the Commissioner and provided to the Tribunal pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA). These documents in particular related to the account of facts provided above.
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42 At material times in 2006 and following, SL was known by the police to be a member of the God's Garbage motorcycle gang. He had also been convicted of and sentenced in relation to a number of offences as follows:
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43 It is accepted by the parties to these proceedings, or at least the applicant does not contend otherwise, that God's Garbage is a 1% outlaw motorcycle gang with full members wearing a 1% patch to clearly display their status as such. The 1% symbol signifies that members are amongst the 1% of society who are not law-abiding citizens.
44 The culture of an outlaw motorcycle gang is such that members have a strong propensity for collecting and using both legal and illegal firearms. The club is male macho dominated with no female membership permitted. Loyalty to the gang and its members is fundamental. Each member knows that no-one can provoke one gang member without having to answer to the entire gang.
45 In relation to God's Garbage, there are known to be 54 members or associates in Western Australia. Of those known members or associates, 50 have committed and been convicted of criminal offences. The offences include:
• aggravated assault on a female;
• amphetamine possession;
• assault occasioning bodily harm;
• assaulting a public officer;
• attempting to defeat the course of justice;
• breaching bail conditions;
• breaking and entering and stealing;
• burglary with intent;
• corrupting a witness;
• cultivation and possession of cannabis;
• damage;
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- • disorderly and obscene language;
• disorderly conduct;
• failing to stop when called upon;
• giving false personal details to police;
• hindering police;
• misleading police;
• on premises without a lawful excuse;
• possessing firearms without licence;
• possessing prohibited drugs;
• possession of cannabis with intent to sell or supply;
• receiving;
• reckless driving;
• refusing to answer Coroner's questions;
• resisting police;
• stealing;
• threatening behaviour; and
• traffic offences.
46 Additionally, the Commissioner put on the statements from three police officers that supported the facts set out above concerning God's Garbage motorcycle gang and the nature of that and similar 1% outlaw motorcycle gangs.
47 The witness statement of Senior Constable McGrath verified the charges and criminal court outcomes earlier referred to.
48 The witness statement of Senior Constable George of the Gang Crime Squad confirmed that SL was known to the Senior Constable as a senior patched member of the God's Garbage outlaw motorcycle gang. Constable George's evidence also confirmed that SL wore a three stripe sergeant insignia noting him as a sergeant at arms for the club at
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- the time a photograph of SL was taken in March 2005.
49 The statement of Superintendent Gere stated the specialist knowledge the Superintendent has acquired in respect of outlaw motorcycle gangs such as and including God's Garbage, the summary content which has earlier been referred to.
50 Superintendent Gere made specific reference to local clubs and stated that he is aware that there are six specific outlaw motorcycle gangs in Western Australia that include:
• Club Deroes;
• Coffin Cheaters;
• God's Garbage;
• Gypsy Jokers;
• Rebels; and
• Outlaws.
51 Of the God's Garbage outlaw motorcycle gang, Superintendent Gere stated that it is a locally Western Australian formed gang with the main chapter being in Albany.
52 Superintendent Gere expressed the opinion that within the evolution matrix of such gangs that the God's Garbage are now regarded as being at the fourth level. Some of the key factors of the fourth level of evolution include:
• members move towards operating on an insular basis which moves towards not requiring such activity to be sanctioned by the gang as long as it falls within their constitutional rules and there is no disrespect;
• propaganda and political lobbying commences;
• members look to become involved in legitimate businesses; and
• a level of corporate style infrastructure emerges.
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53 Superintendent Gere also stated that the God's Garbage has approximately thirty-five fully patched members and additional probationers or 'noms' in this state with club houses in Albany, Kelmscott and Manjimup.
54 Superintendent Gere confirmed that members and associates of the God's Garbage have in the past been arrested and charged with a series of offences which include extortion, robbery, possession and trafficking in elicit drugs and possession of unlicensed firearms.
55 Superintendent Gere also stated that significant information has been received on the gang's increased connection to other outlaw motorcycle gangs in Western Australia. Once branded as outcasts from other 1% gangs in the state, they have now been seen as being accepted as part of the outlaw motorcycle gang community. Fully patched members have been seen attending other outlaw motorcycle gang events and other outlaw motorcycle gang members have attended their events.
56 The applicant also produced a bundle of documents which included references from two persons, as well as her own witness statement on which she was cross-examined at the hearing.
57 The witness statement or reference of Harvey L King of Harvey King Firearms, Port Hedland was produced. It was dated 25 October 2007. Mr King states that he has known the applicant for approximately six years socially, in a work environment and as an "aspiring shooter at the Sporting Shooters Range". Mr King was the dealer who sold the applicant her firearm. He says that he was "impressed with the determined interest in familiarising herself with the operation and safe use of her firearm". Mr King also states that "Sandra has a very strong character and holds her own in any environment."
58 Botha James Morton provided the second character reference or witness statement for the applicant, which is dated 23 October 2007. In it, Mr Morton states that he has known the applicant for five years and has found her to be reliable and of good character. In particular, he notes that "in the last two years Sandra showed an interest in competition shooting at club and state level". Mr Morton discloses that he is the Treasurer of the Hedland Sporting Shooters Club, as well a Vice President and Training Officer. He states:
"I trained Sandra on safety and shooting skills to a level that makes her competitive with Rim Fire and Centre Fire rifles. During this time Sandra has attended my club and served the probationary period
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- required before joining. In my opinion Sandra qualifies as a fit and proper person to hold a [firearm] licence."
59 The applicant gave evidence. In her witness statement she set out the following primary facts.
60 She is 41 years of age and now lives in a Perth metropolitan region and no longer at Port Hedland. She has lived in Perth since January 2008.
61 In early 2007, she spent three months living at Palgarup near Manjimup, at the home of SL.
62 In about November 2006, she left Port Hedland by reason of her father's serious health problems and the sale of his business in Port Hedland.
63 She returned to Port Hedland in 2007 in order to finally sell up and move back to Perth.
64 She now lives closer to her two sons who are aged 21 and 16.
65 She first went to Port Hedland in about December 2002, just over five years ago. When she moved to Port Hedland her sons remained in the southwest with their father, her ex-partner.
66 Her ex-partner had health difficulties and prior to their separation she was appointed as his carer.
67 The applicant states she has worked almost her entire life in paid employment except when her children were young.
68 In Port Hedland she worked in her father's business as an administration officer. She is still doing some follow-up work in that regard following the sale of the business and is being remunerated for that work which is not yet complete.
69 The applicant says she has done a range of volunteer work at different times including when the children were in primary school in Queensland. She has also helped out at public schools and other events.
70 She completed a Certificate II in Business at the Port Hedland TAFE in 2003 so that she could further her career in her father's business in Port Hedland. The applicant says she met SL about three and a half years ago and has been in a relationship with him for the past two and a half years or so. When she met him he was already a member of God's Garbage motorcycle club.
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71 The applicant says in her witness statement that she is "not interested" in SL's association with the God's Garbage motorcycle club.
72 She also explains that SL now works at a mining site on a flyin/flyout basis, spending two weeks at the mine site and then one at home.
73 She states that during the week SL is home he generally spends it with her and rarely spends much time at his house in Palgarup. If he goes there it is only for one night or so and she will accompany him.
74 The applicant also states:
"Recently [SL] and I have not spent as much time together as we are going through a bit of a rough patch in our relationship. We are still together, but rather than [SL] spending all of his time with me when he is off work he has been spending a lot of time with his daughter … and grandson …"
75 As to the influence that SL has over her, the applicant states:
"[SL] does not have any commanding influence over my life; [SL] and I are together because we love each other and our relationship is that of a mature, adult relationship. It is not related to or affected by the God's Garbage Motorcycle club."
76 The applicant adds that she is not and has never been dependent on SL. She says she would never be pressured into doing anything she did not want to do. She says she is far too outspoken and strong willed for that. The Tribunal notes in passing that the applicant also relies on the witness statement of Mr Morton to this effect.
77 The applicant further states that in any event she would never let anyone, SL included, have access to any of her firearms. The applicant says she has nothing to hide from her relationship with SL. She points out she disclosed the relationship on her application for a firearm licence.
78 As to SL's association with God's Garbage, the applicant says she is aware he is a member. However, she says she does not have any formal relationship - social, financial or otherwise - with God's Garbage motorcycle club or its other members. She says she does not have any attraction to them or their lifestyle.
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79 She says that SL and she understand that it is SL's choice who he spends his offwork time with: "his bike mates, or me. It will never be both."
80 The applicant considers herself a law-abiding citizen and she has always prided herself on being a law-abiding citizen.
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86 As to her experience with firearms, the applicant says she got her first gun, a Mossberg rifle bolt repeater, serial number BAO58081, calibre 0.243, in May 2007 following the approval of her firearm licence.
87 She says she learnt safe firearm techniques at the Hedland Sporting Shooter's Club. This is confirmed by Mr King. She says there is no actual course you can do, you can only get experience from trainers at the gun club, and she was taught how to load and use the gun, gun safety and the correct storage of a gun. She states the trainers make sure you are confident and competent using a gun before they let you shoot by yourself. She says her trainer taught her to use rim fire and centre fire rifles.
88 She says she has also read the Basic Guide to Western Australia Firearm Laws and Safe Fire Practices for Shooters prepared by the Western Australian Police.
89 She says she was in the process of becoming a member of the Hedland Sporting Shooters Club when her firearm licence was revoked by the Commissioner.
90 She states that while she had her firearm licence she participated in target shooting at the Hedland Sporting Shooters Club as well as hunting feral pigs on Pyramid Station, which is north of Roebourne, and some distance south of Port Hedland. The Tribunal notes in passing that during cross-examination the applicant accepted that she did not in fact have the opportunity herself to hunt feral pigs on this pastoral lease, although she had hoped to be able to do so.
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91 She states that she would like to become involved in target shooting competitions, if she is good enough.
92 The applicant also says that since her gun licence was revoked she has been invited on four hunting expeditions with friends but has not been able to go on any of them because she does not currently hold a licence or have a gun.
93 The applicant says that even though she is now living in Perth, she hopes to enjoy game shooting. She says she would like to have the opportunity to be able to go game shooting with her friends when in Port Hedland. She has permission as noted earlier, to shoot vermin on Pyramid Station.
94 The applicant says she would, if her firearm licence were restored, leave the rifle in a secured cabinet in Port Hedland or at Pyramid Station.
95 The applicant says she also enjoys clay shooting and pigeon shooting. She hopes while living in Perth to be able to get involved in competitive shooting at gun clubs.
96 The applicant says she understands that her 0.243 firearm may not be the most appropriate firearm for target, clay or pigeon shooting and she may consider applying for a shot gun and target rifle to be added to her licence if it is reinstated. If this were to happen she would install a second cabinet in accordance with the Regulations at her Perth home for the safe storage of the shotgun or a small bore rifle.
97 The applicant insists shooting is one of the only sports that has interested her and she would like to get further involved in it. She says it keeps her active and she enjoys the camaraderie of being a part of a group of people with the same interest, as she has never really been involved in anything like that before.
98 The applicant says she felt humiliated when her firearm licence was revoked, when she had to keep declining offers to go game shooting with friends.
99 The applicant says she has not joined a gun club at the moment because she cannot see the point of joining up if she does not have a firearm licence.
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100 She says if she had her gun in a proper gun cabinet she would not give the key to the gun cabinet to anyone, and would never allow anyone to use the gun unless they were licensed to do so.
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107 The applicant said when she first met SL she was not aware of his involvement in God's Garbage motorcycle club but she become aware of that soon afterwards. She did not initially know anything about God's Garbage in particular but was aware generally of the reputation of outlaw motorcycle gangs.
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110 Concerning SL's character, the applicant said he was "not a criminal, a druggie or a violent person".
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112 She said that she had not associated with members of God's Garbage. While staying at Palgarup with SL in his house, some members of the club may have visited but remained outside. She said she would not get into conversation with them; "There is nothing to speak to them about."
113 She confirmed that she did not want to deal with the God's Garbage motorcycle gang.
114 The applicant insisted she would not let SL have any of the firearms, if she had a licence, because he was not licensed to use them.
115 [This segment of text is subject to a non-publication order]
116 The applicant confirmed that she enjoys the sport of shooting a gun. She said that she did not suddenly decide to do this; it was something that developed over some time. When she applied for her gun licence, so did SL.
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117 In re-examination the applicant expressed the view that it would make her life easier if SL was not a member of the outlaw motorcycle gang and it would reduce stress in his relationships too.
Commissioner's contentions
118 Counsel for the Commissioner correctly notes that the Tribunal, like the Commissioner, cannot grant an approval to issue a licence:
• unless it is satisfied that the applicant has a genuine reason for acquiring or possessing a firearm: s 11(1)(a) and s 11A(1) of the Firearms Act;
• if it is of the opinion that the issue of the licence is not desirable in the interest of public safety: s 11(1)(b) of the Firearms Act; or
• if it is of the opinion that the applicant is not a fit and proper person to hold the licence: s 11(1)(c) of the Firearms Act.
119 The Commissioner says the applicant has a practical onus to satisfy the Tribunal that the requirements of s 11 of the Firearms Act, which condition the grant of a licence, have been satisfied and to produce the necessary evidence or information to establish those matters: Wignall and Commissioner of Police [2006] WASAT 206 at [282] (Wignall).
120 The Commissioner also says that the circumstances set out in s 11(3) of the Firearms Act do not limit the grounds on which the Tribunal may refuse to approve the grant of a licence on the ground that the applicant is not a fit and proper person: Re Jones; Ex parte Commissioner of Police [1999] WASCA 246. The fit and proper requirement is therefore a catchall requirement that enables an application for a firearm to be refused or a firearm licence to be revoked where there is a concern that the applicant is not an appropriate person to hold a firearm licence on responsibility or safety grounds or out of concern for the possibility that the firearm might be used for another unlawful purpose, even though none of the express requirements in the Firearms Act seem to apply in the circumstances: Wignall at [303].
121 The Commission contends that members and associates of outlaw motorcycle gangs such as God's Garbage are more likely than members and associates of other community clubs and organisations to involve themselves in
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- activities that disregard the law and involve violence, as the Tribunal found in Wignall at [319].
122 Accordingly, the possession of a firearm by the applicant and her membership of the broader community cannot be looked at in isolation from her close relationship/association with SL and his membership of God's Garbage.
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124 The Commissioner further contents that given:
• God's Garbage status as an outlaw motorcycle gang and the attitude, ethos and activities of outlaw motorcycle gangs;
• the character of the individual members and associates of God's Garbage and in particular the commission by those members and associates of the gang of the criminal offences referred to earlier; and
• the applicant's close relationship or association with SL and her knowledge of his membership of God's Garbage,
- there is a real concern that it is not desirable in the interests of public safety that she be licensed to possess a firearm.
125 Counsel for the Commissioner submitted that the circumstances should lead to the Tribunal doubting whether the applicant has a genuine reason for requiring or possessing a firearm - because at the time the application was initially made, and now, there are reasonable grounds for fearing the applicant and SL want a firearm licence in connection with the sale of drugs - and not, in substance, for the purpose of hunting vermin on a pastoral station for recreation.
126 In summary the Commissioner says that:
• the grant of a firearm to the applicant is not desirable in the interests of public safety, because of the reasonable apprehension that the firearm would not, in substance, be for a recreational use, but for an unlawful use; and
• the applicant in those circumstances is not a fit and proper person to hold a licence, because she is associated with a person who is a member of an outlaw motorcycle gang and may be amenable to
- pressure being applied to her by a person such as SL to make her firearms available to him or his associates in the outlaw motorcycle gang for unlawful purposes.
Applicant's contentions
127 Counsel for the applicant emphasised the evidence of the applicant that shows she was participating in the Hedland Sporting Shooters Club before she applied for the firearm licence and that she acquired a rifle suitable for the recreational pursuit of hunting vermin on a pastoral lease.
128 [This segment of text is subject to a non-publication order]
129 [This segment of text is subject to a non-publication order]
130 [This segment of text is subject to a non-publication order]
131 [This segment of text is subject to a non-publication order]
132 [This segment of text is subject to a non-publication order]
133 Counsel for the applicant also emphasised that there was no evidence along the lines of SL acting violently towards the applicant or in ways whereby he would seek to overwhelm the applicant upon her displaying reluctance to comply with a request to hand over a firearm.
134 Counsel suggested that the issue rather was whether the associates of SL in the outlaw motorcycle club would be given access to the firearms in the possession of the applicant. In relation to this there was no reason to suspect that they would.
135 Counsel for the applicant said that when considered closely, the real reason the Commissioner revoked the firearm licence of the applicant was that she was going out with a "bikie".
136 [This segment of text is subject to a non-publication order]
137 Counsel submits that there is nothing to suggest that public safety will be jeopardised by reason of her relationship with SL if she holds a firearm licence.
138 The evidence suggests that the applicant has very little to do with God's Garbage motorcycle gang - only with SL.
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139 Counsel for the applicant submits that in the circumstances, no particular reason had been demonstrated as to why the Tribunal should not form the view that:
• the applicant has a genuine reason for acquiring or possessing a firearm;
• the interests of public safety are not prejudiced by the grant of a firearm to her; and
• that she is a fit and proper person to hold a firearm.
Tribunal's findings
140 The Tribunal, like the Commissioner, cannot grant an approval or permit or issue a licence under the Firearms Act to a person if it is of the opinion that
(a) to do so would be contrary to s 11A or regulations under s 11B or s 11C;
(b) it is not desirable in the interests of public safety; or
(c) the person is not a fit and proper person to hold the approval, permit, or licence: s 11(1) Firearms Act.
141 Where the Tribunal, like the Commissioner, is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Tribunal may take it into account in deciding whether that person is a fit and proper person to hold an approval, permit, or licence: s 11(2).
142 The Tribunal, like the Commissioner, has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold an approval, permit or licence under the Firearms Act if it
(a) is satisfied that at any time within the period of five years before the person applies for the approval, permit or licence, the person was convicted of an offence involving assault with a weapon, or violence, or of any offence against the Act, or a violence restraining order was made against them, whether in Western Australia or in any other place;
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- (b) is satisfied that the person fails to meet standards of mental or physical fitness considered to be necessary for the person to hold the approval, permit or licence; or
(c) suspects, on the basis of an intelligence report or other information held in relation to the person, that the person is a threat to public safety: s 11(3), Firearms Act.
143 Further, an approval cannot be granted and a licence cannot be issued to a person who has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit or licence is sought: s 11A(1).
144 That person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if:
(a) it is for use by the person as a member of an approved shooting club and the person is an active and financial member of the club;
(b) it is for use by the person as a member of an organisation approved under this paragraph;
(c) it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;
(d) it is required by the person in the course of the person's occupation;
(da) in the case of a prescribed paintball gun, it is required by the person to conduct or engage in paintball in accordance with this Act;
(e) it is to form part of a genuine firearm collection or genuine ammunition collection; or
(f) it is for another approved purpose: s 11A(2).
145 A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Tribunal, like the Commissioner, is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition, but also that the particular kind of firearm or ammunition can be reasonably justified: s 11A(3).
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146 In this case, the applicant has not been convicted of any of the types of offences referred to in s 11(3) of the Firearms Act. As a result, no question of not being fit and proper arises on that account.
147 Furthermore, there is no evidence to suggest that the applicant fails to meet standards of mental or physical fitness necessary to hold a firearm licence. So, it cannot be said she is not fit and proper on that account.
148 Moreover, there is no evidence that the Commissioner suspects, on the basis of an intelligence report or other information, that the person is a threat to public safety, save for the contention that her association with a member of an outlaw motorcycle gang should be considered sufficient to conclude that she constitutes a threat to public safety.
149 There is also no evidence to suggest that the applicant is a person with a history of, or tendency towards, violent behaviour.
150 The first issue raised by the Commissioner as to why it is proper to revoke the firearm licence granted to the applicant is that the applicant "has not been shown to have a genuine reason for acquiring or possessing the firearm" for the purposes of s 11A(1) of the Firearms Act.
151 In this case, the genuine reason relied on by the applicant is that specified in s 11A(2)(c), namely, that it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting.
152 Even though there is evidence to show that about the time she applied for the firearm licence the applicant had been practising shooting under the instruction of the Hedland Sporting Shooters' Club, s 11A(2)(a) does not apply here because she is not currently an active and financial member of an approved shooting club.
153 The Commissioner accepts that the owner of Pyramid Station in the Pilbara has given written permission for hunting and shooting vermin on that property.
154 The Commissioner also accepts that the applicant desires to go hunting and shooting as a recreational pursuit on that land. However, in substance, the Commissioner submits that the evidence shows or suggests that this is not the real, or substantive or dominant reason for requiring or possessing the firearm in this case.
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155 The argument of the Commissioner is that, having regard to the association of the applicant with SL [this segment of text is subject to a non-publication order] the view should be adopted that there is a real concern that she and SL each wanted to obtain a firearm in connection with the unlawful pursuit of selling drugs.
156 In all the circumstances, the Tribunal does not believe that it can or should conclude that the applicant does not have a genuine reason for acquiring or possessing a firearm, namely, the bolt action repeat rifle. There is, on the evidence, no real reason to doubt her interest in guns, albeit it has come to her later in life in her early 40s. She is demonstrated, on the evidence, to have attended the Hedland Sporting Shooters' Club and obtained instruction. The applicant has explained that friends have invited her on hunting trips. It is, in the circumstances, difficult to doubt the interest that she has expressed. The fact that she has come to it later in life and that her current boyfriend is a "bikie" are not, we think, sufficient on the face of it, to doubt the genuineness of her reason.
157 [This segment of text is subject to a non-publication order]
158 Also weighing on the assessment of this issue is the fact that the applicant sought and obtained a licence for a firearm which is suitable for hunting vermin on a pastoral lease for recreational purposes. Additionally, the applicant has indicated that she is prepared to store her rifle at the Hedland Sporting Shooters' Club or on Pyramid Station. This also tends to militate against the view that she wants to have the gun readily available for use in nefarious activities.
159 In conclusion, the Tribunal is satisfied that the applicant is a person who has a genuine reason for acquiring or possessing a firearm.
160 In particular, the Tribunal accepts that on the evidence the applicant has a genuine reason for acquiring or possessing the firearm in question for use in hunting or shooting of a recreational nature on Pyramid Station pastoral lease in the Pilbara region, the owner of which has given written permission for that hunting and shooting.
161 The next issue is whether the Tribunal is of the opinion that the grant of a firearm licence to the applicant is not desirable in the interests of public safety. The issue primarily arises in this way. The Commissioner is concerned that because the applicant associates with a senior member of an outlaw motorcycle gang, namely SL, he or members of that club may more easily gain access to her rifle in circumstances where it is also demonstrable that members of
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- outlaw motorcycle gangs have a propensity to use licensed and unlicensed firearms for unlawful purposes.
162 The Tribunal accepts that members of outlaw motorcycle gangs of the type mentioned in the evidence have this propensity; as the Tribunal, indeed, found in Wignall. However, whether or not the association of the applicant with SL is sufficient to lead to the Tribunal being of the opinion that it is not desirable in the interests of public safety for the applicant to hold a firearm licence is a more difficult issue to resolve than it was in Wignall's case.
163 Here, the evidence shows that the applicant happens to live in a common law or de facto relationship with SL. SL is a senior member of an outlaw motorcycle gang, namely God's Garbage. However, the evidence also is that the applicant has little, if anything, to do with the outlaw motorcycle gang or its other members. Her primary object of affection is SL. At the moment, SL works in a regional area and the applicant sees him every few weeks.
164 In the opinion of the Tribunal, there is nothing in the evidence to suggest that the applicant in this case is herself closely associated with the outlaw motorcycle gang, unlike the applicant in Wignall, who was himself a long-time member of an outlaw motorcycle gang. There is nothing in the evidence to suggest that the applicant has been under the influence of the God's Garbage outlaw motorcycle gang or any of its other members. Nor is there anything in the evidence [this segment of text is subject to a non-publication order] to suggest that SL exercises undue influence over the applicant in their dealings.
165 Indeed, the evidence, if anything, shows that the applicant is a singleminded, mature and determined individual who knows her own mind and would not easily be influenced by SL, particularly in relation to the use of a firearm.
166 [This segment of text is subject to a non-publication order]
167 At material times when she made her application for a firearm licence, the applicant disclosed her relationship with SL. She did not try to hide it. This is also consistent with her being open and acting independently.
168 The Tribunal therefore is not of the opinion that it is desirable in the interests of public safety that a firearm licence not be granted. The basis of any concern that the applicant might, in effect, make the firearm available to SL
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- or God's Garbage members for unlawful uses is, in these circumstances, speculative and not of sufficient weight to lead to a different view.
169 For similar reasons to those just described, the Tribunal is also not of the opinion that the applicant is not a fit and proper person to hold a firearms licence. [This segment of text is subject to a non-publication order]
170 In all the circumstances, the Tribunal is prepared to accept that the position here is that the applicant is interested in shooting for recreational reasons and desires a firearm for that purpose.
171 In the circumstances, the Tribunal is satisfied that, having regard to the terms of the Firearms Act, there is no reason why a firearm licence should not be granted to and held by the applicant. In those circumstances, the earlier decision to revoke the firearm licence earlier granted to the applicant should be set aside.
172 Nonetheless, a question arises as to the conditions on which a firearm licence should be issued to the applicant.
173 In this regard, the applicant has indicated that she desires to hold the licence for a Mossberg rifle bolt repeater, calibre 0.243, so that she can engage in recreational shooting of vermin on Pyramid Station in the Pilbara. She has indicated that she would store the rifle either at the Hedland Sporting Shooters' Club or on Pyramid Station. Given that the applicant desires to engage in recreational shooting at Pyramid Station and has consent from the owner to do so, the Tribunal thinks it appropriate that there be a condition on the grant of the licence that the firearm be stored, in accordance with the requirements of the Act and the Regulations, at the homestead or other appropriate building on Pyramid Station.
Conclusion and order
174 For the reasons given above, the Tribunal is of the view that there is no reason why the applicant should not be granted a firearm licence under the Firearms Act, and that the revocation of her earlier licence by the Commissioner should be set aside.
175 However, the Tribunal is of the view that the setting aside of the Commissioner's decision should be on the basis that the licence so granted is subject to a condition that the firearm be stored at Pyramid Station.
176 The Tribunal orders:
1. The review application of the applicant is upheld.
2. The decision of the Commissioner of Police revoking firearm licence no 4486421 to the applicant is set aside, on the condition that firearm licence no 4486421 is reinstated by the Commissioner of Police on the sameterms and conditions upon which it was originally granted, and on the further condition that:
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- (i) the firearm the subject of the licence be stored at the homestead or other appropriate building on the Pyramid Station pastoral lease in the Pilbara.
I certify that this and the preceding [176] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE M L BARKER, PRESIDENT
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