Baker v Commissioner of Police, NSW Police Force
[2013] NSWADT 190
•22 August 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Baker v Commissioner of Police, NSW Police Force [2013] NSWADT 190 Hearing dates: 21 February 2013 Decision date: 22 August 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision to revoke the Applicant's firearms licence is affirmed.
Catchwords: Firearms Act - firearms licence - revocation of licence - contrary to the public interest Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Firearms Regulation 2006Cases Cited: Bottomley v Commissioner of Police [2005] NSW ADT 211
Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210
Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2
Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Kalinic v Commissioner of Police, NSW Police [2006] NSWADT
Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28Category: Principal judgment Parties: Patricia Mae Baker (Applicant)
Commissioner of Police, NSW Police Force
(Respondent)Representation: P. M. Baker (Applicant in person)
Bartier Perry (Respondent)
File Number(s): 123144
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a decision by a delegate of the Respondent to revoke the Applicant's Category AB firearms licence.
Background
The Applicant has held a category AB firearms licence under the Firearms Act 1996 (""the Act) since June 2003. In January 2006 the Respondent placed a special condition on the licence due to the Applicant's domestic circumstances. The Special Condition was put in place following the Applicant's husband, Mr Cyril Brett Baker ("Mr Baker") being subject of an AVO. The Special Condition prohibited storage of firearms at the Applicant's residence. The Special Condition was lifted in May 2006.
The Applicant and Mr Baker live on a rural property at Quirindi ('the Property"). Large signs placed at the entrance of the Property warn that entrance to the property is by invitation only. The signs state, amongst other things:
"LEGAL NOTICE - NO TRESPASSING
Admittance by invitation only
Exclusion Notice - Private Property"
To all men, women, persons and entities including POLICE / GOVERNMENT /SHERIFF/ BAILIFF./ PROCESS SERVER
COUNCIL / RSPCA / PRIVATE INVESTIGATORS/ CORPORATIONS
TRESPASS DAMAGES shall apply upon one step onto land/property
Minimum Penalty: Ten Thousand Australian. Dollars (AUD $10,000) per party, per entry - Penalty at discretion of occupier - Due in 21 days
By your trespass, you agree to provide full details of your private Information for damages claim ..."
and
" NO ENTRY
To all persons acting for Tax, Law, Judicial and Local, State or Federal Governments.
Admittance here TO YOU is by INVITATION ONLY".
In November 2011 Mr Baker was convicted in his absence in relation to offences resulting from his refusal to comply with police directions. Mr Baker refused to acknowledge the authority and jurisdiction of the Local Court.
On 18 November 2011 the Tamworth Local Court issued a warrant for Mr Baker's arrest. On that evening, Senior Constable Fraser and Senior Constable Hitchen attended the Property to execute the arrest warrant. An incident ("the 18 November incident") occurred on the evening of 18 November 2011, which ultimately lead to the revocation of the Applicant's firearms licence.
Senior Constable Fraser's evidence is that Mr Baker was at a shed on the property and walked to his house when the police were attempting to execute the warrant and he barricaded himself inside the kitchen of the house.
Senior Constable Fraser walked with the Applicant, following Mr Baker to the house. His evidence is that three times he asked the Applicant if there was a firearm in the house and that in response to the question the Applicant had answered 'No'.
The Applicant disputes this assertion. She asserts that Senior Constable Fraser only asked her twice whether there was a gun in the house and that she twice answered 'No' to his question. She asserts that she interpreted Senior Constable Fraser's question as an inquiry about whether there were firearms in the house that Mr Baker could access. She further asserts that the correct answer to that question was 'No'. She asserts that at no time did she say there were "no firearms kept on the property."
A firearm registered to the Applicant was in fact stored at the Property.
In her Statutory Declaration dated 16 April 2012 the Applicant stated that her rifle was stored in a gun locker inside the laundry and that she does not regard the laundry to be "in the house" as it must be accessed by walking out the back door of the kitchen onto the open verandah. She further asserted that Mr Baker had no access from the kitchen to the laundry.
The Applicant's licence was revoked on 4 April 2012. She has applied for external review of the determination to revoke her licence. The matter came before me for hearing on 21 February 2013. As an interim issue, the Applicant challenged the Tribunal's jurisdiction to deal with the matter. She objected to the way in which the police had treated her. She contended that her rights under the Universal Declaration of Human Rights, the Australian Constitution and various other rights had been violated. She further asserted that she has been subjected to harassment and intimidation and that assumptions about her living conditions are contrary to the Anti-Discrimination Act 1977.
She did not pursue that issue but I nevertheless formed the view that the Tribunal has the jurisdiction to determine this matter.
Applicable legislation
The underlying principles and objects of the Act are stated in section 3:
3 Principles and objects of Act
(1) The underlying principles of this Act are:
(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and
(b) to improve public safety:
(i) by imposing strict controls on the possession and use of firearms, and
(ii) by promoting the safe and responsible storage and use of firearms, and
(c) to facilitate a national approach to the control of firearms.
(2) The objects of this Act are as follows:
(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances,
(b) to establish an integrated licensing and registration scheme for all firearms,
(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm,
(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms,
(e) to ensure that firearms are stored and conveyed in a safe and secure manner,
(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms.17.
Consistent with a licence being a privilege, the Act places various restrictions on the issue of a licence. Relevantly, section 11 provides:
11 General restrictions on issue of licences
(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.
...
(3) A licence must not be issued unless:
(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and
(b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and
(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant, and
...
(4) Without limiting the generality of subsection (3) (a), 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:
(a) the applicant's way of living or domestic circumstances, or
...
Section 19 allows the Commissioner to impose conditions on a licence.
19 Conditions of licence
(1) A licence may be issued by the Commissioner subject to such conditions as the Commissioner thinks fit to impose.
(2) Without limiting subsection (1), each licence is subject to the following conditions:
(a) the licensee must comply with the relevant safe keeping and storage requirements under this Act,
(b) the licensee must not permit any other person to possess or use any firearm in the licensee's possession if that other person is not authorised to possess or use the firearm,
(c) the licensee must, in accordance with such arrangements as are agreed on by the licensee and the Commissioner, or, in the case of a licensed firearms dealer, at any reasonable time, permit inspection by a police officer (or such other person as may be prescribed by the regulations) of the licensee's facilities in respect of the storage and safe keeping of the firearms in the licensee's possession,
(d) the licensee must not possess, at any one time, any amount of ammunition that exceeds the amount (if any) prescribed by the regulations, unless authorised in writing by the Commissioner,
(e) the licence cannot be transferred to another person.
(3) A licence is subject to such other conditions as may be prescribed by the regulations.
Section 24 provides for the revocation of a licence in certain circumstances:
24 Revocation of licence
...
(2) A licence may be revoked:
(a) for any reason for which the licensee would be required to be refused a licence of the same kind, or
(b) if the licensee:
(i) supplied information which was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or
(ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or
(iii) contravenes any condition of the licence, or
(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or
(c1) if the Commissioner is satisfied that the licensee, through any negligence or fraud on the part of the licensee, has caused a firearm to be lost or stolen, or
(d) for any other reason prescribed by the regulations.
...
Clause 19 of the Regulation provides:
The Commissioner may revoke a licence if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence.
Section 75 of the Act provides for the review of certain decisions by this Tribunal:
75 Review by Administrative Decisions Tribunal of certain decisions
(1) A person may apply to the Administrative Decisions Tribunal for a review of any of the following decisions:
(a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,
(b) a condition imposed by the Commissioner on a licence or permit issued to the person,
(c) the revocation of a licence or permit issued to the person (other than a revocation on the basis that the holder of the licence or permit is subject to a firearms prohibition order or an apprehended violence order),
...
Section 75 of the Act has been the subject of numerous matters before this Tribunal.
Section 6 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") provides:
6 What is a decision?
(1) General meaning
A decision includes any of the following:
(a) making, suspending, revoking or refusing to make an order or determination,
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d) imposing a condition or restriction,
(e) making a declaration, demand or requirement,
(f) retaining, or refusing to deliver up, an article,
(g) doing or refusing to do any other act or thing.
(2) Decision made under an enactment
For the purposes of this Act, a decision is made under an enactment if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enactment.
(3) Decisions made without power
For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under an enactment is taken to be a decision made under the enactment even if the decision was beyond the power of the decision-maker to make it.
...
I am satisfied that the Tribunal has jurisdiction to hear and determine this matter pursuant to section 75 of the Act and section 6 of the ADT Act.
The Respondent's case
The Respondent contends that the revocation was justified because:
- the Applicant may not be able to personally exercise continuous and responsible control over the firearms because of the Applicant's living or domestic circumstances: sections 24(2)(a) and 11(4)(a) of the Act; and
- it is not in the public interest for the Applicant to continue to hold a firearm licence: section 24(2)(d) of the Act along with clause 19 of the Firearms Regulation 2006 ("the Regulation").
The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act and in particular the evidence of Senior Constable Fraser and Senior Constable Hitchen. Each provided statements, was available at the hearing and was subjected to cross-examination.
The Respondent relies on documentary evidence in relation to the 18 November incident. In a memorandum dated 19 November 2011, Senior Constable Fraser recorded his account of what transpired. He wrote:
...
Police attended Mr BAKERS home that evening where he was placed under arrest. Mr BAKER was also charged that evening with resisting police in the execution of their duty. In the process of being arrested Mr BAKER attempted to barricade himself inside the home at the property. During the incident police asked Mrs Patricia BAKER, who was also present on three separate occasions if there were any firearms present inside the house. Police held genuine concerns that should firearms be present, that Cyril BAKER may choose to use them as a means of avoiding arrest. On each occasion that she was asked Mrs BAKER told police that no firearms were kept on the property.
The incidents concerning Cyril BAKER and his unwillingness to co-operate with police appears to stem from his belief that he is not subject to NSW or Commonwealth laws and that in his opinion, police and other Government authorities have no power or jurisdiction over him. To emphasise this belief Mr BAKER has erected signs at the front of his premises which exclude any government members from entering without his permission. Mr BAKER has in his dealings with police made it clear that he has no intention to conform or comply with the law or police directions.
The COPS database also provides evidence of previous disputes Mr BAKER has had with other government agencies, namely the Rural Lands Protection Board.
COMMENT:
From the recent dealings with Mr BAKER police have developed serious concerns in relation to his apparent dislike of police and any government body which may have any influence over him. It is not known by police if Mr BAKER may be suffering from some form of mental illness or if his beliefs are being made using sound judgement. Mr BAKER has no previous recorded history of mental health incidents which have involved police.
It is of great concern to police that Mr BAKER may readily have access to a firearm stored at his property. Despite the firearm being registered to his wife and it being her responsibility to remain in control of the firearm police do not feel that Patricia BAKER may be able to exact enough control of the firearm should her husband be seeking ft. It is thought by police that Mr BAKER appears to have sufficient control or influence over his wife that she was willing to lie to Police about the presence of firearms at the property when asked on the evening of the le November 2011, The circumstances in which Mrs BAKER was being asked about the presence of firearms were such that police were of the opinion that Cyril BAKER posed a serious threat to either police or himself should firearms have been accessed by him.
In regards to this application police will site several relevant sections of the Firearms Act 1996 and Firearms Regulation 2006 in which they believe may provide sufficient grounds to have Patricia BAKERS firearms licence revoked.
...
Based on the recent dealings police have had with Mr BAKER and his wife, Patricia, police are concerned that he and his ability to access a firearm could pose a serious risk to the safety of primarily police, and secondly to any other government agencies or even other members of the general public.
The actions of Mrs Patricia BAKER on the evening of the 18th of November 2011 concern police greatly. She has displayed a willingness to lie openly to police about the presence of firearms in a situation where her husband was barricading himself inside their house to avoid arrest. She must have been aware of the risks that could have been posed to police safety had her husband elected to access a firearm. This risk was further exacerbated by the fact that based on the lies she told police, police proceeded to force entry to the premises believing no firearms were present. Mrs BAKERS willingness to lie to police in these circumstances and to assist her husband in his attempts to evade police must cast some doubt over her position as a 'fit and proper person' and whether she/or her husband given his immediate access, can be trusted to possess such firearms without posing a serious danger to public safety or to the peace.
Police believe that given the domestic situation Mr and Mrs BAKER currently exist in and the influence that Mr BAKER may have over Mrs Baker with regards to accessing firearms at the premises that Mrs BAKER may not be able to exercise the necessary continuous and responsible control over the firearms. Again her willingness to lie to police, and seeming reluctance to assist them when asked about the presence of the firearms adds further support to this claim.
In a Statement dated 23 November 2011 Senior Constable Fraser stated:
... The accused walked out of the yard and walked toward the house with the items he was carrying. I followed the accused. On the way, to the house I asked the accused wife, "Is there any firearms in the house?"
She said, "No."
I saw the accused walk up onto the veranda, I heard the sound of a door close. Senior Constable HITCHEN turned around to Mrs BAKER and I and said, "Do you have any keys for the house?'
She said, "No."
I heard other doors in the house being closed and locked. I heard furniture being moved around inside. I asked Mrs BAKER again,
'Are you sure there are no firearms inside?
She said, "No"
Senior Constable HITCHEN said, "He's putting chairs up against the door or something."
I said to Mrs BAKER, "You might want to convince him to come out or we will have to kick the door in to get him down."
She said, "Don't you need a warrant or something?"
I said, 'We have one. An arrest warrant for him."
She said, "You better come out Cyril, They reckon they can kick the door in."
He said, "No way. I'm not coming out, I'm not going any where. I'm not coming out and they're not coming in. They cant."
I said, 'Open the door or I'm going to kick it in."
He said, 'Go away. Your not supposed to be here."
I said to Mrs BAKER, "Are there firearms inside?"
She said, "I don't think so."
On 30 November 2011 Senior Constable Fraser made the following entry in the Police Computerised Operational Policing System ("COPS") database:
During the arrest of Cyril BAKER outlined in narrative 1 police had cause to speak with his wife, Patricia BAKER who was present throughout.
The conversation with Patricia BAKER revolved around police making enquiries with her as to the presence of firearms. Due to the circumstances whereby Cyril BAKER commenced barricading himself in the home, police held concerns that he may access firearms and the situation could have developed into a possible siege.
At the time police were unsure if firearms were held at the location. Police asked Mrs BAKER three times whether or not firearms were present and on each occasion she stated that there were not any firearms there.
Following the arrest of Cyril BAKER police made enquiries to confirm the presence of firearms. These enquiries on the ILS system revealed that Mrs BAKER is in fact the holder of a licence and that she is the owner of a .22 rifle registered to be safe stored at the location.
Police will be making application for Mrs BAKERS licence to be revoked in relation to this matter.
It was later discovered there was a firearm registered to the Applicant at the Property.
Senior Constable Hitchen was not walking with Senior Constable Fraser and the Applicant as he followed Mr Baker to the house. He was not with Senior Constable Fraser and the Applicant at the time he asked the Applicant whether there were any firearms in the house. However, in his statement of evidence he stated:
It is standard operating procedure when you have someone attempting to barricade themselves in a house, that you ask whether there are firearms and you make observations to determine whether there are any firearms or other risks in existence. As I could not see any firearms being accessed or held by Mr Baker, from what I observed it was safe to gain entry to the house to arrest Mr Baker. I had assumed, based on standard operating procedures, that Senior Constable Fraser would have enquired whether there were any firearms on the property with the Applicant. I have no reason to doubt that he made those enquiries; I believe he did. Senior Constable Fraser did not advise me that there were any firearms on the Property and it was decided that Senior Constable Fraser and I would gain entry to the house.
Under cross-examination both Senior Constable Fraser and Senior Constable Hitchen conceded that at the time of the 18 November incident they had not ascertained the Applicant's identity. Their evidence was not shaken in any significant sense. The failure to ascertain the Applicant's identity on the night of 18 November 2011 does not appear to be of significance in this matter. It is common ground that the Applicant was present during the incident.
The Respondent also relies on the Applicant's hand-drawn map of the property, which indicates three buildings on the property - the house, a shed and a garage. The Respondent submits that the laundry is part of the house and the existence of the firearm ought to have been disclosed to police officers. The Respondent further submits that the Applicant was either untruthful, or lacked the expected candour or frankness of a licence holder in not disclosing to the police officers that there was a firearm.
As noted above, the Act provides that a firearms licence is a privilege. There are to be strict controls on the possession and use of firearms. The Respondent submits that an important part of the regulation system is to ensure the safety and security of firearms and the need for police checks of compliance with firearm safe keeping requirements.
The Respondent points to the Applicant's signage at the entrance to the property and notes assertions by the Applicant in relation to the actions by Senior Constable Fraser and Senior Constable Hitchen. She referred to their attendance on the property to exercise powers pursuant to an arrest warrant or to serve a notice as 'trespass' and their seizure of her firearm after the revocation of her licence as 'theft'.
The Respondent submits that there is an appreciable and real risk that the Applicant and/or Mr Baker would not allow police access to the property for an inspection to occur for legitimate firearm safety purposes.
The Respondent submits that in the situation of a siege, the public would rightly expect a firearm licence holder to be candid and frank about the location of firearms. A failure to do so is destroying of public confidence. It contends that the Applicant's actions and responses demonstrate that it is not in the public interest that the Applicant retain a firearms licence in the circumstances where:
- she was untruthful, or lacked the expected candour and frankness when police asked her if there were firearms in the house;
- she views Mr Baker's attempts to barricade himself in the house in resistance to an arrest warrant as "reasonable resistance"; and
- she considers police officers exercising a power to seize a firearm under the Act as theft.
In relation to the Applicant's decision to not be cross-examined the Respondent submits that it has been denied the chance to test her evidence and to put propositions to her. Mr Mattson submitted that there are two consequences that follow from that decision:
any evidence by the Applicant is untested and therefore cannot be given any weight; and
the inference can be drawn that any evidence that she might have given would not have assisted her.
The Respondent submits that the correct and preferable decision for this Tribunal to make is to affirm the Respondent's decision to revoke the Applicant's firearm licence.
The Applicant's evidence
The Applicant relies on her own evidence. She relies on a Statutory Declaration provided with her request for an internal review of the decision to revoke her licence. She also relies on an Affidavit dated 2 August 2012 in support of her application to the Tribunal. She declined to give evidence or to make herself available for cross-examination.
The Applicant also relies on a character reference provided by Ian Freestone and Kris Freestone. That reference speaks highly of the Applicant but makes no mention of the matter before the Tribunal or the circumstances that have given rise to the revocation of the Applicant's licence.
In her Statutory Declaration she wrote:
At approximately 4.00 pm on 4 April, 2012 two (2) Police officers, Senior Constable Christopher Fraser and Senior Constable Adam Steven Hitchen trespassed for a second time (previously on 18 November, 2011) on my property, when they entered by driving their vehicle through and taking no notice of 'NO ENTRY', `LEGAL NOTICE- NO TRESPASSING, Admittance by invitation only, Exclusion Notice- Private Property' signs at the entrance to our property and dwelling.
They then proceeded to STEAL my .22 calibre STEVENS Model 15 BE LONG RIFLE Serial No. 0037537 and an antique metal container and it's contents of 11 boxes of .22 ammunition; thereby committing another offence.
The signs also state that Police and other government officials, etc. are not allowed to enter and that if they did so, they would be trespassing and that trespass damages shall apply.
In her Affidavit she wrote:
Police admit that they had 2 unsuccessful attempts to serve a Notice of Revocation before the successful attempt on 4 April, 2012. They were well aware of their trespass on all occasions, after entering past my "NO ENTRY, NO TRESPASSING, ENTRY BY INVITATION ONLY" signs.
After their previous trespass on 18 November, 2011 when they were asked to leave three (3) times by my husband, they were also well aware they should contact me to request permission to enter i.e. "invitation" to my property, as stated on the signs. They would also have been aware of our "NOTICE OF WITHDRAWAL OF ENTRY" Notice Letter dated 18 July, 2011 and Registered Posted on 19 July, 2011, to the NSW Minister for Police, `withdrawing right of entry' to our property.
A copy of the notice to the Minister for Police was annexed to her Affidavit. The notice states:
I am notifying you that all right of entry to my property at 319 Bonny Rigg Road, Quirindi, NSW, by all men, women, persons and entities of or acting for the NSW Police Force, including all police officers, authorised officers, peace officers, private investigators etc, is hereby withdrawn.
...
In her Affidavit she further stated:
The Firearms Act 1996 section 24 (3) states: "The Commissioner of Police may revoke a licence by serving personally or by post on the licensee a notice stating that the licence is revoked and the reason for revoking it."
The NSW Police Force website also states that the Notice can be posted.
Therefore the Notice could have been posted, and there would have been no reason for their trespass.
When referring to Firearms Act 1996 section 25 (1) and (2) - This section does not state that the police officer can trespass on my property and into my home to seize the licence and firearms.
The Police have admitted ... that there are "...signs at the front of his premises which exclude any government members from entering without his permission." They therefore were well aware they were trespassing.
The police trespassed on my property on 4 April, 2012 when they served the Revocation of my firearms licence and committed the offence of Trespass to property. They entered through the closed gates or the cattle grid access. The police ignored the No Trespass signs which are erected on the front gates and adjacent to the cattle grid ...
...
I withdrew their right to enter.
In relation to the actions by Senior Constable Fraser, the Applicant wrote In her Affidavit:
I was standing beside him when he asked me twice, not 3 times, as it tries to suggest.
S .C. Fraser asked me twice "Is there a gun in the house?" At the time S.C. Fraser and I were standing side by side, approximately 1.5 metres from the back door (this is the door that opens into the kitchen) and facing this door of my home. He asked me this question twice and both times I answered "No".
I interpreted the questions as, is there a gun IN the house, that my husband would have access to? The answer was NO both times.
As stated in my Statutory Declaration the rifle was stored in a gun locker inside my laundry.
The laundry was locked and is situated behind where S.C. Fraser and I were standing when he asked me the two questions. I do not regard the laundry to be "in the house" as it must be accessed by walking out the back door of the kitchen onto the open verandah, on which we were standing. My husband had no access from the kitchen to the laundry. He would have had to walk pass S.C.Fraser and I to access the locked laundry. He did not have access to the keys to the laundry or the gun locker.
At no time did I say there were "no firearms kept on the property."
There was no indication that my husband would choose to use any weapon to avoid arrest.
*My answers "No" to the two (2) questions asked by S.C. Fraser "Is there a gun in the house?" are most important in regards my credibility, and there was definitely 'not a gun in the house that my husband could access'.
...
At all times I had control over my rifle. The firearms cabinet was locked at all times. My husband was not aware of the location of the firearm cabinet keys and he had no interest in knowing about the rifle at any time. I changed the location of keys regularly.
What facts have the police used to conclude "... thought by police that Mr Baker appears to have sufficient control or influence over his wife that she was willing to lie...."? This is an outrageous and incorrect statement. This is an opinion or hearsay. I did not lie on the night of the 18th November, 2011. I answered the questions I was asked. I was apparently required to read S.C. Fraser's mind on this night. I do not have the same mind set as police officers in that I knew there was no gun "in the house" that my husband could access and the keys were not in the house either. The police thought I was lying because I did not give them an in-depth answer to the location of the rifle. I do not have the same mind set or culture as police. I regard the possession of my rifle as a valuable tool on my property to destroy diseased or injured animal and to eradicate vermin, and as a weapon. Police apparently only regard firearms as offensive weapons.
On the night of 18 November, 2011 my husband was not acting in a manner which "...posed a serious threat to either police or himself...." He closed the door of the kitchen. He did not lock the door but lent on the door. At all times he was observed by S.C. Hitchen through a glass pane in a locked side door to the kitchen. Because my husband was in the kitchen he had access to a selection of knives. In fact he had a knife in his hand as we were butchering a sheep when the Police arrived. He put the knife down when he was talking to police. At no stage did he use a knife or anything as a weapon to protect himself. When something is available it does not mean a person will use it to protect themselves. So just because there was a gun on the property a person does not necessarily have to use it. Not all people are criminals.
I do not have the same beliefs as my husband. I am a tertiary educated, retired high school teacher and farmer and have my own opinions on social and political issues.
The Applicant summarised her case in the following way:
It would not be against the public interest for me to possess firearms.
I am a fit and proper person.
I am innocent of any wrong doing.
I have been judged and found guilty without a Hearing, by the police and Firearms Registry, not a court of law and therefore have been denied Natural Justice.
At all times I had continuous and responsible control over my rifle. I do regard firearm possession and use as a privilege and have always been very careful regarding use of my rifle and maintained correct storage.
The firearm cabinet was always locked, the cabinet keys location has been changed regularly and I was the only person who knew the location of the keys.
I require my licence and rifle for the humane destruction of diseased, injured, drought stricken livestock and the eradication of vermin. A firearm is essential on a rural property and to be without it is a "denial of the right to farm".
...
I request that my Firearms Licence be re-instated and my rifle and ammunition be returned.
My income has suffered as a result of losing my rifle.
My husband has never had access to the rifle and has never wanted to.
The AVO imposed on my husband expired in 2006 and he had his Firearms Licence reinstated.
As noted, the Applicant did not give evidence at the hearing. He evidence is therefore limited to the Statutory Declaration, Affidavit and reference. She made submissions that essentially focused on the manner in which Senior Constable Fraser and Senior Constable Hitchen had dealt with the 18 November incident and how they had dealt with her on 4 April 2012 when they went to the property to serve the notice of revocation and to seize her firearm.
Discussion
Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
This matter relates to the determination by the Respondent to revoke the Applicant's firearm's licence. Much of the Applicant's evidence and arguments concerns the conduct of Senior Constable Fraser and Senior Constable Hitchen and therefore, in my view, is not relevant to the issues to be determined.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
Mr Mattson has referred me to a number of prior decisions of the Tribunal discussing the legislative requirements. In deciding this matter I have had regard to those decisions and I note that I am in general agreement with Mr Mattson in regard to the applicable law.
I have also had regard to the fact that the underlying principles of the Act emphasise the need to ensure public safety. The consistently applied test is that set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28. In the context of the Act, the Tribunal must be satisfied that there is virtually no risk to public safety if the Applicant were given access to a firearm.
As noted, the Respondent contends that the revocation was justified because of the Applicant's living or domestic circumstances and that it is not in the public interest for the Applicant to continue to hold a firearms licence.
There have been many decisions by this Tribunal that confirm that a firearms licence is a privilege and not a right: see for example, Cleofe v Commissioner of Police, NSW Police Service; Alpha Intelligence Securities Pty Ltd v Commissioner of Police, NSW Police Service [2001] NSWADT 2, Bottomley v Commissioner of Police [2005] NSW ADT 211 and Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68.
In this matter the decision to revoke the licence was an exercise of the Commissioner's discretion. Any discretion must be exercised to promote the objects of the firearms legislation and the discretion exercised in clear preference to the public interest than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force [2010] NSWADT 210 at [43].
In Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph [23] the Tribunal's Deputy President stated that the discretion should be exercised in a way which promotes the principles and objects of the Act. This approach has been adopted in numerous decisions of this Tribunal. As I stated in Kalinic v Commissioner of Police, NSW Police [2006] NSWADT 227 at paragraph [16]:
16 The Act is to be interpreted narrowly ... in exercising discretion. The principles and objectives of the Act are set out in section 3. The underlying principles of the Act are to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety and to improve public safety by imposing strict controls on the possession and use of firearms and by promoting safe and responsible storage and use of firearms.
The Respondent has referred in particular to the Applicant's response when questioned by Senior Constable Fraser at the time of the 18 November incident and to her attitude towards police having access to the property to exercise their duties under the firearms legislation.
There is some dispute between the parties in regard to what transpired at the time of the 18 November incident. Both Senior Constable Fraser and Senior Constable Hitchen were cross-examined. The Applicant was not. Her evidence is therefore untested. In the circumstances I accept Senior Constable Fraser's evidence in regard to the 18 November incident.
In my view, it is improbable that the Applicant would have not understood why Senior Constable Fraser asked about whether there were firearms in the house. It is possible that the Applicant understood that he was attempting to ascertain whether Mr Baker could access a firearm from where he was in the kitchen. However, that aspect of her evidence has not been tested, as she was not available for cross-examination.
I agree with the Respondent that candour is to be expected in circumstances such as those of the 18 November incident. In response to Senior Constable Fraser's questioning about whether there were firearms in the house the Applicant could have simply answered "No. The firearm is in the laundry."
In the circumstances I agree with the Respondent's contention that the Applicant was not candid in her response. However, I accept that in all other respects the Applicant cooperated with police on that occasion. It seems she was less co-operative on 4 April 2012 when Senior Constable Fraser and Senior Constable Hitchen attended the Property to serve the revocation notice and seize her firearm.
Of greater concern, in my view, is the Applicant's general attitude towards police having access to the property. In her evidence she referred to the restrictions that she and Mr Baker had placed on access to the property. While Mr Baker wrote the Notice Letter dated 18 July 2011 to the Minister for Police, it is clear from her evidence that she regarded this as a joint notice. She referred to it as "our "NOTICE OF WITHDRAWAL OF ENTRY" Notice Letter". She also referred to the signage as "our sign". This suggests that she adopted the views expressed as her own.
The Applicant contends that she does not have the same beliefs as Mr Baker. However, her evidence suggests that this is not entirely accurate. Nevertheless it is not necessary that I determine whether her living or domestic circumstances could give rise to a reasonable cause to believe that she may not personally exercise continuous and responsible control over firearms.
In my view, it apparent from her own evidence that the Applicant does not understand her obligations as a licensee. This provides sufficient cause to warrant the decision to revoke her firearms licence.
In regard to the Applicant's understanding of her obligations as a licensee, I note the Respondent's concern that the Applicant regarded Mr Baker's attempts to barricade himself in the house in resistance to an arrest warrant as "reasonable resistance". I also note that the Applicant maintained that Senior Constable Fraser and Senior Constable Hitchen were trespassing on her property when they attended at the property on 18 November 2011 to serve the warrant on Mr Baker and on 4 April 2012 to serve the revocation notice on the Applicant.
The Applicant also asserted that Constable Fraser and Senior Constable Hitchen stole her firearm and ammunition. This assertion is made in relation to a situation where the police officers were exercising a power under the Act.
I accept the Respondent's submission that under the Act, and under standard licence conditions, police may make arrangements with a licence holder to attend a licence holder's property to inspect compliance with safe keeping requirements. It seems that the Applicant and Mr Baker hold the belief that they may, at any time for any reason, refuse entry to police officers to their property. As such, there is an appreciable risk that officers will not be allowed to enter their property for compliance checks and that would frustrate the objects of the Act and standard licence conditions.
It is apparent from her evidence that the Applicant does not regard herself as subject to the provisions of the Act. As she was not available to answer questions, the issue of whether she and/or Mr Baker would refuse to allow police access to the property for an inspection to occur for legitimate firearm safety purposes could not be tested. In the circumstances it appears that there is a real risk that such access would be refused.
There is an appreciable and real risk that the Applicant's beliefs are inconsistent with the objects of the Act and the conditions of her licence. That being the case, it is my view that it is contrary to the public interest that the Applicant holds a firearm licence.
Parliament did not leave the extent of compliance with the Act to the discretion of licence holders. I have serious concerns about the Applicant's appreciation of the importance of strict observance of her obligations as a firearms licensee.
I note the character reference provided by Ian and Kris Freestone. I give that reference little weight, as there is no indication of how the reference was obtained or whether or not the authors were aware of the matter that is before the Tribunal.
In my view, it is appropriate that the Applicant have some time without a firearms licence in which she can focus her mind on the underlying principles and objects of the Act and the need for strict compliance with her obligations as a firearms licensee.
At this time I cannot be satisfied that there would be virtually no risk to the public or that the public would be comfortable with the Applicant holding a firearms licence. It follows in my view that the correct and preferable decision is to revoke the Applicant's firearms licence. Accordingly I affirm the Respondent's decision.
I am unable to provide any specific guidance as to what I would consider to be sufficient to dispel my concerns. However, I suggest that the Applicant take positive steps to re-educate herself in regard to the legislative regime governing the use of firearms in this State and the importance attached to the obligations as a firearms licensee.
If she takes these steps and should she choose to reapply for a firearms licence, the Respondent may well reach a different conclusion.
Orders
The decision to revoke the Applicant's firearms licence is affirmed.
Decision last updated: 22 August 2013
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