Beaman v Commissioner of Police, NSW Police Force

[2017] NSWCATAD 191

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Beaman v Commissioner of Police, NSW Police Force [2017] NSWCATAD 191
Hearing dates:	6 June 2017
Date of orders:	16 June 2017
Decision date:	16 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1)   The Commissioner’s decision to revoke the licence is affirmed.
Catchwords:	ADMINISTRATIVE LAW – firearms licence – revocation of licence - public interest – mental health
Legislation Cited:	Administrative Decisions Review Act 1997 Firearms Act 1996
Cases Cited:	Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Ward v Commissioner of Police [2000] NSWADT 28
Category:	Principal judgment
Parties:	Benjamin Beaman (Applicant) Commissioner of Police (Respondent)
Representation:	Solicitors: Lindsay Taylor Lawyers (Respondent)
File Number(s):	2016/378556, 1610810

reasons for decision

1. The applicant, Mr Beaman, has applied for a review of the decision by the Commissioner of Police to revoke his Category ABH firearms licence.

2. For the reasons stated in this decision, the Commissioner’s decision is affirmed.

Background

3. Mr Beaman was issued with a Category ABH licence under the Firearms Act 1996 on 7 March 2015. He was also issued with a High Calibre Pistol permit on 14 March 2015. On 6 June 2016 a notice of revocation of the licence and the permit was issued. Only the revocation of the licence is in issue in these proceedings.

4. Mr Beaman sought an internal review of the decision. On 17 November 2016 the decision was affirmed by internal review. Mr Beaman sought review in this Tribunal.

The relevant legislation

5. Section 63(1) of the Administrative Decisions Review Act 1997 provides that in determining this application for review, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it.

6. The Tribunal may decide (under s63(3)):

…

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

7. Section 3 of the Firearms Act provides:

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 supply 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.”

8. Section 24(2)(a) provides:

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…

9. Section 11(7) provides:

11 General restrictions on issue of licences

…

(7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

The issues

10. The Commissioner contended that the decision on internal review was the correct one.

11. The respondent submitted that the available evidence indicated that it was not in the public interest, for reasons of public safety, for the applicant to have a firearms licence. It was submitted that the Commissioner had considerable concerns about the mental health of the applicant. The Tribunal should be satisfied that the Commissioner’s decision was the correct and preferable one.

12. The applicant contended that he did not pose a risk to public safety and the decision should be set aside.

The material before the Tribunal

13. The matters on which the respondent relied to show that it was not in the public interest for the applicant to have a firearms licence were as follows:

1. An offence relating to the possession of a crossbow in 1997.

2. A conviction and custodial sentence for breach of a Family Court order in 2002.

3. Charges of obstruction and possession of a knife, in Queensland in March 2016. The applicant was fined and given a good behaviour bond.

4. A charge of common assault, which did not proceed, in May 2016.

5. Charges which are currently before the local court in Queensland.

6. Incidents which caused the Commissioner to have concerns regarding the applicant’s mental health.

14. The existence of the charges and convictions listed above was not disputed by the applicant. However, he provided different accounts of some of the underlying facts.

15. In relation to the offence concerning possession of a crossbow, the applicant admitted possession of the crossbow but said that he had purchased it in Victoria where it was not illegal to buy it at the time.

16. The applicant’s evidence was that the breach of a Family Court order occurred after he retained his two year old daughter following an access visit, for approximately 8 months. He was apprehended in Queensland and pleaded guilty to breaching the order. He served four months of a custodial sentence. He stressed that the offence did not involve any violence and no one was at risk. No evidence to contradict this was tendered by the respondent.

17. Based on the undisputed evidence, I find that the applicant was arrested on 7 March 2016 when he was driving between NSW and Queensland and that when his car was searched, a knife was found under the floor mat on the driver’s side of the vehicle. He was convicted of obstructing police and possession of a knife without reasonable excuse. The applicant said it was a kitchen knife, part of the personal belongings he had in the car, and not a weapon. He was fined and released on a good behaviour bond.

18. The police fact sheet concerning the fourth charge stated that on 16 May 2016 the applicant approached a security guard working at a shopping centre at Earlville in Queensland who was conducting foot patrols with another guard. The alleged victim said that the applicant had swung his right elbow striking the victim in the shoulder.

19. The applicant disputed this. He said that the victim was a security officer who was undertaking surveillance of him and had come out of the shopping centre in pursuit of him. His evidence was that he brushed past the security guard. He said that he was frustrated because of the surveillance that was being carried out on him. He said that he did overreact but he wasn’t a threat to anyone.

20. The charge was not proceeded with. There was no evidence from any witnesses tendered in these proceedings. In these circumstances the evidence does not, in my view, reach the required standard to establish that the applicant deliberately struck the security guard. However, I do find that the applicant felt frustration when he saw the security guards because he assumed they were part of a surveillance being carried out on him and that he made contact as he went past.

21. It was not disputed that the applicant is currently facing charges in Queensland. He stated that he would be defending those charges. The police version of events is that the applicant harassed the victim, a male security guard, on 17 and 18 January 2017. On the first occasion the alleged victim was driving through an intersection and the applicant, in his vehicle, blocked his exit from the intersection. The applicant was allegedly highly agitated and accused the victim of following him.

22. On the second occasion the same alleged victim encountered the applicant when he was parking outside a post office. The applicant pulled up in his vehicle and tried to block him from leaving his own vehicle. The applicant allegedly said: “You must be proud of yourself doing the dirty deeds of the filthy dogs.” The applicant repeated this then left the location at speed.

23. The applicant’s version of events is that he knew that the man was a security guard, and that he believed that the man was conducting surveillance of him. He said that he had been under surveillance for 2 days. He denied speeding, or threatening the man. He denied blocking the man’s egress with his car.

24. He also denied using the word “filthy” but conceded he had said:

“You enjoy doing this work for the dirty police, don’t you.”

25. I find on the available evidence that there was an altercation between the applicant and the security guard on two occasions. Even on the applicant’s own account, he used words towards the security guard which showed an antagonism towards him and the police.

26. I now turn to evidence concerning the applicant’s mental health. It was not disputed that Police in Queensland formed the view that the applicant suffered from paranoia and had a specific fixation on police and their activities. An Emergency Examination Order was issued in respect of the applicant for the conduct of an authorised mental health examination.

27. The applicant conceded that he attended an involuntary mental health examination by a psychiatrist who he referred to as Ms Stevenson. He said that he was given a report but no longer had it.

28. He said that he told the psychiatrist that he thought police were “up to something” and that it was not a mental health issue, but a police corruption issue, which was connected to his firearms licence. He stated that he was not prescribed any medication. His own view was there was no need for him to seek mental health advice. However he stated that the psychiatrist told him she believed he had delusional thoughts.

29. No medical evidence was tendered by either party before this Tribunal. It is not known what the outcome of the examination was. It does not appear that the applicant was detained.

30. During the proceedings before this Tribunal the applicant stated numerous times that he believes that members of the Police, Ambulance, Fire Brigades and related services, as well as the security guards in question, have been conducting surveillance of him. His evidence was that this surveillance began when his firearms licence was revoked. He said this surveillance was still going on. He believed that the security guards whom he approached in December 2016 and January 2017 were stalking him. Under cross-examination, he could not explain why they would be stalking him except that he believed it had increased following the revocation of his firearms licence. He believes the police who stopped him in March 2016 were part of the surveillance, and that police were building a case against him. He believes that the Queensland Ambulance and the Fire Brigades were also involved in the surveillance. He does not believe that there is any need for him to seek medical help.

31. Based on the statements made I find that the applicant has a belief that police, ambulance and fire brigade officers are conducting surveillance of him and this belief has caused him to become frustrated and accost members of those services, as well as security guards, who he also believes are following him.

Consideration

32. Section 11(7) says that the respondent may refuse to issue a licence if the respondent considers the issue of the licence would be contrary to the public interest.

33. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, the Appeal Panel said at [25], in the context of the licensing regime for the security industry, that the public interest is:

“... an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual.”

34. Mr Beaman has a criminal record, however two of these convictions are 20 years old and 15 years old respectively. I do not think these convictions on their own are relevant, because of their age and circumstances. There were no offences on his record until 2016 when he was convicted of obstructing police and possession of a knife. This was followed by the charges which are currently awaiting hearing and which relate to incidents in 2017.

35. I find, on the available evidence, that both the Queensland Police and the psychiatrist who examined Mr Beaman had recent concerns about Mr Beaman’s mental health.

36. Also, during the proceedings Mr Beaman made a number of statements which indicated suspicion and personal antagonism towards police and other members of the emergency services, as well as certain security guards. These statements seemed extreme and the balance of the evidence suggests they are baseless. He submitted, however, that there was no evidence of him threatening anyone when he had a firearms licence and no evidence that he might be a danger to anyone. I do not accept the latter submission. It is a concern that there have been more frequent charges against him recently.

37. This, combined with his antagonism towards police and related services, means that I cannot be confident that his possession of a firearms licence presents no risk to public safety.

38. In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the Tribunal said:

“Where there has been, or is, a possibility of a threat to the public’s safety, the public’s right to safety must outweigh an individual’s privilege to possess and use a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.”

39. I cannot be satisfied that there is virtually no risk in the circumstances. Therefore, I am satisfied that it is not in the public interest for the applicant to be issued with a firearms licence.

Decision

1. The Commissioner’s decision to revoke the licence is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 16 June 2017