BLACKMAN and COMMISSIONER OF POLICE

[2018] WASAT 20

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   BLACKMAN and COMMISSIONER OF POLICE [2018] WASAT 20

MEMBER:   MS H LESLIE (MEMBER)

HEARD:   27 NOVEMBER 2017

DELIVERED          :   27 NOVEMBER 2017

PUBLISHED           :  13 MARCH 2018

FILE NO/S:   CC 982 of 2017

BETWEEN:   RYAN MICHAEL BLACKMAN

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Refusal of firearm licence ­ Fit and proper person ­ Mental fitness to hold firearm licence ­ Existence of VRO ­ Breach of VRO ­ Spent conviction ­ Pattern of disregard of the law

Legislation:

Evidence Act 1906 (WA)
Firearms Act 1973 (WA), s 4, s 5, s 5(2), s 5A(3), s 11, s 22, s 29(2)
Firearms Amendment Act 1996 (WA)
Restraining Orders Act 1997 (WA), s 6, s 11A
Security and related Activities (Control) Act 1996 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 13, s 17, s 24, s 27, s 27(3), s 29(1), s 32, s 32(1), s 32(2)(a), s 34(2)(b)

Result:

Upon review, decision to refuse firearms license set aside and respondent ordered to grant the relevant license subject to the payment of the relevant fee by the applicant.

Summary of Tribunal's decision:

The Tribunal disagreed with the conclusion that the applicant was not a fit and proper person to hold a firearms license.  The circumstances surrounding the issue and subsequent breaches of a VRO (for which breaches a spent conviction had been granted in the Magistrates Court) and certain traffic offences were explained by the applicant.  In the circumstances the Tribunal took the view that, notwithstanding the grant of the VRO, the evidence did not support the conclusion that the applicant was not a fit and proper person to have a firearms license.

Category:    B

Representation:

Counsel:

Applicant:     Ms K Louden

Respondent:     Ms N Grant

Solicitors:

Applicant:     Mr R K Williamson

Respondent:     Commissioner of Police

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Byfield and Commissioner for Consumer Protection [2012] WASAT 217

Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Ives and Plumbers Licensing Board [2013] WASAT 125

Maxwell v Dixon [1965] WAR 167

McGee v Chitty [2011] WASCA 125

Minitti v Commissioner of Police [2010] WASCA 198

Minniti and Commissioner of Police [2009] WASAT 223

Murphy and Commissioner for Consumer Protection[2012] WASAT 74

Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64

Rodriguez v Telstra Corp Ltd [2002] FCA 30

Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27

Tavelli v Johnson (Unreported, WASC, Library No 960693

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26 August 1997)

Turner v Keegan [2001] WASCA 9

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. The applicant seeks orders from the Tribunal setting aside the reviewable decision and substituting a new decision granting the requested firearms license (the application).

2. The grounds of the application are stated as follows:

   (1)The respondent has erred in law to construe that the operation of section 11(3)(a)(iv) and section 11(1)(c) of [the Act] deems me to be not a fit and proper person to hold a firearms licence when those provisions do not do that.

   (2)Section 11(5) of [the Act] permits the respondent to find I am a fit and proper person despite a VRO having been made against me in the last five years.

   (3)Had the respondent not made that error of law, he would have considered the question of whether I am a fit and proper person despite the VRO having been made against me in the last five years and my convictions for breaching that order.

   (4)Given:

   (a)the VRO was made without a hearing;

   (b)the breaches relating to sms messages involved no threats or intimidation but were benign in nature;

   (c)but for the VRO and the breaches, there is no real argument about my character; and

   (d)the respondent gave no other grounds for refusing my application to license the firearms,

   the correct and preferable decision is that my application for a firearms licence be granted.

Agreed matters:

1. The following facts are not in issue:

   a)On 29 March 2017, the applicant applied for a firearms licence in respect of 12 firearms of various categories (the firearms).

   b)That application (the FLA) was refused (the reviewable decision) by the respondent (via his delegated officer) and the applicant was notified by written correspondence on 3 May 2017.

   c)The refusal was on the basis that the applicant was not a fit and proper person to hold a firearms licence, contrary to s 11(2) and s 11(3)(a)(iv) of the Firearms Act 1973 (WA) (the Act).

   d)The letter of notification is dated as having been served on 5 May 2017.

   e)On 2 June 2017, the applicant sought review of the decision in the State Administrative Tribunal (the application).

   f)The matter proceeded to a directions hearing on both 16 June 2017 and 7 July 2017.  The mediation listed for 8 August 2017 was terminated due to the non­attendance of the applicant.  The matter was listed for a final hearing on 27 November 2017.

   g)The applicant has since reduced the number of firearms for which he seeks a license to four namely a .177 calibre 'Diana' air rifle, a .22 Magnum rifle, a 12 gauge shotgun and a .270 rifle.

   h)A Violence Restraining Order (VRO) was made against the applicant two years and one month prior to the FLA.

   i)Subsequently, the applicant was charged with breaching the restraining order.  On 1 September 2015 at the Joondalup Magistrates Court, findings of guilt were made in relation to 27 counts of breach of restraining order and a spent conviction order was imposed.

2. The applicant has amended his application reducing the number of firearms for which he seeks a license for four.

3. It is agreed that the sole issue for determination is whether the applicant is a fit and proper person to hold a firearms licence (s 11(1)(c) of the Act).

4. No issue is taken by the respondent that the applicant has demonstrated that he has a genuine reason for acquiring or possessing the four firearms for which the license is sought.

5. No issue is taken with the proper delegation of the decision by the respondent.

The Tribunal's jurisdiction

1. In making the application to the Tribunal, the applicant has exercised his statutory right to seek review of the reviewable decision pursuant to s 22 of the Act. The application falls within the Tribunal's review jurisdiction by reason of s 13 and s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). In exercising the Tribunal's review jurisdiction, the Tribunal is to review the reviewable decision by way of a hearing de novo for the purposes of producing the correct and preferable decision on the basis of the information and the evidence before the Tribunal at the time of review as provided for by s 27 of the SAT Act.

2. In the exercise of its review jurisdiction, the Tribunal is not limited in its considerations to the material that was before the original decision­maker (see s 27 of the SAT Act), nor to the consideration of the original decision­maker's reasoning alone (see s 27(3) of the SAT Act), although the reasons of the decision-maker may be taken into account. Section 29(1) of the SAT Act provides that all of the functions and discretions conferred on the original decision-maker are conferred on the Tribunal in addition to the powers conferred on the Tribunal by the SAT Act.

Evidence before the Tribunal

1. The Tribunal is not bound to apply the Evidence Act 1906 (WA), the common law rules of evidence, or the practices and procedures of any courts of record (see s 32(2)(a) of the SAT Act) in the course of undertaking the review. The Tribunal, however, is bound by the rules of natural justice (as provided for by s 32(1) of the SAT Act) and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities (as provided for by s 34(2)(b) of the SAT Act). This more flexible procedure provided by s 32 of the SAT Act, however, does require that Tribunal decisions are made on the basis of evidence that has probative force (Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64, Rodriguez v Telstra Corp Ltd [2002] FCA 30 cited with approval in respect of s 32 of the SAT Act in Sammut v AVM Holdings Pty Ltd (No 2) [2012] WASC 27).

2. In conducting the proceeding, the Tribunal is to review decisions fairly and according to the substantial merits of the case, as dictated and required by s 9 of the SAT Act.

3. The material that was before the Tribunal exceeded that which was before the original decision­maker.

Briefly, the respondent's delegate's reasons and comments

1. In the letter of notice dated 3 May 2017, the respondent's delegate identified his reasons for the refusal. The Tribunal notes that the Tribunal orders (in standard form) made on 21 March 2013 require that the respondent file in the Tribunal and give to the applicant, inter alia, a written statement of the reasons as part of the bundle of documents to be provided by the respondent pursuant to s 24 of the SAT Act. The respondent's bundle of documents does not contain any statement of reasons for the reviewable decision other than the letter of notice of 3 May 2017.

2. The letter of notice states inter alia:

   …

   Please be advised that due to the operation of Section 11(3)(a)(iv) and Section 11(1)(c) of the Act you are deemed not to be a fit and proper person to hold an approval, permit or licence under the act.

   This is because a Violence Restraining Order was issued against you within the past five years, namely, VRO number 2015/00326 issued in the Perth Magistrates Court on 04 Feb 2015.  It is further noted you breached this order on 27 occasions.

   …

3. No details or particulars of the circumstances or any actions or communications by the applicant that gave rise to the VRO or the alleged breaches of it are articulated in the reason given in the letter of notice.

4. The delegate's reasons are somewhat vague and, save for the fact of the VRO's issue and the allegation of 27 breaches, do not disclose any factual matters that were taken into account by the decision­maker, let alone the weight that was given to all or any of these matters when considering the decision. 

5. It was not until 31 October 2017, when the respondent filed his statement of issues, facts and contentions, and bundle of supporting documents, pursuant to directions issued by the Tribunal, that any further details or particulars were identified.

The respondent's statement of issues, facts and contentions

1. The respondent's statement of issues, facts and contentions identified various matters upon which it urged the Tribunal to rely to form the opinion that the applicant is not a fit and proper person to be granted a firearms licence for 12 firearms.  In short, these are as follows:

   1)a violence restraining order was made against him within the last five years;

   2)the order was breached 27 times. The large number of breaches committed by the applicant precludes the exercise of the discretion under s 11(5) of the Act;

   3)the conditions of the VRO are unambiguous and the applicant breached the VRO on the day it was served on him;

   4)the applicant fails to meet the standards of mental fitness necessary to hold a license by reason of the fact that:

   a)on 1 February 2015 he was located in by police on his way to hang himself;

   b)he has numerous hospital admissions related to mental health issues and has on occasions absconded from hospital whilst deemed a high­risk patient.  A person who manifests suicidal ideation should not have access to firearms; and

   5)the applicant's traffic history from 2007 to 2014 evinces a disregard for abiding by the law in general.  The convictions indicate an inability to for compliance with regulatory schemes.

The applicant's statement of issues, facts and contentions and his position

1. The applicant's position is that he is a fit and proper person to hold a license.  His position can be summarised as follows:

   1)the circumstances surrounding the granting of the VRO and the breach proceedings are relevant;

   2)no threatening or violent behaviour was involved.  (It is common ground that the breaches involved the making of phone calls and the sending of SMS text messages to an ex-girlfriend M (M) from whom the applicant had recently separated, that none were threatening or emotionally abusive and that both parties were engaging in constant conversation);

   3)the applicant mistakenly believed that if the protected person contacted him, he was allowed to respond to M;

   4)the breaches though numerous were minor and were made in response to his concern for M's welfare after she had told him she was depressed and was going to harm herself.  Once the police got involved and told him he was in breach, he did not contact M again.  M's report to police was six months after the multiple contacts;

   5)the applicant's good character is supported by the decision by the Magistrate to grant a spent conviction for the breach complaint;

   6)the so-called suicide incident was shortly after the breakdown of the applicant's relationship with M.  There was no suicide attempt.  His behaviour was fleeting and attention seeking in that context.  He did not abscond from hospital.  He asked a nurse if he could leave and was told that he could.  As soon as he became aware the police were looking for him, he handed himself in; and

   7)the applicant has never been convicted of a violent act and he is not a violent person.  He does not have a propensity for violence or a disregard for the law.  The Tribunal can be satisfied that he is a fit and proper person and is not a risk to public safety.  He relies on character references tendered in evidence.

The proceedings in the Tribunal

1. The respondent did not call any evidence but relied solely on documents tendered in evidence (Exhibit 2) namely:

   a)Letter of notice of refusal of firearm license dated 29 March 2017;

   b)Restraining order dated 4 February 2015 (expired 3 February 2017);

   c)Western Australia Police (WA Police) incident report dated 1 February 2015;

   d)WA Police Detected Incidents Report 31 dated January 2015;

   e)WA Police Court Outcomes History ­ Criminal and Traffic of the applicant as at 7 June 2017; and

   f)WA Police Statement of Material Facts (re VRO breach proceedings dealt with 1 September 2015).

2. The applicant gave evidence himself.  He did not call any witnesses.  He tendered a bundle of documents into evidence (Exhibit 1) in the form of five written character references.  His referees were not requested to attend for cross­examination by the respondent.

The statutory framework

1. The purpose of the Act is expressed to be to make provision for the control and regulation of firearms and ammunition, the licensing of persons processing, using, dealing with or manufacturing firearms and ammunition and for incidental and other purposes. The history and the purposes of the amendments made to the Firearms Act by the Firearms Amendment Act 1996 (WA) (Amendment Act) are referred to in Turner v Keegan [2001] WASCA 9 and McGee v Chitty [2011] WASCA 125 (McGee).  The broad purpose of the Act, as amended, is to protect the public.  One of the means adopted by the legislature to protect the public from the misuse of firearms is to provide a system of control over the ownership and use of firearms by a system of licences, permits and approvals (McGhee per Mazza JA at [31]).  The discretionary power to issue a firearm licence is conferred upon the respondent, which power the respondent may delegate to authorised officers.

2. Briefly, s 5 of the Act vests responsibility for the administration of that Act in the relevant Minister. Section 5(2) of the Act provides that the administration shall be carried out by the Commissioner. The Commissioner is defined by s 4 of the Act to be the respondent. Section 5A(3) of the Act provides that the respondent may delegate any power that he has under the Act, other than those of his functions delegated to him by the regulations made pursuant to the Act, or the power of the respondent to delegate as conferred by s 5A(3) of the Act.

3. The permitted delegation must be to a member of the WA Police and must be effected by a signed instrument of delegation. Although the signed instrument of delegation was not before the Tribunal, the Tribunal refers to s 29(2) of the Act which provides:

   In any proceedings under this Act a document or writing purporting to be, or to be a copy of or extract from, any licence, permit, approval or other document issued under this Act, or provided or produced to the Commissioner or a member of the Police Force in connection with any application or request for information under this Act ­

   (a)is evidence which is admissible, and is to be accepted as to the matter contained in the document in the absence of proof to the contrary; and

   (b)if it is proved to be an examined copy or extract, purporting to be signed and certified as such by or on behalf of the Commissioner, is for all purposes sufficient evidence of the matter contained in the original without producing the original.

4. Where a member of the WA Police issues a letter of refusal of a firearms licence in which that member asserts that he is a delegate of the respondent for the purposes of issuing the letter of refusal, such statement and letter is, in this proceeding, admissible evidence of that fact of delegation, and is to be accepted as that fact in the absence of evidence to the contrary.  No issue was taken with the fact of the delegation.

5. On 3 May 2017 Sergeant John Board of the WA Police wrote to the applicant notifying him that he was the respondent's delegate and that he had made a decision to refuse the applicant's application for a firearms license.  The Tribunal finds that that notice of refusal was issued by a duly delegated officer of the respondent.

6. Section 11(1) of the Act provides:

   The Commissioner cannot … issue a licence under this Act to a person if the Commissioner is of the opinion that ­

   …

   (c)the person is not a fit and proper person to hold the … licence.

7. Section 11(2) of the Act provides:

   Where the Commissioner is satisfied that a person has a history of, or a tendency towards, violent behaviour, the Commissioner may take it into account in deciding whether that person is a fit and proper person to hold … [a] permit, or licence.

8. Relevantly, s 11(3) of the Act provides that:

   The Commissioner has a sufficient ground for forming an opinion that a person is not a fit and proper person to hold … a licence under this Act if the Commissioner

   (a)is satisfied that at any time within … five years [prior to their application for a licence] :

   …

   (iv)a violence restraining order was made against the person.

   (b)is satisfied that the person fails to meet [the] standards of mental or physical fitness that the Commissioner considers to be necessary for the person to hold the approval, permit or licence[.]

9. In the Tribunal's view, the mental and physical fitness that the Commissioner considers necessary must be considered in the light of the object, scope and purpose of the Act; that is, balancing the public safety and the private rights of members of the community to use and possess a firearm. 

10. The respondent is not obliged to form an opinion that a person is not a fit and proper person to hold a firearm licence simply because the proof of one or more of these factors. Section 11(5) of the Act provides that the respondent may form the opinion that applicant is still a fit and proper person to hold a firearm licence, notwithstanding proof of any of the facts referred to in s 11(2) and s 11(3) of the Act.

1. One question that arises in this matter is: what are the factors relevant to the assessment of whether a person is not fit and proper to hold a firearm licence?  As to prior convictions, Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996) (Tavelli) is instructive.  In Tavelli, Wheeler J made observations concerning the relevance of prior convictions in deciding whether a person was or was not fit and proper to be licensed as a security agent pursuant to the Security and Related Activities (Control) Act 1996 (WA). Her Honour's observations were applied by the Tribunal in Wignall and Commissioner of Police [2006] WASAT 206 and Minniti and Commissioner of Police [2009] WASAT 223 (Minniti). 

2. The Tribunal's application in Minnitiof her Honour's observations in Tavelli was held by the Court of Appeal to have not amounted to an error of law and implicitly affirmed as being applicable as a guideline by which the Tribunal may assess whether or not a person is fit and proper in the context of the exercise of a statutory discretion (Minitti v Commissioner of Police [2010] WASCA 198).

3. Relevantly, in this application, those principles may be summarised as follows:

   •There can be no inflexible rules and no policy that restricts the exercise of the statutory discretion.

   •The statutory discretion is to be exercised anew in the circumstances of each application in light of the statutory framework.

   •A conviction if serious by its nature (and notwithstanding that the conviction does not relate to the vocation or the licence in issue, or does not involve dishonesty where honesty is critical to the vocation or the issue of the licence under scrutiny) is relevant to the issue of whether a person is 'fit and proper'.

   •The conviction, if serious in the sense that it represents 'a course of disregard for the law as to reflect particularly adversely on the character of the person who committed the offence' (Minitti per Pullin JA at [13]), is relevant to the issue whether a person is 'fit and proper'.

4. In this proceeding, the respondent relies upon certain of the applicant's earlier traffic convictions as showing such a 'course of disregard for the law'.  In addition, the respondent seeks to rely upon the course of conduct of the applicant that led to the multiple breaches of VRO charges for which the applicant was convicted upon his own admission, as showing a 'course of disregard for the law'.  Notwithstanding the spent conviction, the respondent seeks to rely on facts relevant to those charges as supporting the contention that the applicant is not a fit and proper person to have a firearms licence.  Although it was not put this way by the respondent's counsel, it must be the respondent's case that because he has a tendency or a history towards certain behaviour, he does not meet the general criteria of being 'fit and proper'.

5. Of course, the Tribunal, standing in the shoes of the respondent, is not restricted to the provisions of s 11(3) or s 11(2) of the Act from considering all factors relevant to assessment of whether a person is fit and proper to retain a firearm licence. The expression 'fit and proper' incorporates the qualities of honesty, knowledge and ability (Hughes & Vale Pty Ltd v New South Wales (No 2) [1955]HCA28; (1955)93CLR127; The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, WASCA Library No 970426A, 26 August 1997) per Kennedy J; Murphy and Commissioner for Consumer Protection[2012] WASAT 74; Byfield and Commissioner for Consumer Protection [2012] WASAT 217; and Ives and Plumbers Licensing Board [2013] WASAT 125).

6. Of itself, and standing alone, the term 'fit and proper person' carries no precise meaning (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321) (Australian Broadcasting Tribunal).  The expression takes its meaning from its context and the activities in which the person is or will be engaged and the ends to be served by those activities.  The expression may require an assessment of a person's character because it provides an indication of public perception as to likely future conduct or reputation (Australian Broadcasting Tribunal).

7. The applicant, in any case, must be assessed as being possessed of the requisite knowledge of the duties and responsibilities 'devolving upon him as the holder of a particular licence under a particular Act' (Maxwell v Dixon [1965] WAR 167 per Hale J). The expression 'fit and proper person' gives the widest possible scope for judgment and for rejection of an application for a licence (Minitti).

8. In the case of the Act, the applicant must be assessed to possess the requisite knowledge of the duties and responsibilities of owning and using a firearm, as imposed by the Act.  In this proceeding, the applicant must be assessed as having the character to be trusted to discharge those duties and responsibilities, as imposed by the Act, into the future after the licence is granted, in a way that preserves public safety.

The proceedings and the evidence

Concession

1. The respondent conceded at the hearing that there is no medical evidence to support the allegation that the applicant has had 'numerous hospital admissions related to mental health issues' nor that the applicant has 'on occasions absconded from hospital whilst deemed a high-risk patient'. 

Absence of evidence

1. It is noted in the police Detected Incidents Report that the applicant is described as being '[h]igh risk of self-harm or harm to others'.  There is no medical evidence to confirm this statement.

2. There is no medical evidence that the applicant currently or previously has been found to suffer from any diagnosed mental impairment or illness.

3. There is no evidence as to what allegations were made regarding the applicant's behaviour at the time the VRO was sought and obtained nor of what evidence was given to the magistrate who granted the order.  No transcript of the VRO hearing was put into evidence.  No evidence was called from the applicant's then girlfriend M who was the complainant/person protected.

Uncontroverted evidence

1. The following evidence is uncontroverted and the applicant was not cross-examined on it.

2. The applicant is 30 years old.  He is employed full-time as the CEO of a business owned by his father.  He has been in that position for approximately four years.  Prior to that, he worked offshore as a qualified wellhead technician on oil rigs.  He has taken time out from his rig work to assist in his father's business due to his father's difficulties following an injury and associated medical problems.  He resides in rental accommodation where he has been now for approximately 12 months.  He is single. He has, sadly, recently been through a bereavement involving the death of his fiancée by her own hand.  Although sad at times, he has managed to get through this experience without any mental health issues arising.  (He appears to be putting this forward as supporting his resilience and good mental state, suggesting that if he could get through that experience, he could 'get through anything'.)

3. In relation to the events of 31 January 2017, the applicant was, at the time, highly stressed.  It was the time of the breakup with M.  In his words 'there was a lot going on in my head'.  He describes his actions as 'a cry for help' without any genuine thought of self-harm or suicide.  He denies having tried to or intending to hang himself but says it was just talk.  Such was his state of distress whilst driving on that morning that he got out of his car and called the police himself.  They collected him and took him to Royal Perth Hospital.  He was there for about 40 minutes and then, appearing to think that things had escalated unnecessarily, decided he wanted to leave.  His sister CK was there with him.  A nurse told him he could go.  He left by taxi.  He accepts that after he left, he was placed on Mental Health forms by the Royal Perth Hospital staff.  He says that he contacted police after he received a call from his mother that the police were looking for him.  He subsequently self-presented at Rockingham Hospital where he had a psychiatric assessment and was released and the forms were discharged.  It is not in dispute that he was in contact with various family members during this time.

4. His evidence is that at this time, which is the period immediately prior to the imposition of the VRO, M had been living at his home.  He had made many attempts to get her to leave, such was the deteriorated state of the relationship.  At a point when she was away from the home, he packed up all of her gear and took it to her parents' home as a means of getting her out of his property.  His evidence is that there was no violence and there were no threats in the lead up to that time, but that on 4 February, shortly after he had moved M's gear, he was served with the initial ex parte restraining order.

5. His evidence is that numerous times in the period that followed, M contacted him.  He says his contacts with her were all made in response to his concern for her welfare after she had told him she was depressed and was going to harm herself.  It is common ground that there were multiple contacts almost every day between 4 February 2017 and 11 March 2017.

6. He says that the police got in touch with him about six months later.  It is common ground that he was interviewed by police on 6 August 2015 regarding the breaches.  His evidence is that several days before 6 August, he had told a mutual acquaintance of his and M's that he was 'now seeing someone else', (in a romantic sense).  He appears to believe that this information was given to, and was received badly by M and that she acted out of spite in making the complaint.  This is the only explanation he can think of as to why M would have made a VRO breach complaint in early August regarding the phone and text contact between them in February and early March.  The VRO has now expired and to the best of the applicant's knowledge, M now resides in Queensland.

Evidence from Police Records

1. In many respects the police incident report is consistent with the applicant's evidence save that it describes him as being in a 'highly agitated state' and 'at high risk'.  It also notes that when placing him on forms, the hospital noted him as 'an absconder' notwithstanding that it is recorded that the hospital staff had told his sister to 'let him go'.  The notes confirm contact between the applicant and his mother at approximately 8.30 am, phone contact between the police and the applicant at 11.14 am (during which he was noted as 'calm') and then 11.46 am (at which time he was noted to have an 'uncooperative/angry attitude'), contact with his grandmother to say he was at her home at 11.35 am and then confirmation by 15.27 pm that the applicant had self-presented at Rockingham Hospital.

2. It is noted in the police Detected Incidents Report that the applicant is described as being '[h]igh risk of self-harm or harm to others'.  There is no evidence to support or to provide a basis for this statement of opinion.

Contested evidence

1. The applicant was cross-examined about his understanding of the terms of the VRO.  He accepted that it orders him not to 'communicate or attempt to communicate with [M] by any means whatsoever including SMS or text messages or any other electronic means'.  He insisted that at the time of service of the initial VRO, the police officer explained the order to him as meaning that neither party could contact the other.  He says he did not read the order itself but simply accepted the explanation by the officer.  He says he was just pleased that M had gone from his life.  He says he then simply consented to the final restraining order and the Court made the order without hearing any evidence from him.

2. It was put to him that he had read the order and was aware that he was not to contact M and had knowingly acted in breach of the order.  He insisted that once M began to contact him, he mistakenly believed he was allowed to respond to her.

3. The applicant disputed having a disregard for the law.  He explained his recent traffic record as follows:  in relation to the 2014 offences, he stated that his vehicle license and motor driver's license had expired and he had simply omitted, in error, to renew them in time.  In relation to the number plate offence, he indicated that when he had purchased the vehicle the seller had wished to keep a personalised plate attached to the vehicle and so they had simply swapped plates and omitted to do the paperwork to correct the record about this.  By way of explanation he said that, in the work of the family business, he was travelling a lot to source stock and had paid insufficient attention to his paperwork. 

4. The applicant was cross-examined about his traffic record but maintained his position regarding the circumstances of the 2014 offences.  His recollection of the 2007 offences was not clear but given their age and their minor nature, the Tribunal places little weight on them.

Consideration and finding

1. The Tribunal finds that there is insufficient evidence to establish that the applicant is not a fit and proper person to hold the license sought.

2. The Tribunal accepts the evidence of the applicant who presented as a credible and reliable witness.  His version of events was plausible and was consistent with the documentary records.  He made appropriate concessions as to mistakes he had made.  His character is vouched by his references which were not challenged and which the Tribunal accepts.

Section 11

1. The Respondent seeks to rely on the VRO for the purposes of s 11 of the Act and seeks to persuade the Tribunal that the discretion available under s 11(5) ought not be exercised in favour of the applicant.

2. Not all VRO's are relevant for that purpose. In s 11(4) of the Act, Violence Restraining Order is defined to mean:

   a judicial order imposing on the person against whom the order is made restraints on the person's lawful activities and behaviour to prevent the person ­ (Tribunal emphasis)

   (a)committing an offence against the person under part V of the Criminal Code other than Chapters XXXIV and XXXV; or

   (b)behaving in a manner that could reasonably be expected to cause fear that the person will commit such an offence

3. The offences referred to in s 11 of the Act can broadly be listed as:

   a)assaults and violence against the person generally;

   b)breach of duties relating to the preservation of human life;

   c)homicide, suicide, concealment of birth;

   d)specific types of offences endangering life or health;

   e)assaults;

   f)sexual offences;

   g)offences against liberty;

   h)threats; and

   i)stalking.

   (the designated offences).

4. No evidence was provided by the Respondent as to:

   a)what M reported to the police or to the court prior to the VRO being made;

   b)what allegations were made by M in her complaint;

   c)what evidence she gave to the court at the time of the hearings ; or

   d)what specific findings were made by the court regarding any actions of the applicant or any risk that he posed or the Magistrates intent in making the order.

5. All that we know is that a VRO in fairly 'standard form' language was issued (initially ex parte and in final form by consent) and without hearing any evidence from the applicant.  That consent on his behalf does not constitute an admission of any sort.

6. The terms of the VRO put restraints on the applicant's lawful activities and behaviour essentially as follows:

7. that he must not -

   a)possess a firearm;

   b)damage property;

   c)behave in an intimatory, threatening or emotionally abusive manner towards M;

   d)behave in a manner towards M that is likely to cause a breach of the peace;

   e)communicate with M; and

   f)post messages or images on social media that depict or refer to M.

8. None of the VRO orders refer specifically to any of the designated offences.

9. The question that needs to be asked is whether the intent of the magistrate at the time of the making of the VRO to was 'to prevent' the applicant committing one of the designated offences.  Without a transcript of the hearing or a written judgment, this is a difficult question to answer.

10. What we do know, however, is that the Restraining Orders Act 1997 (WA) (The RO Act) provides in s 11A that:

    A court may make a VRO if it is satisfied that ­

    (a)the respondent has committed personal violence against a person seeking to be protected and the respondent is likely again to commit personal violence against that person; or

    (b)a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit an personal violence against the person seeking to be protected,

    and that making a VRO is appropriate in the circumstances.

11. '[P]ersonal violence' is defined in the RO Act in s 6 to mean:

    one of the following acts that a person commits against another person with whom he or she is not in a family relationship ­

    (a)assaulting or causing personal injury to the person;

    (b)kidnapping, or depriving the liberty of, the person;

    (c)stalking the person;

    (d)threatening to commit any act described in paragraph (a) or (b) against the person;

    (e)if the person who commits the act has an imagined personal relationship with the person against whom the act is committed, an act that would constitute family violence if those persons were in a family relationship.

12. It follows that to issue the VRO, the magistrate must have been satisfied that the applicant either had committed and was likely to commit, or that M had reasonable grounds to apprehend that the applicant would commit one or more of the actions or behaviours listed in s 6 of the Act. That being so, in the view of the Tribunal, given the overlap between the definition of 'personal violence' in the RO Act and the VRO criteria in s 11(4) of the Act , particularly in relation to potential or threatened assault or stalking behaviour, the criteria are met and the discretion in s 11(5) is enlivened.

13. However, the Tribunal is of the view that, given the uncontroverted evidence from the applicant as to the circumstances, which the Tribunal wholly accepts, the fact of the issuing of the VRO alone is insufficient to establish that the applicant is not a fit and proper person to hold a firearms license.

14. The Tribunal is also of the view that, given the applicant's evidence as to his mistaken understanding of the effect of the VRO so far as it related to his responsive contact with M (which the Tribunal accepts was the nature of his contact), the conduct involved in the multiple breaches of the VRO is not, in all the circumstances such as to establish a pattern of disregard for the law.

15. Correctly (in the Tribunal's view) given the spent conviction, the respondent does not rely on the fact of the multiple breach convictions as establishing that the applicant is not a fit and proper person.

16. The Tribunal is also of the view that, given his evidence, the applicant's traffic record is insufficient to establish a pattern of disregard for the law such as to render the application not a fit and proper person.  He has a group of relatively minor convictions in 2014 which in the view of the Tribunal are insufficient to so establish.  The few other matters are all more than 10 years old and are also minor in nature and little weight is attached to them by the Tribunal.

17. In the view of the Tribunal there is nothing about the applicant's mental health which can be said to render him not a fit and proper person to hold a license.  It is accepted that at the time of the breakup with M, the applicant was going through a very difficult and stressful time and reached a point where he briefly needed support and assistance.  The Tribunal accepts that those matters are behind him.  There is simply no evidence of current relevant health issues which bring his fitness into question.

Conclusion

1. For these reasons, the Tribunal concludes that the applicant is a fit and proper person to hold a firearm licence and that the respondent's decision made on or about 3 May 2017 to refuse the applicant's FLA was not the correct and preferable decision.

Orders

The Tribunal accordingly orders that:

1.Upon review, the decision of the respondent's delegate made 3 May 2017 is set aside.

2.Subject to the payment of any applicable fee, the respondent shall grant the applicant a firearms licence for the following four firearms nominated by him to the respondent, namely a .177 calibre Diana air rifle, a .22 Magnum rifle, a 12 gauge shotgun and a .270 rifle.

3.Reasons for Decision will be published.

I certify that this and the preceding [75] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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MS H LESLIE, MEMBER