Busuttil v Commissioner of Police

[2013] NSWADT 305

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Busuttil v Commissioner of Police [2013] NSWADT 305
Hearing dates:	16 September 2013; 15 October 2013
Decision date:	31 December 2013
Jurisdiction:	General Division
Before:	K Fitzgerald, Judicial Member
Decision:	The decision under review is affirmed
Catchwords:	Firearms licence revocation - breach of storage requirements - public interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Crimes (Sentencing Procedures) Act 1999 Firearms Act 1996 Firearms Regulations 1996
Cases 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 HYPERLINK " \o "View Case" [2001] NSWADT 2 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors HYPERLINK " \o "View LawCiteRecord" (1995) 131 ALR 657, 681 Commissioner of Police v Toleafoa HYPERLINK " \o "View Case" [1999] NSWADTAP 9 Cusumano v Commissioner of Police, NSW Huckel v Commissioner of Police HYPERLINK " \o "View LawCiteRecord" [2008] NSW ADT 347 Keane v Commissioner of Police, New South Wales Police [2008] NSWADT 68 Police Service HYPERLINK " \o "View Case" [2001] NSWADT 50 Lynch v Commissioner of Police HYPERLINK " \o "View Case" [2006] NSWADTAP 43 McDonald v Director-General of Social Security HYPERLINK " \o "View Case" [1984] FCA 57 O'Donnell v Commissioner of Police, NSW [2009] ADT 162 Vella v Commissioner of Police HYPERLINK " \o "View Case" [2003] NSWADT 91. Ward v Commissioner of Police, New South Wales Police Service HYPERLINK " \o "View Case" [2000] NSWADT 28 Wiltshire v Commissioner of Police, New South Wales Police HYPERLINK " \o "View Case" [2005] NSWADT 75 Tannous v Commissioner of Police [2011] NSWADT 116
Category:	Principal judgment
Parties:	Joseph Paul Busuttil (Applicant) Commissioner of Police, NSW (Respondent)
Representation:	Mainstone Lawyers (Applicant) Bartier Perry (Respondent)
File Number(s):	133150

reasons for decision

1. Mr Busuttil, the Applicant, has applied to the Tribunal for review of the determination by a delegate of the Commissioner of Police ("the Respondent") to revoke his firearms dealers licence in accordance with section 24(2)(b)(iii) of the Firearms Act 1996 (the "Act").

1. The Applicant held a firearm dealer licence No 410079989 for categories A,B,C,D and H and prohibited items 1 to 16 which had been issued on 2 January 2010 ("Licence").

1. The Applicant was charged under section 39(1)(a) of the Act with not taking reasonable precautions to keep a firearm safely and on 11 October 2012 appeared before Burwood Local Court. He was found guilty of the offence but the charge was dismissed without conviction pursuant to section 10 of the Crimes (Sentencing Procedures) Act 1999.

1. On 27 February 2013 (delivered 13 March 2013) the Licence was revoked on the basis that the Respondent was satisfied that the Applicant contravened the requirements of the Act by not storing a firearm in accordance with legislative requirements. It was also determined that it would not be in the public interest for the Applicant to continue to hold a firearms licence.

1. The Applicant requested an internal review of the initial division and the decision was affirmed on 26 April 2013. He subsequently sought external review from the Tribunal.

1. Section 75 of the Act provides for the review of certain decisions by this Tribunal including at (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).

1. The issue for determination is whether the Respondent made the correct and preferable decision. This is to be determined having regard to any relevant factual material and the relevant law: section 63(1) of the ADT Act.

Evidence

1. The Applicant relied on two affidavits dated 23 July 2013 (First Statement) and 6 September 2013 (Second Statement) as well as provided evidence to the Tribunal.

1. The Respondent relied on section 58 documents filed 11 June 2013 and statements from Sergeant Michael Kynezos of 3 September 2013 and Commander Peter Armitage of 9 September 2013. None of the Respondents' witnesses were required for cross-examination.

1. Various police and health records were also tendered.

1. In his First Statement, the Applicant accepted that on or about 30 July 2012, a firearm was stolen from his premises. He had left a firearm (category H pistol serial number A995548) unattended and out of his gun safe when answering his front door bell. He continued that on 4 August 2012, five days later, he remembered that he had left it in a drawer but the firearm was now missing, he presumed stolen. After searching the house the Applicant states that he 'immediately reported it to police' but that he was unable to retrieve any CCTV footage as the footage was only kept for about 6 days before being written over.

1. He also claimed that the firearm as stolen was inoperable as the firing pin had been removed when he was working on it.

1. In the relevant NSW COPS reports prepared at the time of the incident it is noted that the Applicant reported the firearm stolen to police on 4 August 2012; that on 6 August 2012 he provided further detail including that it was a Foxtel technician who interrupted him while he was working with the firearm and also that he remembered the firearm approximately 2 weeks later. On 7 August 2012, the Applicant is recorded as having told police he had CCTV footage and was awaiting a technician to download it and also that he had his suspicion that the person who stole his firearm was a tradesman who attended his house. It was also noted in that report that there was no evidence of this. A later COPS report of 29 August 2012, reports the dates that the Applicant was working on his firearm to between 30 July and 31 July 2012.

1. The Applicant's First Statement also set out at some length his position in relation to New South Wales COPS reports involving the Applicant in the Respondent's section 58 documents and why in each case these should not reflect on his character. I have read this material and the Applicant's position in relation to it but do not need to rely on the material to determine this application so make no findings in relation to it.

1. In support of his case, the Applicant pointed to the fact he was a barrister, had undertaken investigations into the NSW Police Armoury on behalf of the Commissioner of Police and into the Royal Australian Navy and remained a 'fit and proper person' for the purpose of the Bar and Navy.

1. In his First Statement, the Applicant also stated that he required the licence for his duties with the Navy, namely maintaining their arsenal of weapons. This was refuted by Commander Peter Armitage in his statement of 9 September 2013 for the Respondent. In his Second Statement, the Applicant gave further evidence that he did 'not take issue' with the statement of Commander Armitage but added that 'having a firearms dealer licence provides him with credibility and a qualification that has assisted him in some duties.'

1. In his Second Statement the Applicant gave evidence that on 29 March 2012 he had a car accident that subsequently caused him short term memory loss which decreased over a six month period and then resolved. He stated that a number of his solicitors were making fun of his memory loss so he saw his GP, Dr Graham Locke who referred him to Dr Sharpe, a specialist.

1. On 27 August 2013, the Applicant filed a medical certificate with the Tribunal from Dr Graham Locke dated 23 August 2013 which stated that the Applicant was:

'... involved in an MVA on 29/3/2012 after which he developed short term memory loss and was referred to Dr David Sharpe, Consultant Neurologist. MRI of brain was normal as was neurological examination. Symptoms of memory loss spontaneously resolved over approx. 4 months'

1. The Respondent, without objection from the Applicant, tendered police records in relation to the accident which recorded that the Applicant attended St George Police Station four days after the accident to report the incident, that there were no injured parties and that no-one was charged as each driver's version conflicted with the other so the police were unable to determine who was at fault.

1. The Respondent tendered medical records of the Applicant, provided on the authority of the Applicant. The authority from the Applicant permitted release of all records held since 29 March 2012.

1. The only records from Dr David Sharpe, Neurologist dated 26 May 2010 and 12 May 2010 and there were no records after that date. There was no record in any of the medical files provided of the Applicant being referred to or seeing Dr Sharpe after 2010. In oral evidence the Applicant asserted that the records must be in error.

1. The records of Dr Graham Locke were also provided. The last record included was of 29 September 2013.

1. Within the records provided by Dr Locke, was a letter from Dr Locke to QBE on 8 July 2013 which referred to the motor accident of 29 March 2012. It made no reference to memory loss, rather to a 'whiplash type injury'. The letter was provided in response to correspondence from QBE of 28 May 2013 stating that it did not intend paying for further physiotherapy services.

1. Various medical reports and correspondence including with QBE in the months following the accidence reveal no claim or treatment of memory loss but only in relation to soft tissue damage or whiplash.

1. The only record of memory loss in the medical files provided was a notation associated with an appointment of 12 August 2012 with Dr Edmond Cummins where the Applicant was seeking treatment for mild pharyngitus. The note appears unrelated and simply reads 'mva last March - forgetful side of car -" No specialist referral is noted in this entry.

1. An entry of 1 September 2012 for a consultation with Dr Graham Locke notes the reason for the contact as "cervical spondylosis' and a referral to Dr Rodney Allen. The report from Dr Allen of 31 October 2012 states that that since the March accident the Applicant had suffered many complaints including 'headaches and memory change'. No further detail, follow up or treatment was noted in relation to this issue.

1. Finally an unidentified handwritten note headed Busuttil with various dates noted at 1/9/12 'Losing memory' and referral to Dr Allen. I accept that these are Dr Locke's handwritten notes although they do not precisely accord with the electronic records provided.

1. The Applicant also has a significant traffic history, details of which were provided in the section 58 documents. They included five speeding offences of more than 10km/h which were not disputed.

Relevant Legislation

1. The underlying principles of the Act are set out in section 3(1) of the Act. These principles emphasise that firearm possession and use is a privilege conditional on the overriding need to ensure public safety. The Act places strict restrictions on the issue and maintenance of a licence.

1. As stated in section 3(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.

1. The objects of the Act are similar in nature, namely:

(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.

1. Section 24 of the Act sets out the bases on which a licence is revoked.

1. Section 24(2)(a) of the Act prescribes that a firearms licence may be revoked for any reason for which the licensee would be required to be refused a licence of the same kind.

1. Section 24(2)(b) of the Act prescribes that a licence may be revoked if the licensee contravenes any provision of this Act or regulation, whether or not the licensee has been convicted of an offence for the contravention, or if the licensee contravenes any condition of the licence.

1. Section 24(2)(c) provides that a licence may be revoked if, in the opinion of the Commissioner, the licensee is no longer a fit and proper person to hold the licence. Section 24(2)(d) of the Act provides that a licence may be revoked for any other reason prescribed in the regulations.

1. Clause 19 of the regulations provides that a licence may be revoked if the Commissioner is satisfied that it is not in the public interest for the person to whom it is issued to continue to hold it.

1. Section 11(3)(c) of the Act prescribes that a licence must not be issued unless the Respondent is satisfied that the storage and safety requirements set out in part 4 are capable of being met by the applicant.

1. Sub-section (7) of that same section allows the Respondent to refuse to issue a licence if the Respondent considers that issue of the licence would be contrary to the public interest.

1. Part 4 of the Act deals with safe storage requirements.

1. Section 39 of the Firearms Act requires that firearms must be stored safely.

1. Section 39 of the Act requires:

(1) A person who possesses a firearm must take all reasonable precautions to ensure:

(a) its safe keeping, and

(b) that it is not stolen or lost, and

(c) that it does not come into the possession of a person who is not authorised to possess the firearm.

(2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section.

1. Section 41(1) of the Act prescribes how category C, D or H firearms are to be stored:

(a) when any such firearm is not actually being used or carried, it must be stored in a locked steel safe of a type approved by the Commissioner and that can not be easily penetrated,

(b) such a safe must be bolted to the structure of the premises where the firearm is authorised to be kept,

(c) any ammunition for the firearm must be stored in a locked container of a type approved by the Commissioner and that is kept separate from the safe containing any such firearm,

and such other requirements relating to security and safe storage as may be prescribed by the regulations.

Relevant Law

1. The Tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct (McDonald v Director-General of Social Security [1984] FCA 57. The Respondent has a discretion to revoke a licence and the relevant provisions do not provide for compulsory revocation, as is the case in some other sections of the Act.

1. Any discretion must be exercised to promote the objects of the firearms legislation and the discretion exercised in clear preference to the public interest rather than an individual's private interests: Burrett v Commissioner of Police, NSW Police Force[2010] NSWADT 210.

1. The Act provides no explicit guidance on how that discretion should be exercised, however the underlying principles as set out in s 3(1) of the Act, make that firearm possession and use is a "privilege that is conditional on the overriding need to ensure public safety".

1. In Cusumano v Commissioner of Police, NSW Police Service[2001] NSWADT 50 at paragraph [23] the Tribunal 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.

1. 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.

1. Responsibilities of licence holders are of a serious nature and licence holders must not only understand and comprehend the guidelines and laws that govern them, they also must act in accordance with them: Wiltshire v Commissioner of Police, New South Wales Police[2005] NSWADT 75.

1. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, the Tribunal said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk", while acknowledging that the Tribunal could never be totally satisfied that a person would not pose any risk to public safety.

1. 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. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.'

1. The concept is invoked in order to "ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors(1995) 131 ALR 657, 681. In this context the public's right to safety must outweigh an individual's privilege to possess and use a firearm or any financial impact that might flow from license loss: Huckel v Commissioner of Police [2008] NSW ADT 347.

1. In Lynch v Commissioner of Police[2006] NSWADTAP 43, the Tribunal Appeal Panel stressed the overriding public interest in the need to ensure public safety in firearm use and possession. Thus the principal issue in considering public safety is whether there is a risk to the safety of the public if the applicant retains the relevant licence: Vella v Commissioner of Police[2003] NSWADT 91.

1. It was made clear in O'Donnell v Commissioner of Police, NSW [2009] ADT 162 that the risk to the public is not removed simply because the firearm is not operational.

1. The intention of the legislature is apparent from the comments by the late Hon J W Shaw, Attorney General and Minister for Industrial Relations, in the Second Reading speech on 25 June 1996:

"The storage requirements are strict as non-compliance can easily compromise safety. For example, if firearms fall into the hands of children or others who are not licenced or trained in their safe use, accidental shootings can occur. And it is crucial to make every attempt to guard against youth suicide and to protect family members from firearms accidents."

Decision

1. The obligation on a licensee to take all reasonable precautions to meet safe keeping requirements is a heavy onus. The Act prescribes how firearms are to be stored and the Applicant did not comply with those requirements.

1. It is not in dispute that the Applicant contravened the safe storage provisions of the Act and a condition of his licence. This was a fundamental breach of the Act.

1. The risk to the public is that there is a stolen firearm in the community. I agree with the Respondent's position that the risk to public safety was serious and that it is not in the public interest for the Applicant to continue to hold a firearms licence.

1. The best case for the Applicant is that he forgot that the firearm was not properly stored, that this was for medical reasons now resolved and that the firearm was inoperable.

1. The Applicant provided no evidence as to the details of his interruption while working with the firearm. There was no detail as to who rang the bell nor were they called to give evidence. In one of his early reports to police the Applicant said that he was interrupted while working with the firearm by a FOXTEL technician but no company records were provided in order to clarify the precise time and day he was interrupted. There was no evidence as to the surrounding circumstances involving the alleged theft of the firearm, for instance which tradesman had been at his house during the relevant period, whether there had been forcible entry or not or whether other items had been stolen. There does not appear to have been any serious attempt to ascertain the whereabouts of the firearm such as providing details of the tradesman attending the house to police at the time. There was also no evidence explaining why if the CCTV footage lasted 6 days it was not available given the Applicant's evidence that he found the firearm was missing on 4 August 2012, having worked on it sometime between 30 and 31 July 2012, for example, within the 6 day period.

1. There was no physical evidence to demonstrate that the firing pin remained in the Applicant's possession.

1. I do not accept the assertion of the Applicant that the medical records in relation to his seeing Dr Sharpe were in error. The records of each of Dr Sharpe and Dr Locke are consistent in that there is no record of the Applicant being referred to Dr Sharpe after 29 March 2012 in either the records from the relevant period of Dr Sharpe or Dr Locke. The only record is in a recent medical certificate provided by Dr Locke. The Respondent asked that the Applicant's medical evidence be treated with caution given that it was not raised before the Local Court on 11 October 2012, by the Applicant in his internal review request of 14 March 2013; nor in his application to the Tribunal of 14 May 2013 nor in his initial witness statement of 23 July 2013. In addition, the medical records provided first raise mention of memory loss on 12 October 2012, some 7 months after the accident. On the Applicant's own evidence this was after the 6 month period within which the memory loss resolved. I note also that the first complaint of memory loss was after the Applicant's firearm licence was revoked.

1. While not determinative, I also find that the traffic offences indicate a continual disregard towards public safety: Tannous v Commissioner of Police [2011] NSWADT 116.

1. Regardless of his profession and other assertions of good character, I am not satisfied that the Applicant appreciates the seriousness of the licensing regime such that he will comply with the safe storage requirements of his firearms licence as is in the public interest.

1. For these reasons, the decision to revoke the Applicant's licence should be affirmed as the correct and preferable one. In view of the finding that it is not in the public interest for the Applicant to retain a firearms licence I do not need to consider whether the Applicant has a genuine reason to hold a firearms dealer licence.

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar

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