Carter v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 55

CITATION:	Carter -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 55
DIVISION:	General Division
PARTIES:	APPLICANT Louise Olga Carter RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	993261
HEARING DATES:	05/04/00
SUBMISSIONS CLOSED:	04/05/2000
DATE OF DECISION:	05/09/2000
BEFORE:	Wilson K - Judicial Member
APPLICATION:	Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Firearms Act 1996
CASES CITED:
REPRESENTATION:	APPLICANT K Hawes, barrister RESPONDENT J Tunks, solicitor
ORDERS:	The decision to refuse the Category A and B Firearms Licence is affirmed

Brief History

1 The Applicant, Louise Carter, manages a property known as Camp Santo at Barraba in New South Wales.

2 She took over the management of this property after the death of her mother and has been managing the property for the last few years. She applied for a Category A and B Firearms Licence on the basis of having a genuine requirement for primary production purposes.

3 Upon adjudication of the A and B application and the supporting documents of the Firearms Registry, on 8 April 1999 she was issued with a Category A Licence but the Category B Licence was refused because she had not demonstrated proof of special need to possess Category B firearms.

4 Subsequently and following a further mandatory background check, it was brought to the attention of the authorities that the Applicant had been subject to a firearms offence, an interim Apprehended Violence Order and there was information obtained by the Barraba police of information concerning the Applicant’s alleged intemperate habits and irresponsible use of a firearm.

5 Following re-adjudication at the Firearms Registry, the Category A and B applications were subsequently refused.

6 The events which relate to the abovementioned matters all occurred in 1997 and 1998 and came to light to the Tribunal through a series of statements which were tendered into evidence. The circumstances surround Ms Carter and her sister and other associates.

7 For the purpose of this decision it is not necessary to detail all of the events which are alleged to have occurred.

8 The main thrust of the behavioural complaints against the Applicant is that during this period of time she was engaging in threatening behaviour and was regularly drinking to the stage that she was becoming violent in language and activity. She explains this by saying that she was under stress at the time and she denies much of what is alleged against her. The circumstances of the evidence are such that there is a tale of difficulty emerging between the Applicant and her sister and those persons who were working around the property at the time and visiting. I will come back to the evidence in terms of its relevance to this determination later in this decision.

The Law

9 Section 11(4)(c) of the Firearms Act 1996 requires that the Commissioner of Police must not issue a licence to a person if the Commissioner has reasonable cause to believe that the applicant for such a licence possesses intemperate habits or is of unsound mind.

10 Also, section 11(3)(a) of the Firearms Act 1996 requires that the Commissioner must not issue a licence unless he is satisfied that the applicant is a fit and proper person to be issued a licence and can be trusted to have possession of the firearm without danger to public safety or to the peace.

Evidence

11 Although there were a number of statements forward in this matter, the principal evidence in terms of its contestability relates to that given by the Applicant on the one hand and Caroline Hillier on the other. The severity of the evidentiary matter under consideration relates to actions by the Applicant in not properly looking after a firearm and at one point allegedly discharging the firearm after threatening that she was going to kill herself.

12 These events related to one evening which involved Ms Carter, her sister and Ms Hillier. Ms Hillier’s evidence is that after an intemperate display at her sister’s cottage, the Applicant had left and gone back up to the main homestead. Ms Hillier and the Applicant’s sister had heard a gunshot discharged and had taken a vehicle up to the main area and, according to Ms Hillier, she had seen the Applicant standing by the meat shed with the gun in her hand. Ms Hillier said she alighted from her vehicle and immediately struggled with the Applicant and took away the gun.

13 The Applicant’s version of this event is somewhat different and she says that she was sitting on the verandah with the gun by her side when Ms Hiller and the sister arrived.

14 Both witnesses in relation to this event were tested in cross-examination. The evidence of Ms Hillier was left unshaken. The evidence of the Applicant did not show consistency nor could the Applicant explain, in any logical way, why Ms Hillier would be fabricating her evidence against her. The Applicant was given many opportunities to indicate why such a fabrication should occur.

15 It is clear from the evidence that at this period of time Ms Carter was under considerable stress. However, there are a number of incidents, apart from this main one, which created concern and, in fact, this matter came to light because a number of people were concerned about the Applicant’s behaviour to such an extent that they brought the matter to the attention of the police.

16 In terms of the evidence in relation to this matter, having heard from the Applicant and Ms Hillier, the Tribunal is of the view that the evidence of Ms Hillier is to be preferred. The Tribunal does not accept the Applicant’s version of events and considers that the Applicant was having difficulty coming to terms with the reality of her behaviour at that time and was colouring her evidence in such a way as to present the best possible light and not sufficiently able to explain the differences or the distinctions between her evidence and that of Ms Hillier.

The Issues

17 The question in this matter is whether the Applicant, on the basis of her behaviour, is a person who should be entitled to hold a firearms licence. The decision under review was taken on the basis of the evidence presented about the behaviour of the Applicant and the Commissioner and the officer conducting the internal review. Both formed the view that it was not in the public interest for the Applicant to hold a licence for a firearm.

18 The Tribunal has come to the same view. The Tribunal does not accept the explanations given by Ms Carter, whilst being sympathetic with her personal circumstances at the time. It is clear that there was a genuine concern expressed by a number of the parties around Ms Carter at the time and the Tribunal believes that Ms Carter is still in some denial about the events at the time which could have been explained by an acceptance of her particular state of anxiety and distress.

19 The Tribunal was unable to find any reason why the witnesses would be fabricating their story despite giving the Applicant many opportunities to deal with this aspect of the matter.

20 The Tribunal agrees with the conclusion of the internal review assessment that possession and use of a firearm whilst intoxicated, is in direct conflict with one of the fundamental basic safety rules applied to responsibility firearm ownership.

21 Given the background and circumstances of this matter, the Tribunal cannot be satisfied that these events will not re-occur or that the Applicant will comply with all the appropriate guidelines in terms of use and control of the firearm.

22 The Applicant indicated that she required the firearm licence for the purpose of exterminating vermin and other animals on the property. On the basis of the evidence it is clear that there are other people who work on this property and these activities will be able to be carried out by others.

Determination

23 The Tribunal determines that the decision by the Commissioner of Police to refuse the grant of a Category A and B firearm licence to the Applicant is affirmed.